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House of Commons Hansard
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Public Bill Committees
30 June 2020

Counter-Terrorism and Sentencing Bill (Third sitting)

The Committee consisted of the following Members:

Chairs: Steve McCabe, † Mr Laurence Robertson

† Bacon, Gareth (Orpington) (Con)

† Butler, Rob (Aylesbury) (Con)

† Cadbury, Ruth (Brentford and Isleworth) (Lab)

† Charalambous, Bambos (Enfield, Southgate) (Lab)

Cherry, Joanna (Edinburgh South West) (SNP)

† Courts, Robert (Witney) (Con)

† Cunningham, Alex (Stockton North) (Lab)

† Dines, Miss Sarah (Derbyshire Dales) (Con)

† Everitt, Ben (Milton Keynes North) (Con)

† MacAskill, Kenny (East Lothian) (SNP)

† McGinn, Conor (St Helens North) (Lab)

Mak, Alan (Havant) (Con)

† Marson, Julie (Hertford and Stortford) (Con)

† Owatemi, Taiwo (Coventry North West) (Lab)

† Philp, Chris (Parliamentary Under-Secretary of State for Justice)

† Pursglove, Tom (Corby) (Con)

Trott, Laura (Sevenoaks) (Con)

Kevin Maddison, John-Paul Flaherty, Committee Clerks

† attended the Committee

Witnesses

Mark Fairhurst, National Chair, The Professional Trades Union for Prison, Correctional and Secure Psychiatric Workers

Professor Ian Acheson, Senior Advisor, Counter Extremism Project, The Tony Blair Institute for Global Change

Professor Andrew Silke, Professor of Terrorism, Risk and Resilience, Cranfield Forensic Institute, Cranfield University

Public Bill Committee

Tuesday 30 June 2020

(Morning)

[Mr Laurence Robertson in the Chair]

Counter-Terrorism and Sentencing Bill

The Committee deliberated in private.

Examination of Witness

Mark Fairhurst gave evidence.

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Our first witness is Mark Fairhurst, national chairman of the Professional Trades Union for Prison, Correctional and Secure Psychiatric Workers. Mr Fairhurst is participating via Zoom this morning, and I think it is just on audio, so it might be slightly tricky. Please bear with us. Do we have Mr Fairhurst?

Mark Fairhurst: Good morning.

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Good morning. Would you briefly just introduce yourself and your organisation, please?

Mark Fairhurst: I am national chair of the Prison Officers Association. We represent prison officers in every prison in the United Kingdom and secure psychiatric services as well.

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Thank you very much. We will start with questions. We have until 9.55 am, when we have to end the session bang on the dot. First, I will ask the Minister if he would like to ask some questions.

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Q 142 Mr Fairhurst, good morning. Let me start by thanking you for joining us and giving evidence this morning. I also thank you and all your members on behalf of the Home Secretary and the Lord Chancellor, and I am sure the whole House of Commons, for the extraordinary dedication that your members show in discharging their duties in prisons up and down the country.

Mark Fairhurst: Thank you. That is most welcome, and it will be appreciated.

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Q Good. May I start by asking about the monitoring and risk assessment that goes on in prisons? The reason I am asking is that, as you probably know, the Bill provides for serious terrorist offenders to stay in prison for the whole of their prison term, without the prospect of early release, so it is very important that we monitor and assess the risks during that sentence. Can you talk a bit about the work that is done in prisons to monitor and assess the risk of prisoners on an ongoing basis, both during the sentence and in the run-up to their release?

Mark Fairhurst: Sure. It is very much intelligence led and risk based. Throughout a TACT offender’s sentence, they will be allocated a key worker officer, who will get to know them and help them through their sentence plan. During that sentence plan, they will be offered the opportunity to address their offending behaviour, and they will be offered two deradicalisation programmes while they are in custody.

Staff will observe their behaviour on the wings, and who they mix with, and they will submit intelligence reports on a regular basis, specifically if they have concerns around radical behaviour while an offender is in custody. That will then lead to a multi-agency approach, and when the offender is coming up to their release point with the Parole Board, we put in place MAPPA arrangements. We will have reports from prison officers, psychologists, psychiatrists and healthcare, and we will liaise with security services, and a full picture will be presented prior to that person’s release.

As we have just witnessed with the Streatham attacker, he left prison as a high-risk, category A offender. The intelligence and the risks that we highlighted to the security services led to him being monitored 24 hours a day, because he was a significant risk to the public. When you look at it in that vein, what we did was appropriate and led to an atrocity being avoided because of the swift reaction. So I think we have got the risk part of the sentence planning really sufficient while in custody.

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Q Let me congratulate your colleagues on the work that they did in identifying the Streatham risk. Interestingly in the Streatham case, the release point was automatic; there was no Parole Board involvement. Just to be absolutely clear, all of the risk assessment that you have described—the MAPPA, the psychologists’ reports and everything else that was then passed on to the police—can and does happen, even where there is no Parole Board involvement in the release, as was the case in Streatham and as would be the case under the new sentences we are talking about.

Mark Fairhurst: Yes, that is correct, even—[Inaudible] —reached the halfway point, because legislation dictated that we had no option but to do that. The intelligence we had gathered on his antisocial behaviour and radical behaviour in prison led the Security Service to believe that they were right in following and monitoring him upon his release so extensively. That would be the case in this situation as well. I believe that, with this Bill, at the two-thirds point, people must go through a parole process.

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Q Well, no. For some offenders that is the case, but the most serious offenders will serve the entirety of their prison sentence in prison. Some will get Parole Board appraisal at the two-thirds point, but under this new legislation the most serious will spend the whole sentence in prison, which leads me on to my next question. Some people have suggested that without the prospect of Parole Board early release, it might be harder to control prisoners’ behaviour, because you have not got the carrot of early release that can be offered. Is that an analysis you share, or do you think that there are other ways of controlling prisoner behaviour in prison, even where there is no prospect of early Parole Board release?

Mark Fairhurst: That is a really valid point, and these concerns have been expressed from the frontline. I can give you an example. At the moment, if we are going to extend the sentences, and we are going to insist that the most serious offenders spend the entire sentence in prison, that will increase headroom in the high-security estate. Also, it incentivises people not to behave correctly or to go on deradicalisation courses.

For example, at the moment, we have funding, and we should have open three separation centres, but we have only got one, with a small number of the most influential and serious terrorist offenders, in play. That leads to serious concerns from my members who are in that separation centre at HMP Frankland, because we are now in a situation where the prisoners who are housed there are not engaging with staff whatever. We have had a really violent assault on a prison officer, and there is nowhere to transfer those prisoners to if they show violence towards staff or if they become a security risk. That is why we need more separation centres open, especially with the implementation of this Bill. More concerningly, there is now no incentive for good behaviour.

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Q Clearly, those sentences are going to be served in full for reasons of public protection. You would probably agree that it is very hard to assess the risk of these kinds of terrorist offenders, particularly if they pretend to comply with deradicalisation programmes, but do not really mean it. Given that we are going to have these sentences served in full—it is a rather similar concept to automatic release at the halfway point, with no Parole Board involvement, and, of course, the majority of offences currently have automatic release at the halfway point with no Parole Board involvement—what measures do you think we should put in place to ensure good behaviour for those prisoners with no Parole Board early release? You mentioned additional separation centres, which is a very good idea. Can you talk the Committee through other steps that might be taken to ensure good behaviour by prisoners where the Parole Board carrot does not exist, whether that is SDS offenders currently or these new offenders in future?

Mark Fairhurst: I think the separation centres are the key. We need three open because, as you are all aware, the rise of the far right is a real concern for the security services. It would be unwise to put high-profile far-right extremist offenders in the same separation centre as Islamist extremist offenders, with staff stuck in the middle. That is the key point here.

To come to your point, what can we do to incentivise people to take part in deradicalisation courses if they know they are going to serve their full sentence? All we can do on the frontline is our best, and that is to try to engage with people, get to know them and encourage them to take part in deradicalisation. We involve imams and community groups to come in and speak to these people. We just keep chipping away, because it is down to the individual. Only the individual can change. We can encourage them to change. We can give them the ideas to change and the courses to help them change, but it is down to the individual. The biggest fear from the frontline is, “If I know, as a terrorist offender, that I am going to serve my full sentence, and I am not going to get any chance of early release, I might totally disengage, and that might reinforce my radical views, which leads me to a disruptive life inside.” That is the biggest fear.

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I understand, although, of course, if they step over the criminal threshold, they will be prosecuted. Equally, there is no value in people pretending to engage with deradicalisation programmes just to secure early release, so we need to be mindful of that risk as well. Thank you, Mr Fairhurst.

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Thank you. We move on to the shadow Minister, Alex Cunningham.

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Q Good morning, Mark. I want to reiterate the Minister’s thanks to the people out there who are working so hard—your colleagues in the prisons. I have a prison in my constituency, and I get an insight into the pressures that are facing not just prisoners and their families but prison officers and their families as well.

You recently made a film called “The forgotten service”. In that film, you talk about the lack of support for prison officers, particularly around mental health, and there are other issues as well. Somebody responded to that film by saying—I hope the Chair will forgive the swear word in the middle—

“I left 3 months ago from the high security estate, after 18 years I had seen enough. Too much political bullshit, ridiculous workload, rubbish managers causing dramas, and good managers having to pick up all the pieces”.

Few would disagree that the main measures in the Bill are right, but what needs to happen in prisons to ensure that they can cope with the ramifications of it?

Mark Fairhurst: Mental health is a massive issue at the moment. We are getting more and more members suffering from PTSD. When you take the sentiments in that statement from that member of staff who left the service, I can echo every one of those.

What you have got to understand is that staff on the frontline are doing an absolutely fantastic job. They will monitor individuals’ behaviours and make a referral. The current system goes through a three-stage referral process, with the ultimate decision being made to remove someone from the main population to a separation centre at stage three. Very few of those referrals from staff get approved, because of the red tape and the legal challenges. It seems to staff on the frontline that the legal challenges are the major stopping point and buffer to removing people, who are a real danger in the normal population, to a separation centre.

You will eventually have complete apathy from staff, who keep referring people they think should be separated from the main population and keep getting knocked back. That has a knock-on effect, because, day after day, they have to deal with people who are threatening them, who are underhand, who are trying to radicalise people. Day after day, they know that if they make a referral, there is a good chance that that person will not be moved from the main population.

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Q Yes, but what actually needs to happen in prisons to overcome some of these challenges that officers are facing?

Mark Fairhurst: You need mental health support. You need some sort of counselling service on site five days a week during the working week. You need training to help staff cope, to spot the signs of radicalisation and danger. There is good training on offer if you work in a separation centre, but not for the main body of staff who work on the wings. You need to recognise that staff are under stress, so you need to rotate their jobs so that they are not in a high-stress situation year after year. We need more staff on site to assist us as well, to help prevent trouble breaking out.

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Q That is helpful, Mark. I am sorry to keep cutting across you, but we have not got very much time. I want to talk about capacity. In answer to the Minister, you mentioned that a terrorist offender could be offered one of two radicalisation programmes. What is capacity like in the system for providing that sort of programme?

Mark Fairhurst: Spaces in the high-security estate, where most TACT offenders are housed, are at a premium. We have very few spaces at all in a high-security estate. We do have spaces on courses for deradicalisation programmes, but they are not mandatory; the offender has the choice of whether they wish to attend one. That is another issue: do we want to make these courses mandatory, and where is the incentive to go on a course if you know you will not be released early?

If we are going to increase sentences, I suspect that we will need extra headroom. We will certainly need the other two separation centres open, because of the rise of the far right, and we will certainly have to think about a high-security prison—perhaps specifically to house terrorist offenders. Although there are only approximately 230 in play at the moment, it may be an idea to separate them totally.

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Q Okay. The Minister talked about the fact that the Parole Board would not have any role to play in the future for these determinate sentences. Would you like to comment on that? Will there be a full set of expertise available to prepare society and those who will deal with prisoners outside, if the Parole Board, with its expertise, does not have a role?

Mark Fairhurst: I would like the Parole Board involved more, because it is an independent scrutiny body, but the measures we have in place at the moment are adequate. They work really well with the intelligence gathering from the shop floor, with the assessments and with multi-agency experts, including the security services. I do not think there is much more we can do, but I have no objections to the Parole Board being involved more as an independent scrutiny panel.

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Q That is helpful. I have one more question. Young people will be subject to the same legislation as older, more mature people. Do you have any thoughts on that with regards to rehabilitation and their future?

Mark Fairhurst: This is another issue. If you look at people under the age of 18 and at female offenders, do we have the capability to house them in a secure environment, or are we going to throw them into the adult estate? Throwing a young person into the adult estate due to the nature of their offence could have an adverse effect, so we need to come up with programmes for young offenders who commit terrorist crimes. I do not think we have that capability at the moment, but rehabilitation of a young person has more chance of success than rehabilitation of someone who is seasoned and radicalised. I feel that we have a big opportunity to make a difference in that field.

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That is very helpful. Thank you.

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Q Can I come back to the issue of incentivisation or early release? Do you believe that that is actually important, and in what way does it impact on your officers’ employment?

Mark Fairhurst: I do think it is important to have an incentive for people to engage with rehabilitation and improve their behaviour. You must also consider that when terrorist offenders are released, they rarely reoffend. Only about 5% to 10% reoffend, compared with 50% to 60% of the general population. I understand that those who do reoffend are high profile and commit atrocities, but we are looking at a cohort that, on the whole, has a 90% success rate, because only 10%—max—reoffend. We need to take that into account when we are thinking about the future of the offender—not only when they are in prison and what we offer them there, but when they are released. I do not think anyone has mentioned that yet.

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Q In Scotland, we have a particular order called the order for lifelong restriction. That will be trumped by a mandatory sentence under the Bill. The order for lifelong restriction allows for release at any stage, but for recall on cause shown. Do you think that the order for lifelong restriction has merit?

Mark Fairhurst: I like the sound of that, Kenny, I really do, because it gives people an incentive and gives them hope that they will be released before serving their full term, but they are also under no illusion that they will be monitored in the community, and if they commit an offence, they will end up back in prison. I like the idea of that. As you know, Scotland has a lot of good practices that we could adopt in England and Wales, and I ask people to seriously consider that element.

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Q Given the importance that appears to be getting put on polygraph tests, which are basically unknown within the Scottish jurisdiction at present, what training, if any, is given to prison staff?

Mark Fairhurst: None whatsoever, Kenny. That would be down to some independent body responsible for performing polygraph tests. That is another skill that I would not mind staff getting trained in—it would be another string to our bow. How often is it going to get used? Is it going to be a regular occurrence? All these issues need to be ironed out, but I am not against the polygraph test and I am not against prison staff being trained in polygraph testing. However, I would guess that scrutiny panels would say that prison officers are not independent because they work with the offenders, so they would want a totally independent body to facilitate that.

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Q Finally, given the importance being put upon separation centres, which do not, so far as I know, exist in the Scottish Prison Service, have you any idea how your colleagues north of the border are expected to cope if a great deal of weight is being put upon them?

Mark Fairhurst: This is the major concern from my colleagues at the only separation centre that is open, in Frankland. We have had one serious assault, and that member of staff had to be a moved away from the separation centre, because there is nowhere to transfer the prisoner. Once that prisoner goes to court, if he is convicted of that assault on the member of staff, where do we transfer him to? We do not. We keep him at Frankland.

We have got a Muslim member of staff at Frankland who is being moved from the separation centre because the terrorist offenders in that separation centre have threatened him. That is not right—staff are being penalised for doing their job because we do not have the capability to transfer violent and disruptive prisoners to another separation centre. We have funding for three, but we only have one open because of the red tape and the legalities of moving people into a separation centre, because apparently, if you have three or fewer prisoners in a separation centre, it is classed as segregation. Well, you know what? Staff on the frontline are not interested in how you term things; they are not interested in the legalities. They are interested in you keeping them safe and giving them the tools to do their job, so let us get these other two centres open and let us respect staff safety.

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Q Mr Fairhurst, let me echo the praise and the credit for your members that has already been mentioned. As a former non-executive director of Her Majesty’s Prison and Probation Service, I met many of your members, who do a tremendous job. What is your view of the current rehabilitation and deradicalisation programmes for terrorist offenders?

Mark Fairhurst: I think we need a full review of those two courses, simply because of the last two atrocities, where both offenders had attended one of those courses. One was, in effect, a poster boy for one of the courses. I would like to see a full review, because what do we actually class as a success? Do we class success as offenders attending and passing those courses, or do we class as success the offender who attended those courses being released and not committing further atrocities? We need to look internationally at what is on offer for terrorist offenders, certainly around Europe, if not the world. We really need to review what we class as success, because I am not sure that those two courses offer what they should.

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Q On that basis, and given that it is accepted that the courses are certainly not perfect, is that not a strong argument for having longer sentences, with the offender required to spend the entire period in custody?

Mark Fairhurst: That depends on what you are going to offer in the community. Are you going to offer them support services with charitable groups, or groups that specifically deal with terrorist offenders, which meet them at the gate, take them to accommodation, maybe get them out of the area where there is peer pressure, engage with Muslim communities—there is a lot of shame involved with terrorist offenders, who want to reform when they go back into their communities—and get imams involved? Are we going to invest in that side of things and incentivise people while they are in prison to attend these deradicalisation programmes, in the knowledge that there will be massive support systems in play for them when they are released, or do we keep going along the same path, where offenders are released with not much support in place, and if they are a risk, they are monitored? There is still a lot of work and research to do. We have some really intelligent people getting interviewed this morning, with some really positive, radical ideas that need to be taken on board.

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We have five minutes left. I call Ruth Cadbury, and then Sarah Dines.

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Q It is a pleasure to serve under your chairmanship for the first time, Mr Robertson.

Thank you very much for your contribution, Mr Fairhurst. In response to the last question, you covered Muslim terrorist offenders. You have talked about deradicalisation, incentives to go straight and the success rate—the small percentage of terrorist offenders who reoffend. Do those figures and your general thoughts apply also to the growing number of far-right terrorists we are now seeing coming into the criminal justice system?

Mark Fairhurst: This is a completely new dynamic, but let me tell you this: if we have prolific far-right extremist offenders in the general population, they will be able to influence and recruit far more prisoners than Islamist extremists ever could. They will get more support. They will be a similar threat to what IRA prisoners were. They will have a lot of contacts in communities. They will be able to get staff details and addresses, and be more of a threat. That is why it is absolutely essential that we open the other two separation centres. What we do not want is, first, a situation where you have far-right extremists in the same centre as Islamist extremists or, secondly, a situation where a prolific right-wing extremist offender is recruiting in the general population and causing chaos. We really need to rethink this.

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Q Is the potential for deradicalisation among those prisoners there in the same way as it is for those prisoners you talked about earlier?

Mark Fairhurst: Yes, without a doubt. At the moment, we only have these two programmes: healthy identity and desist and disengage. We need to look at alternatives, because the far right is a completely different dynamic. It has not really raised its head above the parapet in our prisons at this moment in time, but I can assure you that it is on its way, because it is on the rise.

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Q Mr Fairhurst, you touched on polygraph testing, which is a new tool that would be used on licence under clause 32. Do you think it would be a useful tool, delivered not by prison officers but by specialist providers, to avoid the situation that you highlighted, where people are released, having undergone a rehabilitation programme—a deradicalisation programme—that has clearly failed? Is the polygraph therefore going to be a useful, essential tool?

Mark Fairhurst: Yes, I agree with that. It will be an essential tool, but it would also be essential if we had an incentive to release people early, and prior to their release they were given a polygraph and asked about their future intentions. That is something else to consider. I agree: it is very useful. I have no opposition to it.

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So you agree with clause 32? That provision would be useful?

Mark Fairhurst: Most definitely, yes. I would not like to see it removed.

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That is the end of that session. Mr Fairhurst, thank you very much for joining us.

Mark Fairhurst: You are very welcome. Thank you for your thoughts about frontline staff. We appreciate your support. Thank you very much.

Examination of Witness

Ian Acheson gave evidence

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We have until 10.25 am for this session. Professor Acheson, thank you very much for joining us. Would you like to introduce yourself and your organisation briefly, please?

Professor Acheson: My name is Ian Acheson. I used to be a frontline prison officer, so I would like to be associated with the comments that were made this morning. They are the unsung heroes of our criminal justice system, often overlooked and certainly undervalued. They do an amazing job.

I worked in the Prison Service as an officer and then as a governor. I left it and joined the Home Office via the Youth Justice Board, where I was the senior civil servant responsible for the Contest strategy, our counter-terrorism strategy, among other things in south-west England. After that, I joined the Equality and Human Rights Commission as the chief operating officer and I left public service then. I now work for a variety of organisations, including the Counter Extremism Project, which is an international non-profit organisation that looks at ways of countering violent extremism. I am also a visiting professor at Staffordshire University School of Law, Forensics and Policing.

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Q Good morning, Professor Acheson. Thank you for taking the time to join us this morning. It is useful for us to hear from experts such as you. You have clearly done lots of work in the area of deradicalisation and counter-terrorism counselling and work. Could you describe to the Committee the techniques that you think are most effective in a prison setting to achieve the objective of deradicalisation?

Professor Acheson: The Prison Service, as we are all aware, is under a great deal of pressure, certainly in England and Wales. The backdrop is what I would describe as a significant decline in all sorts of metrics of good order, discipline and control across most, but not all, prisons. That provides a backdrop of instability, which is germane to your question. We need to have stable, well-run prisons with suitable and sufficient numbers of staff present to set the tone, to be able to control the environment and certainly to be able to spot and intervene early when they see signs of extremist-related behaviour, whether from prisoners imprisoned under terrorism legislation or others who look like they are being drawn into violent extremism.

One of the problems that I have with the system is that we do not seem to have an assertive and challenging approach to managing terrorist prisoners, or ideologically motivated prisoners, from the start of their sentence to their last day in community supervision. The system is fraught with problems of handovers between the Prison Service, the Parole Board and the probation service. I do not believe that that system of managing a particular set of prisoners with some unique characteristics is the right way of proceeding.

I would like to see a dedicated unit, if you will—I recommended that in my 2016 report; unfortunately it was not one of the recommendations that was taken forward—that manages offenders end to end, from literally the first night in custody to the last night of community sentence, and that has a detailed biographical understanding of a prisoner. That involves specialists, psychiatrists, theologians and various people intervening but managing that prisoner all the way through into the community.

Mark Fairhurst mentioned the importance of reintegration after custody for terrorist offenders. In some respects, integration is the key challenge as well. At the moment, the state has a monopoly on the management of terrorist offenders after custody in terms of MAPPA, where the probation service, the police and the Security Service manage the security aspects. There are no other organisations, apart from some voluntary organisations that are involved in the desistance and disengagement programme. We do not have any community involvement in the resettlement of terrorist offenders and their reintegration in the community. That is a big issue that needs to be addressed.

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Q You said that the engagement needs to be more assertive and used that word at the beginning of your answer. When you say “assertive”, what do you mean?

Professor Acheson: In relation to terrorist offenders, for example, the situation feels to me as though, as long as they are not creating any problems, they are largely left alone. When they start to create problems, there are alternatives, which could include segregation, administrative penalties or incentives and earned privileges penalties. In extremis, if they are subversive—this was one of my recommendations that was taken forward, as you might be aware—separation centres exist for them.

We need to make sure that we look at it from the sentencing point. To illustrate it like this: what is really important is that we have got some sort of baseline measurement for a judge, after a conviction, to inform sentencing. We do not have that at the moment. We do have pre-sentence reports, I understand that, but we do not have a sufficient level of granularity or expertise put into that plan, which is the baseline measurement of dangerousness, for any terrorist offenders.

As you are aware, they are a very heterogeneous group. They resist being compartmentalised. We have people who murder people who are losers and we have people who murder people who are university graduates. There is an enormous variety and it resists generic sheep dip-style approaches. I am afraid I would categorise healthy identity intervention as one of those processes that I do not think works. We need to go back to having this baseline measurement at the start, managed by one unit all the way through that is frequently looking at whether dangerousness has increased or decreased, and devising and managing interventions to meet that individual pathology, that individual terrorist profile.

I am aware that Lord King has said in Parliament that you are recruiting some prison imams to take part in ideological interventions. That is very good news—so, theological, psychological, family-related and substance misuse. It is important to look at these people as individuals if you want to reduce their dangerousness. It is important to look at that dangerousness as early as possible, with the right people managing it all the way through.

As I have said before—I do not want to repeat myself—I think the system is far too fractured at the moment. We are only talking about 220-odd offenders at the moment, with the Government making what I think is the fairly optimistic estimate of an extra 50 as a result of the new legislation. It will increase because of the police and security services’ ability to spot people further and further upstream from actual terrorist incidents. That number will increase, but it is still a manageable number and it is still worth while investing significantly.

I am not a great fan of the statistic that is bandied about that says that only 5% to 10% of terrorist offenders reoffend after custody. That is a proven reconviction for a terrorist offence. That is a very lazy proxy for damage. If you apply that to our number of offenders, that means there are another 11 Sudesh Ammans in the system. That is completely intolerable and unacceptable. I do not think we should be comforted by the fact that some research is showing us that recidivism is fairly low. There is research in Europe that says that the period immediately following release of a terrorist offender is the period of most risk. That does not fit the profile of the Westminster bridge attacker, who waited for 11 or 12 months before something mobilised him into murdering two young people. We have to apply a very individualised, very assertive and challenging approach.

You talked about incentives and so on earlier with Mark Fairhurst. I think that might be looking at it in slightly the wrong way. I have a bit of a problem with the philosophical and organisational fitness of the Prison Service, the probation service and the Parole Board to manage these particular offenders. They are ideologically inspired offenders. We must insist they adopt civilised values, not look at it as a thing that needs to be rewarded. That is very difficult. I am not suggesting it is simple.

Just to avoid any misunderstanding, in my specification for separation centres, I specifically designed a regime—and suggested this to the Prison Service—that was not punitive and which was, as I have described it, a humanised approach. We cannot talk to dead terrorists; we can talk to live ones. We can find out an enormous amount. We can influence them an enormous amount with the right skills and the right staffing to be able to have a good sense of how dangerous they are and influence them towards disengagement, or desistance if disengagement is not possible.

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I suspect that your evidence is extremely useful to the Committee, but I have to ask for slightly shorter answers, please.

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Q Mark Fairhurst suggested that the radicalisation programmes are far from fit for purpose. You have suggested that yourself. You have also talked about the various different issues that a prisoner may be facing. Can you develop a little bit more what needs to happen? You talked about investing significantly, so there must be insufficient resources in the system. What actually needs to happen?

Professor Acheson: The amount of skill and training required to staff separation units—we know that only one out of three is running at the minute—is significant. If you are putting our frontline prisoner-facing staff, who will have the most influence and impact on individual terrorist offenders, in that sort of environment, it will take a huge amount of training, not only in the skill to deal with those prisoners, but in psychological resilience and so on. We know what seems to work in relation to violent extremism across Europe: it is the development of long-term, high-quality relationships, which are pro-social and expand far beyond the prison gates. That is very expensive, and it takes a lot of support to put that in place and to maintain it.

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Q We have talked about the fact that the Parole Board will not have a role for prisoners who have a determinate sentence. Would you like to comment on that, because of the level of expertise that they bring to that package you were describing earlier?

