Moved by Lord Marks of Henley-on-Thames
12: After Clause 31, insert the following new Clause—“Review of sections 1 to 31(1) The Secretary of State must arrange for an independent review of the impact of sections 1 to 31 of this Act 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 under subsection (1) must consider but is not limited to considering any evidence as to any effects of this Act—(a) by the imposition of longer prison sentences upon the reform or rehabilitation of those offenders on whom they are imposed;(b) upon the reform or rehabilitation of those offenders required to serve a greater proportion of their sentences in prison and a correspondingly smaller proportion on licence; (c) upon the radicalisation of prisoners other than those upon whom longer prison sentences are imposed or who are required to serve a greater proportion of their sentences in prison;(d) on the degree to which those prisoners upon whom a serious terrorist sentence is imposed are segregated from other prisoners.(4) The review must be completed as soon as practicable after the end of the initial one-year period.(5) 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.(6) The Secretary of State must lay before each House of Parliament a copy of the report under subsection (5)(b) within one month of receiving the report.(7) In this section, “initial one-year period” means the period of one year beginning with the day on which this Act is passed.”Member’s explanatory statementThis Clause would require an independent review of the impact of sections 1 to 31 of the Act after one year, with particular attention to radicalisation in prisons and the effects of longer periods of imprisonment on reform and rehabilitation and radicalisation in prisons and of segregating serious terrorist offenders.
My Lords, Amendment 12 echoes the amendment calling for a review which we proposed in Committee. The purpose of the amendment is to enable the noble and learned Lord—or another Minister—to update the House on the Government’s proposals for reviewing the impact of the first 31 sections of this Act, as it will then be. During my speech in Committee, I spent some time setting out in detail why we contend that the review called for by our amendment is necessary. I will not trespass for long on the House’s time this afternoon.
My noble friend Lady Hamwee will speak to Amendment 13, in the name of my noble friend Lord Paddick, about polygraphs. We broadly support Amendment 24 in the name of the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Jones of Moulsecoomb and Amendment 25 in the name of the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Jones of Moulsecoomb.
We are concerned, first, to ensure that the Government keep under review and report on the impact on prisoners of longer terms of imprisonment and consequently proportionately shorter periods on licence. To answer a point made in Committee on behalf of the Government, in our view it is not premature to ask for such a review at an early stage. It is not necessary to await the release of such prisoners in many years to come before reviewing the working of this part of the Bill. The impact of very long sentences on, for example, prisoners’ behaviour in prison—a point raised by the noble Lord, Lord Ponsonby of Shulbrede—their prospects of rehabilitation and their continued contact with their families and friends outside prison can be assessed from an early stage.
We are also concerned to consider the effect on other prisoners of having serious terrorist offenders in their midst. It is of great importance to avoid the risk that the most serious offenders are seen as some kind of kingpins within prisons to be looked up to and emulated. If our prisons become terrorist training grounds, the effect of long sentences will have been utterly counterproductive.
We considered with members of the Joint Extremism Unit, at the drop-in session that I mentioned a little earlier, a number of issues concerning the development and use of separation units for terrorist offenders within prisons. These were recommended by the Acheson review in 2016—a recommendation which was accepted by the Government but which as yet has not been by any means fully implemented. Such units have the clear advantage of keeping serious terrorist offenders separate from other prisoners. However, they also have a number of disadvantages that we need to consider and learn to cope with, such as the difficulty of organising and maintaining sufficient association for these prisoners to enable them to live something like normal in-prison social lives. Another disadvantage is often substantial geographical separation from prisoners’ homes and families, which increases the risk that they become socially isolated to the extent that they are at greater risk of reoffending. Then, of course, the intense use of resources in running such facilities must be considered. Nevertheless, it seemed to those running these separation units that they were obviously worthwhile, and we broadly agree. However, it is important to keep their use and success under review and to take all steps possible to avoid the radicalisation of non-terrorist criminals, which remains a dangerous risk within the prison estate. It is important and helpful that the independent reviewer, Jonathan Hall, is to include this topic in his annual review.
