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House of Lords Hansard
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Terrorist Offenders (Restriction of Early Release) Bill
24 February 2020
Volume 802

Committee (and remaining stages)

Clause 1: Eligibility for release on licence of terrorist prisoners: England and Wales

Amendment 1

Moved by

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1: Clause 1, page 2, line 32, after “period”” insert “, in relation to a sentence imposed after this section comes into force,”

Member’s explanatory statement

This amendment creates a distinction between sentences imposed before and after this section comes into force. Prisoners sentenced after this section comes into force are not eligible for release until they have served two-thirds of their sentence. For this category of prisoner, there is no change from what the Bill currently provides.

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My Lords, though in common with some others of your Lordships, I regret the highly accelerated way in which this Bill has been handled, the compressed timetable has one very considerable advantage: the excellent debate we have just had at Second Reading, much of it touching on the subject matter of these exploratory amendments, is still ringing in our ears. For that reason, there seems little point in trying to repeat the full glories of that debate at this hour of the evening, for the battle lines are pretty clear.

Every speaker who addressed the issue, as the Minister rightly said, sees the need for a degree of retrospective effect to protect the public: the injection of Parole Board review into the sentences of existing prisoners, despite the fact that those prisoners will have been assured by the judge who sentenced them that they would be automatically released by the halfway stage of their sentences. None of us is prepared to see them released before the end of their sentence without the Parole Board’s say-so.

The issue raised by Amendments 1 and 2 which relate to England and Wales, and Amendment 4 which relates to Scotland, is whether we should go further into the dangerous waters of retrospectivity, as the Bill in its unamended form would do, by providing as a universal rule that not even Parole Board scrutiny will be considered until the two-thirds point of the sentence. This—let us not forget—is in relation to prisoners who are at the bottom end of the terrorism scale where seriousness is concerned and who are not assessed as dangerous by the trial judge or they would have been on a different and more onerous type of sentence.

On this issue, the European Court of Human Rights seems to be a sideshow. As the noble Lord, Lord Pannick, said—and I agree with him—it is not likely to be contravened by whatever we do. What we need to ask is whether sufficiently cogent reasons have been advanced to displace, in the interests of public safety, the normal presumption that a prisoner’s sentence will not be changed to his disadvantage after it has been passed.

On that issue, I will not summarise the respective arguments of what the noble Baroness, Lady Chakrabarti, described, perhaps optimistically, as two fantasy football teams of lawyers, although I would correct her in one respect by pointing out that the noble Lord, Lord Pannick, as I have confirmed with him, is for these purposes a member of the squad supporting these amendments, along with the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Carlile, the former law officers, the noble and learned Lords, Lord Falconer and Lord Garnier, and the others who made such pertinent contributions, including the noble Baroness, Lady Meacher, and my fellow signatory, the noble Lord, Lord Beith. The noble Lord, Lord Hogan-Howe, although not a member of the team, expressed his discomfort about the way the Bill has been written.

The Minister advanced two reasons in his all-Peers letter which I dealt with in opening, and then two more came along as he wound up the debate. With great respect to him, they were not obviously more convincing. He spoke first of consistency with sentencing regimes where Parole Board consideration comes at the two-thirds stage, but the point goes nowhere for there are plenty of other regimes at which Parole Board consideration happens at half time. He spoke of a breathing space, but the releases that are due in the next few days and weeks—the ones that we are told make this Bill so urgent—are of prisoners who are well past both the half way and the two-thirds point, so the application of one test rather than the other makes no difference in practice and gives the Parole Board no additional scope to draw breath. He spoke of public confidence, but that is a self-serving argument; it is about appearance, not about a real and objective justification. He also spoke of a further period of incapacitation as being an advantage of the scheme in the Bill, but if these amendments were to be accepted, no one would be released at half time unless the Parole Board considered them to be safe, so the only prisoners who will be further incapacitated by the provisions that we seek to amend are those who, in the assessment of the Parole Board, could safely be released.

That, I suspect, is more than enough from me. I beg to move.

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My Lords, there was never any possibility of my becoming a member of the Court of Appeal, but had I been a member, the job I would most like to have had is that of the third member of the court who says, “I have read the judgment of my learned friend. I agree and I have nothing further to add.” I have heard what my friend the noble Lord, Lord Anderson, has said both at Second Reading and just now and I have nothing further to add save one point.