Professor Acheson: This is not a very auspicious time to talk about the Parole Board, but it is very good at managing ordinary offenders, and statistics would bear that out. I have said this earlier, and I do not want to repeat myself, but I do not believe the Parole Board is philosophically or organisationally the best suited to managing that risk. It is very good at managing ordinary offenders, but we have a new cohort coming through of profoundly different, ideologically motivated offenders, either through Islamism or through extreme right-wing philosophies, and we probably need a different, multi-agency approach to managing that risk all the way through the system.

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Q During these evidence sessions, I have been concentrating on the fact that young people will be treated the self-same way as older prisoners in relation to determinate sentences. Do you have a view on that, particularly as the immaturity of a younger person may lead them to act in a particular way, but their opportunity for rehabilitation is probably greater?

Professor Acheson: I agree that the potential is greater, but I think sometimes we confuse vulnerability with dangerousness, and we use that in relation to young people and women. We have some very dangerous extremist offenders in either camp—very few of them, but we do have a small number—and we must not conflate the two.

In general terms, and I speak as somebody who worked for the Youth Justice Board, we need, where we can, to ensure that the disposals that are at the judge’s discretion, including detention and training orders and some non-custodial interventions, are still considered heavily before penalising people who, as you have said, may be just immature.

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Q I watched a film with you in it, where you were talking about the circle of trust and accountability. Would you like to develop that in a quick answer?

Professor Acheson: The circle of trust and accountability is a system devised by Mennonites, I think, in Canada, where one of their community had been convicted of a high-profile sex offence and was returning to the community. That group of people said, “How can we welcome this person back into our community”—because that was the Christian ethos—“but also keep our kids safe?” They devised a system where there was community involvement in a circle around the individual, which managed to help him to reintegrate properly but protected the community as well.

I am very keen on that idea being replicated for terrorist offenders after release in the community, as a parallel to the state’s responsibility to keep people safe. In other words, there could be a community response like that one, where we are getting members of the community involved in protecting national security. We miss a trick in this country—research backs this up—in that we do not, particularly in relation to Muslim communities, enlist ordinary members of the community who have some standing and some credibility in supporting the reintegration of terrorist offenders.

Those offenders will suffer many of the same challenges that sex offenders do: shame, difficulty in finding somewhere to live and difficulty in finding something to do. All those things would point towards further offending and delay disengagement, so I am very keen on the concept being looked at in relation to released terrorist offenders here.

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Q We are a long way from anything like that happening in the UK.

Professor Acheson: I think we probably are. We are outriders in that respect in relation to the rest of Europe, which does heavily involve non-governmental organisations and community groups, for example, in reintegration. We have seen that in the Molenbeek suburb in Belgium, which is responsible for producing quite a number of jihadis, where the community has been involved and works in partnership with, although separate from, the statutory bodies whose first priority is safety and security. That is a necessary but insufficient way of dealing with the problem.

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Q Mr Acheson, you are well sighted on the Scottish system with the Risk Management Authority and the order for lifelong restriction. You talked about good regime designs not being punitive, but the imposition of a significant sentence without the opportunity for early release must appear to be so. Do you think that the order for lifelong restriction is perhaps the better option for many who are convicted by a court, rather than a mandatory sentence?

Professor Acheson: I am not sure which would work better. I am certainly on record as saying that I support the Government in much longer sentences for terrorist offenders, primarily because it is a unique opportunity to incapacitate an ideologically motivated offender and bring services around that individual. Those services need to be extended through the gate and into the community.

We need to focus on this as a national security issue that we need to deal with in a different way, so lifelong restriction may have its merits. The key thing is that we make sure that support and control exist around offenders who are being released and who may go back into extremist offending, so that in whatever way we apply restrictions on their liberty—including TPIMS, for example—we do it in a proportionate way. There is absolutely an argument that punitive measures increase alienation. I think that might be a trade-off, in some respects, for people with whom we may never be satisfied that they are safe to release. We have to embrace the idea that there will be a few offenders who must be kept in prison indefinitely, because they either cannot or will not recant a hateful ideology, and they have the means to mobilise that into violence in the community.

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Q I have one final question. Scotland does not have a regime operating polygraph tests. In your experience, how do you think Scotland could establish one, regulate it and be able to check against delivery?

Professor Acheson: I must say I am not a great fan of the polygraph solution. Polygraphs are a very good way to demonstrate a physiological response to nervousness. Most people who take polygraphs are going to be nervous, so it is a very inexact science. I think it is probably slightly better than tossing a coin.

I am much more interested in using technology—wearable technology, in particular—with released terrorist offenders that will give us biodata and geographical data to allow us to spot when somebody is starting to re-engage in terrorist offending in all sorts of ways. It would create a geo-fence that restricts their movements and give real-time information on how that person is. I am not at all suggesting that technology is not useful here. I think we need to have much more investment in that.

The particular issue that I have seen—it has been talked about before—is the issue of disguised compliance, or lying, in layman’s terms. I am very happy to tell the Committee that Staffordshire University hopes to start a piece of research on disguised compliance led by me and Professor James Treadwell. It is mostly in the realm of social work in relation to domestic violence, but we want to see if there are ways to avoid a situation in which somebody like Usman Khan goes through an apparently successful deradicalization programme without apparently recanting any of his extremist principles, which are then put into murderous effect. I think this is a very under-explored area. It touches on polygraphs, but it is much broader than that. It is about how we skill up the people who are making the decisions on questions such as, “Can I trust you? Is your change authentic and credible, or are you trying to pull the wool over our eyes?”

We cannot have a perfect system. A perfect system would destroy our civil liberties, because we would keep terrorist prisoners in jail indefinitely and achieve the very effect that terrorists hope for in creating massive disruption in a liberal democracy. However, I think that we can do a lot more in relation to skilling up people to make decisions about whether and when somebody is safe to release, and under what conditions, and for how long they can be supervised.

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Q Professor, do you agree that until we have better deradicalization and rehabilitation programmes, we need to ensure that terrorists remain behind bars for longer to keep the people of this country safer?

Professor Acheson: Yes, for the reasons that I have just mentioned. I think that our position in January, where people who were so dangerous that they had to be man-marked by armed police officers had to be released from custody, was absolutely intolerable. We need to be focused on public protection. In relation to terrorist offenders, the Prison Service needs a bit of a change of mindset. There is too much of a reclamation and rehabilitation focus. I am not saying that that is not important, but I am saying that in relation to these prisoners, there has to be a primary public protection focus and a primary national security focus. That is not to say that the regimes in which terrorist prisoners are kept should not be as full and as varied as possible, so that people do not become alienated and further full of grievance.

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Q We have heard a lot about what needs to happen in prison, but this is fundamentally a sentencing Bill. Can you expand on what additional information you think needs to be presented to the sentencing judge in cases such as these, to ensure that the right period in custody is established from the outset?

Professor Acheson: This speaks to my earlier point about making sure that experts—forensic psychologists and psychiatrists—are specially chosen and trained to produce a baseline threat assessment, after conviction but before sentencing, to allow a judge to make a more informed decision on sentencing length, duration and so on, and to establish the basis against which that person’s progress can be managed and measured through custody.

Again, I think it is exceptionally important—the Government did not accept this, but I will reiterate it, and recent events have thrown it into the light—that we should have one dedicated multi-agency specialist unit that manages terrorist offenders from their conviction until they are deemed no to longer be suitable for supervision in the community. It is the most sensible way to manage this. We have far too many hand-offs in the system at the moment.

We have this morning’s report into Joseph McCann, a manipulative psychopath who managed to disguise his dangerousness because of failures in the probation system— because of under-trained staff who were over-stressed and insufficiently curious. All those things will apply to terrorist offenders as well. Having a dedicated unit that understands in great detail the individual’s biography, their background and the antecedents, and that could help to establish a programme of treatment or intervention that is individualised to that person, seems to me to make sense in managing the risk.

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Q Professor Acheson, I really enjoyed your Spectator article, and I agreed with a lot of it. I think it is worth the Committee hearing that its opening gambit was that opponents of the Bill were

“the usual well-heeled, left-wheeled liberal rights activists”.

Neither the Chairman nor I could ever be accused of being one of those, and I do not oppose the Bill and the measures in it per se. However, as you have identified, it is important that the Bill receives scrutiny.

I was struck by something that you said about the Government’s approach to the Bill, which was that it was “populist”. Do you think that is at the expense of longer-term strategic thinking that could be contained in the Bill, particularly around things such as the Prevent strategy? The Bill removes the statutory deadline for reviewing that strategy. I suppose what am I asking is this: are the measures in the Bill serious and strategic and will they make a difference, or are they in keeping with a populist approach to these issues, as you have alluded to?

Professor Acheson: I was being quite flippant in that article, as you have to be if you write for The Spectator. The serious point is that there is no risk-free way to deal with this very dangerous, challenging topic; every way has risk. My small expert team and I sat and looked at separation units, and we argued for weeks about which was better: separation or dispersal of highly subversive, proselytising Islamist extremists. The focus was Islamism. In the end, we came to the view that separation centres would work as the least worst way of managing this phenomenon. The reason I mention this is that we are in a period of continuous evolution, and the law will need to be able to react to that.

They are not distinct, but we have an al-Qaeda generation of terrorists, from 2005 onwards, who are serving time—sometimes extremely long sentences—for organised plots, and we have an IS generation of much more oppositional terrorists, including lots of lone actors who have come along behind. Even looking at Islamist extremism as a group is very difficult. The answer to your question is that we have a good baseline for extending the amount of time that terrorists will serve in prison. We had an intolerable situation before, when it was quite clear that the system of supervision and the sentencing framework were broken; they let people such as Sudesh Amman out of custody. But we have to look at the quality as well as the quantity of what happens. The only way to do that is relentlessly to research what works.

Sometimes I am told by people, “There’s no evidence for what you’re saying.” I sometimes react to that by thinking, “That’s a kind of code for inertia, organisationally, or for timidity.” Sometimes we have to make the evidence. The point is that we have to take some risks. I am not sure whether separation centres will work or will continue to work. Mark Fairhurst eloquently made the point that there is a great deal of reluctance in the Prison Service to use them. There is some organisational resistance to the concept, and it is not simply about not being able to find the right people. A bureaucratic structure was built around selection for separation centres, which has made it all but impossible, frankly, for anybody to get in them.

Regarding separation centres and how the legislation needs to evolve, we need to make sure, as Mark has said, that there is sufficient capability for the extreme right-wing offenders who represent the biggest threat to be removed and completely incapacitated, breaking the psychological link between the “preacher” and his adherent. We will need to be continually alert and continually changing and challenging legislation in order to arrive at the best way of managing the evolving risk.

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Q I think you have said that although you support stronger sentences, their imposition alone will not resolve this issue. It is about—you have used this phrase—breaking the whole. I have some sympathy with what you said about the appropriateness of the Parole Board dealing with these types of offenders. Do you think that removing any assessment and taking the Parole Board out of the equation leaves a vacuum? You talked about the dedicated unit. It undoubtedly costs a lot of money, but is there a worry that removing a mechanism that is already there, regardless of how appropriate it is, and not replacing it with anything just leaves a gap?

Professor Acheson: I think there is a danger that we keep doing a Heath Robinson-type response. My critics will say, “Hold on, Ian, the Parole Board has specialist judges who sit on panels that consider terrorist offenders.” My response is: so what? Are they any better than the frontline prison officer who has been with an individual for four years, the psychiatrist who has been attached to that person’s journey, a forensic psychologist, the Security Service or the police? That is why I keep arguing that we need a completely separate way, philosophically and organisationally, of managing the risk. I am disappointed that that is not in the Bill, and that we are talking instead about skilling people up and giving them more training. I worry a little that that will continue to be exploited, given the number of hand-offs in the system.

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Very briefly, Sarah Dines.

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Q Professor, I was interested in what you said about disguised compliance. Before entering Parliament I worked at the Bar and dealt with a lot of sex offenders and domestic abusers, and some of them were experts in disguised compliance. I notice that you fairly flippantly—if I may boldly say so—dismissed the polygraph as being only slightly better than tossing a coin. With your extensive and useful experience as a prison officer, civil servant and consultant, do you accept that you can assist us in this field, but that you would defer to qualified psychiatrists and psychologists in terms of its usefulness, as it is one tool in the box for dealing with dangerous offenders who exhibit disguised compliance?

Professor Acheson: You are quite right to call me out. I do not discount polygraphs entirely. I think they are perhaps a useful part of a more holistic approach to managing risk, but they are certainly no silver bullet. Again, we need highly skilled people who have been on a journey with these offenders, who understand them intimately, and who have been able to design interventions that speak to their plethora of needs, which I described earlier and are dealt with in a very individualised way. That is the way to crack this nut.

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I am really sorry. This is a very interesting session, but I have no choice but to cut it off at 10.25. Thank you very much for your evidence. Apologies to Members, but I have to do this.

Examination of Witness

Andrew Silke gave evidence.

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Good morning, Professor Silke. Will you introduce yourself and your organisation, please?

Professor Silke: I am Professor Andrew Silke, professor of terrorism, risk and resilience at Cranfield University.

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We have until 10.55 for this session. The Minister will start.

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Q Professor Silke, thank you for taking the time to give evidence to the Committee this morning. Based on your experience from around the world, could you tell the Committee your views on the most effective ways of managing and ideally deradicalising prisoners within a prison environment?

Professor Silke: That is a crucial question. Probably one of the starting points—this has been touched on by some of the others who gave evidence—is how the UK sits in terms of the international approach to dealing with terrorism among violent extremist offenders. Overall, you would probably argue that the UK’s approach is seen as one of the better available approaches and enjoys what is seen internationally as a good success rate. I know that that is difficult to consider in the context of the attacks that took place in Streatham and London Bridge, but overall the UK’s system for dealing with terrorist prisoners is seen as one of the more effective ones available internationally.

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Q Which elements are particularly effective, and do you see any opportunities to improve them further?

Professor Silke: The approach has transformed a lot in the past 10 years. There has been a variety of ways in which it has changed. I am particularly looking at the approach in England and Wales here. First is the development of specialised risk assessment tools and frameworks for dealing with terrorist prisoners. There was recognition in the 2000s that the existing risk assessment tools did not work well with terrorist prisoners and that they needed something that was more specialised to more reliably assess risk with them. This led to the development of the extremism risk guidance 22+—the ERG—which is a bespoke risk assessment tool now used in England and Wales. In my view it has genuinely enhanced and transformed risk assessment for these prisoners, making it much more viable compared with what it had been prior to the introduction of this programme.

Tied into the development of the ERG has been the development of a number of interventions. The healthy identity intervention has already been mentioned, and desistance and disengagement has been flagged as well. The healthy identity intervention draws on the ERG, so the two of them are linked to some degree. HII has come in for criticism, but it is actually a much better intervention than perhaps it gets credit for. It tackles a lot of the issues that we are concerned about in terms of offender radicalisation. I have had the opportunity of being able to interview prisoners before and after they have gone on this programme, and certainly in many cases I have seen a transformational change in prisoners.

The other factor—this has also been raised in other testimony before the Committee—relates to post-release behaviour by prisoners. We have an extremely low reoffending rate for terrorist prisoners in the UK, which we should not dismiss out of hand. If we could get similarly low levels of reoffending for other types of offenders, we would be extremely happy.

Failures with interventions—such as a prisoner taking an intervention, being released and then reoffending—does not mean that the intervention itself is useless or ineffective in the majority of cases for people who use it. We should reflect that all the interventions used in the prison system, for a whole range of offences, have their failures. This does not mean that we should stop using them or abandon them or view them as unhelpful in the majority of cases.

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Q Thank you. Would you agree that the historical involvement of the Parole Board in offering the possibility of early release does not really have any meaningful impact on prisoner rehabilitation or behaviour? Or to the extent that it does, that it may simply stimulate false compliance—pretending to comply with deradicalisation programmes in the hope of securing early release?

Professor Silke: It is a complicated question. In general, I agree with Mark Fairhurst’s point that the potential for early release is an important incentive for behaviour in custody. If we lose the potential for early release, we are losing a tool from the toolbox, and we need to question whether that is sensible, or whether there are advantages in keeping it in some shape or form.

Does false compliance happen? Yes, it certainly does, but if we look at reoffending stats, compliance seems to be genuine in most cases. Nobody has a 100% effective intervention for dealing with these types of prisoner or any other type of prisoner, so we should never expect an intervention to be 100% accurate. However, the stats suggest that what is happening in prison with most terrorist prisoners is currently effective, and so if we are making changes to the regime and to the interventions, we need to have a careful think about what the knock-on consequences might be.

Personally, I prefer still to have the potential for early release at some stage as a tool in the toolbox for these serious offenders. I think it can make a difference in some cases. From my perspective, the Parole Board usually brings a serious and considered assessment of the available evidence in a particular case, which is often very welcome. Again, by removing that from the equation, are we losing something that has value?

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Q Good morning, Professor Silke. Are the current deradicalisation programmes in prisons fit for purpose? If not, what needs to happen?

Professor Silke: The problems are relatively new. My view is that they work far better than most members of the general public want to think. Again, the proof is in the very low reconviction rates that we see after people have been released. If it is working in the vast majority of cases, that is an encouraging sign. If there are failures, we need to look into that. One thing that the Bill does not do in its current format is try to identify what is different about the failures compared with the rest of the prisoners who are being released—what went wrong in their cases compared to the others? I am not sure that we are getting at that at the moment.

The evidence base around both risk assessment and interventions for terrorist prisoners is in development. It is massively better today than 10 years ago, and I think it will continue to improve. I know that the Ministry of Justice is involved in a range of programmes to improve the evidence base around ERG and healthy identity intervention, which I strongly welcome. Many Governments are involved in similar efforts overseas.

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Q You talked about the potential for early release and how important that can be. I do not think any of us here are advocating that the more senior offenders should not serve the full 14 years, but do you think that the Bill has the right approach to terrorist offenders under 21?

Professor Silke: That is a very good point. There are differences between very young offenders and the older, more established offenders, and I am not sure that that necessarily comes across strongly in the Bill. That is probably an area where our understanding is more limited than it should be. It needs more attention and research.

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Q The Bill does not recognise that they are any different, in the way it is formatted at the moment. How could we improve it?

Professor Silke: One of the things we will need to do is refine it, in terms both of risk assessment and intervention, to tailor it more for younger offenders. At the moment, there is a question mark over whether what is currently available has young offenders firmly enough in its sights.

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Thank you.

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Q Professor Silke, I do not know whether you are aware, but in Scotland there is a sentence called the order for lifelong restriction, which is indeterminate but allows for release or indeed for detention to continue. Given your views on the benefit of some sort of early release being available for those who show remorse or rehabilitation—indeed, the avoidance of people being released at the end of their determinate sentence because they have served it—do you think that an order for lifelong restriction may be a more appropriate sentence for some terrorists in Scotland?

Professor Silke: Honestly, I do not know enough about how it works to make an informed assessment of it. I am always cagey about anything indeterminate, which might imply indefinite detention. The advantage of having a fixed term, rather than something quite open-ended, is that at least you know exactly what you have to work with.

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Q Scotland does not have a polygraph regime, if we can call it that. Can you give me some information about how uniform it is across Europe, for example?

Professor Silke: Polygraph testing is controversial—I think you have already had evidence on that—because it is not 100% accurate; there are errors in it. However, as I have already flagged, just because something is not 100% accurate, that does not mean that we should not use it.

Polygraph testing has a potential role to play in these cases. As an extra link in risk assessment and risk management, it could play a useful role. There has already been a commitment not to recall prisoners purely on the basis of a poor polygraph result. There would need to be additional information in order to justify that, and I think that is entirely sensible. There are potential benefits to using polygraphs within an enhanced framework, recognising that they do have their limits. I support the calls that are being made, if polygraphs are being introduced, for running a pilot programme first before implementing them across the estate.

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Q Professor Silke, in relation to polygraphs, I see that you have extensive work experience in the USA with the Department of Homeland Security and the FBI. The Americans value the polygraph as a tool, not to determine exactly what has happened, but to assist in knowing whether somebody is disguising their compliance. That is right, isn’t it? The Americans think it is useful, and you, too, think it has its purposes, don’t you?

Professor Silke: Yes, it is certainly more used in America than elsewhere. I am not intrinsically opposed to the use of the polygraph in these cases. I think there is a potential role that it can play. Obviously, it will need resourcing and appropriately trained and qualified people to run it. As I said, it can add an extra element to the risk assessment and risk management process, which can be useful.

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Thank you.

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Q Professor, you made the point, as have others this morning, that only about 10% of terrorist prisoners reoffend, versus a rate of perhaps 50% across the piece more generally. Do you accept that that 10% who reoffend can cause horrendous atrocities with mass murder? Surely we need to be protected from them as much as possible. The Bill will help achieve that with longer periods in custody.

Professor Silke: It stands even lower than 10%. For England and Wales, it is down to 3%. Really, when we talk about very low levels of reoffending for released terrorist prisoners, it is incredibly low. The vast majority of released terrorist prisoners will not re-engage in terrorism and will not be convicted for any future terrorist offences.

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Q But we have seen two very recent examples. Do we not need to minimise the potential of any examples?

Professor Silke: The point there is that if we are going to be concerned about the potential risk of reoffending for any prisoner, we would then end up in a scenario where we release no prisoners. Risk for any prisoner being released for any type of offence is never zero.

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Q But here we are talking specifically about terrorist offenders who, by dint of one single act, can cause mass murder and atrocity. Do they not merit a special type of sentence, as is proposed in the Bill?

Professor Silke: Sentences for terrorism can be long and, again, I am not opposed to that at all. One of the challenges we have is that we are imposing blanket long sentences across the board, when we know that the high-risk prisoners are a tiny minority of that group. One of the concerns I have with the Bill is that it does not distinguish; it is across the board. It would be nice if we could be more targeted and focused in terms of how we are identifying and managing the high-risk terrorist prisoners, as opposed to the entire group.

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Q Professor Silke, I have just one question. It is about reviewing the Bill through the prism of Isis and radicalisation from Muslim extremists, and also the far right. Where do you see the threat of terrorism in the future coming from?

Professor Silke: Far-right and Islamist-inspired terrorism remain the two dominant threats in England and Wales, but many will be aware that the most active group in the UK continues to be dissident republican terrorists in Northern Ireland. Looking ahead, what are we likely to see? That will tie into a whole range of different factors. One of the concerns many people have is what are the implications of dealing with the pandemic for terrorism trends going forward. There are concerns about increased radicalisation in certain quarters, but also pressures on criminal justice and other agencies in terms of budgets going forward and what potential impact that might have over the next four to five years.

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Thank you.

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We have time for maybe one or two more questions, if anybody would like to ask one.

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Q Professor Silke, we have covered the issue of prisoners, but what impact do you think the changes to the TPIM regime will have on public safety?

Professor Silke: I am not a fan of TPIM. The main saving grace of the approach has been that they have been used sparingly, and that has been consistently the case from control orders onwards. That probably is their main saving grace: they are only used in a handful of cases. The problem is that it is punishment without conviction, which is always problematic in a system of justice such as the one we have. The changes proposed are similar to some that have existed in the past. I would encourage the Government in general to look at alternatives to TPIM. If we are in a case where we are talking about five or six individuals who are under those measures, are there not alternative arrangements that could be used to monitor or otherwise manage the risk associated with those individuals, apart from a TPIM approach?

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Thank you.

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If there are no more questions, Professor Silke, thank you very much for your evidence. It has been very useful.

Ordered, That further consideration be now adjourned. (Tom Pursglove.)

Adjourned till this day at Two o’clock.

Counter-Terrorism and Sentencing Bill (Fourth sitting)

The Committee consisted of the following Members:

Chairs: † Steve McCabe, Mr Laurence Robertson

† Bacon, Gareth (Orpington) (Con)

Butler, Rob (Aylesbury) (Con)

† Cadbury, Ruth (Brentford and Isleworth) (Lab)

† Charalambous, Bambos (Enfield, Southgate) (Lab)

Cherry, Joanna (Edinburgh South West) (SNP)

† Courts, Robert (Witney) (Con)

† Cunningham, Alex (Stockton North) (Lab)

† Dines, Miss Sarah (Derbyshire Dales) (Con)

† Everitt, Ben (Milton Keynes North) (Con)

† MacAskill, Kenny (East Lothian) (SNP)

† McGinn, Conor (St Helens North) (Lab)

Mak, Alan (Havant) (Con)

† Marson, Julie (Hertford and Stortford) (Con)

† Owatemi, Taiwo (Coventry North West) (Lab)

† Philp, Chris (Parliamentary Under-Secretary of State for Justice)

† Pursglove, Tom (Corby) (Con)

† Trott, Laura (Sevenoaks) (Con)

Kevin Maddison, John-Paul Flaherty, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 30 June 2020

(Afternoon)

[Steve McCabe in the Chair]

Counter-Terrorism and Sentencing Bill

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Members should feel free to take their jackets off if they are so inclined. We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available on the table. It is helpful to proceedings if hon. Members who want to push an amendment, other than the lead amendment in a group, to a vote could indicate that to me in advance. If they could supply your speaking notes to the Hansard reporters, I think they would be most grateful.

Clause 1

Offences aggravated by terrorist connection

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I beg to move amendment 35, in clause 1, page 1, line 8, at end insert—

“(ab) In subsection (3), after ‘if’ insert ‘the court has found beyond reasonable doubt that’”.

This amendment determines that a court must decide beyond reasonable doubt that an offence has a terrorist connection.

It is a pleasure to serve under your chairmanship yet again, Mr McCabe. Hansard should have our notes, as we have already forwarded them.

We support the Bill but, as hon. Members can see, we have identified some ways in which we believe it could be made better. We will get into the details of that over the coming weeks. Terror attacks have shaken this country: people have lost their lives; people have lost their livelihoods; loved ones have been lost; people have suffered life-changing injuries. Nothing we do or say in this House can bring back those people who have died or heal those people who have been so badly injured, but we can try to ensure that justice has been achieved.

In his speech on Second Reading, my right hon. Friend the Member for Tottenham (Mr Lammy) talked specifically about some of the terror incidents that we have seen in this country and the conclusions we can draw from them. Two possible conclusions were that prison sentences are not long enough and that deradicalisation programmes in prison are not working.

That is why Labour seek to work with the Government on this Bill, starting with amendment 35. We hope to make the case for why we believe there are some amendments that would improve the Bill. Ensuring that Government legislation does not discriminate unfairly against protected characteristics is a key part of what we will try to achieve throughout the process.

Terrorism is often conflated with Islamic extremism, yet the fastest-growing terrorist threat comes from the far right. We want to ensure that the legislation is fair and proportionate. It must go hand in hand with a coherent deradicalisation strategy alongside the Bill, working to minimise the risks of an offender committing further terrorism offences once they leave prison.

Many of the amendments that we will ask the Committee to consider are simply probing amendments to better understand the Government’s thinking, and to give the Minister more time to think about the different issues as we progress through this stage of the Bill. However, there are other amendments that we believe the Government should adopt, if the Bill is to achieve what it sets out to do and be seen to be fair. We will go further into the detail, but I hope we can have healthy and robust debate about how to move forward, and prove to the public out there that politicians from different parties can work together.

