Amendment 12

Counter-Terrorism and Sentencing Bill - Committee (1st Day) – in the House of Lords at 5:00 pm on 26th January 2021.

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Baroness Prashar:

Moved by Baroness Prashar

12: Clause 27, leave out Clause 27 and insert the following new Clause—“Release on licence for prisoners serving a serious terrorism sentence: England and Wales(1) The Criminal Justice Act 2003 is amended as follows.(2) In section 244(1) (duty to release prisoners on licence) after “247A” insert “, 247B”.(3) After section 247A insert—“247B Release on licence of prisoners serving a serious terrorism sentence(1) This section applies to a prisoner (“P”) who is serving a serious terrorism sentence under section 268A or 282A of the Sentencing Code.(2) It is the duty of the Secretary of State to release P on licence in accordance with subsections (3) to (6).(3) The Secretary of State must refer P’s case to the Board—(a) as soon as P has served the requisite custodial period, and(b) where there has been a previous reference of P’s case to the Board under this subsection and the Board did not direct P’s release, not later than the second anniversary of the disposal of that reference.(4) It is the duty of the Secretary of State to release P on licence under this section as soon as—(a) P has served the requisite custodial period, and(b) the Board has directed P’s release under this section. (5) The Board must not give a direction under subsection (4) unless—(a) the Secretary of State has referred P’s case to the Board, and(b) the Board is satisfied that it is no longer necessary for the protection of the public that P should be confined.(6) It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the appropriate custodial term, unless P has previously been released on licence under this section and recalled under section 254 (provision for the release of such persons being made by section 255C).(7) For the purposes of this section—“appropriate custodial term” has the meaning given in section 268C of the Sentencing Code in relation to a sentence under section 268A of the Code, and in section 282C of the Sentencing Code in relation to a sentence under section 282A of the Code;“the requisite custodial period” means—(a) in relation to a person serving one sentence, two-thirds of the appropriate custodial term, and(b) in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2).””

Photo of Baroness Prashar Baroness Prashar Crossbench

My Lords, the principle aim of the amendment is to ensure that the Parole Board retains its vital role in assessing risk to determine the safe release of terrorist offenders given a serious terrorism sentence or an extended sentence. I am grateful to the noble Lords, Lord Anderson and Lord Ramsbotham, for supporting the amendment.

The amendment would remove Clause 27 and replace it with a new clause, which would provide for parole-authorised release for terrorist offenders given a serious terrorism sentence in England and Wales. The amendment is modelled on equivalent provisions on the extended sentences contained in Section 125 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In line with these provisions, an offender sentenced to a serious terrorism sentence would become eligible for parole-authorised release at the two-thirds point in their sentence. The release test applied is the same as those for other sentences for dangerous offenders, whereby the board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. If that test is not met, the amendment provides for the offender to be retained in prison until the end of the custodial term. During that period, the offender is entitled to a parole hearing to reconsider their case every two years.

It should be noted that the changes to serious terrorism sentences introduced by the amendment would apply only in England and Wales. Equivalent provisions for Scotland and Northern Ireland would need to be drafted for the changes to be fully workable. The amendment would also remove the changes to the release arrangements for terrorist offenders given an extended sentence in England and Wales introduced by Clause 27. Following the deletion of Clauses 28 and 31, other amendments would be needed to make equivalent changes to extended sentences in Scotland and Northern Ireland. This would mean that convicted terrorist offenders sentenced to an extended sentence for which the maximum penalty is life would continue to be eligible for parole-authorised release at the two-thirds point.

This amendment addresses the concerns raised by the Independent Reviewer of Terrorism Legislation, Jonathan Hall, as well as by me and a number of other Peers on Second Reading. They relate principally to how the new serious terrorism sentence and the changes to the extended sentence will result in a loss of the benefits of both a risk assessment and an incentive to reform which the parole process provides.

The parole process contributes to public protection in a number of important ways. First, it helps to ensure that dangerous people are not released when they would represent an unacceptable risk to the public. The Parole Board deals with some of the most serious and complex cases in the justice system. It rightly takes a cautious approach when assessing whether the statutory release test by Parliament is met. However, it also decides that around 10,000 prisoners need to stay in prison for the protection of the public. This means that fewer than one in four prisoners meets the Parole Board’s stringent release tests.

Secondly, parole hearings provide an opportunity to give careful consideration to the risk presented by an individual and to put in place arrangements to mitigate the risk, if they are authorised for release. While no system for assessing future risk can ever be perfect, the Parole Board has an excellent track record when it comes to limiting the dangers posed by offenders on release. As Jonathan Hall has stated, with the new serious terrorism sentence and changes to the release arrangements for terrorist offenders serving extended sentences,

“the opportunity to understand current and future risk at Parole Board hearings has been removed.”