During the course of the Second Reading debate, instead of saying “two-thirds” I said “three-quarters”. I do not suppose that that made much difference to the way in which the House considered the matter, and the noble Lord, Lord Anderson, has made the points that need to be made. The one thing I have learned in politics is that it is possible to win the argument and to lose the vote, and it is possible to make winning arguments and sensibly to avoid a vote. For my part, I think that the noble Lord, Lord Anderson, has made and won the arguments, but whether he moves this issue to a vote is another matter. However, he has certainly won the moral victory.

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My Lords, I do not dissent at all from that assessment that a moral victory has been won, but that is only the beginning of the story. I simply want to address the Government’s distinctly lacking arguments against the amendment as advanced so far in a context where there was such widespread agreement on the efficacy of bringing the Parole Board into all cases but no very clear defence by the Government as to why the two-thirds provision has to be imposed on those who would otherwise have been released without the Parole Board’s involvement half way through their sentence.

The arguments produced by the Government have been very strange. One was that it would create greater confusion. It is in the essence—in the nature—of this provision that there will be confusion, because nobody can know what assessment the Parole Board is going to make of their case. The avoidance of confusion is not a primary objective of this: quite the contrary, we invite the Parole Board to make a very serious consideration of each case and only to allow release at either the halfway or two-thirds point if it is satisfied that there is not a danger to the public from doing so. The confusion argument does not really make any sense at all.

Then there is the argument that this will increase public confidence. Of all the things that might increase public confidence, I cannot see someone rushing into the pub saying, “Have you heard? Do you know that some of these offenders might spend up to another year in jail, but then they will be released?” That is not what public confidence is built on, and it is the wrong argument to use for something that involves issues of liberty.

Then I want to challenge the argument about the further period of incapacitation, because terrorists in prison are not incapacitated. They engage in grooming and recruitment activities and, as I said in the Second Reading debate, in some cases might be able to achieve more by their work among other prisoners—including prisoners who are not there for terrorist offences—than they might be able to achieve on the outside. They might recruit a larger number of people, so I do not accept the incapacitation argument.

The only argument that would be persuasive would be that it was impossible, with this amendment as drafted, to avoid the situation in which the Parole Board could not cope in a reasonable period of time with the cases at the half-time stage, but that probably could be overcome by alternative drafting if the drafting presented tonight has that problem. That would be the only argument that would persuade me: that we were letting people out without the Parole Board assessment, when the whole purpose of this is to make sure that they have that assessment.

Therefore, unless the Government produce a better argument, I do not think that they have made the case.

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

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

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

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

I will make two final pragmatic points. First, this will make very little difference—a point which was identified by the noble Baroness, Lady Meacher, to which the Minister referred. Lastly, we have been told many times, and I wholly agree, that this is but to secure a breathing space. We have an emergency, and I accept that, but we will now see coming down the track the counterterrorism and sentencing Bill. I very much hope that that Bill will be the subject of widespread consultation. I hope in fact that there will be a review. We will hear the noble Lord, Lord Marks, talking about a review; I should support him, because I want a much wider review. However, we ought to have a review of existing legislation, and therefore we will have the opportunity to revisit precisely this question on that occasion. Therefore, I do not like moving goalposts but in this case, and in the context of the Bill, I am content to do so.

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May I add one observation? I warmly support the idea of a Parole Board review. It is plainly not contrary to Article 7, and, if one looks at whether it is justified as against the presumption against retrospective or retroactive legislation, there are reasons which justify taking that view, as has been explained in the debate. Ultimately, it may be for others to opine on that.

However, the one thing that troubles me is the retrospective nature of this. I accept—it is obviously sensible—that a mistake was no doubt made many years ago, before the full import of terrorist offences was understood, which assumed that you could safely release anyone at the halfway point. I have dealt with many appeals on terrorist cases and I can only confirm what has been said, which is how difficult it is to make the assessment. Therefore, it is plainly right that there be an assessment—but, if that is the position and we say, “Okay; the person is to stay in prison up to the maximum of the term imposed by the judge, until he is deemed to be safe”, the detention is lawful and there is justification for that retrospectivity. What I fail to understand—I am sure that it is my fault—is why we should apply this to a person who was properly sentenced, is not dangerous and should not be serving more than the minimum term. I cannot accept the argument that we are trying to make the sentencing system logical, which is confusing. Anyone with any experience of it knows that it is in sad need of reform, and the Law Commission Bill will help great a deal in that respect.