Amendment 35 determines that a court must decide “beyond reasonable doubt” that an offence has a terrorist connection. The purpose of this probing amendment is simply to clarify that the finding of a terrorist connection for the new offences that the Bill brings into scope will be subject to the same “criminal standard of proof” as is currently the case, and would effectively amend section 69(3) of the sentencing code, covering offences aggravated by terrorist connections.

We believe we should spell out in the Bill the need to ensure that there can be no reasonable doubt about the connection, because it can have serious ramifications for the offender and the legal system. The House of Commons Library briefing on the Bill states, under the provisions in clause 1:

“If the court determines that there was a terrorist connection, it must treat that as an aggravating factor when sentencing the offender. The presence of an aggravating factor may result in a higher sentence (within the statutory maximum) than would otherwise be the case.”

The Library briefing paper goes on to say:

“The finding of a terrorist connection can also trigger terrorist offender notification requirements and may result in the court ordering forfeiture in a wider range of cases.”

The briefing goes on:

“Such a finding also engages the restrictions on release contained”

in the Terrorist Offenders (Restriction of Early Release) Act 2020, which

“requires that all determinate terrorist or terrorism-related offenders must be referred to the Parole Board at the two thirds point of their sentence before they can be considered for release.”

The Bill’s equality statement acknowledges that

“Asian/British Asian and Muslim individuals within the Criminal Justice System (CJS) have been disproportionately affected by terrorism legislation relative to the percentage of Asian/British Asian and Muslim individuals in the total population.”

The equality statement goes on to the say that the provisions in the Bill are

“unlikely to result in indirect discrimination within the meaning of the Equality Act”.

However, the Lammy review highlighted evidence of disproportionate outcomes for BAME individuals at the sentencing stage and in decision making by judges and magistrates.

While the review found decision making by juries to be largely fair and proportionate, the same was not found when considering decision making by sentencers. That is relevant to the clause, given that the finding of a terrorist connection is at the discretion of the judge, taking account of any representations made by the prosecution or the defence. That is concerning, given the findings of the Lammy review, which are currently being discussed on the Floor of the House. We believe that BAME individuals may be at increased risk of discrimination, with their crime considered to have a terrorist connection.

Amendment 35 would amend section 69(3) of the sentencing code to require that the court must find “beyond reasonable doubt” that an offence has a terrorist connection. The House of Commons Library briefing paper, which colleagues will have read, says that clause 1 would

“greatly increase the number of non-terrorist offences that can be found to have a terrorist connection”,

whereas currently only specified offences can be found to have such a connection. The widening of what can be found to have a terrorist connection will, I fear, disproportionately affect ethnic minorities. That is why we must press the Minister on how he will guarantee decisions are made on the measure of “beyond reasonable doubt”.

There is also the question of what case law is used to guide sentencers as to what constitutes terrorism, as well as what constitutes a connection to it. Some of the commentators on the Bill are not entirely convinced about what the Government are trying to achieve. I can understand that, as there are already a lot of specific terrorism offences.

Unamended, the Bill seems to create the potential for sentencers to grow their own definitions, both of “terrorism” and “connection”. Can the Minister give examples of where the absence of the provision addressed in clause 1 has resulted in an injustice or an insufficient response? There are concerns that the provision could do more damage than anything else. A wrongfully determined terrorist connection could fuel or develop a grievance against the authorities that might not have existed before. We cannot ignore the impact a wrongful terrorism sentence would have on an individual’s life. We cannot take that sort of chance. We must be sure; we must be beyond reasonable doubt.

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It is a pleasure to serve under your chairmanship, Mr McCabe. I share the concern expressed by my hon. Friend the Member for Stockton North in relation to the burden of proof and the potential implications of the Bill in disproportionately convicting ethnic minorities by widening the scope of what a terrorist connection is under this legislation.

This is a sensitive subject. Terrorism and the actions of extremists have instilled fear, caution and a sense of doubt in many communities across our country. An act of terror and of any extremist is abhorrent. Those individuals should indeed be brought before a court of law and tried for their crimes, not least because of their direct action causing injury, committing murder or traumatising those who come anywhere near their path and because of the wider implications that will be felt across the country and the world in our age of quick-fire communications and social media.

In my generation, I have seen this in how the Oklahoma bombing instilled fear; in how 9/11 changed the world; and in how 7/7 changed my perspective and that it could happen here at home. The murder of Lee Rigby proved that even those who protect us are not always safe. The slain nine churchgoers at Emmanuel African Methodist Church and the Manchester concert bombings showed that no one, even those in the most innocent of settings, is off limits. The hateful act of violence that took Jo Cox proved that our own political discourse has taken an awful turn.

These acts by rampant extremists and the murderous death toll that they leave behind, the radical ideas that brought them to this path and the many plots that have been foiled that we will never know about show us that these crime, or crimes yet to be committed, are heinous. They also prove that we must determine, as this amendment seeks to do, that these crimes or plots are not small and should be taken with the utmost seriousness.

I have three concerns about widening the terrorist connection provision under this legislation and lowering the burden of proof. First, we are leaving it to sentencers to determine their own definition of what constitutes a terrorist connection. Secondly, it creates a form of suction like a vacuum that will imprison even more ethnic minorities and put them behind bars under terrorist legislation which will see them lose their freedom longer than they need to. Thirdly, and even worse, it potentially radicalises them while they are in prison.

There is a danger, as seen in clause 1, that by allowing any offence to be capable of having a terrorist connection, one’s judgement will inevitably come into play. This punishment carries a sentence of two or more years. It would not be amiss to say that everyone holds biases, including those who administer our laws and hand down sentences. By widening the scope and effectively leaving it open to interpretation, the Government want us to believe that we will capture individuals who may have slipped through the net thus far as ordinary criminals or should have been convicted of terrorism. Can the Minister point us to data that back this assumption? The likelihood is that we will just imprison people for the sake of being seen to be attacking the issues of terrorism and extremism.

We are already aware that ethnic minorities are disproportionately sent to prison under our legal system. We are also acutely aware that black and Asian men, particularly those of Islamic faith, are more likely to be seen as threats and harbouring extremist views. The Lammy review conducted by my right hon. Friend the Member for Tottenham highlighted some concerns about how our criminal justice system sees these individuals. The odds of receiving a prison system were around 240% higher for black, Asian and minority ethnic offenders compared with white offenders. Research commissioned by the review also found that at the magistrates court, black, Asian, mixed and Chinese women were all more likely to be convicted than white women.

The number of Muslim prisoners has more than doubled over the past 17 years. In 2002, 5,502 Muslims were in prison. By 2019, this had risen to 13,341. While in prison, Muslim prisoners described having their faith viewed by prison authorities through a lens of risk, according to the research, which also found that prisoners believed that this put them at greater threat of being radicalised. Given the biases in the system and the extraordinary likelihood of women from ethnic minorities receiving a prison sentence, what do the Government think this legislation will mean for ethnic minorities? Do they really think that lowering the burden of proof and expanding the scope of what constitutes a terrorism offence will do anything to keep these young men and women away from the hands of those who wish to radicalise them?

On this side of the debate, we want to reduce the threat of extremists and ensure that appropriate punishment is handed down to those who commit or seek to commit an act of terror. However, we should not pursue that by reducing the seriousness of this heinous crime, just to be seen to be doing something about it. The burden of proof is important, as is ensuring that courts, whether juries or sentencers, reach a solid burden of proof, such as “beyond reasonable doubt”, before coming to such a serious conclusion. We seek clarity, and the purpose of the amendment is to ensure that terrorist connections will be subject to the same criminal standard of proof as we currently know it. Otherwise, I fear that this measure will undermine our efforts to keep us safe and let down individuals, particularly from an ethnic minority, who are already disproportionately sent to prison under the criminal justice system.

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It is a pleasure to serve under your chairmanship, Mr McCabe, in our line-by-line consideration of the Bill. I thank the shadow Minister for his opening remarks, in which he expressed general support for the objectives of the Bill. I hope that we can, as he said, provide an example of constructive cross-party working, although I am sure he will have many questions about the detail. As the shadow Minister has said, and as the hon. Member for Coventry North West said in her speech, the threat that terrorism poses is a serious one, and one of our heaviest responsibilities as Members of Parliament is to protect our fellow citizens from such attacks, but in a way that is lawful, fair and just.

Amendment 35 seeks to specify a beyond-reasonable-doubt standard of proof in making the terrorist connection, as clause 1 does. I am happy to confirm for the shadow Minister that existing criminal court procedure already requires the criminal standard of proof to be met in making a determination of a terrorist connection, or indeed any finding of fact in relation to sentencing. If, after conviction by a jury, there is a finding of fact to be made by the judge prior to sentencing in what is known as a “Newton” hearing, under existing procedures the criminal standard of proof is applied. On the request that the shadow Minister and his colleagues make, I am happy to confirm that it is already inherent in the operation of our criminal justice system, and rightly so, for all the reasons that the shadow Minister and the hon. Member for Coventry North West have outlined. I trust that on the basis of that assurance they will see fit not to press the amendment, given that the provision they call for is already enshrined in law.

One further point: both the shadow Minister and the hon. Member for Coventry North West raised the question of what happens if the judge makes an error or exhibits some form of conscious or unconscious bias. That is extremely rare, but, if it did happen, there are of course appeal rights against both the sentence and any erroneous finding of fact associated with it. If a defendant or, by this point, an offender who has been convicted feels that the sentence is genuinely unfair or that an unfair determination has been made of a terrorist connection, they can appeal, so a safety mechanism by way of appeal also exists. I hope that on that basis the shadow Minister will not press the amendment to a vote.

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I am grateful to the Minister for his explanation. He believes that the matters are already covered in existing law, but perhaps he will accept that later in the Bill we will be discussing how we make sure that what has happened over a period of time has in fact demonstrated that the judges have got it right. In other words, we will revisit this matter with a view to seeking a form of review of how the legislation is working to ensure that we do not have the particular problems that might well be possible. I am also grateful to him for reminding us that in criminal proceedings we still have an appeal process in this country, and I am sure that that would operate appropriately. On the basis of what the Minister has said and on the basis that we will seek reassurance through a review process later in the Bill, I am content to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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I beg to move amendment 36, in clause 1, page 3, line 30, at end insert—

‘(8) Before this section comes into force, the Secretary of State must commission an analysis of the impact of this section on people with protected characteristics, including but not limited to—

(a) the impact on people from minority faith groups, including the numbers received into prison and the length of the sentence served;

(b) the impact on people from BAME communities, including the numbers received into prison and the length of the sentence served; and

(c) the consequences of any disproportionate impact on people with protected characteristics on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences.

(9) A copy of the analysis must be laid before both Houses of Parliament.”

This amendment requires the Secretary of State to commission an analysis of the equality impact of extending the ability of the court to identify a terrorism connection.

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With this it will be convenient to discuss amendment 42, in clause 21, page 18, line 23, at end insert—

‘(3) Before this section comes into force, the Secretary of State must conduct an analysis of the impact of this section on people with protected characteristics, including but not limited to—

(a) the impact on people from minority faith groups, including the numbers received into prison and the length of the sentence served;

(b) the impact on people from BAME communities, including the numbers received into prison and the length of the sentence served; and

(c) the consequences of any disproportionate impact on people with protected characteristics on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences.

(4) A copy of the analysis must be laid before both Houses of Parliament.”

This amendment requires the Secretary of State to commission an analysis of the impact of extending sentences for offenders of particular concern on people with protected characteristics.

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These amendments would require the Secretary of State to commission an analysis of the impact of this section of the Bill before it comes into force on people with protected characteristics, as well as the consequences of any disproportionate impact on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences. With this amendment, we seek to address the issue that was highlighted by the probing amendment and to clarify whether the same criminal standard of proof would apply to determining a terrorist connection for all offences, as is currently the case for listed offences. In particular, we seek to determine whether the clause may have a disproportionate impact on people from minority faith and BAME communities, including on the numbers who are received into prison and the length of the sentence served.

There are significant risks involved in expanding the number of individuals who fall under the provisions of separate terrorism legislation, particularly if the imposition of additional sanctions is seen as neither fair nor proportionate and is found to have a disproportionate impact on minority faith and BAME communities in particular. As I said during my speech on amendment 35, the equality statement on the Bill acknowledges that

“Asian/British Asian and Muslim individuals within the Criminal Justice System (CJS) have been disproportionately affected by terrorism legislation relative to the total percentage”

of those individuals “in the total population.”

In 2016, a Ministry of Justice study of Crown court decision making found that, under similar criminal circumstances, the odds of imprisonment for offenders from self-reported black, Asian, Chinese or other minority ethnic backgrounds were higher than for offenders from self-reported white backgrounds. My hon. Friend the Member for Coventry North West spelled that out in some detail.

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I do not know whether my hon. Friend was in the Chamber to hear the urgent question asked by my right hon. Friend the Member for Tottenham about the Lammy review, but he pointed out that, when the review was done in 2017, the proportion of BAME people in prison was 41%; it is now 51%. Does my hon. Friend have any thoughts about that?

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Unfortunately, I was not in the Chamber for that statement, but I bow to the superior knowledge of my boss and my Whip on this matter. It is absolutely essential that we never lose sight of the facts that my hon. Friend has just outlined.

Unfortunately, when it comes to magistrates courts, systematic scrutiny of magistrates’ decisions is hindered by the absence of reliable data collected on a number of key issues. For example, magistrates courts keep no systematic information about whether defendants plead guilty or not guilty, although there are similar disparities at the Crown court level. Magistrates courts also do not keep proper records of defendants’ legal representation, which means that no one knows whether particular ethnic groups are more or less likely to appear in court facing criminal charges without a lawyer.

The cliché suggests we are all equal under the law, but it would be foolish to deny that our justice system has a certain bias. We must make sure that when we amend or introduce legislation, we do so with our eyes and ears open. Particular attention needs to be paid to the equality impact of the Bill, to ensure that the House is as informed as possible about its impact. We must also ensure that the provisions do not have a disproportionate effect on minority faith or racial groups.

During the oral evidence session, one of my questions was to Peter Dawson from the Prison Reform Trust. We talked about the expansion of sentences for offenders of particular concern and how they would work. Peter Dawson said in written evidence:

“The expansion of SOPCs and the expansion of the number of offences able to be identified as having a ‘terrorist connection’ will need careful monitoring for their impact on prison security and on people from minority faith and ethnic communities”.

I asked:

“How can we improve the Bill to achieve that careful monitoring?”

Mr Dawson replied:

“It may not be something that the Bill can achieve, but I think it is reasonable to ask the Government, after the Bill becomes law, to provide a report on what the impact has been. I entirely take the point that the nature of terrorism at the moment means that certain communities are likely to be more heavily represented, but the point is that all criminal justice agencies need to go beyond that to guard against the unconscious bias that will otherwise creep in.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 38, Q88.]

Other witnesses talked about similar things during the evidence sessions. It is important that we do not lose sight of that.

Along with the expansion of sentences for offenders of particular concern, the clause has the potential to increase significantly the number of individuals in prison who are subject to separate terrorist sentencing. Many of those individuals are vulnerable to radicalisation and they have experienced a steady accumulation of institutional discrimination.

The danger with these provisions is that they could create a significant population of individuals in prison and under supervision in the community who will receive longer sentences and be subject to more onerous and lengthy supervision requirements and forfeiture orders than others who may have received shorter sentences for equivalent offences because the terrorist connection to their offence has not been identified.

That could place those individuals at greater risk from people who would seek to exploit that sense of grievance, in order to radicalise them in support of an extremist ideology. It could also undermine the effective management and supervision of this group in prison, increasing the currently small number of people designated as terrorism offenders to a substantial proportion of the population. This morning, we heard from a representative of the Prison Officers Association, who talked in some detail about the difficulties that prison officers now face in trying to manage particular groups in the prison establishment.

It is right that we commission analysis of the impact of our legislation and if such an analysis proves that there is a disproportionate impact on certain groups, Ministers need to act to correct any discrimination and, if required, change the law. Amendment 42 would require the Secretary of State to commission analysis of the impact of extending sentences for offenders, which is a particular concern regarding people with protected characteristics, and for that analysis to be laid before Parliament before the section comes into force.

Clause 21 replaces schedule 13 of the sentencing code, with the schedule set out in schedule 6 to the Bill. That schedule lists offences that require the imposition of an SOPC where an extended sentence or life sentence is not imposed. This will bring a wider number of offences into the SOPC regime, removing the possibility of those committing such offences from being eligible for a standard determinate sentence. That would mean that only the most minor terrorism offences—those with a maximum sentence of two years or less—would not require an SOPC where an extended determinate sentence is not imposed.

The Bill will also create new sentences—the equivalent of an SOPC for adult offenders in Scotland and Northern Ireland, and for under-18s throughout the UK. Clause 21 addresses a problem created by the TORER Act, which made all terrorist offenders serving a custodial sentence eligible for release two thirds of the way through their sentence, subject to the discretion of the Parole Board. There remained an issue with offenders who were not granted a release until the end of their sentence, and who, as a result, would be released into the community without any form of supervision. The amendment would address this anomaly by requiring that terrorist offenders in the UK would have a minimum period of supervision on licence of 12 months following release, even if they serve the full custodial part of their sentence in custody.

The combined impact of the TORER Act and the provisions of this clause, along with the provisions of clause 1 that allow for the court to determine a terrorist connection for any offence, is to significantly increase the number of individuals subject to separate and more onerous terrorist-sentencing legislation. This includes a longer period in custody, release subject to the discretion of the Parole Board, and a minimum 12 months’ supervision in the community.

There are significant risks involved in increasing the number of individuals who fall under the provisions of a harsher sentencing regime, particularly if the imposition of additional sanctions is seen as being neither fair nor proportionate, and is found, as I have said, to have a disproportionate impact on minority, faith, and BAME communities in particular.

The amendment also seeks to determine the consequences of any disproportionate impact on people with protected characteristics of efforts by the prison authorities to rehabilitate offenders convicted of terrorism offences. Many of those vulnerable to radicalisation have experienced a steady accumulation of institutional discrimination. The danger with the provisions is that they could create a significant population of individuals in prison and under supervision in the community who will receive longer sentences and who will be subject to those more onerous and lengthy supervision requirements than others who receive shorter sentences for equivalent offences. I have already covered that point. That could place them at greater risk from people who seek to exploit that sense of grievance to radicalise them in support of an extremist ideology. It could also undermine the effective management and supervision of this group in prison by increasing a currently small number of people designated as terrorism offenders to a substantial proportion of the prison population.

As hon. Members know, groups such as this are already untrusting of the auspices of the state. Should it be found, through the impact assessment we seek, that these groups are again subject to further over-representation, we have the potential for a perfect storm, whereby young BAME men who ordinarily would not be radicalised, and who potentially spend longer in jail than comparable white offenders, bear a resentment to the state and eventually leave radicalised. As my hon. Friend the Member for Birmingham, Perry Barr (Mr Mahmood) pointed out during the emergency debate on the early release of terrorist offenders, if we put prisoners of the same background and offence together, they become a unit, and if they are then put with other prisoners, who are often incarcerated for non-terror-related offences, they radicalise them. That is hugely concerning in itself, but more so if prisoners feel they have been victimised in the way they were treated by the criminal justice system before being incarcerated.

The Government’s duty under the Equality Act 2010 goes further than the Bill’s equality statement acknowledges —it includes the duty to foster good relations between people who share a characteristic and those who do not. Given the evidence of institutional discrimination across the criminal justice system, the Bill carries a severe risk of reinforcing stereotypes that result in unfair treatment and the stigmatising of a large group of people on the basis of their religious belief and ethnicity. The amendment invites the Government to describe the actions they will take, and subsequently review, to ensure that that risk is averted.

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I thank the shadow Minister for his detailed exposition of some of the risks that we must seek to navigate and overcome. For justice to function, we must make sure that it is truly even-handed and fair in assessing anyone who comes before the court, regardless of their background, race or religion.

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Is the Minister not concerned that, without proper consideration of the impact of the Bill on many BAME communities, relationships between these communities and authorities may worsen?

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Let me come on to that point, which is the substance of the amendment. The amendment calls for an assessment prior to the clause coming into effect; it does not ask for an assessment afterwards but beforehand. I submit to the Committee that the impact assessment published with the Bill and the accompanying equality statement, which looks specifically at questions of racial and religious discrimination—or the potential for those things to happen—has already thoroughly analysed the Bill’s potential impact. That detailed analysis, which obviously included a review by Government lawyers and others, concluded that nothing in the Bill would unlawfully discriminate against people of a particular ethnic or religious background within the meaning of the Equality Act 2010.

Of course, the provisions in the Bill are simply based on a measure of criminality—has somebody committed a specified offence? Is there a terrorist connection? Nothing in any of those provisions is biased for or against anyone from any particular background, as is the case with all laws that Parliament passes.

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The Minister says that nothing in the Bill would lead to further discrimination. I should hope that that would be the case for any legislation we pass. However, the fact remains that there are certain groups within our society—BAME and other groups—who are disproportionately disadvantaged in the legal system. The amendment asks the Minister to recognise that there could be even more of that as a direct result of the provisions of the Bill.

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Where there are concerns of the nature of those raised in the Lammy review, which I think the shadow Minister or the hon. Member for Coventry North West mentioned earlier, the Government are committed to responding to those. Indeed, in a sense, we are in the wrong room in Parliament today to raise that, because there was an urgent question earlier on exactly that topic, to which the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk) responded.

The Government are committed to acting in response to the Lammy review to make sure that no unconscious biases discriminate against any particular group. I have not had a chance to read the Hansard of the debate, and I suspect the shadow Minister has not either, but based on the conversations that I have heard taking place in the Ministry of Justice, I think that the Government generally and the Ministry of Justice in particular are committed to taking action where needed. I would have expected the response of my hon. Friend the Member for Cheltenham to the urgent question an hour or two ago to have confirmed that.

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The fact remains that the Lammy review talked about a whole range of provisions that were supposed to be implemented, but very few of them have been. Some have been partially implemented and others have not. Can the Minister simply accept that we are failing as a Government and a Parliament to ensure that discrimination does not exist in our system? We are simply not taking the action to do that. Does he further accept that the more legislation we have where particular groups of people, BAME or otherwise, feel that they are being discriminated against, the greater the discord in society?

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Recent events obviously tell us how important it is to maintain social cohesion and confidence in the criminal justice system. The hon. Gentleman raises a point that goes far beyond the scope of the Bill, but it is a fair point none the less. If he listens to what my hon. Friend the Member for Cheltenham, my fellow Justice Minister, said in the House of Commons Chamber earlier, he will see that the Government are resolved to act where necessary to address issues of that kind.

The substance of the Bill is obviously public protection. It makes no distinction between any kind of terrorism, whether rooted in a twisted religious ideology or a far-right ideology, or terrorist acts committed for any other reason. The Bill, as with all Bills, as the hon. Gentleman says, is even-handed between different kinds of offence and different kinds of offenders. Where we need to do more systemically, not just in relation to the Bill but across the whole range of the criminal justice system, to make sure that everybody gets a fair hearing and fair treatment, the Government will do that. I hope that the response of my hon. Friend the Member for Cheltenham to the urgent question earlier will give assurance on that point. No doubt there will be many more opportunities to debate it.

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rose—

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On the specific question of amendment 36 to clause 1 and amendment 42 to clause 21, which call for an impact assessment prior to the commencement of those clauses, I repeat what I said earlier. We have already done that. It has been published as the impact assessment together with the Bill and the equality statement that went with it. The obligation being requested by the amendments has already been discharged, but of course we must remain mindful, as the shadow Minister eloquently said, of potential unconscious biases. We must be vigilant and make sure that our justice system is not in any way besmirched by them. I am confident that the measures my hon. Friend the Member for Cheltenham laid out earlier will achieve that.

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I am sorry that the Minister would not give way, because I wanted to press him on that particular matter. We have several days of debate, so we have plenty of time to deal with these issues. It is a bit disappointing.

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I apologise; I did not realise that the hon. Gentleman was trying to intervene. Had I realised, I would, of course, have given way.

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Fair enough; I accept that.

The Minister was talking about how the Bill is important for public protection and I agree. It is essential to protect the interests of the public, but if the Bill results in a growing number of terrorists in prison, and if we are releasing into the community people who are still radicalised—or even new people who they managed to radicalise when they were in prison—perhaps public protection will not gain in the way that the Government hope.

I accept the Minister’s statement that he believes the law covers that, but I am disappointed that we cannot accept that a review, although it might cost a few pounds and take some time to commission, would at least give us some information to enable us to understand how well or how badly the legislation is working. I accept what he said, however, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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We touched on many of the purposes of clause 1 in our debate on amendments 35 and 36. Very briefly, clause 1 seeks to give judges the power to make a factual finding after conviction that a particular offence has a terrorist connection, to the standard of proof beyond reasonable doubt, as has been discussed, rather than simply referring to a fixed schedule of offences. If, for example, somebody commits an offence that is a serious offence but is not currently on the list of terrorist offences, the finding of terrorist connection can none the less be made. That has consequences in the rest of the Bill, and we will debate them in due course.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 2

Meaning of “serious terrorism offence”: England and Wales

Question proposed, That the clause stand part of the Bill.

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The purpose of clause 2 is to create new categories of offences in relation to the new serious terrorism sentences. It defines the meaning of a “serious terrorism offence” in England and Wales, so that a sentencing court can establish whether an offender has committed a qualifying offence for the purpose of applying the serious terrorism sentence, which we will discuss more in due course.

The clause will amend section 306 of the sentencing code to include a new category of serious terrorism offence, with two subsets of offences: those in part 1 of schedule 17A, which specifies offences with a life penalty that are terrorist or terrorist-related; and those in part 2, which specifies offences with a life penalty that may be found to have a designated terrorist connection further to section 69 of the sentencing code, as amended.

Clause 2 inserts new schedule 17A into the sentencing code that is currently making its way through Parliament, so that those offences can be identified as serious terrorism offences by the sentencing court for the purposes of setting a serious terrorism sentence or, alternatively, an extended sentence.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 3

Offences relevant for provisions of this Act relating to Northern Ireland

Question proposed, That the clause stand part of the Bill.

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Clause 3 has essentially the same purpose as clause 2. Clause 2 applied to England and Wales; clause 3 does essentially the same thing in relation to Northern Ireland, by amending article 12 of the Criminal Justice (Northern Ireland) Order 2008.

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There is a specific point on this and some other measures in this Bill pertaining to Northern Ireland: they will require a legislative consent motion in the Northern Ireland Assembly. To start as we mean to go on, and so that I do not have to ask the Minister this at every juncture, will he outline what representations he has received from the Northern Ireland Executive, specifically the Justice Minister? For the benefit of the Committee, will he also set out what it means to have to go through the legislative consent motion process?