Thirdly, the parole process provides hope and incentive for good behaviour and rehabilitation, particularly for offenders serving lengthy sentences. It can act as an encouragement for prisoners in the often difficult work of rehabilitation and reform. Poor behaviour and lack of engagement inevitably lessen the chance of release at parole hearings. Removing parole-authorised release removes a clear incentive for prisoners or authorities to engage in efforts to address their offending behaviour. It also reduces incentives for prisoners to comply with the prison regime more generally, which could put staff at risk of violence.

The changes introduced in the Bill also give rise to some significant anomalies in the sentencing framework for terrorist offenders. Under the provisions of the Bill, a life sentence will continue to be the most severe penalty available to courts. Unless an offender is given a whole-life sentence—there are currently just 62 prisoners with this sentence—these prisoners will be ineligible for consideration by the Parole Board once their punishment period is served. However, under the new serious terrorism sentence, an offender receives a 14-year minimum sentence, which must be served in full. Once that term is served, the prisoner is released automatically on an extended licence, without a risk assessment. Similarly, a terrorist offender given an extended determinate sentence, convicted of an offence for which the maximum penalty is life imprisonment, would have to serve the entire custodial term. However, once that term is served, they are released automatically on an extended licence—again without a risk assessment.

These provisions are also more confusing given the welcome changes that the Government have made elsewhere to strengthen the role of the Parole Board in its risk assessment of less serious terrorist offenders. In February 2020, the Terrorist Offenders (Restriction of Early Release) Act ended the automatic release of terrorist offenders at the halfway point of their sentence. Under this Act, these prisoners will be released only at the two-thirds point of their sentence if they can satisfy the Parole Board that their risk can be safely managed in the community.

It is surely worth considering parole participation in these new sentences to ensure that the benefits of both risk assessment and incentives to reform afforded by the parole process are not lost. As chairman of the Parole Board from 1997 to 2000, I have seen the incentives that parole provides at first hand. I too welcome the two new Ministers to the Front Bench and the open way in which they have engaged in Committee. I look forward to the Minister’s response, and I hope that he spells out for me the rationale for removing parole from this set of offenders.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench 5:15 pm, 26th January 2021

My Lords, it was an honour to put my name to this amendment, moved by the noble Baroness, Lady Prashar, with her experience as a former executive chair of the Parole Board for England and Wales. As she said, Clause 27, which this amendment would replace, aims to remove the role of the Parole Board in the case of certain dangerous terrorist offenders who have been given a determinate sentence. Clause 27 would do this by amending Section 247A of the Criminal Justice Act 2003, itself dating from only last year, which currently requires the Secretary of State to refer terrorist offenders serving any determinate sentence to the Parole Board at the two-thirds point of the custodial term.

There are instinctive attractions—including, no doubt, electoral attractions—in providing for all dangerous terrorist offenders to serve their entire sentences in prison. But the notion that such offenders are uniquely incorrigible is not supported by the facts. I remind the Minister of a Written Answer that I received from the noble and learned Lord, Lord Keen, last February, revealing that, of the 196 terrorist offenders released from prison in England and Wales in the seven years from January 2013, only six—barely 3%—had committed another terrorist offence by the end of that period. This illustrates a pattern of surprisingly low terrorist recidivism rates around the world, expertly analysed by Andrew Silke and John Morrison in an ICCT policy brief of September 2020 aptly entitled Re-offending by Released Terrorist Prisoners: Separating Hype from Reality.

This is not an argument for complacency. It most certainly does not mean that all is well in our prisons, but it is something to consider before we dispense with the Parole Board in the circumstances that Clause 27 would effect.

My successor but one as Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, has been referred to today with wholly justified approval by at least two Ministers and numerous other noble Lords, so we should listen to the three reservations that he has voiced on Clause 27. First, it would remove the possibility of early release

“as a spur to good behaviour and reform for offenders who are going to spend the longest time in custody”.

At the same time, it would deprive the prison authorities of an important tool for prisoner management. Secondly, it would remove the opportunity to explore current and future risk at Parole Board hearings. Thirdly, it would remove the opportunity for early release of

“child terrorist offenders, whose risk may be considered most susceptible to change as they mature into adults”.

I endorse what the noble and learned Lord, Lord Falconer, said about that and the public safety implications in the last group.

Those reservations are addressed by this amendment and by the following group. I look forward to hearing what the Minister, whom I welcome warmly to his place, has to say about them.

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Deputy Chairman of Committees

We have been unable to reach the noble Lord, Lord Ramsbotham, so we now move to the noble Lord, Lord Faulks.