In addition, evidence shows that keeping someone in prison, particularly if it is for an Islamic terrorist offence as opposed to another kind of terrorism offence, might make them more dangerous. It therefore seems that the only reason that can be advanced is that it is not practicable for the Parole Board to deal with the matter immediately. However, if this legislation makes it lawful to maintain someone until the Parole Board decides that they are safe, what is the risk in saying, “That is the law; we don’t need to impose a two-thirds term”? I do not follow that. It seems that it is grossly unfair and very difficult to justify for someone who, in fact, is no danger. I cannot see the risk for the Government, but maybe I have not understood this properly, because detention in custody would be perfectly lawful, and it would be very difficult to mount a case saying that the prison authorities were negligent or in breach of duty in not getting on with the matter, when it is Parliament itself that has decided to make the change. On that basis, the Bill is plainly necessary, but I do not understand this one minor aspect of it, and I look forward to the Minister’s clarification.

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I have some difficulty in understanding what exactly the amendment is trying to achieve. I have the greatest respect for all four noble Lords who have tabled the amendment, but to take the point on Article 7 of the European Convention on Human Rights, I do not think that the amendment meets the terms of the article. It seeks to address the position when the sentence was imposed, whereas Article 7 refers to the situation at the time when the act that gave rise to the criminal offence was committed. It is worded in such a way that the individual should have been aware at the time of his conduct what sentence he was likely to receive. The amendment does not address that, as it is not addressed to that point in time. On Article 7, it misses the point, and does not achieve anything.

The noble Lord, Lord Anderson, said that the convention was a sideshow. That brings me to the other point, which I think I do understand, on the value of retaining the Parole Board at halfway through the sentence, partly for the reason that changing the system for those who have already been sentenced seems instinctively rather unfair to them. It also has a value in getting the Parole Board in as early as possible, because the longer it has to assess the element of risk, the greater the possibility that it can achieve something useful at the end. To shorten it, which seems to be the effect of the Government’s amendment, reduces the opportunity for the board to get into the depths of the mind of the individual and to see what it can do about the risk. If that is the purpose of the amendment, why not have the same rule for everybody? It is accepting the Government’s amendment for the newcomers—those who have not yet been sentenced. It would be more logical to apply the same rule throughout.

That goes back to the point made by the noble and learned Lord, Lord Falconer of Thoroton, when he asked what the change from a half to two-thirds would achieve, given that the Parole Board will be involved anyway. If it comes in halfway through, there is no question of the prisoner being released until it is safe for them to be released, which could well be right up until the end of the sentence imposed by the judge. Logically, it would be sensible to have the same rule for everybody, rather than split it up. The other point, which is worth emphasising, and perhaps an answer to the noble and learned Lord, Lord Thomas, is that a great deal has been said about automatic release, but it is not unconditional release. This point was made very effectively by the noble Baroness, Lady Chakrabarti, when describing the deficiencies of the Parole Board system.

When the original scheme was devised with release subject to conditions, it was understood that these conditions meant something. I remember cases in which I was involved where people were returned to custody because they had breached their conditions. It was not just a day in custody; they were in for a substantial time until it was regarded as appropriate for them to be released again. In the case of life prisoners, sometimes they went backwards and forwards because they had breached conditions, and they went back in again. This is what we have lost, I am afraid. It bears thinking about that the release halfway through is not unconditional; it is a conditional release subject to the licence terms. That has a bearing on whether this is something that attracts the Article 7 attack in any event. For the reasons I have indicated, I am slightly puzzled by the amendment, and I am not sure that I would support it.

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My Lords, I will not apologise to your Lordships for not speaking at Second Reading. It is, rather, a matter for congratulation—noble Lords have not had to listen to me twice.

The situation is one of severe crisis in respect of the damage that has occurred as a result of the release of persons described in this Bill. That is a matter of the utmost importance for Her Majesty’s Government, because if any human right is vital it is people’s right to be protected against danger, by their Government. That danger has been illustrated vividly by these two incidents.

