Amendment 12

Part of Counter-Terrorism and Sentencing Bill - Report – in the House of Lords at 3:15 pm on 3rd March 2021.

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Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland 3:15 pm, 3rd March 2021

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.

Amendment 24, in the name of the noble and learned Lord, Lord Falconer of Thoroton, would introduce a new clause requiring the Secretary of State to

“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.