Photo of Lord Faulks Lord Faulks Non-affiliated

My Lords, the Bill has been broadly welcomed, in light of the Fishmongers’ Hall and Streatham attacks, by noble Lords across the House. One could add to that sad litany of attacks the murder of three men in Forbury Gardens, Reading. Noble Lords accepted the need for legislation such as this with something of a heavy heart. There have been anxieties expressed in Committee today and at Second Reading about some aspects of the Bill. I particularly noted the comments at Second Reading of the noble Baroness, Lady Prashar, and the noble Lord, Lord Ramsbotham, who described himself as “horrified” by the reduced role of the Parole Board.

I share, I am sure, with all noble Lords very considerable respect for what the Parole Board does. Decisions about serious offenders are particularly challenging. The boards, which have enormous experience, are given a great deal of material to make their decision, which they do with scrupulous care. I do not see that the purpose of the Bill in any way excludes or marginalises the board. The purpose, surely, is to ensure that serious terrorist offenders spend longer in prison and longer on licence, and it is that fact that removes the Parole Board from the picture, not any lack of respect for what it does.

I listened carefully to what the noble Lord, Lord Anderson, said about the statistics on reoffending by terrorist offenders who are released, and I am sure that he is absolutely right to make that point. I would add just one gentle caveat, in the sense that a terrorist who commits another offence, maybe of the most extraordinary gravity, is not comparable to, say, a burglar who breaks into a house repeatedly, serious though that can be.

The offenders who will no longer be susceptible to review by the Parole Board will have their licence condition, when they are released, set by prison governors on behalf of the Secretary of State. As I understand their position, prison governors will be informed by the probation service, the multi-agency public protection panels, and presumably by information gathered about the prisoners in the prison or prisons where they have served their sentence, which will be something of an incentive for them to behave well. Prison governors have much experience of this process.

The Bill is certainly concerned with the protection of the public. Keeping the most serious offenders in prison for longer and removing their opportunity for early release is what causes the reduced role of the Parole Board. The removal of its involvement for what I understand is likely to be a very small cohort of 50 or so—perhaps the Minister can help—seems to be justified in the public interest.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, I agree with the noble Lord, Lord Faulks, that we are dealing with the determination of licence conditions in the context of terrorist prisoners having been sentenced to longer sentences. However, I agree with the noble Baroness, Lady Prashar, who has very considerable and relevant experience, and with my noble friend Lord Anderson of Ipswich that the Parole Board has an important potential role to play in these cases.

It is said that the determination of licence conditions can adequately be dealt with by prison governors. That may be true in some cases, but prison governors do not have the range of expertise, the judicial discipline and the clear legal accountability of the Parole Board. It is therefore my view that this task should be undertaken by the Parole Board, which has all the relevant qualifications to do it. If the Parole Board was placed in that position it would command the confidence of the public. Indeed, those who believe that too much control is being taken of prisoners by government would be able to see that there was a thoroughly independent, accountable, quasi-judicial organisation dealing with these cases empirically and on their merits.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, this amendment incorporates significant changes to Clause 27. In particular, as pointed out by the noble Baroness, Lady Prashar, with all her experience of the Parole Board, and by other speakers, the suggested replacement for Clause 27 would preserve the Parole Board’s role. I regard the amendment as entirely helpful on the basis that, with some exceptions, the Parole Board has had an extremely good record of balancing the safety of the public with the need to rehabilitate offenders in society.

I will largely cover what I have to say on the principles involved in this amendment in my part in the next group. However, it seems to me that the noble Baroness, Lady Prashar, made the very important point that Clause 27, as drafted, involves automatic release on licence without any assessment of the safety of that release by the Parole Board. I accept that prison governors would be involved, but that, in my view, is no substitute.

In summary, it is my view that this amendment would be an entirely acceptable way to address the problems with Clause 27 as drafted, the most important of which are its removal of the involvement of the Parole Board from the release process altogether and the concomitant results that offenders under Clause 27 would be automatically released, less likely to be rehabilitated and also more difficult to manage while in prison.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

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

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

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

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

That said, I do not agree that Clause 27 should be removed from the Bill. It is an integral part of the overall architecture of the Bill and ensures that the most serious terrorist offenders serve a sentence that reflects the gravity of their offending. It is for that reason that the Government have decided such offenders should not be eligible for early discretionary release and instead must serve their entire custodial period in prison before being released on an extended period of licence. I will not repeat what I have said on previous amendments before the Committee, but I make it clear that I am of the view that it is entirely proportionate for those found guilty of such serious offending to be denied access to early release. We must recall that this applies only to offenders who have been found dangerous by the court, have risked multiple deaths and have been convicted of a serious terrorism offence but where a life sentence was not then imposed.

I shall deal with some particular points raised by speakers in this interesting debate. The noble Baroness, Lady Prashar, made an important point about the effect of parole on behaviour. Of course one accepts that one has to have the prospect of proper intervention and support for those in custody and, as my noble and learned friend the Advocate-General mentioned earlier, we have a number of interventions—psychological, ideological and theological—to help to encourage and facilitate desistence and disengagement, support reintegration into society and reduce the risks of further offending. That is plainly in our minds. However, at the same time, one has to recognise that the prospect of early release by the Parole Board could incentivise false compliance. Those who are determined to play the system can attempt to pull the wool over its eyes.