I do not imagine for one minute that anyone thought that the man involved in the London Bridge incident was going to do anything like that. One of the people murdered was doing his best to look after him and to bring him into ordinary life in a good way, yet that man was struck down. I do not believe it is possible to discern who is dangerous and who is not, because the problem with this type of danger is that it is not necessarily there when the man or woman is originally sentenced. It is danger that, to a great extent, seems to have arisen as a result of the experience in prison, and that is most unfortunate.

On the other hand, if you had an opportunity to ask somebody to change his mind, you may find it difficult if he has a religious persuasion. The people trying to get rid of this danger in prison are finding that it is very difficult to succeed and mightily difficult to know when, if at all, the attempt has succeeded. The concentration therefore has to be on the circumstances in which one of these people is released. One way of dealing with that, to get a bit of time, is to postpone the release. That is what is done in the move from half to two-thirds. Of course, there is still a third of the sentence left.

The second point that has been made clear is that there is a substantial number of convicted prisoners up for release quite soon. The Parole Board’s investigations are quite substantial, and I do not believe it would be possible for the board to deal with a large number of these satisfactorily in a very short time. We have to remember the decision the board is going to take. Personally, I would not like to be a member of the Parole Board taking that responsibility. I am glad to say that there are people who do that and who have the skills to do it properly. On the whole, the Parole Board’s decisions have been pretty well received. One or two—I remember one in particular—have been by no means well received, but generally they have been. So it is important that it gets a proper opportunity to carry out its task.

The rule is to be that when the two-thirds is up, the prisoner is released or not according to whether the Parole Board is satisfied that it is safe for the person to be released. That seems the best possible solution to a mighty difficult problem. However, it is only a temporary solution, because when the sentence is fully served, the person is to be released in any case, without anything from the Parole Board. That matter must be dealt with in the Bill that is to come. In the meantime, with respect to the noble Lord, Lord Anderson, I cannot see any justification for dividing up the original division with this amendment. The Bill would be better without the amendment.

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My Lords, I strongly support the amendment tabled by the noble Lord, Lord Anderson. It grieves me to do so because I am disagreeing with the noble and learned Lord, Lord Mackay of Clashfern, but this is emergency legislation, so described. Put aside the question of precisely what Article 7 means or how the presumption against retrospectivity works; it is essentially a bad thing for a legislature to change the sentence of everybody in a particular group. Everybody accepts that proposition, except, possibly, one noble Lord who said that it would be good if everybody’s sentence went up—but let us put that to one side. It is bad for a legislature to change a whole cohort sentence because you should be sentenced by the courts, not by a legislature that subsequently takes a different view, primarily because of public pressure. It may be legitimate public pressure, but it is public pressure nevertheless.

There may be circumstances that make it necessary to break with that principle. If you have to break with it, break with it to the minimum degree required to provide public protection. I do not agree with the “in for a penny, in for a pound” approach of the noble Viscount, Lord Hailsham: that if there is some justification for retrospectivity, any retrospectivity is justified. That cannot be the right approach.

The problem here is that prisoners may well be very dangerous—the Streatham terrorist was plainly and evidently dangerous, because he had said that he wanted to commit very dangerous crimes—and yet they have to be released. The solution is to make sure that somebody looks at every individual case and that those people can be released only if, in the words of the Bill,

“the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

So, unless the Parole Board is satisfied that the person is no longer a danger, they must be kept in prison.

On the right way to approach this, instead of saying that everybody must stay in prison for longer, even if they are evidently no longer a danger, the right course is for everybody to be looked at. As the noble and learned Lord, Lord Mackay of Clashfern, says, it might be that we cannot reach everybody by the time they are half way through their sentence. That is dealt with by the perfectly adequate drafting in this Bill, which says that you can be released by the Secretary of State only after you have been examined by the Parole Board and it has directed that you can be released. Therefore, the factor that determines when you get released is not that you have to wait until you are two-thirds of the way through your sentence before it is considered, but that you are considered at half-time and, if there is a delay while the Parole Board gets its act together, you the prisoner must wait, and the problem is solved. Of course there are difficulties in making an assessment, but there is that difficulty whether it is two-thirds of the way through a sentence or halfway through. It is fundamentally wrong that we just up it to two-thirds for no good reason in the context of emergency legislation.

