All 4 contributions to the Terrorist Offenders (Restriction of Early Release) Act 2020 (Ministerial Extracts Only)

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Wed 12th Feb 2020
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Terrorist Offenders (Restriction of Early Release) Bill

(Limited Text - Ministerial Extracts only)

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Wednesday 12th February 2020

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This text is a record of ministerial contributions to a debate held as part of the Terrorist Offenders (Restriction of Early Release) Act 2020 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Robert Buckland Portrait The Lord Chancellor and Secretary of State for Justice (Robert Buckland)
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I beg to move, That the Bill be now read a Second time.

Twice in the past few months we have seen appalling and senseless attacks on members of the public by terrorist offenders. At Fishmongers’ Hall on 30 November last year, two bright and promising young lives were cut heartbreakingly short. The perpetrator, Usman Khan, had been released automatically halfway through a 16-year sentence for preparing terrorist acts. That tragedy was made so much more poignant by the fact that the victims were dedicated to the rehabilitation of offenders, and were helping people to get their lives back on track.

The attack in Streatham on 2 February this year came as a stark reminder of the risks when these sorts of offenders are let out automatically before they have served their full sentence in prison.

Michael Fabricant Portrait Michael Fabricant (Lichfield) (Con)
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A number of people may question why we are rushing through this business in one day today, so may I ask my right hon. and learned Friend, if the business were not completed today and the Bill therefore not enabled as an Act, would it result in terrorists being released early in the immediate future?

Robert Buckland Portrait Robert Buckland
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The simple answer is yes; I am grateful to my hon. Friend for that intervention.

I was telling the House about the events in Streatham. Sudesh Amman had been released just one week before the attack, halfway through a sentence of three years and four months for offences related to distributing or promoting material intended to stir up religious hatred. The automatic nature of his release meant that there was no parole oversight and no decision as to whether he posed a risk to the public. No one could prevent his release. It is purely thanks to the swift intervention of our incredible police officers that he did not go on to commit even more harm before he was stopped with necessary force. The reality is that we face an unprecedented threat from terrorist offenders who are willing to commit random violence without any fear of the consequences.

Tobias Ellwood Portrait Mr Tobias Ellwood (Bournemouth East) (Con)
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I welcome the work that my right hon. and learned Friend has done in this area over the last few weeks, and that he is bringing the Bill before the House today. Will he concede that this form of jihadi extremism and the threat that it has posed has now been around us for almost 20 years, since the horrible attacks of 9/11 and, of course, Bali in 2002? I absolutely welcome the extra funding for our counter-terrorism police and rehabilitation and probation services—this is all very good news—but ultimately we have to ask ourselves why these people were indoctrinated in the first place. Does he agree that we need to do more to remove the harmful online content that is used so much to attract people to the dark place they go to?

--- Later in debate ---
Robert Buckland Portrait Robert Buckland
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My right hon. Friend speaks with particular personal experience of the Bali atrocity, and he is right to talk about the long-term nature of the threat, but it is a threat that changes and evolves, and this Government will be as fleet of foot as possible in responding to it. He will be glad to note that we are working at pace to deal with and remove inappropriate and hateful online content. The Home Secretary is by my side today to emphasise, in the most eloquent possible way, the joint approach that she and I, and our respective Departments—together with the security services and the police—are taking with regard to the first duty of Government: protecting the public. It is a grave responsibility from which we will not shirk, and we say that enough is enough.

Desmond Swayne Portrait Sir Desmond Swayne (New Forest West) (Con)
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I am very glad about the tone my right hon. and learned Friend is taking. Were this measure to be challenged in our courts and the Government were to lose, that would be merely declaratory. But if it made its way to the European Court of Human Rights in Strasbourg and the Government were to lose there, the ministerial code would require him to abide by treaty law. Would he then entertain the prospect of a derogation from the convention on human rights?

Robert Buckland Portrait Robert Buckland
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I believe that the declaration that I make on the front of the Bill speaks for itself—

Robert Neill Portrait Sir Robert Neill (Bromley and Chislehurst) (Con)
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Will my right hon. and learned Friend give way?

Robert Buckland Portrait Robert Buckland
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Well, I have not finished developing the point yet, but I will of course give way to my eager hon. Friend, the Chair of the Justice Committee, in time.

This is a Bill on which I have made the following statement:

“In my view the provisions of the…Bill are compatible with the Convention rights.”

I take the point made by my right hon. Friend the Member for New Forest West (Sir Desmond Swayne). I am not going to anticipate litigation in domestic courts or in Strasbourg, but I will repeat for the benefit of the record that it is my firm view that this Bill does not engage the provisions of article 7 of the European convention on human rights, because it relates to the way in which the sentence is administered, not a change in the nature of the penalty itself. I am grateful to him for allowing me to say that at this point.

Robert Neill Portrait Sir Robert Neill
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I am grateful to my right hon. and learned Friend for giving way, because this is an important point. Will he confirm that, in coming to that conclusion and making that certification, he has taken the advice of senior Treasury counsel, and also that the case law has made it quite clear that the administration of a sentence is not part of the penalty? Finally, will he confirm that even were there to be successful litigation—which I do not believe will be the case—it would result only in a declaration of incompatibility, and could not strike down primary legislation?

Robert Buckland Portrait Robert Buckland
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My hon. Friend is right to remind the House that there is no power to strike down the primary legislation. I am afraid that I will not indulge him in a direct answer as to the nature of advice that may or may not have been tendered, and he knows the reasons why. However, I reassure him that all the proper mechanisms have been employed and engaged in the preparation of the Bill, and that on the basis of all the information received, I was able—with high certainty—to make the declaration on the frontispiece.

John Hayes Portrait Sir John Hayes (South Holland and The Deepings) (Con)
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My right hon. and learned Friend will remember that we worked together on these matters when I was in the Government. He is right to speak about the metamorphosis of terrorism. Will he confirm—indeed, these provisions underpin this—that we must never let the persistent and perverse advocacy of the rights of murderous individuals compromise either the work of our security services or public faith in the rule of law?

Robert Buckland Portrait Robert Buckland
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My right hon. Friend speaks with considerable experience, as we worked together on the Bill that became the Regulation of Investigatory Powers Act 2000, which rightly struck the balance between the need to protect the public and the need to make sure that the rule of law was respected.

That gives me a chance to warm to a theme that I make no apology—

Robert Buckland Portrait Robert Buckland
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I will give way in a moment. I am warming to a theme—let me warm!

The theme is this: in our fight against terrorism—in our determination to protect the public against those who spread hate, division, death and injury, irrespective of what might motivate them, because we know that we have a cohort of different types of terrorist—we are defending something of value. We are defending a democratic, free society. We are defending the rule of law. We are defending the values of this place and, indeed, the values of all the people we have the honour and privilege of representing. That is something worth defending. By using due process, we mark ourselves out as distinct from, better than and different from those who seek to divide us.

William Cash Portrait Sir William Cash (Stone) (Con)
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Is my right hon. Friend in receipt of advice from the Law Officers on this question? I say that because whatever arguments he may address with regard to compatibility and his statement on the front of the Bill, the reality is that this could easily end up in the courts if they can possibly manufacture an argument. I want to be quite clear that his advice relates to action in the courts and not just to incompatibility.

Robert Buckland Portrait Robert Buckland
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I can assure my hon. Friend that all the usual processes were followed. I am not going to go into the weeds of what the Law Officers might have said. We know that they have a particular function when it comes to the necessary clearances for the introduction of a Bill. I can assure him that those processes have been followed and that the issues that he rightly outlines—and, indeed, presages through his amendments—are very much uppermost in our considerations.

Seema Malhotra Portrait Seema Malhotra
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Recent events have indeed shown the need for a review through this legislation, which I certainly support, and which has the appropriate safeguards and implementation measures that will be debated today.

The Lord Chancellor made a point about the victims. Somebody who had done work experience in my office was a witness on that day as they were working at Fishmongers’ Hall. The impact not just on those who were injured or killed, but on those who were there and their families, has been tremendous, and continues.

The provisions in the Bill change the release point for offenders who have committed a relevant terrorism offence and refer those offenders to the Parole Board at the two-thirds point of the sentence. I think we can understand and acknowledge that the resources available to the police and probation are also a critical part of this. A change in legislation will not be enough. Is the Lord Chancellor also committed to making sure that the resources required through the justice system will be in place to make any change effective on the ground?

Robert Buckland Portrait Robert Buckland
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Indeed, I pay tribute to everybody who was not only involved with but witnessed those awful events at Fishmongers’ Hall.

The hon. Lady and I served together on the Justice Committee for some time, and I know that she has a long-term interest in these issues. She is right to ask about resources. Some weeks ago, when it was announced that we would be introducing a counter-terrorism Bill, extra resources of £90 million for counter-terrorism activity were announced, additional to the overall package of £900 million of support for counter-terrorism. With regard to what we are doing with probation and the interventions that she referred to, again we announced extra resources, with a doubling in the number of specialist probation officers and the introduction of more expert psychiatric and imam involvement. She can rest assured that whatever resources are needed in order to deal with this issue, we will devote them to this particular line of important, intensive work.

Theo Clarke Portrait Theo Clarke (Stafford) (Con)
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The Staffordshire-born convicted terrorist Usman Khan was let out of prison early on licence. Last November, less than a year after his release, he killed two young people near London Bridge. Does the Secretary of State agree that this illustrates why this Bill is so important to protect the public in my constituency and across the UK, and to ensure that the most dangerous criminals serve the prison time that they deserve?

Robert Buckland Portrait Robert Buckland
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My hon. Friend rightly points out the sad local connection to that appalling case last year. I know that she shares my—and indeed, I think, the whole House’s—commitment to maximum effort when it comes to protecting the public. It is clear that we must put a stop to the current arrangements whereby a dangerous terrorist can be released from prison by automatic process of law before the end of their sentence, so we must do so as quickly as possible.

Maria Miller Portrait Mrs Maria Miller (Basingstoke) (Con)
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I warmly welcome the legislation that has been put before the House today. The Secretary of State is talking about resources. Will he outline any estimates he has made of the number of individuals who might be covered by this legislation so that we can perhaps understand the impact that it could have had on our police forces if those individuals had been released from prison early?