These and other issues raised in this group and more widely fully warrant a programme of review. We are firm advocates of a system that involves the Government in a commitment to report to Parliament within a defined timescale on the results of all such reviews as its undertaking.
The Bill has given many the impression that the Government have made a decision to deal with serious terrorism by resorting simply to even tougher sentencing, but with too little consideration given to some of the more unpalatable consequences of that approach. I and my colleagues on our Benches do not believe that that impression gives the whole picture. From discussions we have had with Ministers and officials, it is quite clear that they are all determined to do the best they can to cope with an increasing number of convicted terrorists in our prisons—a number that will increase even further as the result of the Bill. However, that process can be greatly assisted by a transparent process of reviewing both the successes and the failures that follow changes of the importance of those included in the Bill. I beg to move.
My Lords, I will speak to the whole group but I have co-signed Amendments 24 and 25 in the names of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Ponsonby, respectively. I signed those agreements because they seemed so sensible. It is all very well making up rules and imposing limitations on people’s liberty but, if you do not have the facts and you do not actually know what the statistics are, it all seems a bit academic. Post-legislative scrutiny is incredibly important, especially for Bills such as this which implement contentious and possibly damaging and complex arrangements. They can either work very well or be disastrous.
The Government are taking a very worrying approach to counterterrorism with this sort of “tough on crime” mentality where we just lock people up and throw away the key. We need an evidence-based, multidisciplinary approach to deradicalisation. We need to rescue people from these deeply destructive ideologies, recognising that they are pretty much groomed and brainwashed until their thinking becomes so warped that violence seems like a legitimate tool.
I agreed with every word that the noble Lord, Lord Marks, said earlier about prisons. I have visited prisons and have spoken to a lot of people who have been in them and, quite honestly, there is a huge risk that issues and behaviours like this can spread in prison and in fact the prisons become a recruiting ground. That is pretty much how ISIS started, in the prison camps in Iraq, so we have a precedent for some quite damaging events coming out of locking people up. We have to be very careful that the Government’s attempts to imprison people indefinitely do not just make the problem much worse. Could we please have independent reviews and get the evidence base, and compare the Government’s approach with the other options, which could be much better?
My Lords, Amendments 24 and 25 struck me as setting out a number of concerns that we would like to have seen in the Bill now. I agree very much with what the noble Baroness, Lady Jones, had to say, except that I do not think that they amount to post-legislative scrutiny. Both highlight concerns that we expressed at an earlier stage, although not all those concerns. My noble friend’s Amendment 12 is rather different in that after a year’s experience of the Bill—an Act, as it will then have been—it would assess its impact. Like him, I have had a similar impression: a kind of inconsistency between the words that we see on paper in the Bill—the impression that is given about responding with even tougher sentences, which is supported by some of the debate that we have had—while privately we have had much more nuanced conversations which have encouraged me, even though I am somewhat depressed by this legislation.
I want to say a word—well, several words—about Amendment 13, which would provide for a review of the use of polygraphs. The amendment came out of amendments in Committee, not our own but those proposed by the noble and learned Lord, Lord Falconer, when he called for a pilot and a report to Parliament, including on specified matters. I understand that, with a relatively small number of terrorist offenders to whom the polygraph condition will apply, it is quite hard to undertake a useful pilot, but that does not negate the importance of an assessment of the polygraph condition which is published in the public domain.
Crucially, the review that we propose in Amendment 13 would be an independent review. Its report would include data, as set out in the amendment’s subsection (3), on the number of terrorist offenders subject to the polygraph condition and on the number of terrorist offenders recalled to custody following a test. I should mark those sentences as copyright of the noble and learned Lord, Lord Falconer—I think I lifted them wholesale. It would also cover regulations, rules and codes of practice, and make recommendations regarding those, and the report would be made to Parliament. We have included the caveat that any material that the Secretary of State considered might prejudice public safety should be omitted.
The review would be within three years of the Section 32 polygraph condition coming into force. I understand, though I could not quite pin it down, that the Government are intending a review after a couple of years, which would essentially be the same; after two years is more or less the same as within three years.