I shall make one more point and then give way to the noble Lord, Lord Cormack. I do not accept the proposition being advanced that this provision, which increases detention from a half to two-thirds, would not offend against Article 7; nor do I accept that it would not offend against the presumption against retrospectivity. All the Article 7 cases are about changing the terms. So, in the Uttley case, somebody comes out with some terms on release, whereas previously there would have been no terms on release. In another case where it is held not to be retrospective under Article 7, a person is moved from one country to another and different provisions apply; but that was the provision right from the start. In the Aberdeen case, which the noble Lord, Lord Pannick, relied on—sadly, he is not here—somebody was released and then recalled. The rules changed regarding what happens when you are recalled. These examples do not go to the fundamental point of keeping you in prison for longer.

In the one case in which that matter was considered by the European Court of Human Rights, the Inés Del Río Prada case, the fundamental reason why it was held to be retrospective was that a sentence was changed because time off for work in prison suddenly began to count in a different way and, instead of getting out in 2008, the unfortunate prisoner was not going to get out until 2017. That was held to be in breach of the retrospectivity rule. I find it very difficult to distinguish this case from that case, whereas it is easy to distinguish all those other cases in which the precise terms changed but not the length of time in prison.

However, that is not the prime way in which I put my case, which is that if we are in emergency legislation going to impose this provision, we should not be upping the sentence if we can meet the emergency with the introduction of the Parole Board. We can do so and should do no more than that now. I give way to the noble Lord, Lord Cormack.

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I would rather make my own comments, because the noble Lord did not give way at the point at which I wished to intervene when he was talking about the two cases that are the reason behind this emergency legislation. He talked about the Streatham stabbings. What he failed to acknowledge was that the really dangerous terrorist was the one at Fishmongers’ Hall, who had feigned conversion and then turned on the very man who had been his mentor. That, in a nutshell, illustrates why it is important that we have this emergency legislation. I made it plain in my speech at Second Reading that this is only the beginning. We want substantial legislation; my noble friend has promised it and we must hold him to that promise. But we need to pass this tonight without further ado, and I very much hope that the noble Lord, Lord Anderson, who made an extremely good case with great eloquence, will feel able to withdraw his amendment.

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My Lords, I associate myself with the noble Lord, Lord Anderson, and my noble and learned friend Lord Falconer. I have listened to this debate and heard no compelling reason why this amendment has not been adopted by the Government. In answer to the noble Viscount, Lord Hailsham, the difference between one aspect of the retrospection and the other is that one does not compromise public safety, pure and simple.

By accepting the amendment of the noble Lord, Lord Anderson, nobody is let out, even with the administrative challenges of getting up a Parole Board under the appalling and savage cuts and debilitation to the system that I spoke about earlier, without Parole Board approval. That is the distinction between his amendment and the status quo ante, which is that people come out automatically, regardless of their risk, at the halfway point.

In answer to others, I have so much respect for the noble Lord, Lord Cormack, but his point was about people who are not even on the radar. That problem is ongoing and not dealt with by this Bill. Saying that people should be held for as long as possible is not an answer to the amendment in question now. By definition, those who are affected by this Bill are subject to finite sentences that are not always very long, because these are not by definition the most serious terrorist offenders, as the noble Lord understands. These are people who were subject to the regime that we have been examining because they were at the lower end of the scale. To quote once more the former Prime Minister, these people are coming out at some point, and there has to be some principle in the way that we engage with this.

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My Lords, we all understand the purpose of this amendment and of the other amendments in the group, albeit that I will come on to deal with the point that arises with regard to the second amendment if I may. But I begin by referring to one or two observations made by the noble Lord, Lord Anderson. He observed that when sentenced these persons were not regarded as dangerous by the court, but I cannot wholly accept that proposition. Their offences may not have been part of the extended determinate sentence regime at the time they were sentenced, but of course a number of terrorist offences were added to the extended determinate sentence regime only in 2019. It cannot be assumed that these people were regarded as non-dangerous at the time they were sentenced, so I cannot wholly accept that.