Robert Buckland Portrait Robert Buckland
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The number of offenders, either terrorist offenders or offenders who have committed offences with a terrorist link, is about 50. That does not sound like a large cohort, but in this particular situation of extreme gravity, we cannot afford to allow any further incidents to happen. I have spoken about the need to minimise risk; that does not mean that we can eliminate risk. That is why this emergency measure is, in my judgment and the judgment of the Government, absolutely necessary if we are to meet the concerns of my right hon. Friend and other hon. and right hon. Members.

Theresa May Portrait Mrs Theresa May (Maidenhead) (Con)
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My right hon. and learned Friend raises the issue of risk. He and the Government are absolutely right to be addressing the question of the automatic early release of terrorist offenders, but terrorist offenders will still be released at some point. That is why rehabilitation—the work that is done both in prison and when they are out of prison—is so important. There have been many efforts at this over the years, but, as recent incidents have shown, not always with success. Does he agree that we will never deal with the issue of terrorism until we deal with the ideology that drives it? Will he reassure me that the Government are making extra efforts to find new paths to ensure that we can turn people away from the extremism and terrorism that takes other people’s lives?

Robert Buckland Portrait Robert Buckland
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My right hon. Friend speaks with unparalleled experience of these issues, both as Home Secretary and as Prime Minister. I can assure her—I will develop these issues later in my speech—that there is a constant self-questioning among those responsible for these programmes to make sure that they are properly calibrated, that they understand the particular drivers that compel people to commit these acts, and that the distinctions between the different types of offender are fully understood; from her own case experience she will know of myriad motivations. Rather than taking a blanket approach, a case-by-case analysis is very much at the heart of how we approach these matters.

Henry Smith Portrait Henry Smith (Crawley) (Con)
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My right hon. and learned Friend is absolutely right that this legislation ending the automatic halfway point of release is the correct thing to do. The Parole Board obviously still has a very important role in this process. What reform of the Parole Board does he envisage to make it more accountable, because that is a key aspect of ensuring that citizens are kept safe from those who would cause them harm?

Robert Buckland Portrait Robert Buckland
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My hon. Friend will be reassured that a lot of ongoing work continues with regard to the role of the Parole Board. Very recently, reforms were introduced that allow me to ask the Parole Board to reconsider important decisions that it makes with regard to the release, or early release, of offenders. A tailored review is currently being undertaken to make sure that its work is as practically effective as possible.

In our manifesto, we committed to a root-and-branch review, to ensure that victims are aware and as involved as possible from the outset and that the sharing of intelligence and information between the security services, the police and the Parole Board is as thorough and comprehensive as possible, so that the fullest and most appropriate assessment of risk can be made. In the area of counter-terrorism, nothing can be more important than ensuring that that intelligence is shared and that those who handle it have the appropriate clearances and expertise to make the necessary assessment.

Kate Green Portrait Kate Green (Stretford and Urmston) (Lab)
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The Lord Chancellor rightly mentions the need for resources to support this new legislation, because most of these offenders will eventually be released, albeit later, into the community. The issue is not just one of resources; it is also one of process and expertise, because the recall provisions that are in place now could have been of use in the cases that we have seen in recent months. Can he assure me that the Government are also looking at training and process and that any reforms needed—for example, to recall processes—will be properly put in place to support this legislation?

Robert Buckland Portrait Robert Buckland
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The hon. Lady, with whom I served on the Justice Committee, is right to talk about risk assessment and the recall process. She knows that the recall process can be triggered on arrest, and certainly on charge, and that is regularly done in the normal course of events. When it comes to multi-agency public protection arrangements, I think she will note with pleasure that, only three weeks ago, the Home Secretary and I ordered a review to be conducted by Jonathan Hall QC, the Government’s independent reviewer of terrorism legislation. He will look at MAPPA with regard to this high-risk, high-level sector of the cohort, to ensure that we are getting it right and that the appropriate expertise is deployed at the right time in order to make the finest judgment with regard to risk.

Bob Seely Portrait Bob Seely (Isle of Wight) (Con)
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If I understand it correctly, there are about 220 people serving time for terrorist offences, 50 of whom will be affected by this legislation. Is that because those 50 are up for imminent release within the next few months? Does this legislation in principle apply to all 220 people in prison for terrorist-related offences?

Robert Buckland Portrait Robert Buckland
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The cohort of around 50 are due for automatic early release; the rest will be subject to Parole Board assessment. Different types of sentence are available. We are talking about people on standard determinate sentences. Other types of sentence include extended determinate sentences. Some may still be on the historical IPP—imprisonment for public protection—regime, and there are also sentences for offenders of particular concern, or SOPC. Forgive me for the alphabet soup, but I am afraid that criminal justice sentencing legislation has not been the easiest matter for us to deal with, either as legislators or when I was a practitioner in this area.

Julian Lewis Portrait Dr Julian Lewis (New Forest East) (Con)
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I am grateful to the Lord Chancellor for giving way; he is being hugely generous. Does he accept that, while a lot of these people are terrorists and criminals, a significant number of them are clearly insane? The people who were in jail with the latest perpetrator said that that individual was plainly off his head. He had a history of drug abuse, and mind-altering substances clearly played a role. Why is it that if people are secular and insane, they will be locked up indefinitely, but if they can ascribe this to some sort of religious motive, we feel we have to give them a finite sentence and release them, when they might run amok at any stage?

Robert Buckland Portrait Robert Buckland
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As ever, my right hon. Friend makes an interesting and thought-provoking point. While I will not go into the individual facts of this case, because it is subject to a police investigation and there is an ongoing inquiry, I will say this. The judgment as to a mental health disorder within the meaning set out in the Mental Health Act 1983 is a matter for two section 12 qualified clinicians—consultant psychiatrists—who will produce clinical evidence that will satisfy a court of the provisions of section 37 of the Act or, indeed, a restriction under section 41, which puts the power of release into my hands. That has to be satisfied on the basis of evidence.

It is important to make a distinction between that clinical approach and the risk assessment that we have to undertake when it comes to those who profess political motivation. It is thought-provoking in the sense that we need to think about a mechanism that would be robust and legally sound but would allow an objective assessment to be made about the risk posed by individuals, even after their sentence has been completed. Public protection has to come to the forefront of our thinking.

I will now describe what we have done operationally since the attack at Streatham. The Prison and Probation Service has taken immediate action to strengthen our operational grip of terrorist offenders and protect the public from any further attacks. The National Probation Service is working closely with counter-terrorism partners. Several offenders on licence have been recalled to prison since the attack, where officers identified concerning behaviour, which relates to the point made by the hon. Member for Stretford and Urmston (Kate Green). We have also instructed prison governors to report any concerns and take any action required. Several terrorist prisoners have subsequently been placed in segregation units as a result of concerns raised by prison staff. The Prison Service is managing the risk of incidents in prisons that may be inspired by, or in response to, the attack at Streatham.

I would like to put on record my thanks to Ian Acheson for his 2016 report on our response to extremism in prisons. In the intervening years, the operating context has changed, and our response has strengthened considerably, but we must go further. We will take all additional steps necessary, including keeping the full list of recommendations in Mr Acheson’s internal report under careful review.

However, we need to take further action urgently to ensure that the public are protected. As we saw in the Streatham attack, we cannot have a situation where an offender—a known risk to the public—is released without any oversight by the Parole Board. The Bill therefore sets out new release arrangements for prisoners serving a sentence for a terrorist offence or an offence with a terrorist connection. There are two main elements to that: first, to standardise the earliest point at which they may be considered for release at two thirds of the sentence imposed; and secondly, to require that the Parole Board assesses whether they are safe to release between that point and the end of their sentence. That will apply to all terrorist and terrorist-related offences where the maximum penalty is above two years, including those offences for which Sudesh Umman was sentenced. Only a very small number of low-level offences, such as failure to comply with a police cordon, are excluded by this threshold, and prosecution and conviction for those offences are rare.

The changes affect those who are serving sentences for a specified offence, whether the sentence was imposed before or after the new section comes into force. Applying this to serving prisoners reflects the unprecedented gravity of the situation we face and the danger posed to the public. The Bill will not achieve its intended effect unless it operates with retrospective effect, and therefore it will necessarily operate on both serving and future prisoners. That does not mean that the Bill will change retrospectively the sentence imposed by the court; release arrangements are part of the administration of a sentence, and the overall penalty remains unchanged. As I outlined earlier, domestic and ECHR case law supports our stance that article 7 is not engaged where the penalty imposed by the court is not altered. The measures in the Bill will also amend the release arrangements for terrorist offenders sentenced in Scotland, which will ensure a consistent approach where possible to the release of terrorist prisoners.

James Brokenshire Portrait James Brokenshire (Old Bexley and Sidcup) (Con)
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I commend my right hon. and learned Friend for the introduction of this legislation and dealing with the issue of early release. May I come back to him on a point I have raised previously about how we manage the risk of people who have offended once they have left prison, and about using the availability and enforceability of post-release conditions, and indeed the terrorism prevention and investigation measures regime and its potential application, to give a sense of assurance? Can he comment any further on the next steps and how this can be progressed, because this is clearly an issue that will need to be addressed?

Robert Buckland Portrait Robert Buckland
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I am hugely grateful to my right hon. Friend, who, as the House will know, was a distinguished Security Minister and Northern Ireland Secretary, and had to deal with these issues daily. I will say this to him: he will know that the counter-terrorism Bill, which was announced some weeks ago, will be coming before the House soon. There will be measures in it not only on the minimum term to be served for serious terror offences, but on the way in which licence periods will be applied as part of such a sentence. That is clearly one of the most effective ways to deal with this problem—through the criminal prosecution and conviction process.

My right hon. Friend makes a wider point. He will know from having navigated through the House the TPIMs legislation, which has been subsequently strengthened and amended, that there are other circumstances in which public protection will have to play a function in the absence of a conviction. It is on that particular cohort that the Government are placing a lot of attention and concentration. It would perhaps be idle of me to speculate by outlining what precise forms those will take, but it is a dialogue that I encourage him actively to take part in over the next few months and it is something I would want to develop with support from all parts of this House.

William Cash Portrait Sir William Cash
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At this stage in the debate, and trying to avoid our having what might otherwise turn into an argument about the law in court, may I ask my right hon. and learned Friend whether the case of del Río Prada has actually been taken into account? Does he know if that has been taken into account, because it was about policy and administration?

Robert Buckland Portrait Robert Buckland
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My hon. Friend will be glad to know that not only has it been taken into account, but I have read it. It is a 2013 authority from the Strasbourg Court that relates to a particular set of circumstances involving the Kingdom of Spain. There have been subsequent cases both before that court and, indeed, domestically. In summary, we are satisfied, on the basis of all the information we have, that the provisions of article 7 are not engaged in this respect.