I take this opportunity not only to argue for a review but to ask the Minister to confirm what is planned by the Government. not only as to the timing but as to the four elements that I have listed.
My Lords, I have one amendment in this group, Amendment 25, and my noble and learned friend Lord Falconer of Thoroton put his name to Amendment 24. I was very pleased that the noble Baroness, Lady Jones of Moulsecoomb, said that she had read our amendments and that they seemed sensible; I think that is a good start. The general point made on this whole group is that there is an appetite for reviewing different aspects of this legislation, and the amendments referred to go into particular aspects of that.
I want to make a slightly more general point. It is important that the general case for this sort of legislation is made regularly. I have had the opportunity in recent days of talking to young people who are becoming more politically active and engaged. They are very interested in terrorism legislation as a whole, particularly in how Parliament seeks to review it, change it and make it more effective. Particularly in our House, we have a duty to make sure that those arguments are remade and heard by the general public.
The specific amendment that I have put my name to concerns looking at particular impacts on prison capacity, the National Probation Service and offenders convicted of terrorist offences, as well as levels of bad behaviour in prisons—a point that I made on an earlier group. Also within my amendment are financial matters, because there is a very significant financial impact of the review of extended sentences and licence periods.
My final point relates to polygraph testing. I take the point the Government make that there is a very small cohort of terrorist offenders on which to base a statistical approach to the effectiveness of polygraph testing. I accept the point that they made in their recent letter that the comparison with the Domestic Abuse Bill is not appropriate because there are of course so many more domestic abuse offenders. Nevertheless, having said that, and having accepted the Government’s point, it may well be that polygraph testing can be calibrated and used and can have an impact on the way in which these types of offenders are treated. I would be interested to hear from the Minister about the way that the Government see polygraph testing being introduced to part of the process of reviewing this group of offenders. I will not be pressing my amendment to a vote.
My Lords, the amendments in this group would all require the Secretary of State to commission independent reviews into various aspects of the operation of the Bill and to lay the resulting reports before both Houses of Parliament. I welcome the considerable appetite for scrutiny of these measures and for the accumulation of data—the facts and statistics that the noble Baroness, Lady Jones of Moulsecoomb, sought. I acknowledge the appetite for review, to which the noble Lord, Lord Ponsonby of Shulbrede, referred. However, while I welcome these things, I must respectfully disagree that the amendments are necessary.
First, as acknowledged within the amendment of the noble Lord, Lord Marks of Henley-on-Thames, the Government already have an Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whose remit covers this Bill. Indeed, he has announced his intention to conduct a review of matters within prisons, which we welcome. The benefit of an independent reviewer is that he will not be constrained by the specifications of government and can decide what is most appropriate for his consideration. We have every confidence that he will continue to provide valuable and independent scrutiny following the Bill’s enactment and through the prisons review that he will be undertaking. I remain of the view that there is no need to appoint another reviewer to focus on just some of the provisions of the Bill.
The amendments indicate some areas of particular concern, which I shall seek to address with greater specification. On Amendment 12, the noble Lord, Lord Marks of Henley-on-Thames, has noted a particular interest in the rehabilitation of terrorist offenders while in custody. As he told your Lordships’ House in relation to an earlier group of amendments, he and others, including the noble Lords, Lord Ponsonby of Shulbrede and Lord Carlile, attended the briefing held by officials in the Joint Extremism Unit. I have heard that at least some noble Lords found that a helpful exercise, and I hope others did as well. I understand from engagement, and from the contributions made from the Floor today, albeit electronically, that there was a healthy discussion and a recognition that there is no simple cure or metric for this matter; indeed, that was acknowledged in a contribution by the noble Lord, Lord Carlile of Berriew, on an earlier group of amendments.
It is very difficult to measure the effectiveness of intervention programmes in changing behaviour for any offenders but especially within such a small cohort. Efforts in our prison system to deradicalise and rehabilitate offenders in custody are ongoing, and techniques are developing constantly. However, while rehabilitation will remain central to the work undertaken with terrorist offenders in custody, that goes hand in hand with risk management.