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Under the Sewel convention, where a provision in UK legislation touches on a matter that is devolved to one of the nations of the United Kingdom, one applies for a legislative consent motion. Most of the Bill, relating as it does to terrorist offences, is reserved to the UK Government, but some relatively limited elements of it touch on matters that are ordinarily devolved. For them, we will of course seek a legislative consent motion under the Sewel convention. In that context, we have made contact with the Scottish Government in Holyrood and with the Northern Ireland Administration—in particular, with Justice Minister Naomi Long. We have entered into fairly extensive correspondence, which is ongoing, about the provisions in the Bill. The Justice Minister in Northern Ireland has raised various matters, which she has asked questions about, asked for clarification about and wanted to discuss further. Those discussions and that correspondence are ongoing.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 4

Serious terrorism sentence for adults aged under 21: England and Wales

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I beg to move amendment 37, in clause 4, page 5, line 32, at end insert—

“(7) The pre-sentence report must—

(a) take account of the offender’s age;

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(8) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (7) and consider whether they constitute exceptional circumstances under subsection (2).”

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With this it will be convenient to discuss the following:

Amendment 45, in clause 6, page 9, line 20, leave out subsection (11) and insert—

“(11) In forming an opinion for the purposes of subsections (1)(d) and (6), the court must consider a report by a relevant officer of a local authority about the offender and the offender’s circumstances.

(11A) Where the offender is under 21 years of age, the report must—

(a) take account of the offender’s age; and

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender;

and the court must take these factors into account when forming its opinion under subsection (6).

(11B) In considering the report, the court must, if it thinks it necessary, hear the relevant officer.”

Amendment 46, in clause 7, page 10, line 13, at end insert—

“(2A) Where the offender is under the age of 21, in forming an opinion for the purposes of paragraph (2), the court must consider and take into account a pre-sentence report within the meaning of Article 4 which must—

(a) take account of the offender’s age; and

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.”

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I am sure that these amendments come as no surprise to the Minister and other members of the Committee, given my interrogation of our witnesses during the oral evidence sessions over the past few days. This area needs particular attention from the Government, and I intend to press the amendment to a vote—unless, of course, the Minister comes up with an appropriate answer. On the basis of all this kindly co-operation and friendliness that we are sharing, and our intention to prove to the public that we can work across parties, perhaps he might surprise me a little.

Amendment 37 would require that when a court considers a serious terrorism sentence for a young adult under the age of 21, the pre-sentence report must take account of the offender’s age and consider options other than a serious terrorism sentence for rehabilitation and reducing harm. It means that the court must also take into account the issues raised in the pre-sentence report and whether it constitutes exceptional circumstances under proposed new section 268B(2).

We need a basic recognition in the Bill’s sentencing framework that, simply put, young adults and adults are inherently different, not only in terms of maturity, but in their potential for rehabilitation. Regarding the level of maturity, numerous organisations, such as the Howard League, have advocated for this proposal. It has been recognised in reviews such as the Lammy review, and by the Justice Committee. Why is it not recognised in the Bill?

As we have said from the outset, serious terrorist offences deserve a serious sentence, but it is still important to consider the age of the offender when other offences of a non-terrorist nature are committed. Although the amendment is specific to under 21s, in line with the Bill, evidence of maturation suggests that young adults up to the age of 25 ought to be considered as a separate group requiring a distinct response from criminal justice agencies.

The work in this area continues apace, and I have no doubt that Ministers may well have to address their approach to all manner of sentences for people up to the age of 25 when we can all be satisfied that the science proves, beyond reasonable doubt, that they ought to be treated differently. We had a considerable amount of evidence on that. I asked Peter Dawson from the Prison Reform Trust for his view on the different factors relating to young people. He said:

“The Bill should have a different sentencing framework for children and for young adults. At the moment, the law defines a young adult as someone aged between 18 and 20. It is not for this Bill to do, but at some point that should change to between 18 and 24.”

I think that is his opinion. He continued:

“At least taking account of the detention in a young offender institution provisions would allow some recognition of the fact that young adults are different from more mature people.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 34, Q75.]

We also discussed that issue with Jonathan Hall, the Independent Reviewer of Terrorism Legislation, who said that the point he was making was that

“there is recognition that people who are young and immature are probably more susceptible to change than adults.” —[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 10, Q15.]

I asked him whether the bottom line was that with young people, there was perhaps a greater chance of change; he had said that there might be greater opportunity for reform than with those who are considerably older. Mr Hall responded:

“That is what judges are increasingly finding.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 10, Q16.]

I want to refer to a little more of Jonathan Hall’s evidence. He said that he believed that a younger person dimension needed to be considered in the Bill:

“One of the final points I make in my note about removing the Parole Board’s role is that, again, if it is right that children are more likely to change, and as a matter, perhaps, of fairness, one ought to give them the opportunity, then removing the opportunity to say, at the halfway or two-thirds point, ‘I have now genuinely changed; that was me then and this is me now,’ where it can be shown to the satisfaction of the Parole Board, does seem a little bit—I would not necessarily say ‘unfair’, but it fails to recognise the difference between adults and children.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 11, Q18.]

The current science and evidence tend to relate to people under 21, some of whom are a long way from full maturity. Analysis from the Royal College of Psychiatrists states that in terms of brain physiology, the development of traits such as maturity and susceptibility to peer pressure appear to continue until at least the mid-20s. That view was supported by the Justice Committee, which reported in 2016 that the growing body of evidence drawing on criminological, neurological and psychological research had led the Committee to conclude that young adults’ characteristics and needs made them distinct from older adults in terms of both their needs and their outcomes. There is no distinction in the Bill that recognises what the Justice Committee had to say.

The “Judging Maturity” report by the Howard League for Penal Reform also cited research that found the following:

“For the purposes of informing sentencing practice, the neurological and psychological evidence that development of the frontal lobes of the brain does not cease until around 25 years old is particularly compelling. It is this area of the brain which helps to regulate decision-making and the control of impulses that underpins criminal behaviour.”

As the Minister knows, I support trusting the experts where there is a significant trend. The trend of opinion from experts seems to be that we need to recognise the differences in maturity and development of young adults. In 2016, the Justice Committee reported:

“Dealing effectively with young adults while the brain is still developing is crucial for them in making successful transitions to a crime-free adulthood.”

Research into the success of interventions aimed at tackling radicalisation suggests that approaches that encourage young people to engage in education and training may be particularly beneficial, and that early interventions to encourage young people to undertake that education and training can be capable of successfully challenging radicalisation.

We talk a lot about rehabilitation, but we do not do enough of it. Labour Members do not want young offenders to be condemned to a life with no opportunity for rehabilitation when it has been reported to be successful in early adulthood. We can reform and rehabilitate, but doing so is a choice.

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My hon. Friend is making an excellent speech on this point. On the point about young people’s brains still developing, there is potential for grooming and undue influence by adults. With the Justice Committee, I visited a young offenders institution in Kent, where a young woman who was being held for terrorism offences had been influenced by her mother. Will he comment on that?

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Indeed, that is very much the case. I am grateful to my hon. Friend, because he reminds me of some evidence we heard this morning about young people being more susceptible to being radicalised. Another important point raised this morning was that our prison system is not yet properly equipped to deal with young offenders in a suitable environment that prevents radicalisation. They are housed—wherever they are—with people who have committed similar offences, who will be aiming to build on their insecurities and their immaturity to encourage them into further wrongdoing. We must never lose sight of that important point. That is why I will talk about young people throughout our proceedings on the Bill, because young people have to be given a chance.

I will talk about this later, but if a 20-year-old is sentenced to14 years in prison, that will make them 34 on their release. Add another 25 years to that, and they are almost pensioners before they are clear of the shackles of the state. They have not been given the opportunity to reform, because they are constantly looking over their shoulder, perhaps with an attitude of, “Why on earth should I change when the authorities are always on my back?”

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We talk about children as victims in this context, but the experts who gave evidence told us that these young people are also extremely dangerous. They said that rehabilitation is extremely important—of course that can take place in prisons—but that sentencing has other objectives, such as the protection of the public, including young people walking the streets who also deserve the protection of the law.

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The hon. Lady is entirely correct. We must, first and foremost, protect the public. We need to understand that we may never be able to rehabilitate some young people, and they may be a problem to society for the rest of their lives. However, there will also be young people in the system who have done some horrible, terrible and tragic things but who can be rehabilitated and recognise that they got it wrong. They should be given the opportunity to live their life to its full extent.

When those young people are released from prison, they are pinioned into a box and told, “You are a terrorist”. They might go into approved accommodation for a while, but they will have difficulty with housing, family relationships, forming new relationships and getting a job. We need to be able to rehabilitate young people to the point where they are employable, so that we can talk to organisations that are prepared to take on former criminals to give them a better chance in life.

I spent a large part of my career in the gas industry. I am a journalist by profession, so I am no lawyer. When I worked in the gas industry, an amazing scheme was operated by what was originally British Gas but had become the Lattice Group, which had the Transco organisation within its group. It had an amazing scheme and worked with Reading prison. It took offenders from the prison into the community—this was during their sentence—and trained them to do real jobs. When they left prison, the organisations were even providing employment for them, providing bridges and real rehabilitation, so I do not think that anybody, particularly young people, should be written off. We can reform and rehabilitate, but it is a choice for us to do so.

Instead, the sentencing framework for young adults is the same as that for other adults, in that beyond the age of 18 the same guidelines and principle apply irrespective of age. This might pander to some public opinion, rather than focus on what works and what is best for the individuals concerned and for the wider society. It is worth noting that the MOJ’s own impact assessment of the Bill recognises that

“Longer periods in custody could disrupt family relationships”—

I talked about that earlier—

“which are often critical to reducing the risk of reoffending. This would be more severe for young offenders and children convicted of terrorist offences.”

The way in which the Bill is currently framed throws the key away and lets them suffer in that particular way. The Government’s assessment goes on:

“There will be a need to provide offender management in custody to adults for longer, which may require an adjustment to the resources required in custody.”

I am sure we will come to resources later.

As a consequence of not focusing on what would work best for them with an appropriate pre-sentence report taken into consideration, young adults have to rely on the extent to which they can persuade a sentencer that their age and/or immaturity is a mitigating factor. Should we not recognise the fact that these are not often hardened adult offenders, but young, often immature adults who have made a mistake, albeit a very, very serious one? There is no doubt that serious offences must result in serious sentences, but surely not all young offenders should be written off by the state.

Chronological age has long been accepted as a mitigating factor in sentencing for both the very young and the very old. More recently, the concept of lack of maturity has been introduced into formal sentencing guidance as a mitigating factor. The most obvious way for the maturity of a person facing sentence to be assessed is by the person preparing a pre-sentence report for the court. Section 156 of the Criminal Justice Act 2003 gives courts the power, and indeed the obligation, to order a pre-sentence report prior to sentencing an offender to a custodial or community sentence.

Jonathan Hall, the Independent Reviewer of Terrorism Legislation, has said:

“The requirement of a minimum mandatory sentence for all adult offenders, however young, puts in doubt whether judges can properly reflect the fact that an adult of 18 years and one month may not be any more mature than a child of 17 years and 11 months (for whom these sentences are not available). Age may or may not result in ‘exceptional circumstances’ being found, which is the only basis on which the 14-year minimum can be avoided.”

It is also the case that a minimum term of 14 years will have a disproportionate impact on young adults, representing a much larger proportion of the total years lived by a young person than it would for an older adult. We on the Labour Benches want to recognise the differences between adults over the age of 21, those between 19 and 21, and those who are under 18, all at very different stages in their lives. The evidence points towards there being different approaches to deal with such offenders. Evidence on desistance shows that young adults are more susceptible to change and more capable of desistance from crime than older adults. The research that exists on deradicalisation programmes suggests that approaches focused on education and training can be effective with young people in particular.

I hope the Minister agrees that where we can save the future of a young offender and direct them towards a life free of crime, we should do that. But we cannot do that if we condemn them to remain in prison and then effectively on licence until they are past middle age. I do not kid myself—as I said in answer to the hon. Member for Hertford and Stortford earlier—that there may be some young people for whom such a sentence is necessary. This amendment does nothing at all to prevent a judge from imposing such a sentence. However, by requiring the pre-sentencing report to look at the specific items listed in the amendment and for the court to consider it before sentencing, we will provide the courts with the opportunity of recognising exceptional circumstances and acting in an appropriate and fair manner.

This is about a young person’s future life. They may well have done the most horrible and tragic things, but even those people deserve an opportunity to prove that they can do better. This amendment would help to achieve that.

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It is a pleasure to serve under your chairmanship, Mr McCabe. I rise in support of amendments 37, 45 and 46, standing in the name of my hon. Friend the Member for Stockton North. I want to cover some general principles in what is my first opportunity to speak in this Bill Committee. Like the Government, we are committed to keeping the public safe and we share the desire to ensure that attacks such as those at Fishmongers’ Hall and in Streatham never happen again—attacks where convicted but released terrorists were able to kill and maim innocent people.

We recognise the importance of adequate and appropriate punishment in sentencing, but punishment and sentencing must go alongside rehabilitation. As my right hon. Friend the Member for Tottenham said on Second Reading:

“We must not lose faith in the power of redemption—the ability of people to renounce the darkest chapters of their lives and move towards the light.”—[Official Report, 9 June 2020; Vol. 677, c. 213.].

For that, those offenders need an effective deradicalisation programme tailored to their motivation and circumstances, and they need hope—hope that before too long they can rejoin their family; that they can get meaningful work. They could even steer others away from the path they took before. I point out that programmes have operated in prisons in Northern Ireland with convicted paramilitaries on both sides of the troubles. In the later years of the troubles, those men became beacons of peace and reconciliation, educating young people towards positive paths.

Some contributions on Second Reading sometimes felt like support for a policy that almost veered on “Lock ’em up and throw away the key”. However, as many submissions and expert witnesses to this Committee have said, removing hope from these offenders and the opportunity to prove they are safe does not make the rest of us safer. I might add, even locking up people indefinitely, as the hon. Member for Hertford and Stortford said earlier, does not protect us anyway. It does not prevent them from radicalising others. It spawns martyrs, not to mention the cost to the public purse of incarcerating prisoners for ever longer periods. As we heard this morning from the Prison Officers Association, there is also the danger to prison officers of attacks from angry men who have no hope of release in the foreseeable future.

I fear that some aspects of the Bill are born from a reaction to the terrorist atrocities in the last seven months and have been brought in without due research into what might work to further reduce the risk of attack from radicalised individuals, whether they are of a Daesh/ISIS persuasion, from the far right or, as a number of terrorists in the UK still are, rogue Irish paramilitaries.

The Fishmongers’ Hall and Streatham attacks were both committed by offenders who had been released automatically halfway through their sentence with no involvement of the Parole Board. Of course, with Labour support, the Government have now brought in the Terrorist Offenders (Restriction of Early Release) Act 2020, which ends the automatic early release of terrorist offenders and ensures that any release before the end of a sentence is dependent on a thorough risk assessment by the Parole Board. I am therefore not quite sure why the Government want to take the Parole Board out of sentencing now, without any adequate alternative provision being put in place.

Before I make some specific remarks, Dave, the father of Jack Merritt, who was killed in the Fishmongers’ Hall attack, wrote poignantly about how his son would have perceived the political reaction to his death, because of course Jack Merritt worked in the criminal justice system on the rehabilitation of offenders. Dave wrote:

“What Jack would want from this is for all of us to walk through the door he has booted down, in his black Doc Martens. That door opens up a world where we do not lock up and throw away the key. Where we do not give indeterminate sentences, or convict people on joint enterprise. Where we do not slash prison budgets, and where we focus on rehabilitation not revenge. Where we do not consistently undermine our public services, the lifeline of our nation. Jack believed in the inherent goodness of humanity, and felt a deep social responsibility to protect that.”

As I said, I support the amendments in the name of my hon. Friend the Member for Stockton South—

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Stockton North!

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My apologies.

Amendments 37, 45 and 46 relate to under-21s. I wish that they went a little older, possibly to 25, because they consider the issue of maturity. I declare a certain interest because for many years I was a trustee and, latterly, the chair of the Barrow Cadbury Trust, which initiated and funded the Transition to Adulthood Alliance about 15 years ago. Over a number of years, the alliance worked with a number of non-governmental organisations, the Ministry of Justice, Ministers, Opposition Members and so on to the point where maturity has now been introduced into sentencing practice and several other areas of the criminal justice system. I fear that we are going to lose that in this Bill.

When considering maturity, it is really important that we work on the basis of all the research that my hon. Friend the Member for Stockton North mentioned and use that research to reduce the risk of serious harm to members of the public and to enhance the rehabilitation of the offender. The Committee has heard powerful evidence, particularly this morning, about the different motivations that people have for becoming terrorists or terrorist sympathisers, such as political, religious or psychiatric.

Sentences and rehabilitation must take account of the different motivations of different offenders. As we heard this morning, we probably also need to have tailored support, which needs to come into the pre-sentencing reports. One of the amendments says that the court must also take account of reports from local authority officers who have worked with the offender prior to the point of considering sentencing.

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I thank my hon. Friend for her comprehensive speech. She talks about resources and specialised facilities. The evidence we heard from some people in earlier sittings suggests that the system is not fit for purpose. Would she welcome from the Minister, as I would, a statement about how the Government will ensure proper provision for rehabilitation in our prison system?

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I absolutely agree with my hon. Friend. As others have said, it would have been better if there had been proper risk assessments of a number of aspects of the Bill, because many clauses do not seem to be evidence-based. We know that we have funding problems within the prison system. We know that we have, as we heard this morning, disjoints between various elements of the course through the system for offenders. There is an awful lot of work to do, and there are a number of respects in which I do not feel that the Bill is fit for purpose. It would have been better if it had been based on proper evidence of what works to reduce the threat to the public and improve rehabilitation.

Children have long been treated differently in sentencing considerations, and the amendments would enable particular considerations for young adults, particularly of their maturity. Mr Hall, the independent reviewer, was concerned that, unless these considerations are taken into account, we risk locking people up for too long, building bitterness and a refusal to engage in the prison system, and actually, on eventual release, potentially a greater risk. He considered that longer and more punitive sentences do not in themselves ensure that people are less dangerous on release, and that while extending sentences for serious offenders may, of course, keep them out of our harm’s way for a temporary period, we do not want them to leave prison more dangerous than when they entered.

Early release provides prisoners with the incentive to behave and show that they are capable of reform. We heard powerful evidence that prison staff are at increased risk of harm where hope is lost. As my hon. Friend the Member for Stockton North said, many studies show that young terrorist offenders are much more likely to reform than older offenders, yet the Bill treats a young adult who has just turned 18 the same as an older offender. Are the Secretary of State and the Minister concerned that the Bill effectively gives up on those offenders?

We need to look at the evidence, not the tabloids. We need a flexible response that is offender-based, and it must be tailored. If we really want to enable rehabilitation and reduce the harm to the public, I hope that the Minister will consider the amendment.

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I will speak to the amendments relating to younger offenders. There are a couple of things to be clear about first of all. For the sake of absolute clarity, offenders who are under the age of 18 are not subject to the 14-year minimum prison sentence. Only offenders over the age of 18 are subject to those provisions. The amendments relate to offenders aged between 18 and 21, so we are discussing a very specific cohort.

I agree and concur with many points that the shadow Minister and the hon. Member for Brentford and Isleworth made about rehabilitation, and about the increased opportunity for rehabilitation for younger people. It is of course the case that younger people are more open to change—particularly as their brains mature—than older people, and it is right that we try to work with them to achieve that. I would not dispute that as a general principle, but clause 4 as drafted applies to an extremely small subsection of those offenders aged between 18 and 21. It by no means applies to the generality of offenders, including terrorist offenders, aged 18 to 21. It applies to that narrow subsection who have committed a serious terrorist offence, as we have discussed already, but it also requires a finding by the judge, following a pre-sentence report—something the shadow Minister referred to in his amendment and in his speech—of dangerousness. What a finding of dangerousness means in law is that there is a significant risk of the offender causing serious harm by committing further serious terrorism or other specified offences.

There are already two hurdles to jump: a serious terrorist offence, followed by a finding of dangerousness based on a pre-sentence report. However, there is also a third hurdle that must be jumped before a younger offender aged 18 to 21 would fall into the scope of this clause, which is that, at the time of committing the offence. they were aware, or should have been aware, that their offence was very likely to result in or contribute to multiple deaths. That is a well-established test dating back to section 1 of the Terrorism Act 2000. We are talking about an extremely small subsection of offenders aged 18 to 21 and a very small subsection even of terrorist offenders—those who meet all three of those criteria.

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I wonder whether it really is true that it is such a small cohort of offenders, because the Bill opens up the number of offences that can be considered severe enough for this sentence to be passed. There may currently be very few, but this new law extends the offences quite considerably—in fact, in some ways, it leaves it quite open for people to determine that a terrorist offence or a terrorist connection is involved. Surely there is more opportunity now for people to be serving this sort of sentence.

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The provisions open it up for judges to make a finding of a terrorist connection, but the impact assessment for the Bill refers to a potential increase in the prison population of 50 people. Of course, that is for all ages over 18; if we consider how many of those estimated additional 50 places might be occupied by people aged between 18 and 21, one might reasonably assume that the number at any one time will certainly be less than 10 and possibly even less than five. That is an estimate, but none the less, it appears in the impact assessment.

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It might be helpful, as the Bill progresses, if the Minister could publish some of the facts and the evidence for the claim he has just made about the 50 people and the relatively small number of younger people.

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I think the number 50 appears in the impact assessment, and I would be happy to look into the basis for that estimate. As for the number of younger people, that was something that I spontaneously generated, based on the fact that we are talking about a three-year range from 18 to 21, whereas the number of offenders will generally cover all ages, from 18 upwards.

The point I am making is that, while I accept the generality of what the shadow Minister and the hon. Member for Brentford and Isleworth say about the need to have hope and to have an opportunity to rehabilitate, we are talking about a very small number of very serious offenders, who have been assessed as dangerous following a pre-sentence report and who have engaged in activity likely to cause multiple deaths. In those very serious circumstances, I think it is appropriate, and I think the public would also think it is appropriate, that we protect the public for an extended period, as this Bill does.

If we are talking about other offenders, including terrorist offenders who do not meet that level of seriousness—there are many—all the comments made about rehabilitation and the chance to reform do legitimately apply. Indeed, we heard in evidence earlier today that the proven reoffending rate on release for that sort of offender is between 5% and 10%, which is an extraordinarily low figure compared with other cohorts. That suggests that the rehabilitation work done in prison is effective, as I think our last witness this morning suggested.

It is important, given the assessment of dangerousness that is made, that the pre-sentence report fully reflects the offender’s ability to change and the changes to the brain and so on that take place around the early 20s. That is a point that my hon. Friend the Member for Aylesbury, who is not with us this afternoon as he is attending the Justice Committee, has made to me. I will discuss with the Minister of State, Ministry of Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer)—I would not like to get my north, south, east and west muddled up—who is the prisons and probation Minister, whether there is any more we can do to make sure that these pre-sentence reports fully reflect the points that the shadow Minister and the hon. Member for Brentford and Isleworth have made about people’s ability to change. Those points are relevant in the context of assessing dangerousness, because if someone is undergoing changes, they may be less dangerous than someone who is fixed in their ways. I will take up that point with my hon. and learned Friend.

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The Minister may well be considering whether he is prepared to take the risk with this small cohort of people. As my hon. Friend the Member for Brentford and Isleworth outlined earlier, these individuals, who could reach middle age before there is any prospect of the state being off their back, are susceptible to further radicalisation in prison and might radicalise others. Surely, therefore, there is an element of risk that needs to be considered so that we can try to balance things.

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The cohort that I have described are dangerous, have been found to be dangerous by a judge following a pre-sentence report and have tried to kill multiple people. With this very small number of very dangerous people, who are endangering the lives of our fellow citizens, it is appropriate to prevent them for an extended period of time—a minimum of 14 years—from attacking our fellow citizens in the future. It is a truly exceptional and small cohort.

Speaking of the word “exceptional”, if there are circumstances in relation to these people that a judge thinks are truly exceptional—some extraordinary extenuating circumstances—and that, despite the fact that they have done the terrible things I have described and despite the finding of dangerousness, merit different treatment, the judge has open to them the possibility to make a finding that there is an exceptional circumstance and can derogate from the 14-year minimum. We would expect that to be extremely unusual—indeed, truly exceptional, as the word implies.

Given how dangerous and damaging this very small number of people are, and given our obligation to protect the public, this measure is couched appropriately. There is the ability to not make a finding of dangerousness, having read the pre-sentence report. There is also the ability for the judge to find that an exceptional circumstance applies. That provides more than adequate protection, bearing in mind how dangerous these people are.

As for other offenders, however, I take the point about the need to rehabilitate; rehabilitation is often successful, as we have seen from the figures. As I said, I will talk to my hon. and learned Friend the prisons and probation Minister to make sure that all the relevant information is collected in probation reports, which will help a judge when making a determination on the question of dangerousness.

I would like to briefly respond to a point made by the hon. Member for Brentford and Isleworth about indeterminate sentences and throwing away the key, as she put it. Of course, the coalition Government legislated—I think it was in 2012—to get rid of the former sentences of imprisonment for public protection, which had been introduced in the early 2000s, whereby people could be left in prison forever, despite not having been given a life sentence. Those sentences were replaced with extended determinate sentences, so the coalition Government, which of course was Conservative-led, legislated to remove, or significantly reduce, that problem of locking people up and throwing away the key, which the hon. Member referred to in her speech.

I hope that I have explained why this measure is appropriate, bearing in mind the small numbers and the extreme danger that these people represent, and I express my support for the Bill as it is currently drafted.

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I am grateful to the Minister for his response. However, I am not convinced that we are talking about only a handful of people. The fact that this piece of legislation grows the number of offences that could potentially fall into this cohort suggests that many more people could be caught up in it in the longer term—some of them perhaps not quite such serious offenders as some of those the Minister has described this afternoon.

The Minister says he agrees that we should have an eye to rehabilitation and that we should work hard to achieve rehabilitation. However, if I am right and he is wrong, and we do have dozens or perhaps even more young people falling into this category because of the way the Bill is drafted, there surely need to be some protections there and some opportunity for a pre-sentence report to explore specific issues around age and maturity before reporting to a judge who will make the ultimate decision.

On the basis that this measure could affect many more people than the Minister suggests, and that some of them might not be the most serious offenders, I wish to press the amendment to a vote.

Question put, That the amendment be made.

Division 1

30 June 2020

The Committee divided:

Ayes: 6
Noes: 8

Question accordingly negatived.

View Details

Question proposed, That the clause stand part of the Bill.

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In my response to the amendment, I described the effect of the clause and the tests to be applied. If those tests are met, the minimum sentence of 14 years will be imposed, followed by a licence period of not less than seven years and not greater than 25. I beg to move that the clause stand part of the Bill.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clause 5

Serious terrorism sentence for adults aged 21 or over: England and Wales

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I beg to move amendment 38, in clause 5, page 7, line 35, after “25 years.”, insert—

“(5) Where—

(a) a prisoner is subject to a licence for an extension period under this section, and

(b) the qualifying period has expired,

the Secretary of State shall, if directed to do so by the National Probation Service, order that the licence is to cease to have effect.

(6) Where—

(a) the prisoner has been released on licence for an extension period under this section;

(b) the qualifying period has expired; and

(c) if the prisoner has made a previous application under this subsection, a period of at least twelve months has expired since the disposal of that application,

the prisoner may make an application to the National Probation Service under this subsection.

(7) Where an application is made under subsection (6) above, the National Probation Service—

(a) shall, if it is satisfied that it is no longer necessary for the protection of the public that the licence should remain in force, direct the Secretary of State to make an order that the licence is to cease to have effect;

(b) shall otherwise dismiss the application.