Robert Neill Portrait Sir Robert Neill
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My right hon. and learned Friend is making a most compelling case for this legislation. For the sake of completeness, I am sure he will also have read and taken into account the subsequent cases in the Strasbourg Court of Abedin in the United Kingdom in 2016 and of the Supreme Court in Docherty in 2017—both subsequent to del Río Prada—which it seems to me support the Government’s contention.

Robert Buckland Portrait Robert Buckland
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I say to my hon. Friend, as I am sure he has heard many times in court, that his submissions find great force with the Government and we are persuaded by them.

Gavin Robinson Portrait Gavin Robinson (Belfast East) (DUP)
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It is very clear that the Lord Chancellor is carrying the House with him this afternoon, and all of us are seized of the necessity of bringing forward this Bill at this time and as quickly as possible. However, it is acknowledged that there are serious concerns and issues about the engagement of article 7—I think he has an entirely justifiable position—and that we are bereft of the detailed pre-legislative scrutiny that we might otherwise have had; that is a consequence of the situation we find ourselves in. Given that, has the Lord Chancellor given any consideration to injecting a review mechanism into the Bill?

Robert Buckland Portrait Robert Buckland
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I am very grateful to the hon. Gentleman. In fact, I think it is right to say, in the context of Northern Ireland, that we have given such careful consideration to the engagement of article 7 that we have chosen not to extend the legislation to Northern Ireland. The way in which the sentence is calculated and put together by the Northern Ireland courts does cause potential issues with regard to engagement and therefore potential interference with the nature of the penalty itself. I think that is actually very important in this context: it is real evidence of the fact that the British Government have thought very carefully about the engagement of article 7, and have not sought to take a blanket approach to all the various jurisdictions within the United Kingdom.

I hear what the hon. Gentleman says about a review mechanism. He will be reassured to know that a counter-terrorism Bill is coming forward that will cover all parts of the United Kingdom. There will be an opportunity on that Bill to debate and analyse further long-term proposals. Inevitably, the status and provisions of this Bill—I hope, by then, an Act of Parliament—will be part of that ongoing debate. I am confident that, through the mechanisms of this House, we will be able to subject these provisions to post-legislative scrutiny in the way that he would expect.

Jeremy Wright Portrait Jeremy Wright (Kenilworth and Southam) (Con)
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My right hon. and learned Friend has mentioned the effect of this legislation that will keep terrorist prisoners in custody for longer, and he has rightly paid tribute to prison imams, who maintain religious interventions for those whose motivation for their terrorist offending is at least claimed to be religious. Can he reassure us that, given the extra time in custody that many of these prisoners will now serve, such effective and in many cases very brave interventions by prison imams will be given the extra time available to take further effect?

Robert Buckland Portrait Robert Buckland
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My right hon. and learned Friend the former Attorney General speaks with great experience and knowledge of these matters. He is absolutely right to focus on the specialist intervention of our imams. I think I referred to the fact that we are going to increase resources and increase the number available within our prisons. Both the Home Secretary and I have seen at first hand the partnership working that goes on within the high-security estate when it comes to dealing with these particular challenges. It is precisely that type of specialist intervention that he and others can be confident we will be supporting in the years ahead.

I was going on to explain the extension of parole release to those who serve standard determinate sentences and other transitional cases currently subject to automatic release. In line with the normal arrangements for prisoners released by the Parole Board, the board will set the conditions of an offender’s licence for this cohort when they are released before the end of their sentence. The Parole Board, as I outlined earlier, has the necessary powers and indeed the expertise to make risk-based release decisions for terrorist offenders. The board currently deals with terrorists who serve indeterminate sentences, extended sentences and sentences for offenders of particular concern—the “SPOCs”, as they are colloquially referred to.

There is a cohort of specialist Parole Board members who are trained specifically to deal with terrorist and extremist offenders. They are, in effect, the specialised branch of the board that will be used to handle these additional cases. They include retired High Court judges, retired police officers and other experts in the field, all of whom have extensive experience of dealing with the most sensitive and difficult terrorist cases. Due to the nature of the emergency legislation, I have proposed that the provisions cover England, Wales and Scotland.

The justification for this emergency, retrospective legislation—out of the ordinary though I accept it is—is to prevent the automatic release of terrorist offenders in the coming weeks and months. Given the risk that this cohort has already shown they pose to the public, it is vital that we pass this legislation rapidly before any more terrorists are automatically released from custody at the halfway point. Therefore, we are aiming for this legislation to receive Royal Assent before the end of the month. With the support of this House, I am confident that we can do that. I commend the Bill to the House.

--- Later in debate ---
Nick Thomas-Symonds Portrait Nick Thomas-Symonds
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I took part in a long debate on sentencing in the last Parliament with the then Minister of State for Security and Economic Crime, now the Secretary of State for Defence, and a number of sentences were increased. In her intervention on the Justice Secretary, the former Prime Minister pointed out —very fairly, I thought—that there has been an issue with the success of de-radicalisation programmes in recent years. Length of a sentence is one matter, but, whatever the length, the programme must be targeted and effective—I will come on to that point in a moment.

We are here to discuss emergency legislation, but there is also an emergency in resources. The Leader of the House indicated yesterday that the Treasury has approved additional resources for the extra time that prisoners will spend in custody as a consequence of the Bill, as well as for the Parole Board. Clearly, however, there must also be a specific and dramatic increase in resources to tackle extremism in our prisons.

But this is not just about resources—my hon. Friend the Member for Stretford and Urmston (Kate Green) made a point about process and expertise, and she is absolutely right—and a strategic approach from the top will be required.

The Justice Secretary made it clear that there is no need for derogation from the European convention on human rights, and he set out the Government’s legal position on article 7. Labour Members firmly believe that we can tackle terrorism and proudly remain signatories to the European convention on human rights. In our view, to leave that convention and join Belarus as the only European non-signatory would send a terrible signal to the rest of the world. We should never sacrifice the values that we are defending in the fight against terrorism and hatred.

Those who perpetrate hatred and violence are responsible for their actions, but it is for the Government to do everything they can to keep our streets safe and minimise the risk of something like this ever happening again. The House is therefore entitled to ask why we have ended up requiring this Bill to be passed via emergency legislation. Automatic early release is hardly new. It has been part of our system for many years, and could already have been dealt with by a Government who took a more strategic approach.

There have been a number of warning signals over the past decade. In his opening remarks, the Justice Secretary mentioned Ian Acheson, a former prison governor who led a review of Islamist extremism in our prisons, probation and youth justice system, which was published in August 2016. Mr Acheson said:

“What we found was so shockingly bad that I had to agree to the language in the original report being toned down…There were serious deficiencies in almost every aspect of the management of terrorist offenders through the system…It was a shambles.”

Mr Acheson proposed 69 recommendations that, according to the Justice Secretary when speaking to the media over the weekend, have been consolidated into a total of 11, eight of which are being implemented. However, in a newspaper article last Thursday Mr Acheson said:

“As part of my review of prison extremism, I made a great number of recommendations that specifically related to a tactical response to a terrorist incident in prison where staff were targeted. I have no way of knowing if or how many were implemented as none made it into the response published by the Ministry of Justice.”

That was only days ago. I do not know whether the Justice Secretary has met Mr Acheson since last Thursday—[Interruption.] I am happy for him to intervene.

Robert Buckland Portrait Robert Buckland
- Hansard - - - Excerpts

The hon. Gentleman makes an important point. I have not met Mr Acheson since last Thursday, but I have met him. Indeed, I took part in a documentary that he produced for Radio 4 a few weeks ago, before the latest attack. His engagement has been valued. I will not go into the precise circumstances in which the report was consolidated, because in essence it contained some sensitive matters that we all understood could not be published.

The hon. Gentleman is right to talk about 2016. We accepted what Mr Acheson said, but things have moved on a long way since then, and the problems that were identified are being tackled directly. We accept that there is still more to be done, but the hon. Gentleman will be glad to know that we have moved on in the four years since that report.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds
- Hansard - - - Excerpts

I will come on to whether things have moved on in a moment when I explore what the Chief Inspector of Prisons says about that issue. Last Thursday, however—only days ago—Mr Acheson was clearly unsure of the Government’s position. I hear what the Justice Secretary says about what is in the public domain, which is entirely appropriate. One would hope, however, that someone who led a review for the Government would know four years later whether specific recommendations had been acted on. I also accept what the Justice Secretary says about appearing in a documentary, but I strongly suggest that he meet Mr Acheson fairly urgently, to discuss those matters about which Mr Acheson is not sure, so that they can be cleared up.

Robert Buckland Portrait Robert Buckland
- Hansard - - - Excerpts

I should have added that I have offered Mr Acheson a full briefing from Her Majesty’s Prison and Probation Service on those issues, and it has been accepted.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds
- Hansard - - - Excerpts

I am pleased to hear that, and I hope we will never again be in a situation where someone who led a review is not aware of what is going on years later. That simply cannot and should not happen, as I am sure the Justice Secretary would agree.

There are concerns about the Ministry of Justice listening, and the extent to which justice has been a priority for the Government over the past decade. The coalition Government chose not to make the Ministry of Justice a protected Department when they implemented spending cuts That led to 40% cuts over the past decade, including to the prisons that today we expect to play a vital role in offender management. We know that 21,000 police officers disappeared from our streets, and prison officer numbers have been slashed. There are currently 18,912 front-line prison officers, which is not yet back to 2010 levels. That loss of prison officers has not just reduced the capacity of prisons to deal with rehabilitation; it also means that years of experience of working in challenging environments in our prisons have been lost.

In 2019, 35% of prison officers had been in post for less than two years, compared with just 7% in 2010. I do not mean that those officers are not doing their best in difficult circumstances, but the Government needlessly threw away valuable experience in our prisons.

--- Later in debate ---
Robert Neill Portrait Sir Robert Neill
- Hansard - - - Excerpts

That is an interesting point, but, with respect to my right hon. Friend, it is a wholly different consideration. There has been much debate on this point. The Select Committee has looked at it and urged that for certain offences, such as assaults on prison officers, there is often a compelling case, as a matter of public policy, for that to be charged as an additional offence, rather than be dealt with under the prison disciplinary rules, as is frequently the case. I am with him on that, but perhaps that is as far as we should take it today.