The noble Lord, Lord Marks of Henley-on-Thames, has again raised the question of the Government’s ability to protect other prisoners from radicalisation within the prison estate, and the use of separation centres to this end. The risk was identified that such persons might otherwise become kingpins, looked up to by other persons in the prison estate. We have a set of specialist operational controls for managing counterterrorism risk in custody, as well as a number of population-management controls available for use across the entire prison estate.
I assure the noble Lord and the House that most extremist prisoners can, and should, be managed in the mainstream prison population with appropriate conditions and controls. That having been said, we take the risk of radicalisation within the prison estate seriously and, where deemed necessary, we have used, and will use, the separation centres available to us to prevent persons spreading malicious ideology to other prisoners.
In bringing to a close my submissions on this amendment, I acknowledge on behalf of the Government the anxious and thoughtful concern expressed by the noble Lord and others, following a very constructive series of engagements.
Amendment 13 would require the Government to commission an independent review and publish a report into the use and operation of polygraph testing in the licence conditions of terrorist offenders. Today and, more importantly, in Committee, we discussed in some detail the matter of polygraph testing. As I am sure noble Lords now understand, it is not intended to be used as a stand-alone measure but as part of a package to provide a further source of information to test offenders’ compliance with their conditions of licence. It is not to be used as something to catch an offender out in breach.
That said, I recognise that the use of polygraph testing as a licence condition is a novel matter for the House, which is why the Government have committed to conducting and publishing a review of polygraph testing on terrorist offenders after a two-year period, which will provide more meaningful results and report on most of the criteria outlined by the terms of the amendment. I hope that that will satisfy the noble Baroness, Lady Hamwee, who dwelt specifically on this material in the course of her submission.
I will make one further point on this amendment. The terms have specified that the review may make recommendations on
“regulations, rules and codes of practice”.
Clear rules governing the use of polygraph examinations in a licence condition will be laid by statutory instrument. We currently anticipate that these will be those already in place for the use of polygraph testing in licence conditions for sex offenders, as set out in the Polygraph Rules 2009, which specify the qualifications expected for polygraph examiners, how a polygraph examination should be recorded and how those examinations will be reviewed.
Our review will of course inform whether these require amendment or tailoring in light of factors presented by the specific cohort, so I assure the noble Lord, Lord Paddick, who moved the amendment, and those noble Lords who spoke on it that our plans for the introduction of polygraph testing already account for this concern.
“commission a review and publish a report” into a number of measures, most of which are not directly addressed by provisions in the Bill, in the first year of it coming into force. While I recognise the desire to test for unintended consequences of the Bill, I politely disagree that a review on these terms and within this timeframe would be either necessary or add to what is already under way.
I want to set out briefly why, taking each part in turn. Proposed subsection (1)(a) would require a review into
“the effectiveness of current strategies to deal with lone terrorists”.
There is a great deal of work under way to target the terrorist threat, including that of lone terrorists. I point the noble and learned Lord to the Security Minister’s speech at the Royal United Services Institute in November 2020.
The Government’s response to the recent terrorist attacks has been comprehensive and informed by the Independent Reviewer of Terrorism Legislation’s analysis. The Government will shortly bring forward policing and crime legislation to implement a number of recommendations from Jonathan Hall QC’s independent review of the effectiveness of the Multi Agency Public Protection Arrangements—MAPPA—when it comes to the management of terrorism, matters connected with terrorism and offenders of terrorism concern within the community.
The Government recognise that independent analysis can be useful in terms of challenging existing practices and processes. That is why the noble Lord, Lord Anderson, QC, was asked to oversee the operational improvement reviews following the attacks in 2017. I submit that now is not the time for another review.
As part of the constant, ongoing review and improvement of our counterterrorism systems and processes, the CONTEST unit, based in the Home Office, undertook an internal review of lone-actor terrorism last summer, working with operational partners and departments from across government. The review’s findings are sensitive and will not be published, but they have been shared with Parliament’s Intelligence and Security Committee.