(8) In this section, ‘the qualifying period’, in relation to a prisoner who has been released on licence, means the period of ten years beginning with the date of his release.”

The main area of concern that has led to the amendment relates to the maximum 25 years on licence specified by the Bill. We of course accept that we cannot have a cliff-edge situation whereby someone leaves prison without any further monitoring, particularly offenders in this cohort. There must be a licence period once the offender leaves prison. The issue is whether a licence period of up to 25 years is reasonable and whether it is a proportionate way of addressing the problem. There is also the concern over the lack of any review mechanism.

A licence for 25 years is equivalent to a licence for life. As well as severely curtailing the human rights of the offender after they have already completed their full custodial sentence, a licence for life also fundamentally constrains their ability to play an active part in society. For example, it would be a constant barrier to employment and—who knows?—perhaps new relationships. We would essentially be telling people that there is no point in them rehabilitating or contributing to society, because they will always be under suspicion—always under the careful watch and restriction of the state. A life on licence reduces individuals’ capability to reform and take positive action. It can have a detrimental impact on the joys of life that can keep an individual on the straight and narrow.

There is also the issue of the administrative burden on an already overworked National Probation Service, which has a financial cost, and which requires additional trained probation officers to deal with those released on licence. I would be interested to know where the idea for a term of 25 years on licence comes from. Is the Government’s intention simply that anyone convicted and sentenced to a determinate sentence of 14 years, with 25 years on licence, should have a life sentence, with the state constantly on their case and without any prospect of being released from it? If so, the Minister should say so. Can he confirm that there is logic in the period that he has decided on? Has he looked at the costs and at whether 20-year licenses, which would naturally be less expensive for the state, might be just as effective?

As I have said, the main area of concern that these amendments address is the maximum 25 years on licence specified by the Bill, which is effectively a licence for life under an indeterminate sentence for public protection. However, unlike the licence for life, the Bill does not allow for the licence to be terminated in certain circumstances. That creates an issue of unfairness, as well as a huge administrative burden, at a cost to the public purse.

I agree with the Independent Reviewer of Terrorism Legislation, Jonathan Hall, who said:

“determining whether a 7-year, 15-year or 25-year licence is appropriate at the point of sentencing for dangerous individuals who have committed the most serious offences may be asking courts to engage in guesswork.”

I personally would not feel confident in making such a decision. Would the Minister?

As I said earlier, there is a concern about existing case law and guidance available for sentencers on identifying terrorism connections when sentencing. We cannot expect sentencers to feel truly comfortable and informed if the frame of what licence they can impose is so broad. It is worth reiterating that a 25-year licence period is not so different from a licence for life. However, whereas licences for life imposed on imprisonment for public protection prisoners could be terminated in appropriate cases, that does not apply to serious terrorism sentences. It feels like the principle of rehabilitation is again being somewhat missed.

I spoke earlier this afternoon about young people. Is it the Minister’s intention that they are effectively to remain on licence until within a few years of the state retirement age? A 14-year term for a 20-year-old means that they will be 59 before they are free of the licence. Will the Minister clarify the merits of 25-year licensing and address young people in particular?

I am a strong believer in people doing their time for violent offences, but with a strong focus on rehabilitation. Our amendment would give them some hope that their good behaviour has paid off after time. Perhaps we need to give people sight of a future where they would live their lives in a very different way—an honest and crime-free way. What, if anything, can the Minister offer those people—particularly younger ones?

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The shadow Minister posed a question: why a maximum of 25 years? Therein lies the answer.

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Maybe I misunderstood, but I thought the 25 years was mandatory.

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No, it is a maximum. The licence period is between seven and 25 years; within that, the judge has discretion to choose the most appropriate length of time. The point that I was about to make is that it is up to judicial discretion to decide the appropriate length of time. We ask the judge to make that determination, as we do when setting any licence condition. That is the way the licence system works at the moment. The judge sets the licence period at the point of sentence.

The shadow Minister, quoting the independent reviewer, asked, “How can the judge know in advance what a suitable length of time may be, looking potentially as far as 25 years into the future?” The answer to that question is that although the licence period cannot and in my view should not be varied by the Probation Service acting administratively—that is for the judge to decide—the Probation Service can, and frequently does, vary the terms of the licence conditions; as an offender behaves better over time and matures, or as their radical or criminal behaviour more generally changes as they get older, the licensing conditions can be and are relaxed. The Probation Service does that as a matter of routine, and I would expect and hope for that to happen as time passes.

Were we to give the Probation Service the ability to change the length of licence period, it would be overriding a judicial decision, which is wrong in principle and would possibly infringe article 6 of the European convention on human rights, which says that the Government should not be allowed to interfere with or alter a sentence handed down by the court.

The shadow Minister mentioned the arrangements for terminating licence conditions for indeterminate sentences—that is, the old imprisonment for public protection I referred to previously. As the name implies, those IPPs are indeterminate and indefinite. A judge has not imposed a time limit, so they could go on for the duration of somebody’s life. Some termination mechanism is needed.

Where a judge has made a decision—and it is up to the judge to choose, at their discretion, somewhere between seven and 25 years—it is right that licence condition is applied for that length of time. However, to reassure the Committee and the shadow Minister, I should say that the Probation Service can, as appropriate, relax and change those licence conditions as time passes. That is the right way of handling the issue.

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I accept the Minister’s explanation and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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We have covered many of the operative provisions. They are rather similar to the ones we debated in clause 4, in relation to people under the age of 21.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clause 6

Serious terrorism sentence: Scotland

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I beg to move amendment 43, in clause 6, page 8, line 10, at end insert—

“(ea) the court does not impose an order for lifelong restriction under section 210F of the Criminal Procedure (Scotland) Act 1995, and”.

This amendment disapplies Clause 6 if an order for lifelong restriction, a sentence unique to Scotland, has been imposed.

It is a pleasure to serve under your chairmanship, Mr McCabe. Before I move to the specifics of amendment 43, I will say by way of preface where my party and I are coming from. As the Minister is aware, we recognise that it is the duty of not just a Government to keep their citizens safe and secure; it is the obligation of all who serve in Parliament. At the outset, we have given the Government our assurance that any opposition will attempt to be as constructive as possible, to ensure that the challenge of terrorism that we now see, sadly, all too regularly in our communities, is addressed and that we keep our people as safe as they can be.

Some issues concern us. The burden of proof has been mentioned in terms of TPIMs. The balance of the burden of proof has been an issue for over 40 years, since my involvement in the law—and, in a way, since the legal profession and legal systems came about. We recognise that there is good reason why there has to be some distinction when it comes to terrorism and that standards that might normally apply in a wider criminal trial cannot be expected, especially with regard to TPIMs. However, there still has to be an element of proportionality, and we have to ensure that we protect the rights of those who face considerable periods of loss of liberty. That is why we have concerns and are watching the situation.

Sadly, the issue disproportionately impacts BAME communities; we are conscious of that. It is clear that we are required not only to protect our people from terrorism—and, indeed, to punish those who perpetrate it—but to prevent it from happening in the first instance. If we have a system that is perceived, whether it in fact is or not, as prejudicial and impacting harshly, even sometimes deliberately, on one community, issues arise. Those of us old enough to remember the consequences of internment in Northern Ireland will realise that a community’s feeling of being discriminated against can be a recruiting sergeant rather than the method of preventing such recruitment.

We are anxious that Prevent should be on board, and that we should balance and take into account the injustice that BAME communities suffer abroad. It is also perhaps appropriate for us to remember that, whatever terrorist atrocities we face in this country—there are far too many—they are as nothing to what those communities who a minority in our country would abuse and put the blame of terrorism upon suffer on a daily basis. We are required to remember that many communities who are blamed for terrorism are also the victims of it on a far greater basis than us.

That brings us to the specific question of amendment 43. I realise that there is a difference and a distinction in Scots law. Although terrorism is reserved, which we accept until such time as that changes, the management of the Scottish Prison Service and the Scottish legal system are devolved, and there are matters where the two come together.

Obviously, a mandatory sentence may impact on a sentence of an order for lifelong restriction. An order for lifelong restriction has not been in Scotland forever and a day—indeed, it had only just come in when I became Justice Secretary back in 2007. The number of orders of lifelong restriction is actually very small, because they are meant to be used rarely. Those who originally brought in the concept, to be fair to them—this is not a criticism—had not considered that it would apply to terrorism. It was meant to apply to serious sex offenders and those who perpetrate violence, who we know are a risk and will continue to be a risk, perhaps throughout their lives. That cohort to which the Minister referred is even smaller in Scotland, with our Barnett share, as it were. They are capable of being counted on one or two hands at most.

However, the benefit of an order for lifelong restriction is that it allows for what was raised by Mr Fairhurst, our witness today: that opportunity for redemption for those perceived to be genuinely undertaking rehabilitation schemes, so that they can be released early, albeit under licence. Alternatively, the court may decide to impose an order for lifelong restriction throughout the entire lifetime of someone who has served their full determinate sentence. That is also appropriate—there is no obligation for such a person to be released, unless the court is satisfied that they are no longer a risk.

I tend to trust the judgment of the Parole Board and the Risk Management Authority in Scotland. I have not been Justice Secretary for more than six years now, but I recall two particular cases; I take into account comments made earlier about people being capable of redemption. Two of the highest-profile offenders in Scotland—I will not name them—were released by the Parole Board, and it is fair to say that, despite the heinous nature of the crimes they perpetrated, they have not since come to its attention.

Risks can be taken, people can reform and rehabilitation can be successful. I accept that the crimes of the individuals I am talking about were not related to terrorism, but those individuals show that rehabilitation can take place. That is why I think that the order for lifelong restriction is a better opportunity for the Scottish courts to consider. They may not wish to. We are not seeking to ensure that such an order should be mandatory or to take away the mandatory sentence that the legislation would put in; we want the Scottish courts to have the opportunity to use an order for lifelong restriction if they think that might be a better sentence than what the Bill would impose.

I ask the Minister to reflect on that. The issue has probably come about because those drafting the Bill were not cognisant of the Scottish legal system or the sentencing policies in Scotland. If the order for lifelong restriction, which we think gives advantages to a court and those who monitor, were brought on board and made available as an opportunity, we, as the party of government in Scotland, and those in the judiciary and the prison and legal services in Scotland, would view that as appropriate for our particular circumstances.

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I thank the hon. Member for East Lothian for his constructive comments at the beginning of his speech. As the shadow Minister said, in many respects the work on the Bill demonstrates Parliament and public life at its best, as we work together to protect our fellow citizens throughout the whole United Kingdom. Protecting our fellow citizens from violent attack is, thankfully, a principle on which we all agree, regardless of our differences on various other topics that often come before us. I am grateful for the constructive approach of the hon. Member for East Lothian, accepting, of course, that he wishes to discuss further points in due course, a few of which he mentioned.

There is clearly a question about how this legislation interacts with the order for lifelong restriction, which is applicable in Scotland. Indeed, the sentence that a Scottish court might hand down in the absence of this legislation could conceivably be longer—lifelong, as the name implies—than the period required by this legislation. The Government essentially accept the principle that there is an interaction that requires further work, and—let me be clear—further amendment.

On the detail of how the interaction will work best, discussions are ongoing between Ministry of Justice officials and officials in the Justice Directorate in Scotland about the technicalities. For example, although the clause as it is drafted would make it possible for an OLR to be imposed and, therefore, a lifelong restriction to be in place, we would lose the 14-year minimum sentence. What we would like to try to achieve technically is an amendment that preserves the concept of the 14-year minimum, but allows the lifelong restrictions to apply thereafter if a Scottish judge sees fit.

Those technical discussions are taking place. If the hon. Member for East Lothian or his colleague, the hon. and learned Member for Edinburgh South West, wish to participate in those technical discussions, they are welcome to do so.

The fact that we would lose the 14-year minimum is problematic, but I accept the principle that an amendment is needed. If we can put such an amendment together quickly enough, we will be happy to bring it forward, in consultation with the hon. Gentleman, on Report. If we cannot get it ready fast enough for that, perhaps their lordships will be kind enough to consider making an appropriate amendment down at their end of the building.

I hope that my comments illustrate that I recognise the validity and the reasonableness of the point being raised. I hope that we can find a way to amend the Bill to preserve the 14-year minimum but not take away any ability that Scottish judges currently have to impose longer restrictions, should they see fit.

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I am happy to accept that parliamentary drafting has its complexities; it is a skill way beyond my level of competence, but I appreciate the difficulties that go with it. I am happy to accept the undertaking given by the Minister, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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Clause 6 has the same operative effect as clause 5 has in relation to England and Wales.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 7

Serious terrorism sentence: Northern Ireland

Question proposed, That the clause stand part of the Bill.

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With this it will be convenient to discuss Government amendment 31.

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Clause 7 and associated Government amendment 31 essentially do all the things we have just debated in relation to England, Wales and Scotland, but apply to Northern Ireland. The Government amendment is to ensure that we interact with Northern Irish sentencing law in a consistent way. It is rather the same issue that we debated a moment ago in relation to Scotland, where similar thinking clearly needs to be developed a little further. Government amendment 31 makes, I think, five technical changes to ensure that the measures that we have already debated apply consistently and coherently in Northern Ireland.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clause 8

Reduction in appropriate custodial term for guilty pleas: England and Wales

Question proposed, That the clause stand part of the Bill.

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Clause 8 relates to a reduction to the minimum custodial term for a serious terrorist sentence where the offender makes a guilty plea at the earliest opportunity. Ordinarily, when such a guilty plea is entered for most offences—not quite all, but most—a discount of up to 33% of the sentence is possible. However, reflecting the very serious nature of the offences we are debating, the clause limits the discount for an early guilty plea to 20% of the custodial term. By way of illustration, if a 14-year minimum were imposed—it could be more, of course—the reduction could be to 11 years and 73 days, but no less. Practically, that is implemented by inserting a new subsection into section 73 of the sentencing code.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Clause 9

Reduction in appropriate custodial term for guilty pleas: Scotland

Question proposed, That the clause stand part of the Bill.

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Clause 9 has the same effect as the one we have just discussed, but in relation to Scotland.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clause 10

Reduction in appropriate custodial term for assistance to prosecution: England and Wales

Question proposed, That the clause stand part of the Bill.

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Clause 10 provides for the court to apply a reduction to the custodial term for a serious terrorist sentence in England and Wales from the 14-year minimum in cases where the offender assists the prosecution. It does so by inserting a new subsection into section 74 of the sentencing code. The subsection notes that nothing in the STS sentencing provisions affects the court’s ability or power to take into account the extent and nature of any assistance given to the prosecution.

In keeping with the approach to all other sentences, including other minimum sentences and mandatory life sentences, there is no maximum reduction rate in relation to the flexibility that I have just described. While we are determined to ensure that serious terrorists receive the appropriate penalties for their offending, it is also important to ensure that an incentive remains for guilty offenders to assist the prosecution with other cases it may be pursuing.

This is a well-established process within the sentencing procedure across the whole United Kingdom. It can, and indeed often does, play a pivotal role in helping our prosecutors and the police to secure guilty verdicts in other, often more significant, related cases where the defendants may be a higher risk to the public than those in the case under direct consideration. We think it appropriate to continue that judicial discretion in cases where defendants assist the prosecution and where that assistance may help to convict other, even more dangerous people.

Question put and agreed to.

Clause 10 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Tom Pursglove.)

Adjourned till Thursday 2 July at half-past Eleven o’clock.

Written evidence reported to the House

CTSB06 Muslim Engagement and Development (MEND)

CTSB07 Amnesty International UK

CTSB08 Sharee Watson

CTSB09 Law Society of Scotland (suggested amendments)

Parliamentary Constituencies Bill (Eighth sitting)

The Committee consisted of the following Members:

Chairs: † Sir David Amess, Ian Paisley

† Afolami, Bim (Hitchin and Harpenden) (Con)

† Bailey, Shaun (West Bromwich West) (Con)

† Clarkson, Chris (Heywood and Middleton) (Con)

† Efford, Clive (Eltham) (Lab)

† Farris, Laura (Newbury) (Con)

† Fletcher, Colleen (Coventry North East) (Lab)

† Hughes, Eddie (Walsall North) (Con)

† Hunt, Jane (Loughborough) (Con)

† Lake, Ben (Ceredigion) (PC)

† Linden, David (Glasgow East) (SNP)

† Matheson, Christian (City of Chester) (Lab)

† Miller, Mrs Maria (Basingstoke) (Con)

† Mohindra, Mr Gagan (South West Hertfordshire) (Con)

† Shelbrooke, Alec (Elmet and Rothwell) (Con)

† Smith, Cat (Lancaster and Fleetwood) (Lab)

† Smith, Chloe (Minister of State, Cabinet Office)

† Spellar, John (Warley) (Lab)

Sarah Thatcher, Rob Page, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 30 June 2020

(Afternoon)

[Sir David Amess in the Chair]

Parliamentary Constituencies Bill

Clause 12

Extent, Commencement and Short Title

Question proposed, That the clause stand part of the Bill.

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I asked for fans to be supplied to Committee Room 14, and the fans are here. No sooner did I ask for them than the weather deteriorated. However, if anyone is too warm I will arrange for the fans to be shared with anyone who would like them.

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Sir David, it is a wonderful pleasure to return to the Committee under your chairmanship. I wanted to clarify a point that was raised by the right hon. Member for Warley. He is not in his place now, but I hope it will be helpful to the Committee if I proceed.

The right hon. Gentleman asked how the protected status of Ynys Môn, on which we had an excellent debate this morning, would relate to the allocation of seats between the nations in the calculation of the electoral quota. I can make that clear now. At the start of the boundary review, before any allocations are made, the protected constituencies and their electorate are set to one side, as it were. That happens at the beginning before the national consideration. They are then not included in any consideration of either seat allocations or the calculation of the electoral quota. To illustrate that, with Ynys Môn added to the existing four protected constituencies there will be five in total. Those five will be removed from the overall total number, leaving 645. Their electorates would then be subtracted from the UK total electorate. The remaining UK electorate would be divided by 645, and that would give the electoral quota—the average on which each proposed constituency will be based. That figure is likely to fall somewhere between 70,000 and 80,000. The number of constituencies per home nation—the allocation—is then calculated by the usual method set out under rule 8 of schedule 2 to the Parliamentary Constituencies Act 1986, which also uses the total electorate of each part of the UK, minus the electorate of any protected constituencies in that part. I will talk more about the method for that when we discuss new clause 3, but I hope that in the first instance that addresses the right hon. Gentleman’s query, even in his absence.

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My right hon. Friend is also a member of the Defence Committee, and the Secretary of State is giving evidence there this afternoon, so his not being here is certainly no discourtesy.

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That is extremely helpful to know. As I said once before in this Committee, it is of great benefit that we have such experienced Committee members, including no fewer than two former Secretaries of State, who naturally have other calls on their time.

The final clause of the Bill, clause 12, makes provision with respect to the extent of the Bill, its commencement and the short title. As it relates to the UK Parliament and its constituencies, the Bill extends to England and Wales, Scotland and Northern Ireland. The subject matter is reserved to the UK Parliament, so legislative consent motions from any of the devolved legislatures are not required. The Bill comes into force on the day when it is passed. It is important that it should commence on that day in order to allow the boundary commissions to have legal certainty on the rules, such as the number of constituencies, for the next reviews, which begin formally on 1 December 2020—the review date—and in practice will get going in earnest in early 2021.

As I noted during discussion on clauses 8 and 9, the Bill applies retrospectively in two clauses in relation to Government obligations on implementing the 2018 boundary review and the review of the reduction of seats. The provisions in those clauses are treated as having come into force from 24 March and 31 May 2020 respectively. The short title of the Bill, once it receives Royal Assent, is set out as the Parliamentary Constituencies Act 2020.

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.

New Clause 1

“Registers used to determine the “electorate” in relation to the 2023 reports

‘(1) In rule 9(2) of Schedule 2 to the 1986 Act (definition of the “electorate”), for “The” substitute “Subject to sub-paragraph (2A), the”.

(2) After rule 9(2) of that Schedule insert—

“(2A) In relation to a report under section 3(1) that a Boundary Commission is required (by section 3(2)) to submit before 1 July 2023, the “electorate” of the United Kingdom, or of a part of the United Kingdom or a constituency, is the total number of persons whose names appear on a register of parliamentary electors (maintained under section 9 of the Representation of the People Act 1983) in respect of addresses in the United Kingdom, or in that part or that constituency, as that register has effect on 2 March 2020.””—(Chloe Smith.)

This new clause inserts a new clause (to be added after clause 6) which provides for the meaning of the “electorate” in Schedule 2 to the 1986 Act, in the case of the 2023 reports of the Boundary Commissions, to be determined by reference to the registers of parliamentary electors as they have effect on 2 March 2020 rather than by reference to the versions of those registers which are published under section 13(1) of the Representation of the People Act 1983 on or before 1 December 2020 (which is the “review date” provided for under clause 7), a prescribed later date, or 1 February 2021 (where section 13(1A) of that Act applies).

Brought up, and read the First time.

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I beg to move, That the clause be read a Second time.

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With this it will be convenient to discuss new clause 4—Definition of “electorate”

“(1) The 1986 Act is amended as follows.

(2) In rule 9(2) of Schedule 2 to the 1986 Act, omit the words from “the version that is required” to the end and insert “the electoral register as on the date of the last General Election before the review date.”

For the purposes of future reviews, this new clause would define the electorate as being those on the electoral register at the last General Election prior to the review.

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First, allow me to address the new clause that stands in my name before turning to new clause 4, which stands in the names of the hon. Members for Lancaster and Fleetwood and for City of Chester.

The purpose of new clause 1 is to mitigate a risk arising from the covid-19 pandemic that could affect the successful delivery of the next boundary review. The risk relates to electoral data, namely information on the numbers of electors across the UK. Hon. Members will be well aware that this is fundamental to the work of the boundary commissions. We need the next review, and all reviews, to be based on the most robust form of the data. Under current legislation, the next boundary review would be based on the number of registered electors as at 1 December 2020, following the annual canvass.

As we know, the annual canvass is a large information-gathering exercise that checks and verifies the addresses of registered electors. The boundary commissions generally use the version of the electoral register that follows the canvass because it is the most up to date and accurate available at the start of the review. This year, however, concerns have rightly been raised about whether the operation of the 2020 annual canvass might be affected by covid-19, given that it is a considerable exercise mobilising many staff and contractors over several months. This new clause responds to those concerns and provides for the next boundary review to be based, on a one-off basis, on the number of registered electors at 2 March 2020.

That data represents the most up-to-date electoral registration information available from the point before the impacts of covid became widespread. It will capture the registrations that took place in the run-up to the 2019 general election, subject to any monthly updates that were then also made up to 2 March 2020. As hon. Members may know from other remarks I have made and the letter I sent to the Committee, I have engaged with both parliamentary party and administrator representatives on this issue. It is critical that the next boundary review is not compromised as a result of covid, so I have tabled the new clause.

New clause 4 seeks to change the definition of the electorate to that of the electoral register from the last general election prior to the boundary review. There are a number of reasons why the Government believe this is not the appropriate dataset to use for boundary reviews, and I will lay those out.

First, as I set out when introducing new clause 1, the electoral register is updated through the year. The annual canvass then provides the most comprehensive audit of the electoral register each year. It represents the most consistent and up-to-date picture of how many UK electors there are and where they live.

Secondly, the current approach of using the December registers, the data from which is collected, checked and published by the Office for National Statistics, ensures that the boundary commissions are using officially published data that is up to date, transparent and readily available to all citizens. By contrast, electoral registration officers are not required to published data on the number of electors on the registers of parliamentary electors for general elections. That data is not officially published by the Office for National Statistics, so it could be argued to be more opaque, whereas transparency is helpful.

Thirdly, I think many of us would agree that when we are looking to update UK parliamentary boundaries, it is important that the most up-to-date and robust data is used. Unlike the canvass, general elections do not happen every 12 months—or at least we hope that they do not—and the use of election data could therefore result in boundary reviews being based on information that was considerably more out of date than that provided by the canvass. I will go into that in a couple of ways.

It is unusual for a general election to occur in the second half of a calendar year. 2019 was a notable exception, and I am sure we all reflected on that as we were banging on doors in the rain and the snow. To take a past example, had we used the general election data for the boundary review starting in 2000, we would have been using data from the 1997 general election. That would have been two and a half years out of date at the start of the review, and over a decade out of date by the time the boundaries were first used in an election in 2010.

Let me take this moment to address a few other myths about electoral registers. There are a few areas of tension as to how the registers work, and the arguments can be confusing. I do not think general election registers are always the answer, and I want to address a few of the erroneous arguments that are made. One myth advanced by some is that after a general election people suddenly vanish off the electoral register; as the register compiled for the election is sometimes regarded as the fullest or biggest, people argue that electors have to have been captured at exactly that early moment. I do not think this is the case. It seems to derive from the idea the election registers are more comprehensive as a consequence of the many registrations made in the run-up to a major poll. However, they do not somehow vanish after a poll; they are not lost. Those people remain there, and the canvass that follows any general election will verify that those who registered for that election are still resident at the same address, together with any further registrations that have taken place in the intervening months. If they are still resident, they stay on the register—quite rightly—and are taken into account at a boundary review starting after the review date.

For example, if people registered in the run-up to the 2019 December general election and remained at the same address after the election, they remain on the register. It is as simple as that. Of course the contrary is also true: if they moved immediately after the election, it is only right that the canvass and the monthly updates that follow it highlight that change. Therefore, the fullest register, as general election data is sometimes described, does not stay accurate forever.

Maintaining accuracy and completeness needs to be part of an ongoing cycle. The quality of the register relies on these two elements—completeness and accuracy. One is not enough on its own: they have to be seen together. If a person registers in the run-up to a general election in area A and shortly afterwards moves to area B, it is not right that they stay on the register for area A. Some might argue, I suppose, that for completeness they would stay registered in area A while they also registered in area B, but that is not accuracy. The work of the electoral registration officers, who have responsibility for maintaining complete and accurate registers, is to create a picture that is both as accurate and as complete as possible while, admittedly, accepting that no register can ever be perfect because the population does move.

The Government have been working hard over the years with electoral administrators to improve the accuracy and completeness of the registers. I will take a moment to highlight some of that work. The introduction of online registration has made it easier, simpler and faster for people to register to vote, taking as little as five minutes. This also applies in a positive way particularly to people who traditionally found it harder to make an application to register. Working with lots of partners, we have developed a range of democratic engagement resources to promote democratic engagement and voter registration. That is all available on gov.uk. We are also in the process of implementing changes to the annual canvass of all the residential properties in Great Britain that will improve its overall efficiency quite considerably. It will let registration officers focus their efforts on the hardest-to-reach groups, and play an important role in helping to maintain the accuracy and completeness of the register.

I hope I have given a sense of what we are doing to support the best quality data available for the function of the Bill, in the form of the covid 19-related new clause 1. I have also presented some arguments why canvass data is better data to use than the general election data. I also wanted to provide the Committee with a few insights into how we have been working to improve levels of registration in this country, and why we should all agree that that is very important, albeit slightly to the side of the main subject of the Bill. If the Committee wishes me to respond to points that others may make, I will be happy to do so, but I shall pause here and urge that the Government new clause be added to the Bill.