I have one final point about retrospectivity. Some learned commentators have raised concerns on the basis of the European Court decision in the case of Del Río Prada, but that case at most raises a tangential or speculative concern that there might be retrospectivity. The briefing from the Bingham Centre for the Rule of Law—I have a lot of respect for that centre, so it is right that I address it—says that arguably this could be regarded as falling foul of the principles; it does not come down hard and fast in that regard. The decision came after a particularly convoluted history of changes within the Spanish judicial system, which is utterly different from what we are doing. Subsequently, there have been decisions by the Strasbourg Court, in the case of the application of Abedin against the United Kingdom, and by the Supreme Court in the UK, in the case of Doherty, where the line of reasoning was much more consistent with the traditional stance we have taken ever since the House of Lords decision in the case of Uttley, which was that the changes to remission and early release provisions were part of the administration or execution of a sentence, not part of the penalty. That seems such a well-established principle that we ought to have confidence that we can act upon it in this case.

Chris Philp Portrait The Parliamentary Under-Secretary of State for Justice (Chris Philp)
- Hansard - - - Excerpts

I wholeheartedly concur with my hon. Friend’s analysis, but I just wanted to add one point. The Del Río Prada case touched on how concurrent sentences were calculated, which is wholly different from the matter before the House today.

Robert Neill Portrait Sir Robert Neill
- Hansard - - - Excerpts

My hon. Friend makes an important point. In legal parlance, I would say that is the most material consideration in distinguishing between those cases and the ones we are dealing with here. I hope that, having considered all those points, the House will be reassured on retrospectivity.

As other hon. Members have observed, it is important to recognise that this is a specific piece of legislation dealing with a specific and discrete problem; it does not mean we should not act urgently to deal with the broader issue of how we deal with this type of terrorism, which has developed in recent years; how we contain those who are deeply radicalised in prison; and how we prevent further radicalisation in prison—there is some concern that the Streatham attacker might still have been receiving radicalisation material while in prison. We need to look urgently at that and at the threat, which many of us have come across, of hard-line terrorist prisoners seeking to further radicalise more vulnerable inmates within the prison estate. That is an issue that Mr Acheson, who has been referred to favourably by many in this debate, addressed. I am glad to hear the Lord Chancellor has been in touch with Mr Acheson.

I share the view of the shadow Minister that Mr Acheson has a good deal more to give to this discussion. Things have moved on since his 2016 report, and he was a most compelling witness when he appeared before the Justice Committee in a previous Parliament, so it might be that we would like the benefit of his views again. I hope the Government will engage directly with him to see how, within the new context, we can continue to take on that and other expertise.

It is also right that we build upon the good work being done by the chaplaincy service in the form of the specialist imams. We have not perhaps given enough credit to the work of prison chaplaincy generally and of the specialist imams, who have a very difficult task to fulfil but do it most admirably. That is the impression I have got from those I have met. What more can we do to give them greater professional—pastoral, if you like—practical and professional support? This is an important area. I hope the Minister will confirm that we intend to continue that work and say what we can do to make sure that the many terrorist prisoners being held in high-security prisons like Belmarsh, near me in south-east London, are being held in a way that does not pose any further threat to staff, in terms of attacks—an issue that Mr Acheson dealt with—or any threat, either physically or in terms of further corruption, to other more vulnerable inmates with whom they might be serving.

In conclusion, this is an important Bill, and I hope the House will speed it through, but there is much more work to do. I will finish, though the Lord Chancellor is not now in the Chamber, by concurring with the shadow Minister on one final point: I, too, have been frustrated, as Chairman of the Select Committee, at the revolving door of Secretaries of State and Ministers who have appeared before us over the years, and I very much hope that the Lord Chancellor will stay in office very successfully and for many years. His handling of this delicate matter, including yesterday, has given him as good a claim as anyone to his office—and I, too, hope that that has not done too much damage to his career.

--- Later in debate ---
Chris Philp Portrait The Parliamentary Under-Secretary of State for Justice (Chris Philp)
- Hansard - - - Excerpts

It has been a great privilege to listen to so many extremely fine speeches this afternoon, but I would particularly like to pay tribute to my hon. Friend the newly elected Member for Crewe and Nantwich (Dr Mullan) for his excellent maiden speech. There was a great deal in it to think about. He touched on issues of identity, as the shadow Minister, the hon. Member for Torfaen (Nick Thomas-Symonds) has just said, but I was especially interested to hear about the worm-charming competition. I am looking forward to my hon. Friend the Member for Crewe and Nantwich demonstrating his worm-charming skills, whatever form they may take, in the Tea Room later.

However, we are clearly here to consider an extremely serious matter touching on national security and public safety, prompted by two terrible recent cases: the murders committed at Fishmongers’ Hall by Usman Khan on 30 November last year, and the attack by Sudesh Amman in Streatham on 2 February—a little over a week ago. It has become clear to the Government that the automatic release of some terrorist offenders after serving only half their sentence poses an unacceptable risk to the public, and that is why we are acting with urgency with this emergency legislation to end that happening.

The circumstances are, of course, exceptional. Many Members, including the Chairman of the Justice Committee and the hon. Member for East Lothian (Kenny MacAskill), a former Justice Secretary in Scotland, have said that this is not something that any Government would undertake lightly, but where we believe we have to act quickly and decisively to protect the public, we will do so.

Lisa Cameron Portrait Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)
- Hansard - - - Excerpts

The Minister is making an excellent speech on this important issue. I refer the House to the fact that I am a risk assessor with the Risk Management Authority in Scotland. Has he considered, or might he consider, the order for lifelong restriction? It is in place in Scotland for offenders who continue to exhibit a significant risk throughout their lifetime, and offenders can be recalled at any point.

--- Later in debate ---
Chris Philp Portrait Chris Philp
- Hansard - - - Excerpts

I thank the hon. Lady for raising such a thoughtful point. That certainly is something we would be prepared to study and consider, because we are always keen to learn from other jurisdictions. We will be bringing forward wider measures as part of a counter-terrorism Bill in the next few months. One provision we have in mind is greatly extending licence periods following release, which is in the spirit of what she suggested, so I thank her for her constructive proposal.

Bell Ribeiro-Addy Portrait Bell Ribeiro-Addy (Streatham) (Lab)
- Hansard - - - Excerpts

I have heard Members throughout the debate talking about ending automatic release as if it was a new thing, but the Minister will be aware that the measure already exists in section 9 of the Counter-Terrorism and Border Security Act 2019. Is he confused, like me, as to why the change was not made retrospective then, because that legislation came in direct response to the terror attacks that happened throughout 2017? The Government could have made the change then, which Labour Members would have supported, as we did when they set up the Prevent review.

Chris Philp Portrait Chris Philp
- Hansard - - - Excerpts

Of course, the Government and Parliament think carefully about retrospection and rightly take a circumspect view. Several changes to sentencing have been made over the past five or 10 years, including the introduction of extended determinate sentences, whereby release at two thirds of the way through a sentence is a matter for the Parole Board following an assessment of dangerousness by the sentencing judge. Sentences for offenders of particular concern were extended a short time ago to include terrorist offenders who do not have an EDS or life sentence, and SOPCs include a Parole Board assessment at the halfway point. A great deal has been done in the past few years in this area, but the two recent cases, including, of course, the one in Streatham just a week and a half ago, underline the need to go even further than before, which is why this Bill is before the House today.

The number of offenders affected is small. As the Lord Chancellor said in his excellent introduction, only 50 offenders are involved, because all the rest are covered by other sentencing types. Even a small number of offenders, however, can cause a high level of harm, as we have seen, which is why it is important that we go further with today’s Bill. The next such offender is due for release by the end of the month, and that is why we are acting so quickly to ensure that legislation is in place prior to that release.

I thank Members from across the House, including the Labour spokesman, the hon. Member for Torfaen (Nick Thomas-Symonds), and the SNP spokesman, for the constructive and supportive tone of their speeches. This is a good example of Parliament working in a cross-party way in the national interest, and I am grateful for the approach they have taken today.

Some of the questions raised today touch on wider issues in this area, one of which is the question of resources, raised by the hon. Member for Torfaen in his opening speech. I confirm to the House once again that another £90 million will be spent on counter-terrorism policing next year, bringing the budget to £900 million. That very significant increase in resources was announced just a short time ago.

We clearly need to do more on the prison estate. Between 2017-18 and 2019-20, the prisons budget has increased from £2.55 billion to £2.9 billion, a 15% increase, and over the last three years there has been a welcome increase in the number of prison officers serving in our prison estate from 18,003 to 22,536.

Of course, we are also investing in the quality of the prison estate. The next financial year, which starts shortly, will see an extra £156 million invested in the prison estate’s physical condition, in addition to a £2.5 billion programme to build 10,000 additional prison places over and above the 3,500 currently under construction at Glen Parva, Wellingborough and Stocken.

Robert Neill Portrait Sir Robert Neill
- Hansard - - - Excerpts

The Minister is making a good speech, and I recognise the various measures the Government are taking to invest in the prison estate and in staffing. On the point made by the hon. Member for East Lothian (Kenny MacAskill), does the Minister also recognise the importance of a comprehensive policy to ensure the retention of experienced prison staff, as well as the recruitment of others, because they have particular skills and knowledge that are valuable in this field?

Chris Philp Portrait Chris Philp
- Hansard - - - Excerpts

The Chair of the Justice Committee makes a good point. It is important to retain experience in the prison officer establishment. Prison staff have long expertise and long experience, and the Prisons Minister, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), is acutely aware of the importance of retention.

Many hon. and right hon. Members, including the hon. Member for East Lothian (Kenny MacAskill) and the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), have drawn attention to the importance of a comprehensive deradicalisation programme in prisons—the hon. Member for Birmingham, Perry Barr (Mr Mahmood) also made that point in his excellent speech. We are acutely conscious of the importance of that and of the need to do more. We have the theological and ideological intervention programme, the healthy identities programme and the deradicalisation programme in place, and I am sure there is more that needs to be done in those areas. My hon. Friend the Member for Isle of Wight (Bob Seely) touched on that in his speech, and I know the Prisons Minister would like shortly to take up his offer of a meeting to discuss exactly these issues.

Of course, it is equally important to make sure these offenders are properly monitored after release, whether on licence or otherwise. The TPIM regime was strengthened in 2015, and we always have multi-agency public protection arrangements where necessary. As we saw, those arrangements were effective in the case of Sudesh Amman. After he began his behaviour, it was a matter of seconds before the police were able to intervene, which is an example of MAPPA working well in practice.