Proposed subsection (1)(b) refers to
“the effectiveness and availability of deradicalisation programmes in prisons”.
As I have said, it is difficult to measure their effectiveness, but the primary intervention, the Healthy Identity Intervention—HII—has been accredited by a panel of experts and is informed by the best available evidence. We have also conducted an evaluation of the HII pilot study to assess implementation and delivery. This is publicly available on GOV.UK, and a short-term outcome evaluation of the HII is under way. Although this has been delayed due to the impact of Covid-19, we are committed to publishing it once it has concluded.
We remain committed to keeping our interventions under review and developing the evidence base, which is what so many of your Lordships who have spoken on this matter have sought. As I have said, we will establish a new counterterrorism assessment and rehabilitation centre, which will not only help us to develop knowledge and evidence but will bolster our capacity to deliver interventions by recruiting more specialist psychologists and trained chaplains.
The Government plan to make an oral Statement that will explain more fully the important work to rehabilitate terrorist offenders in prison, including an overview of the new centre’s strategy and programme of work. I hope that noble Lords will agree that these demonstrate this Government’s commitment to transparency and sharing as much as we can.
On proposed new subsection (1)(c) in the amendment, in relation to the polygraph, as I mentioned earlier in this group, we will be conducting an evaluation of its use after two years. This will add to our evidence of its effectiveness and value, which has already been established through independent evaluation, and I submit that a further review is not needed.
On the impact of the removal of early release for dangerous terrorist prisoners, as I have previously made clear, the primary aim of this measure is to incapacitate such offenders for longer to protect the public and demonstrate the seriousness with which this Government treat such offending. The Independent Reviewer of Terrorism Legislation will be able to review such matters should he wish to do so, and a separate review, particularly after as little as 12 months, would be unnecessary.
Finally, on the role of pre-sentence reports in serious terrorism offences, I assure noble Lords that the Bill will make no change to the way pre-sentence reports are done. If the court is considering an extended sentence or a serious terrorism sentence, the court will be required to consider a pre-sentence report which, as now, will include an assessment of dangerousness and take into account the individual circumstances of the offender.
Like the previous amendment, Amendment 25, in the name of the noble Lord, Lord Ponsonby of Shulbrede, requires the Secretary of State to commission a review and publish a report on the impact of this Bill on a number of specific areas, in the first year of its gaining Royal Assent. Proposed new paragraphs (1)(a), (b), and (d) deal with financial impacts and the impact on prison capacity and on the National Probation Service. I assure noble Lords that this Government take seriously the role that the prison and probation services play and the need to ensure that they are supported in our efforts to combat terrorism. We are confident that the changes set out in the Bill will not generate either significant prison population demands or significant resource impacts for the NPS, as set out in the impact assessment published alongside this Bill.
As I have previously made clear, the relative rarity of terrorist offending means that the impacts are likely to be small, and will take time to manifest themselves. With the combined forecast for the number of offenders affected by the provisions of the Bill estimated at fewer than 50 at any one time, these changes will not have a substantial financial impact on Her Majesty’s Prison and Probation Service. I have previously detailed to this House the levels of funding provided to support these legislative changes. That said, should noble Lords wish to understand the prison population or probation impacts once these measures have been implemented, they will be able to scrutinise offender management statistics, including probation caseload and prison population statistics, published by the Government on a quarterly basis. I therefore do not believe that a legislative commitment will provide any greater opportunity for scrutiny in this respect.
By way of further reassurance, we have made a major investment in the National Probation Service to establish a national security division, the body referred to earlier this afternoon by my noble friend Lord Wolfson of Tredegar, which will see a doubling of counterterrorism specialist staff. We will shortly have sufficient specialist capacity and capability to bring the management of all terrorist offenders in the community under the responsibility of the National Security Division, which will be able to deliver enhanced levels of supervision for the high-risk and complex cases of terrorist offenders, and will receive enhanced training.
Finally, proposed new subsection (1)(c) in Amendment 25 concerns the impact of this Bill on
“levels of bad behaviour in prisons”.