The second fact that I have to raise concerns the suggestion that those due for release in coming days are past the halfway or two-thirds point. I am advised that the prisoners due for release shortly are approaching the halfway release point in their sentences. That is simply the advice that I have been given. Therefore, there remains an issue over their release. The noble and learned Lord, Lord Falconer of Thoroton, said, “They can wait for the Parole Board to get its act together”, but I rather think that if that happened we would face a challenge under Article 5.4 of the convention, and therefore that is not a complete answer at all.

Indeed, the noble and learned Lord talked repeatedly about fundamental points. That leads me to fundamentally disagree with him on a primary point that he kept on making, which is that the legislation would change the sentence and that they should be sentenced by the court. The legislation does not change the sentence; they have been sentenced by the court. As I alluded to earlier, there is lengthy legal authority for the proposition that the court has regard to the appropriate sentence that should be imposed for the crime irrespective of what point there may be executive action for release during the period of that sentence. In other words, it does not distinguish between the custodial and non-custodial elements. That is why the provisions of the Bill are entirely Article 7 compliant apart from anything else.

I understand the concern that arises when we have to look at the presumption against retrospective operation of the law. One thing that the Bill does is to bring the earliest release point for the standard determinate sentence into line with the earliest release point for extended determinate sentences and therefore to produce, if nothing else, an element of consistency. We have been clear that terrorist offenders should serve time in custody that better reflects the seriousness of their offending, particularly in light of recent events, and the measures in the Bill are in keeping with that approach.

I repeat the point—albeit some noble Lords do not feel that there is much force in it—that applying these measures retrospectively will ensure that terrorist prisoners who are currently serving sentences are incapacitated for longer. There is a reason for that in light of what happened, for example, in November last year.

I want to raise one further point. As I read Amendment 2, it would apply not only to those serving fixed determinate sentences but would also reduce the release point for those who have been convicted and sentenced under the extended determinate sentence regime. I suspect that is an unintended consequence—it is not the primary grounds on which I resist the amendment. In light of this debate, I urge the noble Lord to withdraw this amendment.

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I am a little nervous of senior political figures, however eminent, saying that they have won the argument unless they have also shown themselves capable of winning a vote. Despite that, we have had two excellent debates, both at Second Reading and just now, on the subject matter of these amendments. Extremely eminent people have lined up on both sides. I think someone tuning in to Parliament TV might have thought at times that they were watching Supreme Court TV but, none the less, points have been made and markers have been well and truly laid down for the forthcoming terrorism sentencing Bill and, indeed, for future Bills.

It seems to me that moving an amendment from the Cross Benches is a bit like crossing the road in that it is prudent to look very carefully to the left and to the right. As I have been doing that over the past few minutes, it has seemed very clear to me that the traffic is a great deal heavier on the government side and I have drawn the necessary conclusions. My heartfelt thanks go to all noble Lords who have spoken in this debate, but I shall be seeking leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2 not moved.

Clause 1 agreed.

Clause 2 agreed.

Amendment 3

Moved by

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3: After Clause 2, insert the following new Clause—

“Review of sections 1 and 2

(1) The Secretary of State must arrange for an independent review of the impact of sections 1 and 2 to be carried out in relation to the initial one-year period.(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to imprisonment for offences of terrorism to conduct the review.(3) The review must be completed as soon as practicable after the end of the initial one-year period.(4) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—(a) produce a report of the outcome of the review, and(b) send a copy of the report to the Secretary of State.(5) The Secretary of State must lay before each House of Parliament a copy of the report sent under subsection (4)(b) within one month of receiving the report.(6) The Secretary of State may—(a) make such payments as the Secretary of State thinks appropriate in connection with the carrying out of the review, and(b) make such other arrangements as the Secretary of State thinks appropriate in connection with the carrying out of the review (including arrangements for the provision of staff, other resources and facilities).(7) In this section, “initial one-year period” means the period of one year beginning with the day when this Act comes into force.”

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My Lords, my Amendments 3 and 5 seek a review of the working of this legislation one year after the Bill comes into force. Amendment 3 is concerned with Clauses 1 and 2, relating to England and Wales, while Amendment 5 is concerned with Clauses 3 and 4, relating to Scotland.