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I will speak to both new clause 4, which stands in my name and that of my hon. Friend the Member for City of Chester, and Government new clause 1.

I welcome new clause 1, which corrects what I feel would be the error of using December of this year as the basis for the register for our boundary review. Clearly, the covid-19 situation has put huge strain on all our councils and local authorities, which at present are working to support some of the most vulnerable people in our communities. It would be ludicrous to ask them to undertake an annual canvass at a time of such stretched capacity in local government. However, after 20 years of delay, the boundaries must reflect the electorate, with the best possible accuracy, and that means selecting the register that best reflects the reality of the general population of our country.

I would like to use this opportunity to probe the Minister on her choice of the March 2020 register. We are in a unique position, in that just six months ago we had a general election, and before that election we saw a huge spike in voter registration. Indeed, we can see that, since the introduction of individual electoral registration, there tends to be a spike in electoral registrations before major electoral events—the most notable recently being referendums and general elections, of which we seem to have had an awful lot. The Office for National Statistics data for the period between 1 and 12 December 2019 showed that approximately half a million people registered to vote, and electoral registrations increased in 94% of our constituencies. The number of electoral registrations was at its highest level, surpassing the previous peak in December 2012.

I have some concern about the drop-off in registrations between 12 December 2019 and 2 March 2020. We heard evidence that potentially hundreds of thousands of people have fallen off the electoral register during that period. Indeed, in the current context, in which the Government have been very clear that we will not be having by-elections or scheduled elections this year because of the coronavirus, there is not the same impetus for individuals to register to vote.

This is part of a much wider problem around electoral registration, with the Electoral Commission recently—actually, it was almost a year ago—making recommendations to the Government to plug the huge gaps in our electoral rolls. I look forward to hearing the Government’s response when that is forthcoming, but we know that about 9 million people in this country are missing from the electoral registers. My concern is to find the most accurate and most complete register possible in order to ensure that every one of our citizens is included within the boundaries that we have at the next general election. New clause 4, in my name, suggests that that register would be the one from the general election, for the reason that I have set out, which is the spike in electoral registrations that we see before major electoral events, in order to ensure that every single citizen in this country who should be counted in the review is counted.

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My hon. Friend has covered most of the points, so I will be very brief. In a sense, I will be asking the Minister only a couple of questions.

My hon. Friend is absolutely right to say that we hit the high water mark at the general election. The Minister has corrected me when I have perhaps claimed too high an increase for the 2017 general election. Nevertheless, there is a surge in registrations that makes a general election register, as I have said, the high water mark and, if we are asking for a snapshot, the most accurate snapshot within, perhaps, a period of nine months or a year either side. In that respect, it is the most accurate register on which to base a set of boundaries.

I wonder whether the Minister can answer a couple of questions—I am not trying to catch her out. First, can she say, given that there is that rush at a general election, what measures a Government might put in place to maintain that high water mark level of registrations? For example, in the past year there was a proposal to downgrade the annual canvass. That proposal actually went through, which I was not happy with at the time, but the Minister was confident it was achievable. We are not going to see that this year, rightly, but what measures could be put in place to maintain that high water mark around a general election? Can the Minister also explain—I think this was touched upon during the evidence sessions—whether any assessment has been made of the numerical difference between the general election register and the register in March that we are going to base this on, and why that difference exists?

Using the March register, as opposed to waiting for more people to drop off the register at the end of this year—potentially 200,000 people—is a very sensible move. I have praised the Minister in the past when she has earned it; this was the right thing to do, and I echo my hon. Friend the Member for Lancaster and Fleetwood in welcoming the change to maintain as high a water mark as possible in the number of people registered. As she has said, there is a broader debate about automatic registration, but I do not think that is covered in this new clause.

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I am happy to offer a few further arguments as to why it is misguided to seek to use general election data. Going back to the facts of the matter in December 2019, there are two points I want to make. The first is that the December 2019 general election was an unexpected event, for a number of reasons. That may be a matter of ins and outs for politicians, but for administrators, that is quite a proposition: they have to be able to run an election as requested.

At that time, electoral officers had broadly three options for when to publish their electoral registers—three different options at three different times. Some published in October 2019, just after the election was called, for very valid reasons: they might have seen the benefit of trying to simplify the process of giving each elector their identification number and arranging the printing and postage of poll cards. A second group published on 1 December 2019, the traditional deadline for publication of the revised registers following the canvass. And some published on 1 February 2020, which is the deadline for those who had an election other than the general election in their area during that period—that is, a by-election between 1 January and December 2019. My point is that there are three different times when election officers would have published the registers, so there is no such thing as a single register that provides the silver bullet the Opposition are looking for. I am afraid it is deeply misguided to think there is.

My second point, based on the facts in December last year, is that some registers were swollen, but some were not. The hon. Member for City of Chester will recall the evidence given by Roger Pratt to this Committee:

“Three hundred and eighty-eight seats were actually larger at the general election than on 1 December, but 261…were smaller at the general election”.––[Official Report, Parliamentary Constituencies Public Bill Committee, 18 June 2020; c. 30.]

Not only is there not a silver bullet, the bullet does not even go in the direction in which the Opposition would like to fire the gun.

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My understanding, however, is that the overall number of electors always swells to a high-water mark during a general election, albeit there will be some constituencies in which that is not the case, as Mr Pratt advised us.

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As a matter of common sense, that swelling is likely, and I agree with the hon. Gentleman that people have an incentive to register before an election. It is evidently the case that the demands of an election, where people have the chance to cast their vote and have their say, are an encouragement to registration. I do not argue against that at all; I welcome that. As I said in my earlier remarks, we want to encourage people to register year round, but there is that particular incentive with an election. These facts remain, however, and they drive holes through the Opposition’s argument right now.

I am afraid that there is one further point that I need to drive home hard: the hon. Member for the City of Chester should know better than to rehearse the really poor arguments he made about canvass reform when this time last year we discussed the statutory instrument that he mentioned. It was not a downgrade of the annual canvass. He had not done his homework at the time. It was an upgrade of the annual canvass, whereby resources can be focused on the hardest to identify, who, from Labour Members’ discourse, we might think they wished to go after. The upgrade also involved looking at where resources should be focused, rather than taxpayers’ money being put to poorer use where those resources are not needed. In other words, canvass reform allows registration officers to do a more targeted job of the canvass. That is a good thing. It allows citizens to have a better experience of canvassing, because they are being asked to fill out fewer forms. It allows taxpayers to save money. As the hon. Member for Lancaster and Fleetwood rightly pointed out, every pound in local government is sorely needed at the moment. There should never be an argument for wasting money in local government on an exercise that could be better targeted than it has been in the past. Those are the facts about canvass reform. Furthermore, I am afraid the hon. Member for the City of Chester is incorrect to say that we will not see that this year. We will. If he were in touch with his Welsh Labour colleagues in Cardiff, for example, he would know that it is going ahead this year, and that they rightly support it. Indeed, so do the devolved Government in Scotland, because it is the right thing to do. But enough on the annual canvass; that is not our subject matter here.

The Government strongly believe that the use of the electoral register in the way for which the Bill provides is the right thing to do. I have given comprehensive reasons why the idea of doing it from a general election register is not strong. I urge the hon. Member for Lancaster and Fleetwood not to press new clause 4 to a vote.

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We will be pressing new clause 4 to a vote. The Minister made some good points, and this is an area where we have spent many a happy day discussing the annual canvass and the inaccuracy of electoral registers. In the current cycle, I concede that the difference between the general election register and the March 2020 register is quite narrow because of the timing of the recent general election. However, new clause 4 is designed to deal with future boundary reviews. When a large amount of time has elapsed between the date of the snapshot and a general election, there may be significantly more than hundreds of thousands of people missing from the electoral register, therefore I will press new clause 4 to a vote.

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Just to clarify, that is not now.

Question put and agreed to.

New clause 1 accordingly read a Second time, and added to the Bill.

New Clause 2

Electorate per constituency

“(1) In rule 2(1)(a) of Schedule 2 to the 1986 Act (electorate per constituency) for “95%” substitute “92.5%”.

(2) In rule 2(1)(b) of Schedule 2 to the 1986 Act (electorate per constituency) for “105%” substitute “107.5%”.”—(Cat Smith.)

This new clause seeks to widen the permissible range in a constituency‘s electorate, which may be up to 7.5% above or below the electoral quota calculated in accordance with Schedule 2, paragraph 2(3) of the 1986 Act.

Brought up, and read the First time.

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I beg to move, That the clause be read a Second time.

Moving on from which register to use, new clause 2 is about the percentage variants between constituencies of different sizes. The Bill must proceed by ensuring a fair and democratic review. We want all the new boundaries to reflect the country as it is today, and to ensure that all communities get fair representation. Those boundaries must also take into consideration local ties and identities. Communities have never been stronger than in the recent troubling months. Right across the country, we see communities pulling together to support vulnerable residents. Now more than ever, those community connections must be valued and respected. However, the restrictive 5% quota tolerance in the Bill flies in the face of protecting those community ties.

During the evidence sessions, the secretary to the Boundary Commission for England spoke about the difficulty caused by the smaller tolerance, which makes it

“much harder to have regard to the other factors that you specify in the legislation, such as the importance of not breaking local ties, and having regard to local authority boundaries and features of natural geography. Basically, the smaller you make the tolerance, the fewer options we have.”

He went on:

“The only real way to mitigate it is to make the tolerance figure slightly larger. The larger you make it, the more options we have and the more flexibility we have to have regard to the other factors”.[Official Report, Parliamentary Constituencies Public Bill Committee, 18 June 2020; c. 7. Q3.]

Throughout the debates on the amendments and new clauses, and the arguments that have crossed this Committee room, taking account of those other factors has played a central role, from protecting certain constituencies that have specific geographical features to reflecting specific community ties. I joked with my friend from Yorkshire, the right hon. Member for Elmet and Rothwell, but the truth of the matter is that some community ties mean that if we were to move some communities in together, there would be a real difficulty in making that community accept those boundaries as reflecting their community.

The wider tolerance will, by definition, create more flexibility in keeping real communities together, but the tight 5% quota gives the boundary commission a ridiculously small amount of leeway, and will inevitably lead to some ludicrous consequences. An unnecessarily narrow margin will split long-established communities from one another, erode local identities and divide neighbourhoods.

I have done some mathematics on the back of a piece of paper, as they say. Using the 2019 general election register, which is the most recent one published, but will not be used in the Bill, I have worked out which English counties—I have used the counties where we cannot fit an actual number of seats, so you end up with half seats—would be joined together when using a 5% tolerance: Bedfordshire, Bristol, Cleveland, County Durham, Cumbria, East Sussex, Gloucestershire, Lincolnshire, Northumberland, North Somerset and North Yorkshire. However, if that was expanded to a 7.5% variance the following counties would be removed from that list: Bedfordshire, Cleveland, County Durham, Cumbria, East Sussex, Gloucestershire and North Yorkshire. So we would not necessarily need to have those cross-county constituencies. Yes, 7.5% does not solve all the problems, and we will still have cross-county constituencies in a smaller number of seats, but it does go some way to solving the problems that, no doubt, the commissioners will face.

We know that a 5% quota, for example, will cause a particularly acute problem in Wales. Many Welsh colleagues have expressed their concern about the geographical challenges that the quota throws up, with mountains and valleys dividing constituencies. The task of creating constituencies that make sense to the communities becomes extremely difficult.

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To illustrate the hon. Lady’s point, the old boundary review proposed a new boundary for Ceredigion, north Pembrokeshire and south Montgomeryshire, which would have been 97 miles from one point to the other. I want to emphasise not only the distance, but that there is a continuous range of communities throughout that 97-mile distance. It is very difficult for whoever represents that seat to really represent the constituents in the way they have grown accustomed to.

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My hon. Friend makes a good and articulate point with his own local geography. Indeed, if constituents are perhaps struggling to see the identity of the communities around them, that may lead to people feeling disconnected from what their local MP is doing, because they are not perceived to be a local MP. Constituents may feel that the MP represents a different area, because of the size of some of those constituencies.

My example, also from Wales, is the constituency of Aberavon. The previous boundary review, which was on the 5% variants, proposed to cut through the heart of Port Talbot, separating the town’s shopping centre from its high street and cutting the steel works off from the housing estate that was built for its workforce. I spoke to my hon. Friend the Member for Aberavon (Stephen Kinnock) just before we came into the Committee this afternoon. He recalled that when he told his constituents about what the commission had proposed for his community, they fell about laughing and struggled to believe that this was actually true. It was incomprehensible to them that this proposal to split their community down the middle would come from the boundary commission.

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For my own clarity, was that on the 600 proposal?

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It was. Obviously, the proposals that come out of this boundary review will look different because of the 650 figure. The tight 5% quota, however, still gives the commissioners a great deal of trouble in trying to keep those communities together, to ensure that people can believe that the constituency they are in represents a community.

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My hon. Friend will recall that two academics in the evidence sessions suggested that the problems in drawing up the constituencies—linking the constituency to reflect its communities—were as much, if not more, because of the tight 5% limit as because of the reduction by 50 seats.

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My hon. Friend must have read ahead in my speech, because this is a point that I will get to—

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Sorry about that.

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His apology is very much accepted, but my hon. Friend draws me back to the point that I was hoping to make. From the evidence that we heard, experts such as David Rossiter and Charles Pattie agreed that the 5% rule caused significant disruption to community boundaries. Indeed, they concluded that the substantial disruption on the back of the constituencies to be brought in by the sixth review is not entirely due to the reduction in the number of MPs. Their report shows in detail that disruption was caused by the introduction of this new form of national quota with a 5% tolerance.

In addition, many members of the Committee have referred to the Council of Europe Venice Commission “Code of Good Practice in Electoral Matters”, which states that good practice is to allow a standard permissible tolerance from the electoral quota of 10%. Internationally, a larger quota is viewed as promoting best practice to secure fair representation. This code also recommends that boundaries are drawn without detriment to national minorities, but the Government’s restrictive quota could have serious consequences for national minorities in this country. Councillor Dick Cole from Cornwall stated in his written evidence:

“The UK Government has recognised the Cornish as a national minority. This alone should lead MPs to ensure that the new legislation includes a clause…to protect Cornish territoriality.”

We do not have an amendment tabled to do that, but a larger quota allows flexibility for English commissioners to ensure that their proposals respect Cornish identity. Places such as Cornwall might then be able to identify with their seat, instead of the ludicrous Devonwall seat proposal of the previous review, which was met with much ridicule in the Cornish community and, I suspect, in Devon.

That is not just an issue for the Cornish. The UK Government recognise the Scottish, Welsh and Irish alongside the Cornish people as national minorities under the Council of Europe framework convention for the protection of national minorities, which the UK signed in 1985. The act of respecting those minorities will be made all the more difficult by a restrictive 5% quota, which could prevent the boundary commission from being able to keep those communities together. My Welsh colleagues feel very strongly that Welsh-speaking communities ought to be held together, and this would be made easier by having the larger flexibility for the commissioners.

We recognise the need for constituencies to be as broadly equal as possible, but anyone who claims that they truly believe that all constituencies should be equal means that every single constituency must be exactly the same size. I do not believe that anyone in Committee believes that, not least because this morning we had unanimous support for the protection of Ynys Môn, which will come in with a much smaller population than many other constituencies.

The evidence is strong: having wider electoral tolerance will create constituencies that are more representative of the communities that they seek to represent. A move from a 5% variance to about a 7.5% variance is a difference worth about 2,000 electors per constituency. That is a reasonable compromise to ensure that communities are kept together and that constituencies are as broadly equal as possible.

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I thank the hon. Lady for her remarks on her new clause.

Let me start by being controversial: I believe that the plus or minus 5% should be seen as a matter of last resort, and that the boundary commission should try to do everything in its power to be bang on the money in the middle. Let me develop that argument, and I am willing to take interventions on it.

These figures are not correct, because I have not messed around with the numbers. I am using them just as illustrations. If we take that figure to be 72,165—that is not the exact figure, but I am using it for illustrative purposes—in less than 600 seats, that figure would have been 78,198, of which another 5% would be 3,909 electors. Five per cent. of 72,165 is 3,609, whereas another 7.5% of 72,165 is 5,413. I make those illustrative points because the difference between the 5% on 600 seats and the 7.5% on 650 seats is 1,500 electors more. The difference between 5% and 7.5% on the 650 seats is roughly 1,800 voters. I wanted to lay that out at the start; please do not talk about the inaccuracy of the figures because I know that they are inaccurate, but they are in the ball park.

The Bill provides for the boundaries to be reviewed and set every eight years. We know that there are several cycles going on, with local government reviews, polling district reviews and ward reviews. As my right hon. Friend the Member for—I have already forgotten her constituency.

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Basingstoke.

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I was going to say Billericay, but I think that is your constituency, Sir David, or was at some point—I am losing my thread. My right hon. Friend the Member for Basingstoke has on several occasions drawn our attention to the planned housebuilding population changes that we all know are going to happen in constituencies. The plus 5% and plus 7.5% variances are open to interpretation about what they actually mean. Are we using them as a starting point, with constituencies at the absolute minimum or maximum to start with, knowing that within a certain time, they are going to be out of the equation?

In Wetherby, which is one part of my constituency, 800 houses are being built, and more are being built further down—a considerable number of houses. Some 5,000 are due to be built in the Leeds East constituency, which neighbours mine. The hon. Member for Lancaster and Fleetwood mentioned North Yorkshire as a council that would not have to cross county boundaries if we went to a 7.5% tolerance. Some 10,000 houses are due to go in just on the boundary with my constituency—that is in just one small part of North Yorkshire—so we know that there will be a large shift in populations in a relatively short period, and certainly in that eight-year window.

Mr Bellringer said in his oral evidence—I think to a certain extent the Committee accepted his argument—that we have to draw the line at some point, so we cannot use in the figures new housing and so on. He was talking about potential ward boundaries; the point being that you have to draw the line with ward boundaries that have already been drawn, and not those that might be drawn.

Over the eight years, we will see considerable change in population in constituencies. Indeed, the driving force behind a lot of the Committee’s conversation has been that the data will be almost a quarter of a century out of date by the next election. That was always going to mean a significant movement in constituency boundaries because of the amount of time that has passed. Should the boundary commission be trying to construct seats within the plus 5% or minus 5% tolerance when, maybe with a year, that seat could be bigger than plus 5% or smaller than minus 5%?

I am not saying that we should change the Bill, but in my view, the boundary commission should try to be bang on the money at around 72,000 or 73,000, depending on the final figures. Surely, if we want a balanced electorate, we should look at how we can make that work over the cycle, so that when large housing developments are built, we tinker and make minor changes in an area every eight years, rather than the huge changes that we are making now.

My constituency has 82,000 electors and Leeds East has 66,000. Those are roundabout figures that vary quite a lot, and 10,000 houses will be built during the next five years. By definition, there will have to be a major change in eight years’ time. If we have already bumped right up to the 5% window when forming the initial boundary for the 2024 election, we are talking about elections after 2032. I cannot remember the exact phrase in the Bill regarding when the next review would come into effect. It could be 15 years from now before the next set of figures come in. There would be a lot of time in which there could be huge variation.

It therefore comes down to the question: does it matter whether it is plus 5% or plus 7.5%? I do not think that we should use the maximums to form a decent shape or size, by using wards that help us add up to that, just to be neat with the maths. We should really say, “There is the tolerance that we understand through international guidance gives you a fair election, but let’s try to get these seats bang on the average at this point so that we know, through the cycle of review, that seats across the country will roughly stay within that guidance.”

These issues will always be thrown up. The hon. Member for Lancaster and Fleetwood graciously accepted my intervention regarding Aberavon to clarify that it was 600. The reason I intervened on her was because if we are dealing with much bigger numbers it does not really matter whether it is plus 5% or plus 7.5%, because we are still dealing with the far bigger number of 6,000 more voters, by my back-of-a-fag-packet calculation. We had a large scope of where they could be drawn, but of course we ended up with a set of boundaries that did not work.

The hon. Lady gave some very good examples of what is going on in Port Talbot, and about the shopping centre and the high street, and where the people who worked at the steelworks live. They are all very important points, but I am not sure that they are related to the plus or minus 5%. They are actually more related to the arguments that we have been making that the boundary commission really needs to get this right in the first draft. It needs to get it right first time, and look at the communities and understand what it has drawn. It comes back to the arguments that we had earlier about sub-ward splitting and perhaps using postcodes. We keep coming back to it, but Scotland can do it. The great nation of Scotland is more than capable of putting such things together. It is surely not beyond the wit of the English to follow that.

The reality is that we should not push into those areas, or we take a very controversial and different approach. That is really what was happening in the 1940s. If we cannot make it work, for example, with the Welsh question, which we keep developing, do we take the most squeezed constituency in terms of expansion that we could put into the Welsh valleys—let us, for argument’s sake, say that it came to 60,000—and reverse the formula and divide 46.5 million by 60,000, which would give us 780 constituencies? I am not sure that the public would flock to us for that one, but it would give us the balance of equality throughout.

We cannot have it both ways. We either set it at 650, recognising what was happening in the 1940s—I think the 1986 Bill was specifically introduced to stop that happening in the way it happened before—or we say, “We will have 650 constituencies and they need to be within tolerance of each other.” With the slightly geeky, technical maths that I have used to illustrate the point, I am hoping to say to the Committee that plus or minus 5% or 7.5% is not where our focus should be.

Our focus should be on ensuring that the boundary commission tries to get bang on the money with the average and uses the tools that it already has at its disposal in terms of sub-ward splitting and ensuring that like communities stay together. We have had lots of examples of such communities throughout proceedings on the Bill. That should be the target. Moving the boundaries out by another 2.5% should be an irrelevant argument if we focus on keeping the boundaries in internationally recognised fair and balanced elections over the period of eight years.

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I call Bim Afolami—[Interruption.] Sorry, I call Mr Denham.

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Or even John Spellar.

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Mr Spellar. I do apologise. Just to explain: speeches should alternate between the sides of the Committee, and I was so enthralled by the speech of the right hon. Member for Elmet and Rothwell that I had not noticed Opposition Members.

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Thank you, Sir David. I am sure that like me you were trying to cut your way through all the contradictions and inconsistencies that were in the right hon. Gentleman’s contribution. Many of the points had considerable value, except that they were not consistent. They were not even consistent with this morning’s business. We were talking about being as close as we can be—except, of course, when the seat of Ynys Môn has been won for the Conservative party. I never noticed such interest when it was a battle between Welsh nationalists and Labour for that constituency. An exception, of course, is the Isle of Wight. It is perfectly possible to visit it by ferry, and MPs can go back and forth to it. We need to get as close as possible and we can split wards, and everything else, except of course when it comes to the Isle of Wight, which, on the basis of previous electoral trends—okay, it did go Lib Dem at one stage—is probably going to leave with two Conservative seats.

Then the right hon. Member for Elmet and Rothwell talked about taking account—which, of course, the boundary commission cannot do—of future building development. I think it is appropriate to be able to look forward. However, with a widened area of discretion, constituency A would be able to say, “We will build fairly close to the line.” Constituency B might be a bit smaller, because of the reasonable expectation, as long as builders do not sit on the land, that there would be a large number of additional people. Of course, it could not know how many of those would be eligible for parliamentary representation, because in many areas the size of the population does not necessarily match the size of the electoral register, because of the number of people who would not be eligible to be on it.

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On the point about house building going in, it goes back to the evidence that the boundary commission draws the line at that particular moment; but, again, if it is known that it is coming in, at the moment nothing stops that plus 5% being right up at the limits. Even though building the housing is in a city council’s plans, it will, within a year, almost immediately go over the limit.

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That is rather my point—exactly. With a wider area of appreciation, it is possible to take account of that. It becomes much more difficult the narrower it is. It also comes down to the size of the building blocks. I think the right hon. Gentleman mentioned that some of his wards are in Leeds and some are in the country. For those MPs who represent rural areas or small towns the wards are quite often 1,000, 1,500 or 2,000. In most of the metropolitan areas they are in the 8,000 to 10,000 mark. In certain areas—not Birmingham, any more, since the change in the boundaries and all-up elections—including in Leeds, for example, my under- standing is that the number is somewhere around 16,000 to 19,000. That makes, again, for a sizeable building block.

There is, frankly—and with all due respect to our colleague the hon. Member for Glasgow East—no point talking about Scottish wards, because they are much larger, being based on a single transferable vote system, If, heaven forbid, Conservative Members now seek to move towards STV in the United Kingdom, that will be another issue entirely. However, there is not the same identity of ward members as we have when we must have much wider wards. The idea is to keep, as far as possible, structural organisation for a ward, although there may need to be some minor exceptions. The boundary commission initially crossed borough boundaries as an exception, to deal with problems in London, as I recall. Now, it seems to almost totally disregard such boundaries. That is one reason why the Labour party, unsuccessfully, still wanted to allow Parliament to act as a constraint on the self-fulfilling activities of the boundary commission.

It is enormously important to maintain some sort of coherence and identity. It is not just constituencies that should have geographic and community coherence, but wards as well. There should not be gerrymander-style wards, similar to some American constituencies, which get close to having exact mathematic equivalence but end up being utterly extraordinary shapes and sizes. That is why we should not take note of the Organisation for Security and Co-operation in Europe recommendation to look at size of population, as the United States does, rather than electoral registers. The United States bases its wards on census figures, not electoral registration. In some areas, authorities might be encouraged if they had to focus on electoral registration rather than registration suppression, as happens in a number of states, whipped on by Donald Trump.

For that reason, one probably has to have slight, and probably unjustified and unworthy, suspicions, about the vehemence with which the argument for 5% is being mounted by Government Members. We have been told, both by the Conservative party witness and by Members, that the OSCE report firmly says that the total variation should be 10%—in other words, 5% on either side. They prayed that in aid as justification for their case, but that is not what the OSCE says in its recommendation. It clearly states:

“The maximum admissible departure from the distribution criterion…should seldom exceed 10% and never 15%, except”—

it even says this—

“in really exceptional circumstances”.

There are practical reasons in favour of the proposal. We need to ensure the maintenance of communities and prevent considerable inconvenience similar to that experienced as a result of the previous boundary changes. We have heard evidence that 650 seats may or may not make it easier, but these very tight margins make it more difficult for the boundary commission, parliamentarians and, most importantly, the electorate.

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I listened with interest to the right hon. Member for Warley and to my right hon. Friend the Member for Elmet and Rothwell. I want to make a couple of points.

Bearing in mind that my party is keen on approving of Democratic Presidents in the US these days, one of my political heroes has always been Lyndon Baines Johnson. When asked about Gerald Ford, who later became President after Nixon’s resignation, LBJ said that he was “so dumb he can’t even pee and chew gum at the same time.” The intention of keeping the 5%, while maintaining relationships between communities within a constituency, is an example of how this Bill and this boundary commission, which I trust and respect, can and will be able to pee and chew gum at the same time.