To pick up on the point made by the noble Lord, Lord Anderson, we certainly do not take the view that such offenders are—to use his phrase, if I noted it down correctly—“uniquely incorrigible”. We have not given up on these offenders. Indeed, we have announced this year the creation of the counterterrorism assessment and rehabilitation centre, which will transform our approach to the research, evaluation and delivery of rehabilitation interventions in prison and probation, which underlines the Government’s commitment in this area.

I take a moment to add my name to the Jonathan Hall QC fan club. We may not agree with everything he says, but the dedication and exemplary approach that he brings to his work can only be commended, and we will continue to engage with him on all the points he raises.

I hope that what I have said so far reinforces the point raised by the noble Lord, Lord Faulks, that this approach is nothing to do with any concern with or denigration of the Parole Board. On the contrary, it is a consequence of the sentencing structure in this Bill.

That brings me to the point made by the noble Lords, Lord Carlile of Berriew and Lord Marks of Henley-upon-Thames, about how licence conditions will be set. The information collection process for prison governors when they are setting licence conditions is exactly the same as preparation for a Parole Board hearing. As with parole cases, the community offender manager will gather all the relevant information for setting the licence conditions, including risk assessments, intelligence from other agencies and, where appropriate, input from MAPPA, the multi-agency public protection arrangements. That would inform their recommendation of necessary and proportionate licence conditions for release from prison. Indeed, for the vast majority of terrorist cases, a MAPPA meeting would review the licence conditions and can suggest changes. There is an explicit requirement in such meetings to give active consideration to whether each condition is necessary and proportionate. Where release is automatic—touching again on the point raised by the noble and learned Lord, Lord Falconer of Thoroton—at the end of the custodial part of a sentence the governor is responsible for the final check that the proposed conditions are necessary and proportionate and where bespoke conditions have been applied that they are endorsed by the relevant authority before they are approved.

It is a matter of public protection and public confidence in the justice system that this extremely serious type of terrorist offender is not granted the privilege of early release from the custodial sentence. While I have no doubt that we will continue to consider these matters in this House and in discussions outside it, for those reasons I urge the noble Baroness to withdraw her amendment.

Photo of Baroness Prashar Baroness Prashar Crossbench 5:30 pm, 26th January 2021

My Lords, I thank the Minister for a very open response and all other noble Lords who have spoken in this debate. I support and agree with my noble friends Lord Anderson and Lord Carlile and the noble Lord, Lord Marks, because the points they made reinforce the points I was making. I respectfully disagree with my noble friend Lord Faulks about governors setting the licence conditions. Although the Minister explained carefully how that will be done, I do not see why that should replace an assessment made by the Parole Board, which has a great deal of experience in assessing risk.

Having said that, I think the principles of why parole is an essential part of our criminal justice system have been rehearsed. It is about public protection and the better management of prisoners. I do not think that it is fair to say that early release could lead to false compliance, because those who assess risk are very familiar and can assess whether the prisoner is serious or it is a false claim. I very much hope that the Government will consider the points made in the course of this debate. I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Debate on whether Clause 27 should stand part of the Bill.

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Deputy Chairman of Committees

Noble Lords should be aware that the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have withdrawn from this debate, so the speaker after the noble Lord, Lord Marks, will be the noble Baroness, Lady Prashar. I call the noble Lord, Lord Marks.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, as was said on the previous group, Clause 27 as it stands would mean that offenders serving serious terrorism offences sentences and those serving extended determinate sentences for an offence carrying a possible sentence of life imprisonment would be excluded from the operation of subsections (3) to (5) of Section 247A of the Criminal Justice Act 2003. Those subsections presently govern the involvement of the Parole Board in the release of offenders at the two-thirds point of their custodial term.

In answer to some who spoke about early release in the debate we have just had, the description of release at the two-thirds point, which is what is largely envisaged, is not, on our traditional understanding, early release. We have long recognised that there is a benefit in a remission system whereby release generally takes place at the two-thirds point of a custodial term before the offender’s sentence has been concluded.

As the noble Lord, Lord Anderson, pointed out, subsections (3) to (5)—the present arrangements—were themselves the result of the Terrorist Offenders (Restriction of Early Release) Act, the so-called TORER Act, which we passed last year, ending release on licence after the halfway point in an offender’s sentence. However, in the section concerned, we preserved the role of the Parole Board in cases where generally an offender had served two-thirds of his custodial term. That was emergency legislation. I invite the Minister to explain what has changed to justify removing the Parole Board’s involvement since that emergency legislation, which retained it. I venture to suggest that no further justification has arisen since we passed that Act.