In the few minutes remaining to me, I will address the question of retrospection, touched on by a number of hon. Members, including the hon. Member for St Albans (Daisy Cooper). It is our very firm belief, based on legal advice, that these measures do not contravene article 7. They do not constitute a retrospective change of the penalty, because the penalty is the total sentence. The penalty is the sentence handed down by the judge at the point of sentencing and, as my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) elaborated, a wide body of case law says that changing the early release point does not change the penalty. In fact, early release ameliorates the penalty—it reduces the penalty—so changing the early release point does not add to it. The Uttley case makes that clear, as do other cases that have come before the UK Supreme Court and the European Court of Human Rights.

I do not think the Del Río Prada case, in which the Kingdom of Spain was a respondent, is directly germane because it concerns the calculation of concurrent sentences and a change in how concurrent sentences are handled, which is obviously not the matter before the House today. The Government are clear that the Bill does not contravene article 7 and does not constitute a retrospective change to the penalty; it simply constitutes a change to how the sentence is administered.

Let me touch briefly on the point raised by my hon. Friend the Member for Stone (Sir William Cash), which I suspect we may debate more fully in Committee shortly. We do not believe that a “notwithstanding” clause is necessary, because we do not believe article 7 is contravened by this legislation—we can debate this more. We are also not wholly convinced that a “notwithstanding” clause would derogate our treaty obligations under the ECHR.

Chris Philp Portrait Chris Philp
- Hansard - - - Excerpts

I am conscious of time. I would be happy to give way in Committee to debate this at greater length. I very much look forward to hearing my hon. Friend’s further views on this and I would be happy to take an intervention in Committee, but I must wrap up in a minute or so.

The right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) asked about the MAPPA review and the Prevent review. The MAPPA review is under way and is being led by Jonathan Hall, QC. The Prevent review has a statutory deadline of August 2020, which we intend to abide by. We will make further announcements about its progress—this will include appointing a new reviewer—as soon as possible.

Yvette Cooper Portrait Yvette Cooper
- Hansard - - - Excerpts

Is it actually doing any work?

Chris Philp Portrait Chris Philp
- Hansard - - - Excerpts

It is a Home Office matter, but I do not think work has stopped simply because of the issue with the reviewer.

In conclusion—

Eleanor Laing Portrait Madam Deputy Speaker (Dame Eleanor Laing)
- Hansard - - - Excerpts

Order. The hon. Gentleman has one and a half minutes, so it is alright.

Chris Philp Portrait Chris Philp
- Hansard - - - Excerpts

Madam Deputy Speaker, you are extremely kind. I thought I had about 10 seconds left.

I would like to use up my remaining one minute and 10 seconds, as it is now, by saying that although these are emergency measures designed to address a specific problem, we will of course be coming back with a much wider and more considered set of proposals in our counter-terrorism Bill in the next few months and in the sentencing White Paper. Many Members have spoken of the need to think widely and thoughtfully about these issues, and we will of course be doing so. Members will be pleased to hear that in the counter-terrorism Bill we will be seeking to impose a 14-year minimum sentence, with no prospect of early release, for the most serious terrorist offenders. We will also be thoughtful and considered about issues of deradicalisation. Of course, more resources are going into the system: 20,000 extra police officers; £85 million extra for the Crown Prosecution Service; and more Crown court sitting days in the coming year. This is an important emergency measure designed for public protection, and I am pleased to see that it commands support across the House.

Question put and agreed to.

Bill accordingly read a Second time; to stand committed to a Committee of the whole House (Order, this day).

Terrorist Offenders (Restriction of Early Release) Bill

(Limited Text - Ministerial Extracts only)

Read Full debate
Committee stage & 3rd reading: House of Commons & Committee: 1st sitting: House of Commons & 3rd reading & Committee: 1st sitting
Wednesday 12th February 2020

(4 years, 5 months ago)

Commons Chamber
Read Hansard Text Amendment Paper: Committee of the whole House Amendments as at 12 February 2020 (revised) - (12 Feb 2020)

This text is a record of ministerial contributions to a debate held as part of the Terrorist Offenders (Restriction of Early Release) Act 2020 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

William Cash Portrait Sir William Cash
- Hansard - - - Excerpts

That is an extremely good question on which I have already given an indication. Being a realist, I know perfectly well that this is not a Bill to which an amendment is going to be passed—certainly not today—but I did say that the House of Lords, which is where the Bill is going, is full of lawyers, some of whom I will disagree with and have disagreed with for as many years as I have been in the House, but there are others who will take a different view.

I am interested to hear the views of the House of Lords on the question of my proposal to amend clause 1. The wording of clause 1 currently refers to an offence “within subsection (2)” and a sentence imposed

“whether before or after this section comes into force”,

at which point I propose to insert the words

“and notwithstanding the Human Rights Act 1998”.

The effect of that would be to put a complete bar on the use of the Human Rights Act, by interpretation of the courts, in any attempt, whether it is regarded as misguided or is a matter of culture—there is currently a load of culture in the courts relating to human rights questions that have built up over the whole of my lifetime in the law.

I am deeply concerned that we could allow legislation to go through that could be interpreted in a way that would result in human life being lost and public safety being infringed. That is my concern. [Interruption.] I see the Minister looking at me either apprehensively or with anticipation; I am not sure which it is and I do not really care. What I am saying is that I want certainty. I know that if the words “notwithstanding the Human Rights Act” are brought into the Bill, the effect will be to exclude completely, for reasons that I am about to give, any attempt by the courts to modify the effect that the Bill otherwise would have.

I have other concerns about the Bill that I have already made clear. I do not think that offenders should be considered for release after half or two thirds of their sentence. I have a lot of sympathy for what my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) proposes in amendment 1; he says it should be nine tenths. I do not know whether he will address that point later.

The bottom line is that we should not allow this situation if we can avoid it—and we can avoid it, because we are the Houses of Parliament, and as a result of Brexit, we have just regained an awful lot of our sovereignty. This is more a matter of the European convention on human rights than of the charter of fundamental rights—or, for that matter, of Brexit—but the amendment is an indication of the House’s determination to use our sovereignty to make law that will guarantee that we do not face people losing their life, or public safety being undermined.

If we do not include in the Bill the words that I propose in my amendment 3, I believe—as I said before with respect to the Lee Rigby case—that it is not a matter of if such a thing happens again; it is a matter of when. I concede that this is emergency legislation; that is why I support it, but it requires a full, thorough review, perhaps by the Justice Committee, to ensure that we deal with the issue properly and fully.

I applaud the Government for bringing in this Bill on an emergency basis, but I criticise the fact that the Bill does not go far enough. The Minister is, if I might say so, not a lawyer; he can only have received his information from others who are. He is taking a bit of a punt in saying that the words

“and notwithstanding the Human Rights Act 1998”

are not needed. He does not know that. I say that with not only respect, but knowledge and certainty. It is very difficult even for lawyers to be sure what the impact would be of allowing the Bill through without excluding the Human Rights Act 1998 from it.

Chris Philp Portrait The Parliamentary Under-Secretary of State for Justice (Chris Philp)
- Hansard - - - Excerpts

I thank the hon. Member for giving way, despite my non-lawyer background. I am of course interested in what he says, and have been listening extremely carefully, as he has seen. How does he think his amendment would operate? In particular, does he think it would in any way disapply our ECHR treaty obligations? Even if we passed his “notwithstanding” amendment, could applicants not still go directly to the European Court in Strasbourg? We cannot disapply that route through this amendment.

William Cash Portrait Sir William Cash
- Hansard - - - Excerpts

I notice that the Minister is reading very carefully from the notes with which he has been provided, and I agree with the sentiment behind them, but I am putting the case in a different way. We are talking about serious questions of human life, and every step should be taken to preserve it. I was originally minded to use the amendment to exclude the European convention on human rights, too. I describe amendment 3 as a probing amendment, but I want proper consideration of it, not just someone saying, “I don’t think the wording would achieve the total effect that the hon. Gentleman would wish it to.”

The risk to human life is serious; we have to take every step to ensure no repetition of the instances of murder and terrorism that we have witnessed, and which, in recent times, from Lee Rigby onwards, have become more and more prevalent. We know that people are prepared to take such steps; it may be that some of them are mentally disturbed. Perhaps people do not think that these things will happen again, but as I said in debate on another counter-terrorism Bill four or five years ago, the question is not whether we have another Lee Rigby, but when. We have had one after another, at regular intervals. They are becoming more and more imminent, and more and more serious. I doubt whether this Bill, however worthy its objectives, will deal with the problem in the manner in which I am setting out and which is necessary.

--- Later in debate ---
Chris Philp Portrait Chris Philp
- Hansard - - - Excerpts

I would like to respond briefly to some of the points made in Committee, as well as speaking in support of clauses 1 to 10 and schedules 1 and 2 standing part of the Bill. Perhaps I could start with the speech by my hon. Friend the Member for Stone (Sir William Cash) concerning his proposed “notwithstanding” amendment. I repeat the point I made earlier, which the shadow Minister also made, that the Government have received categorical advice that these proposals are article 7 compliant. Of course there may well be challenges, and I cannot guarantee what the outcome of any litigation might be, but we are confident that the proposals are compliant.

My hon. Friend said that nothing less than certainty would do in cases of public safety, and I entirely understand that sentiment. Perhaps this would best be debated at another time, but I wonder whether his amendment as written would have the effect that he intends, because I do not think that simply writing a “notwithstanding” clause into a piece of primary legislation would abrogate our obligations under a treaty that we have entered into or preclude an applicant or litigant going directly to the European Court of Human Rights—they might go straight to Strasbourg—even if we could somehow prevent the use of the English and Welsh courts. I do not think the amendment as drafted would actually have the legal effect intended. However, my hon. Friend has, as always, raised some interesting constitutional questions, and I am sure they will be debated in the other place in due course. In our manifesto, we said that we would have a think about the operation of the Human Rights Act 1998 and some of the issues that he referred to in his speech. There will be plenty of opportunities in due course to consider at greater length the issues that he raised. I am grateful for his undertaking not to press his amendment to a vote today, but the whole House has certainly heard what he had to say and will carefully reflect on it.