To carry out a review that establishes a causal link between the measures in the Bill and behaviour in prisons would be unfeasible and impracticable. The remit of the Independent Reviewer of Terrorism Legislation, who has recently announced that he will review terrorism in the prison estate, and of Her Majesty’s Chief Inspector of Prisons, already provides sufficient scope to investigate prisoner behaviour independently of government. Having said that, we are never complacent about the important that role prison staff play, which is why prison governors and front-line staff are being given the training, skills, and authority needed to challenge inappropriate views and take action against them. Around 30,000 prison staff have been trained so far and more training is planned.
I finally note that Amendments 12, 24 and 25 call for the reviews to be conducted within one year of the Bill receiving Royal Assent. Given that the Bill deals with sentences that could carry long custodial periods, I respectfully point out that it would be difficult to establish any impact after so short a period. The Bill will be subject to the usual practice of post-legislative scrutiny three years after it receives Royal Assent, which has greater potential to identify any possible effects. In light of this, and the existing position of the Independent Reviewer of Terrorism Legislation, who already has authority to review this legislation, I do not believe these amendments to be necessary, and I urge the noble Lord to withdraw his.
I have received a request from the noble Baroness, Lady Hamwee, to ask a short question of the Minister.
My Lords, on that last point, I take it that the post-legislative scrutiny referred to is separate from the review of polygraph testing after three years, to which the Minister referred. On that, while I take his point about parliamentary scrutiny of regulations, codes of practice may not be statutory and therefore not subject to that sort of scrutiny. Might the Minister take back the suggestion that, following the very helpful sessions that the MoJ arranged during the course of the Bill on a number of matters, for which we were very grateful, Ministers might consider communicating with—and possibly even consulting—noble Lords in framing the review in three or so years’ time? I do not expect him to make a commitment now, but I would like to put that idea in his and his colleagues’ heads.
My Lords, I assure the noble Baroness that that suggestion has lodged in my skull and will have been noted by others, and we will come back to it in due course. On her specific question on whether the post-legislative scrutiny of the Bill is distinct from the review of polygraph testing, I am happy to confirm that that is the case.
My Lords, this has been a helpful debate as it has moved forward the process of keeping these new provisions under parliamentary scrutiny. I am very grateful, as I expect all noble Lords are, to the noble and learned Lord, Lord Stewart, for the comprehensive and careful way in which he set out the work of evaluation and research into the evidence concerning the treatment and punishment of terrorist offenders, and the arrangements for them within the prison estate.
The noble Baroness, Lady Jones of Moulsecoomb, expressed the need for constant review. She warned us of the possible dangers of long-term imprisonment and the risk of radicalisation. As well as making a number of points and raising questions about polygraphs, my noble friend Lady Hamwee stressed the distinction between the “talk tough” language of the Government and the more considered, balanced and careful language of officials and Ministers that we hear in private. My noble friend called it “nuanced”. I add that the careful and cautious language she spoke of is also the language of nearly all the professionals in the system to whom we speak, be they in the Prison Service, probation service, inspectorates or elsewhere.
The important point is that longer sentences, while they may be necessary, are neither the only answer nor a complete answer. The “talk tougher” approach, leapt upon with enthusiasm by the press, has struck many of us as having had too little consideration. In his response, the Minister demonstrated that he certainly is determined to take an evidence-based and cautious approach to the issues raised by the Bill, including polygraph testing.
I accept the Minister’s point that the inclusion of these amendments in the Bill is not essential to provide that the work, which he described to us in some detail, is consistently explained to parliamentarians in both Houses. The important point about reviews, which I invite him and others to bear in mind—though not to lodge in their skulls—is that reviews which report to Parliament enable noble Lords here and MPs in the other place to consider and weigh up the evidence as it becomes available.
The Minister was completely right that there is no simple cure, but it is an important part of the role of Parliament to consider the evidence as it develops. The Bill puts before us a set of new and radical measures of particular severity. They need to be kept under constant attention. On the basis that they will get that attention because of work done by the Government and promulgated to Parliament, I beg leave to withdraw my amendment.
Amendment 12 withdrawn.
Amendment 13 not moved.