I suggest it is always sensible to review the working of legislation after it has come into force. That usually occurs in the case of non-urgent legislation after a period of years. However, review is even more important and urgent in the case of emergency legislation. This Bill cries out for a specific review of how its provisions are working, precisely because it is being put through Parliament as emergency legislation. We have had no time for consultation or proper scrutiny—one day in the other place and one day here. The result has been that a number of questions that have arisen today have been inadequately considered, so that the Government have no answers to them. That is not a criticism of the noble and learned Lord, nor of the Government in general. It is the inevitable consequence of the haste with which we are passing this Bill.

We have heard today from noble Lords around the House about the risks posed by the lack of measures to improve deradicalisation and rehabilitation in prisons, and of the risks of radicalisation in prison of non-terrorists. We have also heard of the dangers of legislation that in practice, even if not in law—as to which there has been much argument—has retrospective effect. I agree with the noble Lord, Lord Pannick—which I have not always done today—in his point that this Bill involves keeping in custody terrorist prisoners who have served half their sentences and who would have been released had they had a safety assessment by the Parole Board at that point.

I have discerned no indication from the Government that the point made by the noble Lord, Lord Pannick, has been considered by them. The noble Lord made his point in the context of serving prisoners, whose time in custody is to be increased by the enactment of this legislation. However, this is presented, rightly, as a public safety Bill, and the point might also be relevant in relation to some terrorist offenders, not yet sentenced and probably at the lower end of the scale, who would plainly have a better chance of rehabilitation if released following the halfway point on a favourable Parole Board safety assessment.

Then there was the argument put forward by the noble Baroness, Lady Meacher, that a breathing space could be secured by interposing a Parole Board safety assessment, when it can be prepared, but before a release following the halfway point and such an assessment, and before the two-thirds point. That, again, was an argument that the Government could not meet.

Those are all concerns that cry out for review because the emergency treatment of this Bill has cut its consideration to the bone; yet, far from accepting the need for an urgent review, the Government’s position is unclear, inconsistent and, bluntly, all over the place. At paragraph 58 of their impact assessment the Government wrote:

“In the normal way, the … Bill will be subject to a post-legislative review to determine whether this legislation is working in practice as intended. This will take place between three and five years following Royal Assent.”

Therefore, there will be a review but very late. In contradiction to that position, in the Explanatory Notes, the Government say the following at paragraph 16, in question-and-answer form, on issues raised by fast-track legislation. The question is:

“Are mechanisms for effective post-legislative scrutiny and review in place? If not, why does the Government judge that their inclusion is not appropriate?”

The Government’s answer is:

“No post-legislative scrutiny is planned. However, the Government intends to introduce a Counter-Terrorism (Sentencing and Release) Bill later in this Session.”

However, we do not know what will be in that Bill, and it does not seem to answer the need for a specific review of the working of this Bill.

Today I have been told by the Government that they are not prepared to agree to a review because the independent reviewer is already engaged upon his review of the Multi Agency Public Protection Arrangements —the so-called MAPPA—and the release and supervision arrangements will inevitably be included in that. Also, it is to be expected—and the independent reviewer, Jonathan Hall QC, has confirmed—that he will scrutinise this legislation in his regular annual review. I am sure that that is so, and it is indeed very welcome, but neither of the independent reviewer’s reviews will be specifically directed to the efficacy or merit of the provisions of this legislation. They cannot therefore take the place of proper parliamentary scrutiny, which we have been denied. It is an inappropriate treatment of Parliament to attempt to piggyback post-legislative scrutiny of this Bill on reviews conducted for a separate and different purpose, however good those reviews might be expected to be.

Our amendments would require the Government to commission a review by an independent professional, whose appointment would be made in consultation with the Independent Reviewer of Terrorism Legislation. No one has seriously challenged the mechanism of our proposed review. I beg to move.

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

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

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

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

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

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

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

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

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

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

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

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

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My Lords, this Bill is only one element in a much broader response to terrorism, which includes both legislative and non-legislative measures. The Government’s view is that it would be inappropriate to consider just one element of those measures in isolation. We have announced our intention to introduce a counterterrorism (sentencing and release) Bill, which has been referred to. That will make wider changes to the release arrangements governing terrorist prisoners, as well as the penalties available to the courts. The provisions of this Bill—hopefully by then enacted—and the questions surrounding discretionary release for terrorist offenders will no doubt form part of that ongoing debate.

