Counter-Terrorism and Sentencing Bill

Lord Carlile of Berriew Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, first, I thank the Minister for the clarity of his opening to this debate. I too pay tribute to the two memorable and entertaining maiden speeches which we heard. I look forward to hearing from both noble Lords frequently in future.

I think people have been trying to tempt me into saying something about Prevent. I will not, save this: I hope my successor as independent reviewer of Prevent will be given access to the very large body of evidence which I was able to collect, and will make his or her mind up quite independently, without any attempt at influence from me.

This Bill’s focus is the protection of the public, and we should not for one moment lose sight of that primacy. I support aspects of the Bill strongly, but at the outset I will refer to one briefly which I do not support: the relegation of the Parole Board. I agree completely with my noble friend Lord Anderson, the noble and learned Lords, Lord Garnier and Lord Falconer, the noble Baroness, Lady Prashar, and others who have spoken about that.

However, I agree with the strengthening of sentences for terrorism-related offences, which are a very specific and unusual group of crimes. What is more important than the protection of the public from those who are released from prison at the end of terrorism offences, or from those who are radicalised in prison and released? In considering that, we should reflect on this: surely, if the release of a terrorist puts the public at risk, the crucial balance between rights and duties must justify properly regulated and proportionately extended detention.

I support the strengthening of TPIMs covered in Part 3. As a former independent reviewer, I had the scrutiny of the full period of control orders. They worked well; they were supported by the courts; the standard of proof was adequate; they were justiciable. For all the years since control orders were replaced with TPIMs by the coalition Government, I have called for their return. In effect, that has now been done, and I think it is correct. As I said, I believe the standard of proof is fair, tested and justiciable.

It is right that the evidential basis for release of terrorist prisoners should be as complete as possible, including psychiatric and neurological assessment. Polygraphs are not magic; they determine little on their own, but in various other areas they have been demonstrably useful as part of the toolkit used in the determination of truth. I see no strong argument against their use in that way in this context.

In the time left to me—in this speech—I want to be clear about the nature of the challenge we are dealing with, by reference to the Fishmongers’ Hall incident, which is very instructive. The perpetrator terrorist, Usman Khan, had been assessed as reformed and deradicalised by external experts, some of whom were present at Fishmongers’ Hall. However, evidence from the prison from which he was released—in my possession and provided to the Home Office some months ago—shows the following. First, almost none of the day-to-day custodial staff who knew him and dealt with him on a daily basis believed he was anything other than extremely dangerous at the time of his release—they were proved right. Also, unknown to the outside experts, in that prison radicalisation was not just in existence but rampant. For example, it included Friday prayers where there was a division into two groups, radical and non-radical, which a perfectly decent imam could not control; and within the prison, sharia courts meted out punishments that included floggings—inside the prison and known to the prison staff. Those are facts.

Before we can be comfortable with advice about release and release decisions, there must be far better management and verification of desistance and disengagement programmes, and of the prisoners who are part of those programmes. This is too important an issue for anything less.

Counter-Terrorism and Sentencing Bill

Lord Carlile of Berriew Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

I understand that Mr Hall’s review announced yesterday will clearly be important in updating our understanding of the challenges and that a government strategy would clearly be informed by that and, to some extent, the timing of it. However, it is not credible nor right that the Government should seek to extend sentences for terrorists without a parallel determination to improve rehabilitation and deradicalisation programmes. I very much hope that the House will support this. I beg to move.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I give my strong support to both amendments in the group: that moved by the noble Lord, Lord Hunt of King’s Heath, and the one that will be spoken to later by my noble friend Lord Ponsonby of Shulbrede.

I want to start by thanking the joint strike force on the Government Front Bench—the noble Lord, Lord Wolfson, and the noble and learned Lord, Lord Stewart—who have brought a refreshingly clear and responsive attitude towards debates on quite complicated legal issues. I can say of both of them that their engagement with Members has been exemplary; the noble Lord, Lord Wolfson, has specialised in short, 20-minute conversations that cover everything in a relatively short time. I just hope that the noble Lords will not get over the open consultation they are giving to other Members of your Lordships’ House. It is very welcome.

I too want to reflect on what was said by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, yesterday. Obviously, he is very concerned about the efficacy, if such efficacy exists, of deradicalisation programmes in prisons. I am given to understand that the successor to my short-lived appointment as Independent Reviewer of Prevent will soon be appointed. I wonder whether this afternoon, as a piece of instant gratification to us all, the noble and learned Lord, Lord Stewart, in replying to this debate may be able to tell us who that is going to be and announce the appointment. I am given to understand that it may literally be imminent.

During my time in that role, just as I came to the end of it as a result of an unwelcome judicial review, I was about to start the sort of examination that has been announced by Jonathan Hall. There is a background to it. A whistleblower came to see me from the prison where Usman Khan, the Fishmongers’ Hall terrorist, was held. On my advice, that person immediately spoke to officials at the Home Office and the Home Office was made aware of the problems. It is clear that deradicalisation programmes in prisons are not working at all well. Maybe some are working but nobody knows which ones are working and on whom.