Subsections (3) to (5) presently require referral by the Secretary of State to the board for consideration after the completion of two-thirds of the required custodial period, then consideration by the board as to whether it is satisfied that it is no longer necessary for the protection of the public that the prisoner be detained. Only if it is so satisfied does the board direct release on licence. The effect of Clause 27 on the offences to which it applies is that release before the conclusion of the custodial term is excluded altogether and the Parole Board is not to be involved in relevant offenders’ release. Clause 28 and Schedule 10 apply similar provisions to Scotland, and Clause 31 to Northern Ireland.

One effect of removing the prospect of early release is that the Bill removes an incentive to behave acceptably in prison, which makes offender management in prisons far more difficult. It also makes it less likely that prisoners will engage with deradicalisation programmes within prisons—partly because there will be less incentive for them to do so, but also because deradicalisation, like rehabilitation more generally, is advanced by hope and inhibited by hopelessness. It would increase, in those subject to these sentences, the sense of hopelessness, powerlessness and hostility in prison from all around; I urge those who argue that hope and some sense of power in a prisoner’s own destiny are important to the welfare of society at large to accept the weakness of that position.

One reason why I make these points is that all those subject to these sentences will be released one day, unless their sentences outlast their lives; for that reason, their rehabilitation is important. Nor should we forget that the reoffending rates for terrorist offences are in fact low, as the noble Lord, Lord Anderson, pointed out when he referred to the response to the Question he raised last February, in which the Ministry of Justice calculated a recidivism rate of 3.06% for terrorist offences, as opposed to a rate of 28% for other offences. Of course I take the point made by the noble Lord, Lord Faulks, that any reoffending by a terrorist offender is or may be disastrous, but I venture to suggest that excluding any involvement of the Parole Board, with its wealth of experience in weighing up risks to public safety, would be an unhelpful way of improving public safety; indeed, it would not improve public safety at all.

The central question that the Parole Board is directed to consider is whether continued detention is required by a continuing risk to the safety of the public. The noble Baroness, Lady Prashar, repeatedly described this as risk assessment; that was the correct description. She rightly highlighted the importance in this process of the Parole Board and its hearings. Of course I accept in all this the point made in response to her amendment by the noble Lord, Lord Wolfson, that a replacement for Clause 27 would be required if that clause were to go. Whether or not that would have been the replacement proposed in Amendment 12 by the noble Baroness and others matters not. What does matter is that the present proposal does not help public safety, and has very serious adverse ramifications.

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Deputy Chairman of Committees 5:45 pm, 26th January 2021

I call the next speaker, the noble Baroness, Lady Prashar. No? We will come back to her. Let us try the noble Lord, Lord Anderson of Ipswich.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

My Lords, I have once again signed up to the amendments tabled by the noble Baroness, Lady Prashar. I do not want to repeat what I said on the last grouping, so I will raise just two additional points. The first is the risk of inconsistency that Clause 27 and its companions could bring into the law. They of course apply only to determinate sentences, so does this not raise what the independent reviewer has described in a recent series of tweets as the

“uncomfortable possibility that offenders may be ‘better off’ if sentenced to life imprisonment than extended sentences”?

He illustrated that observation with the case of the Anzac Day plotter—recently released on the recommendation of the Parole Board, having been convicted at the age of 15—and the decision last week of the Court of Appeal in the case of the St Paul’s suicide bomb plotter. The Minister and others might want to reflect on those cases, and on the observations of the independent reviewer before Report, when I suspect that we may need to come back to this.

Secondly, since the Minister accepts that the prisoners who would be affected by Clause 27 are not always incorrigibly violent, and since he does not take issue with what I said about the very low terrorist recidivism rates, is he not tempted to accept that there might be cases—perhaps rare—in which the Parole Board would feel able to recommend their release?

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Deputy Chairman of Committees

We still cannot reach the noble Lord, Lord Ramsbotham, so I call the noble Lord, Lord Naseby.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, the Bill makes a welcome change to the sentencing, release and monitoring of terrorism offenders by toughening up the law. This is a time of higher risk—something that has not been referred to by our noble friends the lawyers. I am no lawyer, but I study the Middle East and south Asia in some depth, and I have lived abroad for a number of years. I have very good contacts in those parts of the world and, in my judgment, the risk of terrorism at this time is higher than we have ever experienced.

I might say as a side issue that I get concerned when organisations such as Human Rights Watch, Amnesty International and others call vociferously for the deletion of Clauses 37, 38 and 40. I am, frankly, not impressed by their objectivity. I wish I could be, but they and others I could mention, such as Freedom from Torture, do not in my experience bring objectivity to these types of cases. I contrast that with the work of the International Committee of the Red Cross, the ICRC—although it is not involved in these cases on the whole—and Médecins Sans Frontières, both of which are involved in issues relating to torture, and they are very objective in their assessments.