Last month, the Government launched an independent review of the multiagency public protection arrangements. This review is being led by the Independent Reviewer of Terrorism Legislation, Jonathan Hall, Queen’s Counsel. The release and supervision arrangements for many of the prisoners to whom the Bill applies will inevitably be included in that review. A report following the MAPPA review will be provided to the Home Secretary and Justice Secretary for publication as soon as is practicable.

Taking up the point made by the noble Lord, Lord Anderson of Ipswich, we anticipate that, in the course of his routine duties as the Independent Reviewer of Terrorism Legislation, Jonathan Hall will scrutinise the new release legislation for terrorist offenders in his annual report; that is a statutory commitment. Indeed, as the noble Lord, Lord Anderson, observed, the Independent Reviewer has already said in his comments on the Bill that he envisages doing just that in a future report. I would certainly accept that that falls well within the boundaries of his responsibilities, and it is in these circumstances that we say that a further review is unnecessary.

The Government are clear that we want to see an end to the automatic early release of terrorist prisoners. In the forthcoming counterterrorism Bill, we will make further changes to the law surrounding the release of these offenders. In addition, later in this Session we intend to introduce a sentencing Bill that will cover wider areas of sentencing and release policy. Again, that will provide an opportunity to discuss sentencing and release arrangements. In these circumstances, we consider that there is no requirement for the further review proposed by the noble Lord, Lord Marks, and I urge him to withdraw his amendment.

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My Lords, I turn first to the point made by the noble Lord, Lord Anderson, and the question that he asked me. I accept, of course, that the independent reviewer Jonathan Hall, QC will be looking at the way this Bill is working; but he will do so in a much wider context—that of his annual review and his MAPPA review. An issue of serious principle is involved. What is needed here is a precise review of how the provisions of this emergency legislation, passed with inadequate scrutiny, are working.

I turn now to the observations of the noble Viscount, Lord Hailsham. I am afraid that if this House always took the view that the House of Commons might kick back amendments we make, we would lose a great deal of our usefulness. The points that we make and the amendments we pass are often very influential to a much wider audience. I am not deterred by the fact that my colleagues in the House of Commons, who are slightly less numerous than my colleagues here, failed to get their amendment through that House, or by the fact that the Labour Party’s amendment did not succeed. I suggest that it is for us to form a view of this amendment.

When the noble Viscount went on to explain the kind of review that he foresaw as necessary and should take place, and indeed when the Minister responded to these amendments, they were both considering a much wider, more comprehensive, fuller review of the treatment and punishment of terrorists, including the Acheson recommendations on how to secure rehabilitation and the whole issue of deradicalisation. Those issues are crucial, and my regret Motion was concerned with the lack of those provisions. The very fact that the reviews that the noble Viscount and the Minister have in mind are so general and broad-reaching deprives them of the specific accent that a review of this legislation ought to have.

We should not forget the emergency nature of this legislation: it is just over three weeks since the awful atrocity in Streatham High Road. We will have passed this legislation tonight—as I am sure we will—in response to a promise made by the Lord Chancellor, the Secretary of State for Justice, the very next day. We have done it in double-quick time. Question after question was raised in today’s Second Reading—a very good debate—by noble Lords who know a lot about the subject but have had insufficient time to consider the provisions of this Bill and their consequences. As a matter of principle, it is important that post-legislative scrutiny is directed urgently at Bills that are passed as an emergency, and with this Bill, where the liberty of the subject—however undeserving many of the subjects may be—is at stake, that principle is of great importance. I have not heard anything said today that addresses the requirement for a review of emergency legislation of that kind, and I therefore wish to test the opinion of the House.

Division 1

24 February 2020

Division on Amendment 3

Content: 49
Not Content: 165

Amendment 3 disagreed.

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Clause 3: Eligibility for release on licence of terrorist prisoners: Scotland

Amendment 4 not moved.

Clause 3 agreed.

Clause 4 agreed.

Amendment 5 not moved.

Clauses 5 to 10 agreed.

Schedules 1 and 2 agreed.

Bill reported without amendment.

House resumed.

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My Lords, the legislation office is now open for amendments to be tabled for Third Reading. Timings for Third Reading will be confirmed via the annunciator.

Sitting suspended.