I found the speech by the right hon. Member for Warley strange as he was, in effect, making the argument for what we have now, which is a wide appreciation of the number, so as to make it easier, so he says, for communities to stay together. I understand that argument. It is not a wholly illegitimate one, but if we take that view and do not trust the boundary commission to get this right, over time—probably quite quickly, bearing in mind the speed of population movements these days—we will get to the same position we are in now. I think there is broad agreement across the House and this Committee that we should take this opportunity to make a change to this system, given that these boundaries have been out of date for 20 years or so. If we are to do so, it is very important that we have a tight margin of appreciation so we can set the dial to make sure every vote counts as equally as possible.

The shadow Front Bench spokesman, the hon. Member for Lancaster and Fleetwood, has said that if Members or the Government wanted to make every vote as equal as possible, we would not have any margin of appreciation at all. That argument is wrong, because that would not enable us to pee and chew gum at the same time. During our debate, not just on this clause but on others, I have picked up from some members of the Committee a distrust of the boundary commission when it comes to getting this right. We have heard about the many slightly bizarre constituencies that have been created, and talked about the effect they can have on our own regions and counties.

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Would the hon. Gentleman consider the possibility that it is because we have been through a couple of boundary commission recommendations, and found how inadequate and badly based many of them are, that we distrust them?

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I was about to agree with the right hon. Gentleman. However, the point of our system is that in response to arguments, the boundary commission changes what it has proposed. Members can correct me if I am wrong, but I think that during either the 2013 review or the 2018 one—as we all know, those reviews were abandoned because the House failed to approve them—almost 50% of the changes that were made were changed in response to submissions, both from Members who were in the House at the time and from other interested parties, including members of the public.

I have no doubt that the boundary commission will make mistakes, but I trust the ingenuity of those people who will be able to challenge it: not just Members, but political parties, members of the public and random geeks who do this sort of thing for fun. I trust that the boundary commission will listen to reasonable representations—particularly those regarding local ties and linguistic points, which the hon. Member for Ceredigion spoke about earlier—and that we can get this right. We need to get the margin of appreciation as tight as possible so that the votes of all members of the public in this country can count equally. That is a very important principle, and one that I support.

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I am listening very closely to the hon. Gentleman. The Committee has talked at great length about the importance of voters having an equal say. Does he accept, however, that until people in this House are willing to be grown up enough to address the inadequacies of the first-past-the-post system, we are—I do not want to say “unable to pee and chew gum”—putting our effort in the wrong place? Quite rightly, we are saying that we want to have equal voting in constituencies, but we are unwilling to talk about the inadequacies of first past the post.

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At the risk of straying from the measures covered by this new clause, we can have that debate. I happen to support the first-past-the-post system, but I understand that there are very good reasons for not doing so. However, that is not the place of this Bill. If people wanted another referendum on the voting system, I think first past the post would win, as it did several years ago, but I am perfectly happy to have that debate.

In relation to the point made by the hon. Member for Glasgow East about the inadequacies of first past the post, those who do not like that system need to accept that if one is going to respect local ties and local communities and regard them as important, one cannot at the same time support moving to a system that involves much bigger regions, such as a single transferable vote system, or proportional representation generally. That would negate the original point. There are a lot of things that people say they like about the first-past-the-post system. I am not saying that they like every aspect. For example, there are people in my constituency who vote Green, and it is unlikely that the Greens would ever win in my constituency—although, of course, strange things happen in politics. Those who vote Green might say, “I never get a chance for my vote to count.” I appreciate that, but one aspect that people do like about the first-past-the-post system is the fact that community ties are respected and they feel that their Member of Parliament to some degree represents what they feel their community to be like.

We have talked about the difficulties of this. Of course the boundary commission gets it wrong sometimes, but it is up to us, members of the public, political parties and the geeks who do this stuff for fun to try to ensure that the constituencies make sense, because that, I think, is the core of the legitimacy of the first-past-the-post system. And if—this, I suppose, is a warning to the Government or, indeed, anybody else—this whole process were mismanaged and the boundary commission ended up not listening to members of the public, constituencies, Members of Parliament and so on and not making sure that the constituencies did pee and chew gum at the same time, we would get delegitimisation of the first-past-the-post system, because people would not be feeling that they would be voting for a particular Member who represented their community. Therefore I think that it is a point well made.

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I support the new clause, tabled by my hon. Friend the Member for Lancaster and Fleetwood. I think that we need to go back and listen to some of the arguments that we have heard in this Committee before, but also some of the evidence that we have taken. People have highlighted the problems with 5% and the rigid use of 5%. The hon. Member for Hitchin and Harpenden, who just spoke, really made an argument in favour of more flexibility for the boundary commission, because he was saying, “Let’s trust the boundary commission. Let’s set the parameters and let it get on with the job.”

What the boundary commission clearly said in evidence to us was this. Mr Bellringer, when asked about tolerance of 5% plus or minus, said:

“It is something that we always used to be able to do in the past and did do on occasion. Prior to 2011, there was not this hard maximum and minimum, but we would still be aiming to keep constituencies within a broad range. Occasionally we would breach that if we needed to, to provide a better holistic solution.”––[Official Report, Parliamentary Constituencies Public Bill Committee, 18 June 2020; c. 17, Q30.]

The boundary commission was clearly saying to us that it tried to keep within or close to the average, but on the rare occasions on which the local circumstances required this, it would use more flexibility. The argument from the boundary commission is clearly that it would like that flexibility in order to do a good job, and I think we should listen to it.

We have had experience of the 5%. We have just been through two reviews, and the complications and difficulties that the 5% created have given us the opportunity to have experience of that without having to implement it, fortunately, because Parliament saw reason. We have the opportunity now to correct that flaw in the process and increase the figure. I would suggest 10%, as the OSCE report suggests, but my hon. Friend the Member for Lancaster and Fleetwood has found a different solution to the problem.

We also heard from Dr Rossiter, who has investigated this issue. He talks about the situation where these tight tolerances force the boundary commission to go over local authority boundaries, and he respects the difficulties that that creates for Members of Parliament when representing different local authorities. He also made the point that the discretion of the boundary commission enables it to avoid those situations when putting forward proposals. We thus have evidence from an expert that such difficulties may be forced on the boundary commission the tighter we make the plus or minus above the average.

Dr Rossiter went on to say:

“I have noticed, when we have been looking at this, the significant help that increasing that tolerance by very small amounts will provide. As soon as you go from 5% to 6%, you have a big payback from going up by that one percentage point. That payback increases to around 8%, which is why we came to the conclusion in our previous report that a figure of 8% would be much more helpful.”––[Official Report, Parliamentary Constituencies Public Bill Committee, 18 June 2020; c. 140, Q269.]

My hon. Friend’s proposal is 7.5%, which takes us close to the recommendation. That recommendation is based on expert review of the process of creating boundaries and its impact on local communities.

Returning to a point that I made in a previous debate, I firmly believe that we represent communities as much as numbers of people. Obviously, that has to be met within a certain tolerance. We cannot have a situation in which there is one enormous constituency of more than 100,000 people and one such as mine that is below the average. I also entirely accept that we cannot continue with constituencies that are 20 years out of date, which has led to some of the fluctuations in numbers.

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The hon. Gentleman said, I think, that he would be happy to go to 10% or 15% on either side. At 20% or 30% difference, these boundaries work, so there would be no need to change them within his preferred tolerances every 20 years.

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I am not sure that that is correct. We have examples of differences in constituency numbers that go well beyond 10%. I would not go beyond 10%, but I accept the 7.5% that my hon. Friend the Members for Lancaster and Fleetwood is putting forward. That is an acceptable figure that would give the boundary commission the flexibility it needs.

We have all experienced elections, in various numbers. I am on my ninth general election now. I do not want to put years on you, Sir David, but you have been through many more. It is clear that sections of our constituencies vote in similar patterns. I would say that that is because there is a commonality about the experience of those communities. When we start to subdivide those communities, their ability to affect an election and gain representation through their vote is diminished. That eats away at the root of the democratic process.

Those who wrongly focus virtually on numbers alone are in danger of undermining that part of the democratic process. More emphasis needs to be placed on location, community and all the common characteristics that make a community, over and above the numbers. However, I accept that there has to be a limit. I would say that my hon. Friend’s recommendation is about right.

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I agree with the hon. Gentleman about the types of community, and Mr Bellringer has given evidence that wards generally reflect communities in an area, and that to split them therefore risks splitting local ties. However, I think the argument falls down around extending the parameters and not splitting wards. We have seen in the past that in order to stay within wards, and to get the constituency to fit within a number, some very strange constituencies get built that do not represent those communities. It comes back to the question: is it about the plus or minus figure, or is it about going sub-ward level to keep communities together, as wards are described as doing? If wards are described as doing that, why would we then bunch a lot of different, disparate wards together to make one constituency? Surely they should be the same.

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We are talking about plus or minus 7.5%. I agree with the hon. Gentleman about the issue of wards, but Sir David pulled me up because it is not within the scope of this debate. However, I agree that we should look at sub-ward level, particularly where it might avoid having to create a constituency with an orphan ward or community—one single ward coming in from a neighbouring local authority area. If that can be avoided that is very desirable. Again, that would go back to my point that that is why we need flexibility within the boundary commission. We also need more co-operation with local electoral registration officers who have numbers down to street level, so they could clearly do that.

However, I take the point made by the right hon. Gentleman—or the point that he from the Electoral Commission—that where that happens it has to be a community. It cannot just be a few streets from a neighbouring area that does not really relate to the rest of the constituency. It has to be something that it makes sense to take down to sub-ward level. We do not need to worry about polling districts, because we have heard from the Electoral Commission that local authorities carry out a review of polling districts immediately after parliamentary boundary reviews where necessary. Therefore, we do not need to worry about the parliamentary constituency boundary commission creating new areas at a sub-ward level if it avoids other disruption such as going out across other local government boundary areas.

To conclude, we need to provide this degree of flexibility for the boundary commission, which has made a case that that flexibility would help it. We have had expert advice that a tolerance level around 8% is most desirable; and that we get payback from each percentage point we go up from the rigid 5%, which begins to taper off if we go above 8%. I think my hon. Friend has got it right and I urge the Government to accept the amendment.

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The hon. Member for Eltham said that Mr Bellringer indicated that the boundary commission tries to work as close to the quota as possible, and only varies where there is a good reason. I can only speak from the evidence I recall, which is mostly from the north-west. Our smallest constituency is Wirral West, which is just below 6,000 and was drawn at that size to try to avoid a cross-Mersey seat between the Wirral and Liverpool. The largest is 95,000 in Manchester Central, which was drawn very close to that size at the time because it was expected to depopulate. The commission does not always stay as close to the quota as possible. It sometimes take some very odd logical steps to try and make seats seem cohesive.

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I accept the hon. Gentleman’s point, because that is exactly what Mr Bellringer said. He said that as a general rule the commission would try to get as close to the average as possible, but in exceptional circumstances it would try to provide a better holistic solution. The hon. Gentleman is absolutely right, but that is not the norm.

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In which case, I invite the hon. Gentleman to look at the 75 seats in the north-west and see how many of them are close to quota, even when originally drawn. Very few is the answer. As a thought experiment I decided to see what would happen if we applied the 2019 electoral figures, which are the most up- to-date ones we have, to the 5%, 7.5% and 10% quotas. As a sample, I took all the seats represented by Conservative Members. Only one seat falls within the 5% quota, which is the seat represented by my hon. Friend for Hitchin and Harpenden. If we extend to 7.5%, we still have only one within quota—again, the seat represented by my hon. Friend for Hitchin and Harpenden. If we get to 10%, two of us—my right hon. Friend the Member for Basingstoke and me—are still over quota.

Looking at the population drift from these seats, it is not that large over a number of years. It is simply that the more the quota is extended simply to try to reduce the extent of change, the more the seats end up disproportionately large. When starting with a 5% quota variant, the maximum difference between the smallest and largest seats is 7,260. That rises to 10,912 on 10%; then 14,551 on 10%; then 21,826 voters based on the OCSE of a maximum of 15%. It is never more than 15%. The reality is that we will see population change in the seats that will be drawn, which is a natural consequence of some areas depopulating and other areas increasing in population. Drawing the quotas as closely as possible to the mean is a way of ensuring that when we review the situation in eight years’ time, the variation will not be so severe that radical change will be needed. Obviously, radical change will be required in this review because the information is 20 years out of date. We should aim to get the electorate as close as possible to that mean now, so that in the future we are not having to radically redraw the map every time we come to this exercise.

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I speak in support of new clause 2, which I tabled with my hon. Friend the Member for Lancaster and Fleetwood. I have really enjoyed listening to the contributions to the debate, but I am concerned about the lack of consistency expressed by Government Members. That is partly in relation to the clause, but also in relation to the clause as it reflects other parts of the Bill. I will try not to stray too far from the clause, and I am sure, Sir David, that you will pull me back if I do.

The right hon. Member for Elmet and Rothwell—who, as always, makes me stop and think—talked about the boundary commission getting it right first time. I suspect that he meant in the first set of proposals as opposed to the former ones. One of the problems is that we cannot always trust the boundary commission to get it right first time. Frankly, there are occasions when it does not get it right the second time. That is why we opposed automaticity in another part of the Bill.

I understand what the right hon. Gentleman is saying, but the lack of absolute confidence—we do have confidence in the boundary commission—might have been expressed in another part of the considerations. The hon. Member for Heywood and Middleton discussed disparities in our own region, and about his seat and that of the right hon. Member for Basingstoke who, I think, has described her seat as being a small market town that has grown and grown over the years. She might wish to correct me. These changes do happen, and it is not simply that the boundary commission chooses to draw much bigger seats. Growth does happen, and for that reason it is projected that south-east England is likely to get extra seats as a result of population shifts.

The hon. Member for Hitchin and Harpenden—I must get it correct—said that the situation was not what we have now, but the new clause does not propose the situation we have now—it is not proposing 10% either way. I listened to my hon. Friend the Member for Eltham suggesting that we have 10%, and my right hon. Friend the Member for Warley suggesting that it is perfectly legitimate to propose that within the OSCE guidelines. However, the new clause proposes a balance between that very tight adherence to the variance of 5% and the need for community interest.

I listened to the debate at Second Reading, and the right hon. Member for Basingstoke, and the hon. Members for Newbury and for West Bromwich West might have mentioned the importance of reflecting community interests. We have all spoken on that subject, and the hon. Member for Hitchin and Harpenden discussed that in a question on first past the post, and spoke about maintaining the importance of community. Many Committee members have mentioned the importance of community, but the lack of consistency comes up when we reject all those arguments in favour of tight adherence. Somewhere, we have to strike a balance.

On this side of the Committee, as my hon. Friend the Member for Lancaster and Fleetwood said, we have accepted the Government’s arguments that we must have much more equally sized constituencies. We are asking Government Members to accept, as we strive to achieve that, that the guidance to boundary commissions should say that those community ties—which all other hon. Members have said are important—should be taken into account, so that they get it right first or second time. In this Bill, we do not have the opportunity to call them back if they do not get it right.

This new clause provides balance and a safety valve, as we have discussed regarding automaticity, to ensure that community interests and ties are taken into account. It achieves a tighter tolerance around the average, so that it achieves something of the Government’s aim—which is also our aim—to secure more equalised seats, but not going so far that it completely wipes out the community interest. Across the Committee, hon. Members have talked about that. I will therefore support my hon. Friend the Member for Lancaster and Fleetwood in the vote.

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What a good debate we have had on this part of the Bill. I think we all knew this would be one of the main dividing lines in the Committee. I am pleased we have been able to air these arguments and discuss what they mean for the Bill and, crucially, for real people—to whom we should anchor our discussion.

As we all know, we are looking at the electoral quota followed by what is stipulated in the existing legislation, namely, that constituencies subject to a small number of exceptions must be between 95% and 105% of that electoral quota. That is the 10% point range. As we know, because we have looked at it comprehensively in Committee, the boundary commissions may then take other factors into account, which are subject to the overriding principle of equality in constituency size.

I do not want to detain the Committee on things we have gone over, but I will underline how far adrift the UK’s current constituencies are from that principle of equality. There are some very clear examples in England. Milton Keynes South clocks in at 97,000; Newcastle-Upon-Tyne Central clocks in at 54,000. That is not fair. In Wales, Cardiff South and Penarth comes in at 80,000 constituents, whereas only 43,000 electors get to have their say in Arfon. That is not fair. The Government are committed to ensuring greater fairness by updating parliamentary constituencies to ensure that across the UK votes have the same weight. That is what we care about. That is what we are delivering. That is the right thing to do.

I do not agree with the new clause tabled by the hon. Members for Lancaster and Fleetwood and for City of Chester. I want to make a point about the difference between theory and practice. It is easy for us to bandy about figures such as 5% and 7.5%, which seem theoretical. I pay tribute to the mathematical minds that we have in this Committee. My hon. Friend the Member for Heywood and Middleton is one of the finest, but there are others in the Committee who have a great facility with numbers and have really helped us in these deliberations by looking at what those figures mean when we run them under different scenarios.

Let us remember what those numbers are for. We are talking about people. Those numbers relate to the number of voters. Even the word “electors” might seem a step away from normal people, whom we ought to think of here. These people want a chance of fairness in their democracy and for their voice to be heard as equally as the next person in the next seat or nation in the country. That is the core principle at stake. It is unfair to go far off that average point. It is undesirable and it is unworthy of the people we are trying to do this for. We want to get this right for people who have asked for a change to their parliamentary constituencies. They voted for this as a manifesto commitment of this Government; indeed, it was in all parties’ manifestos, as I understand it. That is an important commitment to deliver. We should take that very seriously.

Ultimately, we must take that step away from numbers towards a judgment. The Committee heard evidence from Professor Charles Pattie of the University of Sheffield, who has been studying elections and boundary reviews for more than 30 years, about which we joked with him at the time—he has spent a very long time doing that. His conclusion was that he would certainly endorse the notion of an equalisation rule as the top priority. Dr Alan Renwick took us further in that argument. On the exact percentage that is appropriate, he said that

“numbers around 5% to 10% seem to be fairly standard. There is no answer that an academic can give you as to what is the correct number, but something in that region is appropriate.”––[Official Report, Parliamentary Constituencies Public Bill Committee, 23 June 2020; c. 74, Q141.]

Together, those pieces of evidence are important for two reasons. First, they confirm that our proposal in the Bill—the continuation of the status quo—for a 10% range of tolerance is the right thing to do, in the sense that it is standard in relation to comparable democracies and international good practice. Secondly, Dr Renwick underlined that academic research, although important, cannot be a substitute for judgment, decision making and leadership, to which it will come down in the Committee.

We have laid out the arguments, and my judgment—on which I am in agreement with right hon. and hon. Members—is that the specific tolerance level that we have chosen is the right one. It continues what has already been agreed on a cross-party basis in the House in 2011, which put right an accreted set of wrongs where there had not been equality in constituency sizes. I am afraid that I will launch this one at the right hon. Member for Warley: his Government never did this when he was in the Cabinet. It is right that we continue the movement started in 2011 and that is before us today. We want equal weight, updated boundaries and more equally sized seats. I urge the hon. Member for Fleetwood and Lancaster to withdraw the new clause on the basis that it is right to go to 5% as set out in the legislation.

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I thank the Committee for the exchange of views on the new clause. My hon. Friend the Member for Eltham made the point that OSCE recommended a quota variance of 10% either way as reasonable. My new clause, which would provide for a variance of 7.5%, is a compromise. It is reasonable; I am reaching out to the Government in the spirit of working together to come out of the boundary review with equalised constituencies. There is no doubt that they will be more equal, although obviously not bang-on equal, because that would mean that every constituency was of exactly the same size.

The new clause would mean a move towards the equality for which I know we all strive. I do not believe that the Electoral Commission should be drawing constituencies that bump up against the top or the bottom of the quota. Indeed, it should aim to make constituencies as close as possible to bang on the quota, but by doing that, we would not be keeping communities together, but dividing them up. By tabling my new clause with the 7.5% variance, I am striving to find a middle ground where we can balance community ties and constituencies of equal size.

It is not that we do not trust the boundary commission to get that right. It is quite the opposite: we are trying to give the boundary commission the framework to get it right. With a restriction of 5%, we make its job much harder, and we are much more likely to end up with constituencies that divide communities rather than uniting constituencies. The new clause is reasonable. I am striving to compromise—I would be very happy with 10%, but I recognise that the Government’s position is 5%. I aim to meet in the middle, and the new clause is a reasonable attempt to get all parties to recognise the balance between equalising constituencies and recognising that community ties are incredibly important in our one member, first-past-the-post electoral system.

Question put, That the clause be read a Second time.

Division 2

30 June 2020

The Committee divided:

Ayes: 7
Noes: 10

Question accordingly negatived.

View Details

New Clause 3

Allocation of constituencies

“(1) Rule 8 of Schedule 2 to the 1986 Act (the allocation method) is amended as follows.

(2) After rule 8(5) insert—

‘(6) Notwithstanding the allocation of constituencies according to the allocation method set out in rule 8(2)-(5), there must be a minimum allocation of constituencies as follows—

(a) Wales must be allocated at least 35 constituencies;

(b) Scotland must be allocated at least 59 constituencies (including the two protected constituencies); and

(c) Northern Ireland must be allocated at least 18 constituencies; and the allocation of constituencies must be adjusted accordingly.’”—(Christian Matheson.)

This new clause seeks to protect representation in the devolved nations by securing a minimum number of constituencies in each of the devolved nations.

Brought up, and read the First time.

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I beg to move, That the clause be read a Second time.

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With this it will be convenient to discuss amendment (a) to new clause 3, in line 8 leave out “35” and insert “40”.

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I briefly seek the opinion of the Committee in discussion of the new clause. I hope that its aim is self-evident.

Most of us in Committee—my friends, the hon. Members for Glasgow East and for Ceredigion excluded—would consider themselves to be Unionists and proud to be British. I certainly would. My concern is that, as the Bill stands, the Union will be placed under unnecessary and increased strain, because the three smaller nations will take the larger hit to representation here at Westminster, in the House of Commons.

Historically, we heard in evidence that Wales and Scotland were over-represented in terms of population, but that there were historical reasons why that was the case. As devolution has progressed, we have had a Scottish Parliament and a Welsh Assembly, which on the passage of recent legislation became the Senedd—I look to the hon. Member for Ceredigion for approval of the pronunciation. Powers have passed to the Parliament and the Senedd so that more decisions are taken in Holyrood and on Cardiff Bay. Plenty of decisions, including large national decisions, however, still need to be taken at Westminster, on behalf not just of England but of the United Kingdom.

The important thing now—perhaps more than ever in the 20 or so years since we have had that level of devolution —is to maintain the strength of the Union and of the voices within that Union, in number as well as volume. The hon. Gentleman needs no support in terms of volume, but with number that importance is greater than ever.

I ask Members in the Conservative party—which, I think, is back to calling itself the Conservative and Unionist party—to share my concerns about all the hit being taken by the three non-English nations. We do not know the numbers yet, but we have a good idea and could make an assessment. Potentially, by transferring Welsh voices and Scottish voices to England—theoretically, Northern Irish voices too, although under the current numbers that does not look likely—we could destabilise not just the level of representation but the level of life experience from the nations.

What about areas that are more remote from Westminster? For example, and I have said this to the hon. Member for Ceredigion before, some areas of north Wales feel a little disconnected even from the Senedd on Cardiff Bay, and some areas of northern England and perhaps some in the far west, because of geographical distance, feel a little disconnected from Westminster. The more we disconnect from the national Parliament, the less legitimacy it has, and the less legitimacy it has, the less legitimacy the Union has, I fear. The unintended consequence—I genuinely believe that it is unintended—of the proposal in the Bill to transfer strength and numbers in this place from Wales, Scotland and Northern Ireland to England is that it will damage the Union, and damage the voices within the Union, and damage the experience that all the nations bring to this Parliament.

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I follow the hon. Member’s argument, but surely he should reflect on the fact that Wales did not undergo the changes that it was due to undergo at the time of the creation of the Assembly, which has since become a Parliament. Those changes now have to take place, so that we can deliver the fairness that I know he and I want.

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I absolutely agree, which is why, to develop my argument and to answer the right hon. Lady directly, the new clause in my name and that of my hon. Friend the Member for Lancaster and Fleetwood does not seek to maintain the current number of constituencies in Wales. We accept—as we accepted, incidentally, with regard to the previous new clause that we talked about—that there has to be some level of equalisation of constituencies.

That means that Wales and Scotland will lose seats, but in order to manage the different pressures between getting equalisation and maintaining the integrity and strength of the Union and the diverse voices within it, the new clause seeks to maintain a balance by specifying a number of constituencies that is fewer, for example, than Wales has now, but more than it would have if absolute equalisation took place. We are therefore addressing some of the points that the right hon. Lady mentioned, and trying to strike a balance that puts the interests of the Union at the heart of the Bill.

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I am listening to the hon. Member very carefully. It will come as no surprise to the Committee that for me, as a Scottish nationalist, the strength and harmony of the Union is not something that generally keeps me awake at night; it often helps me to get to sleep. However, there is a point here. I do not want to conduct a debate with the right hon. Member for Basingstoke and the hon. Member for City of Chester, but it is very important for members of the Committee to reflect on the fact that this is not the first chipping away of the strength and harmony of the Union in this place.

The right hon. Lady talked about powers being devolved to Scotland and to Cardiff Bay, but let us not forget that this Conservative Government has introduced such things as English votes for English laws. That in itself has been a way of ensuring that Members of Parliament representing constituencies in England can have their say and has, in many respects, already opened up a second-class or second-tier Member of Parliament. I suggest to the hon. Gentleman that the issue the Committee is considering at the moment is not the first time that we have seen the integrity and harmony of the Union being chipped away, albeit inadvertently, by this Government.

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The hon. Gentleman makes a salient point. I would suggest that we have English devolution, and if we were logical in these arguments, we would reduce the number of constituencies available in those parts of England where there has been devolution but not in the parts where there has not been. In my own area, for example, we do not have an elected mayor, whereas Greater Manchester—I see the hon. Member for Heywood and Middleton is present—does have an elected mayor.

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Will the hon. Gentleman give way?

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Of course I will. I mentioned the hon. Gentleman, so I could hardly not give way to him.

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Following that logical stride, the devolution settlement across the UK has been entirely piecemeal. It is uneven across the United Kingdom and part of the current problem is a result of that. For example, there was a Welsh Assembly, so there was no reduction in the number of Welsh seats in 2005, whereas there was a reduction in the number of seats from 72 to 59 in Scotland. Does the hon. Gentleman accept that this situation is a natural consequence of the poorly executed devolution plan across the United Kingdom, and that now, in the interests of wider fairness, there should probably be a wider discussion about the devolution settlement for England, and each constituency in the United Kingdom should carry the same weight?

Also, does the hon. Gentleman accept as a cautionary tale that when Canada began setting quotas for certain provinces to have a set number of seats, it led to a massive expansion of the Parliament? They added 30 seats two elections ago, simply to try to keep pace with the fact that Quebec had to have a minimum number of seats.

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To be clear, I was not proposing different sized quotas in different areas. I was just suggesting that that would be the logic of following devolution to the letter, and to the max, in terms of representation at this place. I agree with the hon. Gentleman that we have inconsistency in devolution in the UK. He should take it up, perhaps, with the Secretary of State for Housing, Communities and Local Government, or his successor. [Interruption.] I am not going to go there. The hon. Member for Glasgow East is naughty, Sir David, and knows he should not tempt me to go down that route.