My right hon. Friend the Member for New Forest West (Sir Desmond Swayne) gave me, in his words, a prod. Let me confirm that I am duly prodded on the questions of longer sentences for serious terrorist offenders and of their serving more of their sentence in prison. As a number of Members have said, is our intention to bring forward a counter-terrorism, sentencing and release Bill in the relatively near future. It is also the Government’s intention to define a cohort of the most serious terrorist offenders and to seek a minimum sentence of 14 years for those serious offenders and ensure that all of the sentence handed down by the judge is served in prison. I think that that will respond to the point that my right hon. Friend was making.

Alex Chalk Portrait Alex Chalk (Cheltenham) (Con)
- Hansard - - - Excerpts

I am grateful to the Minister for those indications about sentencing. Does he agree that the review needs to consider all terrorist offences, including relatively minor ones—such as offences under sections 57 and 58 of the Terrorism Act 2000 relating to possession of materials—that might in and of themselves not attract a particularly long sentence? Given that they are responsible for almost half of all terrorist sentences handed out, does he agree that they need to be considered as part of the review?

Chris Philp Portrait Chris Philp
- Hansard - - - Excerpts

We will consider all terrorist offenders as part of the review. Of course, the sentencing provisions I just described would not be appropriate for all terror offenders—just the most serious—but I assure my hon. Friend that we will be considering the totality of terror offending. Of course, the Streatham offender had committed one of the offences that my hon. Friend just described—possession of terrorist material—so we must be mindful that even when someone commits an offence that, on the face of it, is at the less serious end of the offending spectrum, they can none the less go on to do quite serious things. The Government are extremely mindful of that.

John Hayes Portrait Sir John Hayes
- Hansard - - - Excerpts

There are two points to be made in respect of what the Minister has just said. First, the vast majority of people convicted under terrorism legislation are sentenced to between one and 20 years. Now, he is talking about “the most serious”. What does he mean by “the most serious”? Secondly, a large number of people are convicted for terrorism-related offences under non-terrorism legislation—hundreds, actually, over the years. Will they be included in these considerations?

Chris Philp Portrait Chris Philp
- Hansard - - - Excerpts

I thank my right hon. Friend for his question. In relation to the second part of it, terrorist-related offences do form part of this Bill. Part 2 of proposed new schedule 19ZA to the Criminal Justice Act 2003, which is found in schedule 1 to this Bill, covers terrorist-related offences under the Counter-Terrorism Act 2008 and lists the various direct offences, including manslaughter, culpable homicide and kidnapping, that are terrorist-related offences. Such offences are, therefore, in the scope of this Bill, and we will carefully consider the implications for the counter-terrorism Bill that we will bring forward in due course.

Turning to the level of the severity of offending, as I said to my hon. Friend the Member for Cheltenham (Alex Chalk), we will review all types of offending, so the whole spectrum will be in scope. As for how we define that “most serious” cohort, the Government are currently thinking quite carefully about the definition. I do not want to give my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) a definition today, because that will be a matter for the counter-terrorism Bill, but we are thinking about question extremely carefully, and the House will be able to debate it fully in due course.

The shadow Minister, the hon. Member for Torfaen (Nick Thomas-Symonds), asked about a review of the effectiveness of the deradicalisation agenda. I agree that the review is critical, and several Members raised it on Second Reading. We are setting up a new counter-terrorism programmes and interventions centre within the prisons and probation service that will look specifically at the de-radicalisation problem. We intend to publish further research and reports in the usual way, and I expect full scrutiny from Members. As my right hon. Friend the Member for South Holland and The Deepings said in his speech, we will fully embrace scrutiny of that description, and I would be surprised—my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) is not in his place—if the Justice Committee did not look at this area in due course. I accept the point made by my right hon. Friend the Member for South Holland and The Deepings that proper and deep scrutiny of this area is needed, because the de-radicalisation question is so important.

Lisa Cameron Portrait Dr Cameron
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The Minister is making some good points. Is there any scope to look at additional types of charges that could be laid against those who actively radicalise others in prison?

Chris Philp Portrait Chris Philp
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I thank the hon. Lady for her important intervention. The radicalisation of one prisoner by another is a deeply invidious phenomenon, and she is right to highlight it. The normal offences that would apply to any member of the public, including things like incitement to racial hatred, would apply to prisoners just as much. I encourage the authorities to use those laws where applicable regardless of whether the person doing the inciting, which is a criminal offence in itself, is in prison.

The hon. Member for St Albans (Daisy Cooper), in the same vein as the hon. Member for Torfaen, talked about the need to scrutinise the effect of this legislation after it has passed. Once again, I accept the thrust of what she says. It is important that we keep the effect of legislation under review, particularly where it is passed in such a necessarily expeditious fashion. I would expect the Justice Committee to take an interest in this, and the House will have a chance to take a great interest when we come to debate the counter-terrorism Bill in a few months’ time. There will then be a lot more time available for us to debate these matters and, indeed, to review the operation of this Bill, which by then will have been in effect for a few months.

In terms of an independent review that goes beyond Parliament’s Committees and, indeed, this House—as my right hon. Friend the Member for South Holland and The Deepings said in reply to an intervention by the hon. Member for St Albans—I expect that Jonathan Hall, QC, the independent reviewer of terrorism legislation, will be conducting independent reviews of exactly the kind the hon. Member for St Albans described.

I think that covers many of the points raised on the various amendments and new clauses. On the substance of the Bill, it is worth briefly highlighting that clause 1 specifies the release provisions we have been talking about and the two thirds release point for prisoners in England and Wales, at which point the Parole Board’s discretion will be applied.

Clause 1 also references schedule 1, which specifies the kinds of offences that are in scope. Part 1 of proposed new schedule 19ZA to the Criminal Justice Act 2003 defines the terrorist offences that are in scope, and part 2 defines the offences that may be determined to have a terrorist connection.

Clause 2 disapplies some historical transitional provisions dating back to the Criminal Justice Act 2003. Those are essentially technical amendments to make sure this legislation works in a way that is consistent with the Act.

Clauses 3 and 4 apply these provisions to Scotland. We are keen to make sure that the public in Scotland are protected as much as the public in England and Wales. In that context, I am grateful to the hon. Member for East Lothian (Kenny MacAskill) for his supportive remarks. I hope I can infer from his remarks that our colleagues in the Scottish Government in Holyrood are supportive of the proposals.

Chris Philp Portrait Chris Philp
- Hansard - - - Excerpts

I am grateful for the hon. Gentleman’s confirmation that the Scottish Government support these provisions.

Clause 5 relates to the setting of licence conditions. Clause 6 makes further consequential amendments relating to transitional cases. Clause 7 makes further consequential amendments that apply to England and Wales. Clause 8 makes transitional provisions in relation to offenders in Scotland and, again, clause 9 makes further consequential amendments that apply to Scotland.

Finally, clause 10 specifies the Bill’s territorial extent and commencement. It is worth saying that commencement will be upon Royal Assent, and we therefore hope the Bill takes effect from 27 February, which is important from the perspective of the release of certain dangerous offenders.

I hope that covers the clauses and schedules, and that they will stand part of the Bill.

William Cash Portrait Sir William Cash
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As I have already made clear, I am happy to ask leave to withdraw the amendment with the restrictions and conditions that I have already imposed with regard to the House of Lords.

Amendment, by leave, withdrawn.

Clauses 1 to 10 ordered to stand part of the Bill.

Schedules 1 and 2 agreed to.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

Third Reading

Robert Buckland Portrait The Lord Chancellor and Secretary of State for Justice (Robert Buckland)
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I beg to move, That the Bill be now read the Third time.

May I thank all Members for taking part in this important debate, on a Bill that, as Members on both sides of the House have demonstrated comprehensively, was timely and necessary? We have a proud history of coming together in times of adversity against people who seek to divide us. Together, we can make sure that the terrorists who seek to threaten our way of life will never win.

I readily acknowledge that we are passing this Bill to a very tight timescale, but the appalling attacks we witnessed at Streatham and at Fishmongers’ Hall made it plain that the time for action was now, which is why I welcome the sense of urgency that has been shared in all parts of the House. That has necessarily shortened the time available to debate these issues, but I will of course continue to engage with Members across the House on these matters. There will be further opportunities to legislate on these issues, both in our forthcoming counter-terrorism, sentencing and release Bill and, more broadly, in the sentencing Bill that we will introduce following our sentencing White Paper later this year.

We will also review the current maximum penalties and sentencing framework for terrorist offences to ensure that they are sufficient and comprehensive. Our underlying principle is this: terrorist offenders should no longer be released before the end of their custodial sentence unless the Parole Board is satisfied that they are no longer a risk to the public.

I take this opportunity to thank all the officials, not only those who have assisted us in the Box today, but all the team at the Ministry of Justice, who have worked at pace and in great detail on complex issues of national importance, to a timescale that is perhaps unusual and almost unprecedented. We do owe them a deep debt of gratitude, and I am honoured to place that formally on the record.

For now, passing this Bill will take a significant step to ensuring that the British public, whom we serve, are being given the protection they need, by ensuring that terrorist offenders spend longer in prison in all cases and are not automatically released without being fully and properly assessed.

Terrorist Offenders (Restriction of Early Release) Bill

(Limited Text - Ministerial Extracts only)

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2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020

(4 years, 4 months ago)

Lords Chamber
Terrorist Offenders (Restriction of Early Release) Act 2020 Read Hansard Text Amendment Paper: HL Bill 99-I Marshalled list for Committee - (21 Feb 2020)

This text is a record of ministerial contributions to a debate held as part of the Terrorist Offenders (Restriction of Early Release) Act 2020 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Moved by
Lord Keen of Elie Portrait Lord Keen of Elie
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That the Bill be now read a second time.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, the purpose of this Bill is to end the automatic early release of terrorist offenders, moving the earliest point at which they can be released and making their release contingent on approval by the Parole Board. Noble Lords will be all too aware that twice in the last few months we have seen appalling attacks on members of the public by terrorist offenders. In each case, these known terrorists were released automatically at the halfway point of their sentence without any oversight by the Parole Board.

It is clear that we must put a stop to the current arrangements, whereby a dangerous terrorist can be released from prison by automatic process of law before the end of their sentence. It is clear that automatic halfway release is simply not right in all cases. We must now respond as quickly as possible. Further releases of prisoners serving relevant sentences are due by the end of February, and if the Bill is to achieve its desired effect then emergency legislative procedure and early commencement is required.