It is objectivity that one wants. The British public has to understand and be convinced that any change that is made will help to deal with terrorism. I think, on having looked at the Bill, that Clause 27 is right. It is all very well for noble Lords to say that the numbers who abscond or the cases where people are released early are small, but the number of people who were killed in Manchester was not small. In most places where there is terrorist activity, the numbers are not small. I see my role in the upper House as being one where I look after the British public. It is not a risk assessment. The only risk is that someone will reoffend. When facing the challenge of that situation, I do not think that we can suggest to the British public that some of these men and women who have carried out heinous crimes should be released early on an objective risk assessment.

I make one other point. As it happens, I am doing a bit of work on national service, something which older Members of your Lordships’ House may well have done in the Army, the Royal Navy or the Royal Air Force. In my case, I was a pilot in the air force. I think of myself at the age of 21. We were all 18 years old when we did our national service. We were young men who were risking our lives and we were ready to fight; many lost their lives. I wonder whether 21 is too high an age; I personally would drop it to 18, which was the age at which you had to do your national service. However, that goes rather wider than what we are considering here.

As far as I am concerned, the Government are taking absolutely the right road. We have to toughen up on sentencing and we have to toughen up on early release and the monitoring of offenders because the risks at this point in time are very real.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

My Lords, by coincidence I am once again following the noble Lord, Lord Naseby. I would remind him that there have been high-risk periods before. His words reminded me of the Brighton bomb case, in which I took a part. The person I represented had been involved in a bombing campaign that covered some 28 seaside resorts, and the Brighton bomb case was the final one. When I look at Clause 31, I reflect on that case, because that clause, like the other clauses we are dealing with, is the one which says that there should be no parole for terrorism offences committed in Northern Ireland. In the Brighton bomb case, those who were convicted and sent to prison within weeks of the Belfast agreement were returned to Northern Ireland to serve out their sentences there—and within a very short time they were released. We have faced problems like this before.

The benefits of a two-thirds release system have been outlined by previous speakers: they encourage people to behave while in prison and to engage in deradicalisation and rehabilitation courses. That is done to persuade the Parole Board that the individual is safe to be released—to advance by hope and decrease hopelessness, as my noble friend Lord Marks put it. The Parole Board ought to have a role in this, and I was impressed by the views expressed by the noble and learned Lord, Lord Falconer, that perhaps the Parole Board should at least have a role in advising on the conditions of release as opposed to the governor taking on the role, as is being proposed.

There are dangers in automatic release at the end of a sentence. No doubt the full sentence has been completed, but the automatic release at the end of that time without any Parole Board involvement is a danger, as my noble friend Lord Marks and the noble Baroness, Lady Prashar, have argued. I do not think that the solutions that have been developed and put into the Bill are necessarily the right ones, so I support my noble friend in his attempt to have these clauses removed.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice)

My Lords, we have had interesting debates on both this and the previous group. In closing the previous group, the Minister said that the proposed lack of involvement of the probation service in this particular group of prisoners was a consequence of the sentencing structure and was not a reflection on the Parole Board itself. I understand the point he has made, but what has been said repeatedly on both groups is that there is expertise in the Parole Board. My noble and learned friend Lord Falconer asked whether there were two elements here. One is the possibility of early release, while the second is a point raised again just now by the noble Lord, Lord Thomas, about the conditions of release for a prisoner who has served their whole term. I do not understand why that level of expertise should not be accessed when considering these types of prisoners.

I shall make a couple of other brief points which are different from those which have been made by other noble Lords. They arise from briefings that I have had from the trade unions. The Prison Officers’ Association believes that removing hope from prisoners puts its staff at risk. It is a point that the association makes repeatedly and is an important one to feed into this debate. The second point has been made by the National Association of Probation Officers—that is that the workload of probation staff working on the ground in prisons is so high that they are not managing to deliver to their required standards. They are being allocated around 70 prisoners each. I understand that the Minister has talked about these various programmes, and I know that we are talking about a very extreme group of prisoners. Nevertheless there is the practical working position of prison officers, probation staff and others in prisons to consider in trying to make these institutions work and to reduce recidivism when prisoners are released.

Even so, both the group of amendments we are speaking to now and the previous group illustrate the potential for changing the Bill to bring the Parole Board back in. That would reduce the potential risk to the public.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

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

Clause 27 removes the prospect of early release for the most dangerous terrorist offenders in England and Wales. The provision is central to one of the core aims of the Bill—namely, to ensure that the most dangerous terrorist offenders are serving sentences that truly reflect the serious nature of their crimes. It does that by amending Section 247A of the Criminal Justice Act 2003, under which all relevant terrorist offenders are currently referred to the Parole Board at the two-thirds point of their custodial term to be considered for discretionary early release. The clause would therefore ensure that offenders who receive an extended sentence for a terrorist or terrorist-related offence which carries a maximum penalty of life will instead serve their full custodial term before being released on extended licence. It also provides a release mechanism for those sentenced to the new serious terrorism offence.

