“(ea) the court does not impose an order for lifelong restriction under section 210F of the Criminal Procedure (Scotland) Act 1995, and”.
This amendment disapplies Clause 6 if an order for lifelong restriction, a sentence unique to Scotland, has been imposed.
It is a pleasure to serve under your chairmanship, Mr McCabe. Before I move to the specifics of amendment 43, I will say by way of preface where my party and I are coming from. As the Minister is aware, we recognise that it is the duty of not just a Government to keep their citizens safe and secure; it is the obligation of all who serve in Parliament. At the outset, we have given the Government our assurance that any opposition will attempt to be as constructive as possible, to ensure that the challenge of terrorism that we now see, sadly, all too regularly in our communities, is addressed and that we keep our people as safe as they can be.
Some issues concern us. The burden of proof has been mentioned in terms of TPIMs. The balance of the burden of proof has been an issue for over 40 years, since my involvement in the law—and, in a way, since the legal profession and legal systems came about. We recognise that there is good reason why there has to be some distinction when it comes to terrorism and that standards that might normally apply in a wider criminal trial cannot be expected, especially with regard to TPIMs. However, there still has to be an element of proportionality, and we have to ensure that we protect the rights of those who face considerable periods of loss of liberty. That is why we have concerns and are watching the situation.
Sadly, the issue disproportionately impacts BAME communities; we are conscious of that. It is clear that we are required not only to protect our people from terrorism—and, indeed, to punish those who perpetrate it—but to prevent it from happening in the first instance. If we have a system that is perceived, whether it in fact is or not, as prejudicial and impacting harshly, even sometimes deliberately, on one community, issues arise. Those of us old enough to remember the consequences of internment in Northern Ireland will realise that a community’s feeling of being discriminated against can be a recruiting sergeant rather than the method of preventing such recruitment.
We are anxious that Prevent should be on board, and that we should balance and take into account the injustice that BAME communities suffer abroad. It is also perhaps appropriate for us to remember that, whatever terrorist atrocities we face in this country—there are far too many—they are as nothing to what those communities who a minority in our country would abuse and put the blame of terrorism upon suffer on a daily basis. We are required to remember that many communities who are blamed for terrorism are also the victims of it on a far greater basis than us.
That brings us to the specific question of amendment 43. I realise that there is a difference and a distinction in Scots law. Although terrorism is reserved, which we accept until such time as that changes, the management of the Scottish Prison Service and the Scottish legal system are devolved, and there are matters where the two come together.
Obviously, a mandatory sentence may impact on a sentence of an order for lifelong restriction. An order for lifelong restriction has not been in Scotland forever and a day—indeed, it had only just come in when I became Justice Secretary back in 2007. The number of orders of lifelong restriction is actually very small, because they are meant to be used rarely. Those who originally brought in the concept, to be fair to them—this is not a criticism—had not considered that it would apply to terrorism. It was meant to apply to serious sex offenders and those who perpetrate violence, who we know are a risk and will continue to be a risk, perhaps throughout their lives. That cohort to which the Minister referred is even smaller in Scotland, with our Barnett share, as it were. They are capable of being counted on one or two hands at most.
However, the benefit of an order for lifelong restriction is that it allows for what was raised by Mr Fairhurst, our witness today: that opportunity for redemption for those perceived to be genuinely undertaking rehabilitation schemes, so that they can be released early, albeit under licence. Alternatively, the court may decide to impose an order for lifelong restriction throughout the entire lifetime of someone who has served their full determinate sentence. That is also appropriate—there is no obligation for such a person to be released, unless the court is satisfied that they are no longer a risk.
I tend to trust the judgment of the Parole Board and the Risk Management Authority in Scotland. I have not been Justice Secretary for more than six years now, but I recall two particular cases; I take into account comments made earlier about people being capable of redemption. Two of the highest-profile offenders in Scotland—I will not name them—were released by the Parole Board, and it is fair to say that, despite the heinous nature of the crimes they perpetrated, they have not since come to its attention.
Risks can be taken, people can reform and rehabilitation can be successful. I accept that the crimes of the individuals I am talking about were not related to terrorism, but those individuals show that rehabilitation can take place. That is why I think that the order for lifelong restriction is a better opportunity for the Scottish courts to consider. They may not wish to. We are not seeking to ensure that such an order should be mandatory or to take away the mandatory sentence that the legislation would put in; we want the Scottish courts to have the opportunity to use an order for lifelong restriction if they think that might be a better sentence than what the Bill would impose.
I ask the Minister to reflect on that. The issue has probably come about because those drafting the Bill were not cognisant of the Scottish legal system or the sentencing policies in Scotland. If the order for lifelong restriction, which we think gives advantages to a court and those who monitor, were brought on board and made available as an opportunity, we, as the party of government in Scotland, and those in the judiciary and the prison and legal services in Scotland, would view that as appropriate for our particular circumstances.
I thank the hon. Member for East Lothian for his constructive comments at the beginning of his speech. As the shadow Minister said, in many respects the work on the Bill demonstrates Parliament and public life at its best, as we work together to protect our fellow citizens throughout the whole United Kingdom. Protecting our fellow citizens from violent attack is, thankfully, a principle on which we all agree, regardless of our differences on various other topics that often come before us. I am grateful for the constructive approach of the hon. Member for East Lothian, accepting, of course, that he wishes to discuss further points in due course, a few of which he mentioned.
There is clearly a question about how this legislation interacts with the order for lifelong restriction, which is applicable in Scotland. Indeed, the sentence that a Scottish court might hand down in the absence of this legislation could conceivably be longer—lifelong, as the name implies—than the period required by this legislation. The Government essentially accept the principle that there is an interaction that requires further work, and—let me be clear—further amendment.
On the detail of how the interaction will work best, discussions are ongoing between Ministry of Justice officials and officials in the Justice Directorate in Scotland about the technicalities. For example, although the clause as it is drafted would make it possible for an OLR to be imposed and, therefore, a lifelong restriction to be in place, we would lose the 14-year minimum sentence. What we would like to try to achieve technically is an amendment that preserves the concept of the 14-year minimum, but allows the lifelong restrictions to apply thereafter if a Scottish judge sees fit.
Those technical discussions are taking place. If the hon. Member for East Lothian or his colleague, the hon. and learned Member for Edinburgh South West, wish to participate in those technical discussions, they are welcome to do so.
The fact that we would lose the 14-year minimum is problematic, but I accept the principle that an amendment is needed. If we can put such an amendment together quickly enough, we will be happy to bring it forward, in consultation with the hon. Gentleman, on Report. If we cannot get it ready fast enough for that, perhaps their lordships will be kind enough to consider making an appropriate amendment down at their end of the building.
I hope that my comments illustrate that I recognise the validity and the reasonableness of the point being raised. I hope that we can find a way to amend the Bill to preserve the 14-year minimum but not take away any ability that Scottish judges currently have to impose longer restrictions, should they see fit.