The Bill sets out new release arrangements for prisoners serving a sentence for a terrorist offence or an offence with a terrorist connection. There are two main elements to this: first, to standardise the earliest point at which they may be considered for release, at two-thirds of the sentence imposed; secondly, to require that the Parole Board assess whether they are safe to be released between that point and the end of their sentence. This will apply to all terrorist and terrorist-related offences where the maximum penalty is above two years, including those offences for which the Streatham attacker, Sudesh Amman, was sentenced. Only a very small number of low-level offences, such as failure to comply with a police cordon, are excluded by this threshold, and prosecution and conviction for these offences are rare. The changes affect those serving sentences for a specified offence, whether the sentence was imposed before or after the new section comes into force.

The emergency provisions will extend parole release to those serving standard determinate sentences and other transitional cases subject to automatic release before the end of the custodial term. In line with the normal arrangements for prisoners released by the Parole Board, for this cohort of offenders the board will set the conditions of an offender’s licence when they are released before the end of their sentence. The Parole Board has the necessary powers and expertise to make risk-based release decisions for terrorist offenders. The board currently deals with terrorists serving indeterminate sentences, extended sentences and sentences for offenders of particular concern.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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Will my noble and learned friend remind the House whether the Parole Board has to consider any burden or standard of proof? Is there any provision, statutory or otherwise, for the Parole Board to obtain a letter or opinion from the trial judge as to the dangerousness of the prisoner concerned?

Lord Keen of Elie Portrait Lord Keen of Elie
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I am not aware of any statutory provision whereby the Parole Board can secure a letter from the trial judge. Regarding release, the Parole Board has to be satisfied that the prisoner does not represent a threat of harm if released under licence.

There is a cohort of specialist Parole Board members trained specifically to deal with terrorist and extremist offenders. This is, in effect, the specialised branch of the Parole Board that will be used to handle the additional cases. This cohort includes retired High Court judges, retired police officers and other experts in the field, all with extensive experience of dealing with the most sensitive terrorist cases.

We acknowledge that applying these measures retrospectively is an unusual step. However, this reflects the unprecedented gravity of the situation we face, and the danger posed to the public. The Bill simply will not achieve its intended effect unless it operates with retrospective effect, necessarily operating on both serving and future prisoners. The provisions do not, however, alter the length of the sentence, and therefore the penalty already imposed by the court. The Government are confident that the Bill is compatible with Article 7 of the European Convention on Human Rights, as both European and domestic case law have held that release provisions relate to the administration of a pre-existing sentence and do not form part of the penalty.

Due to the nature of this emergency legislation, the Government are proposing that the provisions in the Bill apply only to England, Wales and Scotland. The justification for emergency, retrospective legislation is to prevent the automatic release of terrorist offenders in the coming weeks and months, and such immediate measures are not currently required in Northern Ireland. However, we intend to make provision as appropriate for Northern Ireland via the upcoming counterterrorism Bill, which will deal with sentencing and release.

It is of course crucial that we continue to do our utmost to rehabilitate terrorist offenders when they are in custody. In prison and on probation, all terrorist offenders are closely managed by specialist counterterrorism personnel, and we have a range of capabilities to manage the risk posed by terrorist offenders, and to support their disengagement and rehabilitation, including tailored interventions. The time an offender spends in prison is an opportunity for us to do our best to rehabilitate them, while recognising that this is no simple challenge. Psychological, theological and mental health interventions are all used, and Her Majesty’s Prison and Probation Service has psychologists and specialists to supply formal counter-radicalisation programmes, both in custody and in the community.

The desistance and disengagement programme provides a range of intensive tailored interventions and practical support for terrorist offenders to tackle the drivers of extremism. This can include mentoring, psychological support, and theological and ideological advice. The programme draws on the expertise of academics both from the United Kingdom and internationally through its academic advisory group, ensuring that it is under- pinned by the latest research on desistance, disengagement and deradicalisation to provide constructive challenge and evidence on good practice in an innovative field.

Lord Carlile of Berriew Portrait Lord Carlile of Berriew (CB)
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Can the noble and learned Lord tell the House what opinions have been expressed by prison staff, including chaplaincy services—for example, in Whitemoor prison—about the effectiveness or ineffectiveness of the programme he is describing?

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I am not in a position to give a specific answer to that focused point with regard to the institution in question, but I will take advice and seek to revert to the noble Lord during the debate.

Beyond the work I have outlined, following the events at Fishmongers’ Hall in November 2019, we have also announced a set of measures to overhaul the sentencing and release arrangements for terrorist offenders. These include: introducing longer sentences for the most serious dangerous terrorist offenders and ending early release for other serious dangerous terrorist offenders; an overhaul of prisons and probation, to include tougher monitoring conditions and a doubling of counterterrorism probation officers; increasing counter- terrorism police funding by £90 million for 2020-21; and a review of support for victims of terrorism, including an immediate £500,000 to the Victims of Terrorism Unit.

The Government have also launched an independent review of the way different agencies, including police, probation services and the security services investigate, monitor and manage terrorist offenders. This is referred to as the Multi-Agency Public Protection Arrangements, and is being conducted by Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation. Many of these measures are under way, and the legislation to ensure that the most serious and dangerous terrorist offenders spend longer in prison, with strengthened licence periods, will be included in a new counterterrorism Bill dealing with sentencing and release, to be introduced later this Session.

We must acknowledge that while all efforts must be made to rehabilitate and deradicalise terrorist offenders, there will be times when these efforts do not succeed. Therefore we must have in place robust safeguards which mean that these offenders are not released automatically. The Bill’s objective is clear: to take the necessarily urgent steps required to protect the public from terrorist offenders who are still considered dangerous. This is a sensible safeguard against the early release of offenders who continue to pose a significant threat to the safety of the public. I commend the Bill to the House, and I beg to move.

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Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, clearly these are grave matters worthy of serious debate, and I am obliged to all Members of the House for contributing to that debate.

Let us be clear at the outset. This Bill is not a complete answer to the challenges we face with regard to terrorism, the ability to counter terrorism, radicalisation and the ability to deradicalise individuals. There will be a great deal more to do, and the Government have made it clear that they intend to follow through and do a great deal more in this area, including the proposal for a counterterrorism Bill that has already been referred to. The noble Lord, Lord Pannick, suggested that such a Bill may or may not emerge, but at present we are not anticipating a dissolution of Parliament. Therefore, I believe with a degree of confidence that we will be bringing that forward.

Over and above that, noble Lords will recollect that last month, following the terrorist attack at Fishmongers’ Hall, the Government announced a major overhaul of counterterrorism, prison and probation, a proposal to double the number of specialist probation officers working with terrorists, the introduction of further legislation, such as the counterterrorism Bill, and the creation of a new counterterrorism programme and intervention centre. I note what the noble Baroness, Lady Deech, observed: we also have to delve into the efficacy and effectiveness of many of these programmes in order to determine our direction of travel. We anticipate that the new centre will represent a major shift in our capability to intervene with terrorist offenders to try to identify the risk they pose, and to bring to bear the correct specialists to work with them to reduce such risks while they are in custody.

Of course, turning a terrorist away from the mindset they have is no easy task. It requires not only expertise and application but eventually a willingness on the part of the offender to engage with such programmes, and to do so genuinely. Noble Lords have pointed out that there have been instances when it is apparent that some individuals have embraced these programmes, but in a wholly superficial, indeed false, way. That is a further challenge that we face.

There is clearly more that can be done. Indeed, the proposed centre will prioritise three things. The first is the need to build the evidence base for what works for terrorist offenders, using the best evaluation approaches we can identify, not just in the UK but in other jurisdictions. Secondly, the centre will have capacity to respond to new threats and challenges with regard to terrorist offending, because those will almost certainly emerge. Thirdly, it will try to bring to bear highly trained staff to deliver intervention programmes, which will include bolstering the cohort of counterterrorism specialists, psychologists and trained chaplains who deliver theological and ideological interventions.

This is not entirely novel. Since 2010, significant work has taken place to try to develop and improve counterterrorism interventions. The primary intervention, as mentioned by the noble Baroness, Lady Meacher, has been the Healthy Identity intervention, which is a one-to-one programme that supports desistance and disengagement from extremism by targeting the social and psychological drivers of such offending. Again, I do not seek to minimise the challenges that will be faced in developing and applying these programmes, and, indeed, learning from these programmes, because that will be part of the process.

I shall turn for a moment to one issue that has driven the regret Motion and some of the amendments: whether, or to what extent, the Bill’s proposals have retrospective effect, and whether they are consistent and lawful pursuant to Article 7 of the European Convention on Human Rights. On the Article 7 point, let me say clearly that I concur entirely with the view expressed by the noble Lord, Lord Pannick, that the provisions of this Bill are entirely consistent and allowable under Article 7 of the convention. Any doubts raised by reference to the Del Río Prada v Spain case, referred to by the noble Lord, Lord Marks, have, in my view, been dispelled by the recent decision in Abedin v the United Kingdom. It is for that reason that a certificate has been signed, pursuant to Section 19 of the Human Rights Act, to confirm that the provisions of the Bill are consistent with convention obligations.

There is the further issue of common law. As was observed, there is no common-law prohibition on retrospective legislation. There is a presumption against it, and it is a presumption that has to be addressed. But before we address it, we have to understand what is meant in this context by the retrospective element in the Bill. The noble Lord, Lord Marks, complained that the common-law principle, as he put it, against retrospection was being intruded upon because of the Bill’s intention to increase the length of prison sentences. With respect, that is not what the Bill does—but, of course, the noble and learned Lord, Lord Falconer of Thoroton, also referred to increasing the length of sentences retrospectively. Indeed, the noble Lord, Lord Harris, suggested that this was Executive interference with judicial sentencing.

Lord Harris of Haringey Portrait Lord Harris of Haringey
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If any prisoner had understood that his sentence was four years but that automatically, because the Secretary of State had a duty to do so, it was reduced to two years, he would feel that retrospectively his situation had changed. I said nothing in that context about the Executive. What I did say is that the Executive have been wilfully failing in not bringing forward proposals much earlier to address some of these problems.

Lord Keen of Elie Portrait Lord Keen of Elie
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I misheard the noble Lord, and I apologise to him for that. I had understood him to refer to the issue of the sentence being retrospectively changed, as reflected in the observations of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks.