Critically, the clause ensures that no offender sentenced for a serious terrorism offence would be eligible for discretionary early release but would be required to serve the whole custodial term imposed by the sentencing court. In that context, I reiterate the point that I made in the previous debate that the purpose of this clause and architecture is not to remove the role of the Parole Board per se, which I understand several Members of the Committee who spoke were concerned about; it is about removing any possibility of early release for this most serious and dangerous cohort of offenders.

Ensuring that those offenders serve their whole custodial term will protect the public, by incapacitating these offenders for longer. It will give the public greater confidence in the sentencing framework and maximise the time that various services have to work with offenders. I appreciate and acknowledge the point made by the noble Lord, Lord Ponsonby, about the importance of that work and the workload that it imposes on people— we are paying attention to that. The longer sentence maximises the time that services have to work with offenders, giving them more time in which to rehabilitate and disengage them from their often deeply entrenched ideological views.

This cohort of offenders is also subject to an extended period on licence, which for an extended sentence could be up to 10 years and for a serious terrorism sentence could be up to 25 years. That period enables services to mitigate the risk the offender poses to the community and supports their successful reintegration into society, which is, we recognise, an integral part of this process. I explained in the previous debate the way licence conditions would be determined by prison governors on behalf of the Secretary of State, and I hope that no discourtesy is perceived if I merely refer back to what I said in that debate. For those reasons, I am satisfied that Clause 27 and its effect on the release of the most serious and dangerous terrorist offenders is both proportionate and robust.

Schedule 9 sets out the offences relevant for the provisions in the Bill relating to England and Wales in three parts. It will be substituted for Schedule 19ZA to the Criminal Justice Act 2003. Part 1 lists all UK terrorism offences for which the maximum penalty is life imprisonment. Part 3 specifies other non-terrorist offences with a maximum penalty of life which are eligible to be designated with a terrorism connection at the point of sentencing. Together, Parts 1 and 3 set out the offences for which a serious terrorism sentence may be imposed, or, if an extended determinate sentence is imposed, set out that the offender will serve the whole of the appropriate custodial period in prison. That will be critical for the courts in determining which offences are eligible for the new serious terrorism sentence for England and Wales introduced by Clause 5 of the Bill and for the extended determinate sentence where the custodial period is to be served in full, set out in Clause 27.

Part 2 covers all other UK terrorism offences carrying a maximum penalty of more than two years’ imprisonment. These are further offences which will be subject to restrictions on early release under Section 247A of the 2003 Act, as introduced by the Terrorist Offenders (Restriction of Early Release) Act 2020. This part ensures that all terrorist offenders convicted for an offence under the part will not be eligible for release until two-thirds of the way through their custodial sentence, at which point they will be referred to the Parole Board to decide whether they are safe to release before the end of their custodial term.

Therefore, the removal of Schedules 9 and 10 would undermine many of the measures introduced by the Bill. We recognise the importance of licence periods in managing the risk associated with terrorist prisoners being released once they have served their appropriate custodial term, which is why we are extending the range of offences that can attract a sentence for offenders of particular concern. This will ensure that terrorist offenders are released with a minimum supervision period of 12 months, even if the Parole Board does not release them before the end of their custodial term. Schedule 9 fulfils both those purposes. It also has another function, which is that, where terrorist offenders are convicted and sentenced elsewhere in the UK but transferred during their sentence to England and Wales, they serve the appropriate custodial term and are not released early, or are subject to restricted early release, depending on the sentence.

I should perhaps say a word about Clause 28, to which challenge is also made in this group of amendments. This clause creates the equivalent provision for Scotland of that made by Clause 27 for England and Wales by amending Section 1AB of the Prisoners and Criminal Proceedings (Scotland) Act 1993. It has the same substantive effect and thus ensures consistency across Scotland and the rest of the UK, which means that the British public are better protected, no matter where they live. Schedule 10 makes the corresponding changes for Section 28 as are made by Schedule 9—this time for the Scottish regime—and it is structured in the same way. Clause 31 creates the equivalent provision for Northern Ireland to that made by Clause 27 for England and Wales and Clause 28 for Scotland, as I have just said. That is the structure of these clauses, and we consider that they must remain part of the Bill.