There is another issue. Wales and Scotland in particular have different geography and different population levels from much of England, but not all of it. I am thinking of rural Wales and rural Northumbria, for example. Wales in particular is affected by geography—the sparsity of west Wales and areas such as Brecon and Radnor or Montgomeryshire, the geographic barriers represented by the Welsh valleys, the beautiful area of Snowdonia, where, again, I spent much of my childhood, coming over the border. There is also Ynys Môn. The Committee decided this morning that it should be protected, and I supported that and we have been calling for it for a long time. However, that has a knock-on effect for other constituencies, which must themselves deal with issues other than population, such as sparsity and geography, which need to be taken into account. Because the Committee has decided on a tight 5% tolerance, it is even harder to take into account those areas, and the issues are amplified because Wales is losing so many constituencies. The problems mount one on the other. Every decision that the Committee makes puts further strain on the Welsh area in particular and therefore on the integrity of the constituencies and their viability—and therefore on the Union, because of the way they are represented here.

The hon. Member for Ceredigion spoke this morning about a constituency measuring 97 miles from one side to the other. Whoever the Member for that constituency would be—I think that it would have happened under the 600 boundaries; if 50 constituencies were lost with a tight tolerance there might have to be a 97-mile constituency —they could not possibly do justice to such a huge expanse. It would not be fair to them or their constituents. We want equalisation as much as possible and we have had an argument today about constituents being properly served by having the same number of constituents, voters, electors or—the Minister was right—people living in the constituency. Similarly, they will also not be properly served if their Member of Parliament has to cover a constituency that is hundreds of miles wide.

It is the same for Scotland. I remind the Committee that it was previously proposed, as I believe I mentioned on Second Reading, that there should be a constituency that, if it were superimposed on England with one end at the Palace of Westminster, would have its top end at Nottingham. It would be impossible to serve that constituency or to give its residents any kind of service.

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On the point about the proposed constituency I referred to, over lunchtime I looked to see how it would fare under the new proposed quotas and the 5%. Taking the quota as around 72% we would save about 2 miles.

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I am grateful to the hon. Gentleman—or in a sense I am not, because I should have liked an answer that put my mind at rest, which his did not. It shows the severity of the problems.

I shall deal with the new clause and then the amendment to it, which is a bit of a cheeky one, if the hon. Member for Ceredigion does not mind my saying so. The new clause tries to seek a balance between the point that the hon. Member for Ceredigion made about equalising constituencies, but at the same time not making the three other nations, other than England, take all of the hit, which in turn will damage the standing of this Parliament and the integrity of the Union. It will also recognise the unique geographical circumstances that Scotland and Wales have in terms of sparsity and geography, and will therefore support whoever is elected in these new constituencies to be able to do a decent job, and will support the residents to be properly represented. A constituency that is hundreds of miles wide is just as bad as a constituency with 100,000 residents. There has to be a balance. I suspect we will not be able to support the amendment tabled by the hon. Members for Glasgow East and for Ceredigion, which seeks to maintain the status quo.

We recognise that we cannot justify maintaining the status quo and therefore upsetting the apple cart of getting that equalisation of seats, but there has to be a balance somewhere to defend the Union, to make viable constituencies, and to be fair to the people who live in those extremely large constituencies. We have achieved that by meeting midway between the current situation and the situation that would happen with the Bill unamended.

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I thank the hon. Member for City of Chester for such a thought-provoking speech. I have thoroughly enjoyed our debate and I am perfectly willing to accept the charge of being a constitutional geek. We have debated a range of issues that really get to the heart of democracy and the questions of representation and what that entails. What the hon. Gentleman touched upon just now is something that we have not had an opportunity to discuss too much in Committee: the different challenges that an urban Member of Parliament might face compared with a Member of Parliament in a more rural constituency. I do not downplay the challenges of either; I simply say that there are different considerations and challenges. Although we might not be able to address some of those challenges in this Bill, I am sure the House authorities will have to do so in future. In the same way that it is unfair for a Member to try to represent a constituency of 100,000 electors, it is quite a behemoth task for a Member to do justice to a constituency that is more than 90 miles wide with a continuous population throughout it.

My point in relation to amendment (a) to new clause 3 —I am also willing to admit the charge of being a cheeky chappie in proposing the amendment—is purely to spark a bit of a debate around how we go about allocating seats between the four nations of the United Kingdom, and more specifically the appropriateness or otherwise of a single UK-wide electoral quota. I am here for the debate. I have my own set of views, which Members have probably already guessed, but the amendment is worth probing and it is worth having a discussion about some of the reasoning behind the single UK quota and, as my hon. Friend the Member for City of Chester also illustrated in some detail, the possible unintended consequences.

There has been a common theme in not only the evidence sessions but in Committee discussions about the question of Wales: the elephant in the room. We cannot deny the fact that Wales, in terms of registered electors, is over-represented in this place. If we take a single UK-wide electoral quota, there is no argument. What I am trying to probe is whether we should apply a single UK electoral quota across the four nations. Points have already been made about the differential nature of devolution across the UK. The hon. Member for Heywood and Middleton correctly pointed out the fact that it has been piecemeal. To quote a famous Labour colleague in Wales, devolution has very much been,

“a process, not an event”.

I am glad to get that on the record.

Something that was raised in the first evidence session stuck with me; it was presented by the representative of the Liberal Democrats. He used the line of “no reduction, no further devolution.” It made me think about the rationale behind approaching a single UK electoral quota. If I were a Unionist, I would be quite concerned and would stay up at night worrying about the potential consequences of the provisions in the Bill for future boundary reviews, given that they are based on registered electors, when demographics and population change.

The differences in population between England and Wales are illustrative of how things might transpire or are likely to transpire. Between 2001—not quite the precise time of the last register—and the mid-year estimate of 2018, the population of Wales grew by 200,000. That is not a great deal in the broader scheme of things, but it is still an increase in the electorate. I know the point is that population growth in Wales is slower than in other parts of the UK, and it is likely to remain the case that Wales will not grow as quickly as other areas. The consequence of that, should the measures in the Bill be implemented, is that we will be talking about yet a further reduction in the number of Welsh seats at the next boundary review. That is based on the projections provided by the Office for National Statistics—it is a very real likelihood. I hope things will change, but unless we see some drastic changes in demographic trends and migration within the UK, Wales is unlikely to catch up with the pace of population growth.

What does that leave us with? It leaves us with a situation in which the number of representatives who are sent from Wales to this place will initially reduce by about eight—that is the figure that is commonly agreed on for this review. A further one or two seats will then be lost at each subsequent review every eight years or so, such is the disparity in the population growth figures. I am suggesting that, in maintaining 40 Members of Parliament, we focus on what we do about the nations. How do we tackle this constitutional problem? We are a Union of four nations. Although I completely empathise with and understand the arguments made for maintaining electoral quality as far as possible, I am very conscious of the fact that, to all intents and purposes, we have a unicameral system of elected representation. Yes, the House of Lords could be a vehicle to try to top up the territorial representation side of things, but that is not an issue that is being discussed at the moment in any great detail.

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At the risk of having a bash-the-House-of-Lords session, which I am sure the right hon. Member for Elmet and Rothwell would enjoy, is there not a case for looking at the situation in the House of Lords—ironically—where certain demographics are protected? For example, there are 92 hereditary peers and 26 clerics. If we can protect particular demographics in the House of Lords, such as clerics and hereditary peers, why can we not do it for the four nations?

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The hon. Gentleman makes a good point, and my views on House of Lords reform are well known. Should we be serious about trying to make the best possible use of a second Chamber, many countries across the world have shown how a second Chamber can be used to top up geographical or territorial concerns. I would like to see the House of Lords reformed in that kind of direction.

I would also be quite happy to explore further whether we need to have some sort of an agreement at this point in time about the disparities between the number of seats for each of the four nations. It is already the case that should there be anything that agitates a lot of popular sentiment in England only, there is a very good chance that it will come to pass and that a majority decision in its favour will happen in this place. That is not necessarily the case for Wales or for the other two devolved nations of the United Kingdom. Although it is unlikely that we will manage to address the issue in the Bill, it is nevertheless something to which we need to give active consideration—I say that as somebody of a particular political persuasion.

The situation in Wales is perhaps slightly different from that in Northern Ireland. The devolution settlement is not as developed and deep as the one in Scotland, or indeed the one in Northern Ireland. There are certain important spheres of policy—policing and the judiciary, for example—that are reserved to Westminster and apply to Wales. That is not the case for my colleagues and friends from Scotland, so there are plenty of arguments why there is still a special case to be made for Wales within an unreformed Parliament. When I say “unreformed”, I mean the House of Lords continuing in its current constitutional position.

I have covered my main points. I will draw my remarks to a conclusion by asking the Minister how, in the context of this Bill and in the absence of broader constitutional reform, we might ensure in future boundary reviews that there is a certain critical mass of Welsh MPs, and indeed MPs from Scotland and Northern Ireland. If we hold solely to demographics, Wales will probably lose out quicker than the other two nations—we are smaller, and Northern Ireland, of course, is its own case—but those other nations will also suffer in the end. Although I appreciate that the fire is not raging at the moment, I am seeing a bit of smoke, which is something we should give a little more consideration to.

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I rise to speak in support of the new clause tabled by my hon. Friend the Member for City of Chester. This is about representation of communities and making sure that voices are heard through the democratic process. If we were to stick rigidly to the averages as calculated and impose them on Scotland and Wales, the significant loss of seats would make people in those nations wonder, “What is the point in the Westminster Parliament if our representation is diminished by such a degree—if we lose out in this process?” That is the way the public would see it, and that would undermine local representation.

I am prepared to accept that the situation in Scotland and Wales is significantly different from my situation in London and the situation in the rest of England. If we are to represent communities effectively, different numbers may apply, and it may be wrong to make a significant reduction in the number of constituencies, particularly at this time. A minimum threshold below which we cannot go is a sensible proposal. Those who say that they want to protect the Union—the integrity of England, Scotland, Wales and Northern Ireland—should think carefully about what the consequences of this process are, and the message that it sends to communities in Scotland and Wales.

The concept of making sure that we respect communities and local circumstances applies here, perhaps more than anywhere. During this debate, we have heard about constituencies that are geographically quite enormous compared with inner-city ones, in which people within a single constituency live more than 90 miles apart. When people are so distant, that cannot make for healthy democracy and healthy representation, so we have to accept some sort of limit on how large constituencies can be while still remaining a coherent, cohesive community that can be represented. I feel strongly about local representation, the link between a constituency MP and the communities they represent, which is something that Committee members on both sides of the House have referred to. We must give those MPs a racing chance of being able to represent their communities, so we cannot have constituencies that make that impossible.

I have an inner-city constituency, and although it is quite big compared with others, because there is lots of open space in it, I am able to go from one meeting to another; sometimes I do two or three meetings in an evening. That is nigh-on impossible for somebody with a constituency that is spread out over tens of miles—almost 90 miles. There has to be some sort of limitation on distance; we have to be realistic about that, whatever those who are fixed on applying mathematical formulas to this process say. There is an issue about democratic accountability and Members having strong ties to the community that they represent.

When it comes to the Bill’s impact on the number of Members of Parliament from Scotland and Wales, we have to step back and be realistic. If we want to maintain the Union, want people to value Westminster as the place where their laws are made, and want them to be well represented, there is a limit to how far we can go in cutting the number of MPs who come from Scotland and Wales to Westminster, so I support the new clause in the name of my hon. Friend the Member for City of Chester.

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It is a pleasure to make my first contribution under your chairmanship, Sir David; I seem to have missed you during our sittings. I want to pick up on the eloquent contributions of the hon. Members for Ceredigion, for Eltham, and for City of Chester. We run the risk of viewing ourselves from within a silo in this place, as if we were the only part of the democratic structure, but in fact we do not operate in a silo. Back in the 1940s, when we started reviewing parliamentary boundaries, we probably were the most significant part of that democratic structure, but of course that has changed.

This links back to the point made about the devolution settlement. Over the past 20 years, electors have got a lot more sophisticated. The hon. Member for Eltham said that people need to understand where their laws are made. Yes, they do, but a lot of people’s laws are made not here, but in Holyrood or Cardiff Bay. From the interactions I have had, I know that our electors understand that division in where their laws are made, and how we operate within the structure. There is also the role of local authorities; during the pandemic, we have seen that, and the support that they provide. Speaking from local experience, people understand the difference between the role of their local authority, and my interaction as a Member of Parliament with that local authority.

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I am interested in the hon. Gentleman’s line of argument. Is he arguing that the role of Westminster is diminishing in Scotland, and that reducing the number of MPs from Scotland is justified? It seems a strange argument for the Conservative party to make.

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I am saying that we have to take a pragmatic approach to how we view our United Kingdom; as a Unionist, I would never say that the role that the hon. Gentleman speaks of is diminished. It would be remiss not to recognise that voters, particularly in the devolved nations, understand the differences I mentioned. We talk about reducing the number of constituencies in areas of the UK; in a way, we have to balance that with the democratic structures that now exist there.

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The hon. Gentleman makes a thoughtful argument, but I rather feel that he is trying to square a circle. I follow where he is going with his point on the different legislatures that are available. My constituents have a Member of the UK Parliament, a local councillor and a Member of the Scottish Parliament. The problem with his argument is that until fairly recently, they also had a Member of the European Parliament. We are leaving the European Union—certainly not a change that I approve of—and legislative powers are, by and large, coming back from Brussels to Westminster. Under the Bill, those legislative powers will remain in Westminster, and representation for people in Scotland, including in my constituency, is diminished as a result. Can he not see that he is trying to square a circle in respect of Europe’s legislative powers?

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I see the hon. Gentleman’s point. It is a difficult one because it is a good point, but with respect to the line that I am following, I think the scope of what he is saying is a slightly different debate. It is slightly out of the scope of the clause but I see his point and recognise it to a degree. However, as we move into a more—without panicking Front Benchers—quasi-federal system perhaps, there needs to be a wider recognition of how we deal with these quotas. If we look at other systems—take Australia for example—and the way they set quotas between state and federal level, they differentiate. That is just how it goes. It means that areas lose seats and that loss of power is there, but it is made up for by the fact there is a system underneath and they interact with each other. I follow the argument of the hon. Member for Ceredigion, but given where we are constitutionally—I do not want to turn this into a huge constitutional debate because we could do that all day—and I agree that we need to be as pragmatic as we can and review this going forward, I think there is a balance there now with the Senedd and with the Scottish Parliament. I will draw my comments to a close to allow my hon. Friend to talk.

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It has been another very interesting debate. I am grateful to the hon. Members for Eltham, for the City of Chester and for Ceredigion and to my hon. Friend the Member for West Bromwich West for a thoughtful exposition of a much wider point—much wider than we could hope to do justice to in Committee. We have seen in the arguments, certainly on the Government side of the Committee, the desire to fix a much wider constitutional issue—namely, how England, Scotland, Wales and Northern Ireland should relate to each other. Every single one of the hon. Members who spoke knows that that issue is much larger than the Bill. They also know that it comprises the rest of my portfolio and I would be delighted to speak about it at any other time. Indeed, we will. There are many depths in that work that are acknowledged and being worked upon and about which I am sure we will have many fruitful discussions in the future. I want to do two things today. I want to say a little bit more about why the Bill is not the right place to do that and then I will talk specifically about the merits of the amendment.

The Bill is not the right place to deal with the entirety of the constitutional settlement because, very obviously, it provides for a mechanism for independent boundary reviews, and the constitutional settlement is so much larger than that. This boundary review is, indeed, only for the UK Parliament. The constitutional settlement is much wider. Hon. Members will have heard the Prime Minister’s speech today, in which he made a number of passionately pro-Unionist points. He reminds us that the interests of the citizens of the United Kingdom—their security, prosperity, welfare, and all the opportunities we want to come out of the pandemic—are much wider than what we have here today and that he is addressing them. He is seeking to do that and he has set out clearly what he intends to do. Naturally, and as the Minister of State for the Constitution and Devolution, I am in full-throated support of that, but that is not the subject matter today.

Let us focus a little more on what the Bill does. We all want the constituent nations of the United Kingdom to have a powerful voice. That should be the foundation for all of us in this discussion and I am sure it is. We all want those voices to be heard loud and clear. That is the fair way for the Union to function and to come together in the Parliament of the unitary state. Because that is the only fair way, the new clause does not work. I am afraid to say that it would put inequality and inaccuracy in the way of that Unionist proposition and the prosperity of our Union. If we set in legislation the thresholds proposed in the new clause and amendment (a), we would be cutting into the heart of the idea that votes should be equal, and that would damage the equality between the nations and individual people of the Union.

On the 2019 ONS data, if we remove the protected constituencies from the calculation, we end up with a difference, according to the thresholds in the new clause, of more than 7,600 electors between the nation with the highest average constituency size—England—and the nation with the lowest. Let me run through those numbers a little further. Two nations of the Union—Scotland and Wales—would enjoy a significantly more generous citizen-to-MP ratio, with approximately 66,000 electors for each MP, than their fellow nations. For Northern Ireland, the equivalent figure would be 72,000 and for England it would be almost 74,000. Hon. Members can see where the problem is. It is not right to put equality for people—individual real people—in the way of a construct that claims to strengthen the Union, but does not do that because it puts inequality in the way of it.

It is not right to see the new clause as striking a balance, in the words of the hon. Member for City of Chester. I appreciate that he was striving to argue that the balance ought to be struck between cutting this loose and allowing it to run, and preserving it as amendment (a) seeks to do. I understand his argument, but it would be inaccurate to do that. Fundamentally, it would preserve an inaccuracy for evermore by putting it into the legislation. It would say, “We are going to take a model that is not tied to the accuracy of population figures, and we are going to preserve that.” That is one problem with it. It would also be arbitrary. Let me explain why.

The current method for doing this kind of allocation between the nations of our Union is the Sainte-Laguë method—the pronunciation depends on which particular part of Belgium you go for—which is used to allocate constituency numbers to each of the four nations. It is a widely used mathematical formula and is acknowledged to be one of the fairest, if not the fairest, ways to make allocations like this.

We are only setting the rules for the boundary review and do not have its data, so we cannot precisely prejudge the outcome of the distribution, but the House of Commons Library has given it a good go. It estimates, based on the December 2019 data, that according to the Sainte-Laguë method there would be 18 constituencies in Northern Ireland, 32 in Wales, 56 in Scotland and 544 in England, which adds up to 650. We may have shifted one protected constituency this morning, but that is a very small aspect in the total of 650.

The point is this. That method is the respectable way to do the distribution. The new clause and the amendment seek to say, frankly, that they know better than that method, and I am not convinced that that is the right thing to do. That is an arbitrary stance, and it preserves in aspic that arbitrary decision for evermore. It may be that the motive for the new clause comes from a very good place, but it is the wrong way to go about it, because the Sainte-Laguë method is the better one. It exists and it is ready to be used.

Finally, there has been a common theme in the Committee, which we ought to return to. It is not for us to make this kind of statement. If we believe in the independence of the boundary commissions and that they ought to be led where the evidence takes them—we expect that of them, as they are judge-led, independent and have population data—we should not seek to prejudge that decision in the Committee. That is the wrong thing to do. For that reason, I argue against this new clause. It is the wrong approach. It seeks, however, to address a topic, which is so important that it is bigger than the Bill before us. For those reasons I urge both sets of proposers to withdraw the new clause and the amendment.

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I am grateful to the Minister and all hon. Members for taking part in an illuminating and positive debate. I was particularly taken by the intervention the hon. Member for Glasgow East made on the hon. Member for West Bromwich West, whose response was honest and positive. I welcome that. The idea of the legislative load being passed back from the European Union yet not having the legislative representation to manage that was a serious and salient point. I hoped the hon. Member for Glasgow East might have made a contribution to further develop that point, but he chose not to.

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To make a brief correction, which should not detain us further, that is untrue. Those powers are returning to Stormont, Holyrood and Cardiff Bay—quite rightly. If we are referring to common frameworks, I am sure that the hon. Gentleman and the hon. Member for Glasgow East will be intimately familiar with the detail. That is an incorrect representation.

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I am intimately aware of that. I will take the Minister’s advice, because I do not think all of the responsibilities are coming back. Some will go back to the various different Parliaments; others will stay here in Westminster.

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One example would be agricultural policy. While the responsibility for domestic policy will reside in Cardiff, debates about funding—let us be honest, that is an important debate—will be held here.

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I do not want to take too long, but both interventions were correct. The point is that some powers will go straight to the devolved Assemblies and Parliaments, but others will remain here. We are where we are.

Let me deal with the Unionist point of view first. When England play football, rugby or cricket, I support England, but I am also British and I am proud to be so. I have a sense of identity that tells me I am British. I do worry that the Union will be weakened under the Bill, because people will feel, in the nations other than England, that their voices are being diminished. That bothers me.

The Minister is right: there is a broader constitutional issue here. We are not trying to fix the constitutional issue, but we are trying not to damage it further. I do not want this to become an English Parliament. The hon. Member for Glasgow East talks about English votes for English laws, which, let’s face it, is a hotch-potch even now. There is a danger that this becomes an English Parliament and is seen as an English Parliament in the nations that are not England. That is my concern.

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I am immensely grateful to the hon. Member for City of Chester for giving way. It is just interesting to note that the issue of English votes for English laws might have passed hon. Members by. That particular Standing Order has been suspended during the proceedings of the virtual Parliament. I will leave it to the Committee to ponder whether it might be a good idea to bring that back when virtual proceedings end. A lot of people, regardless of whether they are Unionists or nationalists, would think that English votes for English laws is a pretty silly policy in this place.

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I had not noticed that. You learn something new every day in this Committee. I think the Minister was unfair to characterise this idea as we think we know better. It is not that; it is simply that we are proposing to do the process differently to bring in balance. That is something that I have talked about on this clause and other clauses, and that my hon. Friend the Member for Lancaster and Fleetwood has talked about. We are trying to find a balance between community and numbers and geography and numbers. It is difficult and we have different opinions on it, but it is a genuine attempt to create a balance between the different areas.

It is right that this House and Parliament give instructions to the boundary commissions to go away and do their jobs, and the new clause is about trying to make sure that those instructions are balanced. It was a helpful debate with positive contributions, for which I am grateful. In the light of that, it is not my intention or that of my hon. Friend the Member for Lancaster and Fleetwood to press the new clause to a vote, so I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 4

Definition of “electorate”

‘(1) The 1986 Act is amended as follows.

(2) In rule 9(2) of Schedule 2 to the 1986 Act, omit the words from “the version that is required” to the end and insert “the electoral register as on the date of the last General Election before the review date.”’—(Cat Smith.)

For the purposes of future reviews, this new clause would define the electorate as being those on the electoral register at the last General Election prior to the review.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

Division 3

30 June 2020

The Committee divided:

Ayes: 7
Noes: 10

Question accordingly negatived.

View Details

New Clause 5

Highland Constituencies

‘In Rule 4(2)(a) of Schedule 2 to the 1986 Act (Area of constituencies) for “12,000” substitute “9,000”.’—(David Linden.)

This new clause gives further flexibility to the Boundary Commissions to design workable constituencies in the Highlands of Scotland.

Brought up, and read the First time.

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I beg to move, That the clause be read a Second time.

I am acutely aware of the time and the willingness on the part of all hon. Members to try to get through the remainder of the new clauses in this sitting, so I will not seek to detain the Committee. I appreciate that some Committee members, including me, do not represent a constituency that totals 12,000 sq km, but my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) does.

New clause 5 seeks to initiate some thought in Government about the size of some of the proposed constituencies. In drafting the new clause, I was thinking specifically about the Highland North constituency in the last set of proposals by the Boundary Commission for Scotland. As Mr Martin of the Scottish National party set out during our evidence session, there is provision within the rules for a constituency up to that kind of size, but put simply, such constituencies are increasingly unmanageable. The clause, which is very much a probing amendment, seeks to spark a debate about the size of constituencies we expect Members to serve while providing an efficient service to their constituents. I found myself chuckling in the last debate at the thought of people being outraged at the idea of having a constituency that was only 90 miles long.

As I mentioned earlier, the largest constituency set out by the Boundary Commission for Scotland proposals was Highland North at 12,985 sq km. That is 16.66% or a sixth of Scotland, 65% of the size of Wales, 92% of the size of Northern Ireland, about the size of Yorkshire, 8.25 times the size of Greater London, five times the size of Luxembourg and larger than Cyprus and Luxembourg put together. Indeed, the three largest proposed constituencies, Highland North, Argyll, Bute and Lochaber, and Inverness and Skye, would cover 33,282 sq km.

To put that in context, those three constituencies would cover 42.7% of the area of Scotland, which is an area larger than Belgium. The two constituencies of Highland North and Argyll, Bute and Lochaber would cover an area larger than Slovenia. Those large constituencies would also include several island areas, which makes MP travel across constituencies even harder. My hon. Friend the Member for Argyll and Bute (Brendan O’Hara) already has five airports in his constituency.

So I have outlined, to some extent, the challenges faced by colleagues in Scotland, which is the motivation for new clause 5.

The existing rules are guided by the size of Ross, Skye and Lochaber, but they do not properly take into account how constituencies in the highlands of Scotland have to be designed. We have to start in the far north of the Scottish mainland; statute protects Orkney from invasion from the south. Effectively, the Boundary Commission for Scotland currently needs to work a constituency southwards until it reaches 12,000 sq km. At that point, it does not need to meet the UK electoral quota and can up to an extra 1,000 sq km to the constituency. This seems to be forcing the Boundary Commission for Scotland to design constituencies in a particular way, working north to south, until it stops. The new clause is a start to the conversation on this aspect, suggesting that the Boundary Commission for Scotland could stop expanding constituencies at an earlier point.

To paint a fuller picture in the UK context, the Committee might wish to note that the largest constituency by area in England is Hexham and Morpeth, at 3,343 sq km. The largest constituency outside of Scotland is Brecon, Radnor and Montgomery, at 3,624 sq km. However, Scotland has five constituencies of 3,999 sq km or more in an area.

I do not want members of this Bill Committee to view this discussion in the context of the current MP for Ross, Skye and Lochaber. His predecessor, Charles Kennedy, described the situation far more eloquently than I have. Before he left this place, he said that, for 27 years, he had represented the largest constituency in the House, which had twice been enlarged. He went on to say:

“Having represented three such vast constituencies over the course of nearly 30 years now, I can say that the current one is by far the most impractical. It has to be said that the other two were gigantic and posed particular problems, but there comes a point at which geographical impracticality sets in and nobody can do the job of local parliamentary representation effectively.”—[Official Report, 1 November 2010; Vol. 517, c. 661.]

Charles Kennedy was right; frankly, these constituencies have become geographically impractical. New clause 5 seeks to remedy that, and I therefore look forward to the Minister’s reply.

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I will keep it brief. I acknowledge the points that the hon. Gentleman has made, and he made them very well and very eloquently. He is right to bring in the experience of, for example, Charles Kennedy. There is no shying away from the fact that there will be large constituencies in a place that has a more sparse population. We have to face up to these issues and to how we can design constituencies accurately.

Essentially, the new clause seeks to achieve an easement, by reducing the impact of a certain rule, and I will just quickly run through that rule. Rule 4 in the second schedule to the 1986 Act relates specifically t