The point I wish to make has already been touched upon by the noble Lord, Lord Pannick. The position is simply this. There is an established line of case law up to the Criminal Division of the Court of Appeal that a court should pass a sentence that is commensurate to the offending behaviour in relation to the offence committed, without any consideration of any possible early release. In other words, early release under licence and the various ramifications of that are an irrelevant consideration to the courts on sentencing. That is reflected by the Court of Appeal decisions in Round in 2009 and Bright in 2008. So it is not a case of retrospective change to sentence. Somebody is sentenced to a period of, say, four years. There is then a statutory provision whereby the Secretary of State comes under a duty to release at a certain point in the sentence. The current position with regard to the type of sentence we are dealing with is release at the halfway stage. In response to an observation by the noble and learned Lord, Lord Judge, I say that the Secretary of State has a duty to obtemper that statutory obligation and, I suspect, would be faced with a writ of habeas corpus if he did not. There is a clear duty there, and there is no way around that.

The true retrospective nature of this legislation, insofar as it is at all retrospective, comes from the application of the provisions with regard to the Parole Board, with which everyone appears to be in agreement. Under the present statute, a prisoner is entitled to automatic release at the halfway stage. We now propose—and everyone appears to agree—that this should not be the case and that they should have to satisfy the requirements of the Parole Board before they are released. So a prisoner who anticipated automatic release will no longer be able to do so, because the provision with regard to the Parole Board is that it must be satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. That is the retrospective element in all this.

The noble Lord, Lord Pannick, then asked: why apply that at the two-thirds point in the sentence rather than at the halfway point? There are a number of reasons behind the provision in the Bill extending the period of imprisonment from half to two-thirds of the sentence. The most immediate was reflected in an observation from noble Lords that this Bill gave a breathing space. That is certainly required at present, because we face a situation in which we are placing a quite considerable obligation on the Parole Board to bring forward expertise and examination of individual prisoners, in circumstances in which a number of these offenders are due for release at the halfway point in a matter of days. In the interim period, therefore, it is necessary that we are able to accommodate that very real risk.

In addition, it brings the sentence into a position that is consistent with other sentences, where the period is two-thirds. We suggest that it allows for a further period of incapacitation of terrorist offenders—it may seem limited in some instances, but not in all—and confers a degree of public confidence on those concerned about recent behaviour and recent events.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton
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I make it clear that I have no problem with imposing the Parole Board. Equally, Equally, I understand the point that the noble Lord, Lord Faulks, made and that the Minister is making, that there will be quite a lot to deal with. But I understand that the effect of the Bill will be that you cannot be released automatically until the Parole Board has said you can be, so there will not be a problem on the basis of the draft of the Bill. The bit I question the Minister on—I find it completely incomprehensible—is that he appears to be saying that moving it from half to two-thirds is part of the administration of the sentence and therefore not caught by retrospectivity, but that removing release from automaticity is part of the sentence. I just do not follow that.

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Lord Keen of Elie Portrait Lord Keen of Elie
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The sentence itself reflects the entire period ordered by the court. It is then an executive action to decide at what point during that sentence somebody may be released on licence. Let us remember that it is not a right to be released on licence. There is simply a parliamentary provision by statute that places a duty on the Secretary of State to allow release on licence. And it is not an absolute release: you may be recalled, depending on the conditions of the licence and whether you adhere to them. In that sense, the true retrospectivity of the Bill lies in the imposition of the Parole Board decision-making, not in anything else.

The question then raised is: why impose that at the two-thirds stage of the sentence rather than at the halfway stage? As I say, there are a number of reasons why the Government consider that appropriate, the most immediate being the point I made about the need for a breathing space. We face a number of instances in which such terrorist offenders are due to be released and, under present legislation, would be entitled to be released without qualification or test in a matter of days. To accommodate that is simply not possible. That is why a breathing space is appropriate and why we consider that in these circumstances we should shift the point at which the Parole Board becomes involved to a point consistent with other sentences, which is the two-thirds point.

As I say, this has the additional benefit of incapacitating those terrorists and preventing them engaging in activity for a further period. We suggest that this, in turn, would confer a degree of public confidence in the way in which we are dealing with such terrorist offenders. So clearly the Bill cannot achieve its intended effect unless it operates with retrospective effect, and the retrospective effect here is the imposition of the requirement that the Parole Board be satisfied about the release—rather than the existing legislative provision, which places a duty on the Secretary of State to release without any further consideration in respect of that matter.

Baroness Meacher Portrait Baroness Meacher
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Can the Minister explain something to me? Perhaps I have misunderstood it, but my understanding was that if this legislation passed, somebody due for release in a few days could not then be released until the Parole Board had got around to reviewing whether they could be released. So, if the Parole Board is not ready for a month, two months or whatever, the prisoner would have to wait for that process. Is that correct, or have I misunderstood the point?

Lord Keen of Elie Portrait Lord Keen of Elie
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My understanding is that under the present legislative regime, there is a duty on the Secretary of State to release the prisoner at the halfway point. We require a regime in which the Parole Board is able to act in determining whether it is satisfied that the prisoner could be released—but you could not hold the prisoner simply on the view that the Parole Board might take a few months to get round to considering his case. That is why it is necessary to look at what was referred to as a breathing space: the requirement to allow time to implement this process. As I say, it is also consistent with other sentences, where release is at the two-thirds point, and it allows for the incapacitation of the terrorist offender for a slightly longer period—which in turn, we suggest, assists in maintaining public confidence in the way in which we are dealing with these offenders.

While I understand the concern about retrospection, it has to be seen in its proper context. The Bill will not achieve its intended objective unless there is that element of retrospectivity in it. The noble Lord, Lord Anderson, alluded to a situation in which a prisoner might remain in custody until the very end of their sentence and then be released without licence. It is in those circumstances that one can find provision for TPIMs, for example. I acknowledge that they have been utilised only to a very limited extent until now, and it may be that their use has to be looked at again. They are very resource-intensive, which may explain to some degree why they have been employed only in limited numbers until now. Again, we are looking at the need to employ such procedures.

The noble Lord, Lord Anderson of Ipswich, also raised Northern Ireland, which I believe the noble Baroness, Lady Hamwee, also referred to. The Justice Minister felt that she would like to see the legislation extended to Northern Ireland. We have discussed the matter with officials in Northern Ireland, and there are very real technical difficulties regarding the way in which sentencing policy is implemented in Northern Ireland. It is quite different to sentencing policy in England and Wales in a number of respects. We fully intend to take forward this legislation, which is why we intend to look at this in the context of the counterterrorism Bill that we intend to bring forward—but at present we feel that it would be too complex an issue to try to deal with in the context of this emergency legislation.

The noble Lord, Lord Pannick, asked why, if this is emergency legislation, there is no sunset clause. The Government’s view is twofold. First, it could create uncertainty and confusion, because a prisoner would not know whether they were to be subject to the regime that we are introducing. Secondly, we are intending to bring forward a more substantive and wide-ranging counterterrorism Bill, properly addressing these issues, when the various committees of the House are available to examine the proposed legislation. I hope that that goes some way towards satisfying the noble Lord.

I am conscious of the time, so let me say this in conclusion. In extending parole release to all terrorist offenders, the Bill provides a sensible and proportionate safeguard against the problem of automatic release. The consequences of such automatic release are reflected at Fishmongers’ Hall and in Streatham. Further releases of prisoners are due within a matter of days. If the Bill is to achieve its desired effect, early commencement of the provisions, including retrospection, is vital. We are concerned not only with public confidence, but also with public safety. That is the first duty of any Government and one that we take extremely seriously. I invite the House to do likewise.

Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames
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My Lords, my regret amendment does not ask the House to reject the Bill. If the noble Baroness, Lady Buscombe, or anyone else understood it as so doing, that was not intended. I fully agree with the many noble Lords who said that the Parole Board should carry out a safety assessment before terrorist prisoners are released. I agree with the Minister that that is sensible and proportionate.

Let me briefly take up the point made by the noble Baroness, Lady Meacher, to which I do not accept that the Minister had a satisfactory answer. If the Bill were to achieve Parole Board assessment prior to release but did not increase the minimum time in custody from half to two-thirds of the original sentence, the breathing space for which the Minister asked would be achieved. As soon as the Parole Board had decided that release was safe, release would follow.

I also agree that automatic release is not appropriate in the case of terrorist prisoners. My amendment is confined to expressing some regrets that the Bill will do nothing to improve deradicalisation and rehabilitation, that Ian Acheson’s recommendations are hardly being implemented, that without further measures we risk radicalisation of non-terrorists in custody and that the Bill may cut down the time for supervision of some lower-grade terrorist offenders, who will spend more time in custody and less under supervision, thereby losing the benefits of significant periods of supervision.

On the Bill’s retrospective effect, I agreed with the noble Lord, Lord Harris of Haringey, except when he described his reasoning as “simplistic”. I also agreed with the noble and learned Lords, Lord Falconer and Lord Garnier, the noble Lord, Lord Carlile, and other noble Lords that, whatever the position under Article 7, where a six-year sentence meant three years in custody under the 2003 Act when passed but after this Bill will mean four years in custody, it is mere sophistry to assert that this is not a retrospective change. Similarly, it is mere sophistry to draw legalistic distinctions between a presumption against retrospectivity and a principle against retrospectivity and mere sophistry to draw a legalistic distinction between the sentence passed and the time to be spent in custody. I agree with the noble and learned Lord, Lord Garnier, that such a retrospective change will rightly seem unjust and unfair to serving prisoners, their families and those around them and may fuel further radicalisation.

For the reasons explained by the noble Lords, Lord Anderson and Lord Carlile, the noble and learned Lord, Lord Garnier, my noble friend Lord Beith and others, I will support the amendments to be moved in Committee to introduce pre-release assessment by the Parole Board at the halfway point for terrorist prisoners already serving sentences with the prospect of release, if the Parole Board considers their release is safe. That said, I do not intend to press my amendment to the vote and I therefore beg leave to withdraw it.

Amendment withdrawn.

Bill read a second time and committed to a Committee of the Whole House.

Terrorist Offenders (Restriction of Early Release) Bill

(Limited Text - Ministerial Extracts only)

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Committee stage & Report stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 24th February 2020

(4 years, 4 months ago)

Lords Chamber
Terrorist Offenders (Restriction of Early Release) Act 2020 Read Hansard Text Amendment Paper: HL Bill 99-I Marshalled list for Committee - (21 Feb 2020)

This text is a record of ministerial contributions to a debate held as part of the Terrorist Offenders (Restriction of Early Release) Act 2020 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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21:52

Division 1

Ayes: 49


Liberal Democrat: 47
Green Party: 1
Independent: 1

Noes: 165


Conservative: 145
Crossbench: 14
Independent: 4
Ulster Unionist Party: 2