The noble Lord, Lord Marks, asked me what has changed. As I understood his question, he was asking what has changed since the TORER Act 2020 that motivates the changes to release of early determinate sentence offenders. The change is intended to capture a more serious cohort of prisoners than those we sought to capture with the changes under the TORER Act. The removal of early release set out in the Bill will apply only to those sentenced to an extended sentence or a serious terrorism sentence for a serious terrorism offence—that is, one that could attract a life sentence. By contrast, the TORER Act primarily sought to remove the automatic early release of terrorist offenders sentenced to a standard determinate sentence who, before that Act was introduced, were entitled to automatic release on licence at the halfway point of their sentence.

To respond to the points made by the noble Baroness, Lady Prashar, I hope that she will allow me to refer back to the points that I made in the previous debate, which she instigated.

The noble Lord, Lord Anderson, put a couple of points to me. The first concerned an inconsistency which he said had been identified by Jonathan Hall QC in the material that he put out—I cannot remember whether it was in his report or in a tweet. I am sure that this is something that we can continue to discuss, but my immediate response is that the provisions of Clause 27 may remove the prospect of early release, but those subject to those provisions retain automatic release at the end of their custodial term, unlike those sentenced to a life sentence. At the conclusion of their extended licence, they will no longer be subject to statutory supervision or potential recall to custody, while those on life licences are subject to that for the rest of their lives. I therefore respectfully take issue with the noble Lord, and perhaps with Mr Jonathan Hall QC, that you are necessarily better off if you are sentenced to a life sentence, but I have no doubt that that is something that we can continue to discuss.

The noble Lord, Lord Anderson, also invited me to conclude that it was a necessary consequence of my comments at the end of the last debate that there would be rare cases, to use his phrase, in which the Parole Board might recommend release. I respectfully say that there is nothing inconsistent in how I have approached this part of Committee and the previous debate. The important point is that removing the prospect of early release of these offenders sends a clear message that this Government will treat this kind of offending seriously. That is not inconsistent with saying that these offenders are, to use the words in a previous debate, incorrigible.

In that regard, I respectfully agree with my noble friend Lord Naseby, who reminds us that the nature of the offences that we are dealing with here are such that the carnage wrought by a single offender can be extremely significant. That is a salutary reminder that, when we are asking ourselves, as a number of noble Lords have, how many offenders we are dealing with, that might not always be the correct question to ask.

The noble Lord, Lord Thomas of Gresford, made some points which I hope he will not regard me as discourteous for saying that I hope that I have covered in my responses to this and the last debate. If there is anything that I have not covered, I will of course be happy to discuss it with him.

On the point made by the noble Lord, Lord Ponsonby, regarding the practicality of the work that must be done, we are very aware of, and recognise with appreciation, the work done by prison officers and probation officers. Others in my department are very focused on that part of the criminal justice system.

For those reasons, I respectfully invite the noble Lord, Lord Marks of Henley-on-Thames, not to press these various amendments.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 6:00 pm, 26th January 2021

My Lords, we have had two serious and thoughtful debates on the last two groups, and I am very grateful to all noble Lords who have spoken and to the Minister, who, on his first outing on a Bill, has undoubtedly impressed us all with the care and the courtesy with which he has approached the amendments discussed today. We have one further group today, but nevertheless I express the hope that further consideration between now and Report will persuade him and some of his colleagues in government to compromise when they see the faults of some of these amendments.

All of us—and I say to the noble Lord, Lord Naseby, not only those who see Clause 27 as an unmitigated, good toughening-up of terrorist sentencing—approach these issues from the perspective of what is best for public safety. That involves consideration of how to improve behaviour, and with behaviour the atmosphere, in prison.

I take the important point made by the noble Lord, Lord Ponsonby, about the safety of prison staff. It involves consideration of how to avoid reoffending, how to rehabilitate and deradicalise even terrorist prisoners, and how to ensure fundamentally that when prisoners are released, that release is safe.

The Minister responded to my question on what has changed since the TORER Act to justify the removal of consideration by the Parole Board of the release of offenders, or removal of release at the two-thirds point, but for the moment I am not sure that I accept the distinction that he made, though I will read what he said with care.

What the noble Lord has not explained, however, is how the Government can justify moving to a system of automatic release at the conclusion of a term without any risk assessment being made by the Parole Board and justify that as an improvement to public safety, rather than the reverse, which is what I fear it is. In the hope that the Government will reconsider this clause between now and Report, I beg leave to withdraw my opposition to the clause standing part.

Clause 27 agreed.

Schedule 9 agreed.

Clause 28: Removal of early release for dangerous terrorist prisoners: Scotland

Amendment 13 not moved.

Clause 28 agreed.

Schedule 10 agreed.

Clauses 29 and 30 agreed.

Clause 31: Removal of early release for dangerous terrorist prisoners: Northern Ireland

Amendment 14 not moved.

Clause 31 agreed.

Photo of Baroness Henig Baroness Henig Deputy Chairman of Committees, Deputy Speaker (Lords) 6:15 pm, 26th January 2021

We now come to the group consisting of Amendment 15. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in debate.