I draw your Lordships’ particular attention to proposed new subsection (2) in Amendment 35 from my noble friend Lord Ponsonby, which sets out six criteria that need to be examined to see how these programmes are working. When I was the Independent Reviewer of Prevent, I had a review carried out of all the academic literature on Prevent, including these programmes. It exposed that no real measurement is being made of such programmes—no surprise given that the Fish- mongers’ Hall terrorist was thought to have been totally reformed. Before the programmes are put in place, they need to be carefully analysed and verified by proper, academic and, where possible, neurological research in which polygraphs are not an answer in themselves but a legitimate neurological tool as part of the armoury of an assessor.

I hope that the Government will recognise that these two amendments raise some serious issues that require the closest of examination.

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

The noble Lord, Lord Ramsbotham, has experienced computer problems, so we must move on to the noble Baroness, Lady Hamwee.

--- Later in debate ---

[Lord Faulks (Non-Afl) [V]]

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

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

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

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

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

[Lord Carlile of Berriew (CB) [V]]

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

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

[Lord Marks of Henley-on-Thames (LD) [V]]

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

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

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

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I welcome the noble Lord, Lord Wolfson of Tredegar, to our House. It is brave of him to start his parliamentary career in your Lordships’ House by going up against so many noble and learned Lords. It is going to be absolutely fascinating watching that.

I congratulate the noble Lord, Lord Ponsonby of Shulbrede, for bringing this amendment. I wish I had signed it, because it is very good. It is about whether we want to rehabilitate prisoners and bring them back into society or just want them to rot away and hope they disappear.

I am sure noble Lords will know that the new independent reviewer of Prevent has been announced. It is William Shawcross, whom I do not know at all. As somebody who is a critic of Prevent—I have seen the good and the bad in it—I would say that the optics are not good. Having a white man from Eton and Oxford is possibly not the message that this Government should be sending out when you have critics of a programme that could have been fantastic.

I saw one case of a Prevent programme—in Birmingham, I think—where a young man had been recovered, or rehabilitated, from a radical programme. He had been a right-wing activist, but he responded to being found a job and a house. I am not saying it is always this easy, but rehabilitation was based on taking him out of poverty and deprivation. That is something that we do not see enough of.

However, to return to the amendment, it would require the Government to review the situation and report to Parliament, and I support it very strongly.

[Lord Carlile of Berriew (CB) [V]]

My Lords, the town of Tredegar is noted for its town clock, which was erected, or at least its plinth was, as a result of funds collected at a bazaar. I believe that information to be correct—and from my position in my home I think I can see the noble Lord, Lord Wolfson, nodding in agreement with those facts. The Tredegar clock is always regarded as a symbol of the stability of the town—a town that has been through thick and thin, having been a place where coal was mined and steel manufactured.

The Parole Board has become one of the pillars of our prison system, and the board is seen as being as reliable as that town clock as it has developed over the years. I therefore join the noble Lord, Lord Ponsonby of Shulbrede, in being really rather determined to persuade Ministers that they should take another look at the role of the Parole Board in the sentencing and licence provisions provided for by this important Bill, which I support in principle, as someone who believes that the sentences for terrorism should be long but subject to a proper, just and reasonable form of review that gives reasons if it finds against a prisoner.

I am happy to support the amendment tabled by the noble Lord, not for its content but for the principle that it raises, and I invite the Minister to reflect accordingly.

[Lord Paddick (LD) [V]]

My Lords, I apologise for any inconvenience caused by my noble friend Lady Hamwee and me not speaking in the last group, where our names were included in the speakers’ list in error.

The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, addresses the serious question of the impact on prisoners who have no prospect of being released early or of being released at all, something that the noble Baroness, Lady Prashar, spoke about in an earlier group, as did my noble friend Lord Marks of Henley-on-Thames.

Some indication of the potential impact comes from a report in the Times, dated 20 January 2021, on inmates at the only remaining isolation unit for extremist prisoners in Her Majesty’s Prison Frankland. These isolation units were designed to keep the most dangerous ideological prisoners away from the general prison population so that they could not radicalise vulnerable inmates, as other noble Lords have mentioned in today’s debate. One of those units was mothballed before it was opened, another is empty, and the one at Frankland houses five prisoners out of a capacity of eight. There are currently about 200 terrorist prisoners in the UK.

According to the Times, a report by the independent monitoring board at the prison says that inmates in the unit have become more entrenched in their views, that they are refusing to co-operate or to engage in activities and programmes—except for the gym—and that they are distinguished from other prisoners by a lack of progression. They display antagonism and hostility to staff, with one of the prisoners responsible for a serious assault on a prison officer in the centre.

Locking people up with no incentive to behave or co-operate is likely to be counterproductive, and the Times report supports that assertion. We support the amendment.

Counter-Terrorism and Sentencing Bill

Lord Carlile of Berriew Excerpts

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

Moved by

[Lord Carlile of Berriew]

2: Clause 27, leave out Clause 27 and insert the following new Clause—
“Continued imprisonment of terrorist prisoners during the extension period of an extended sentence of imprisonment
(1) The Criminal Justice Act 2003 is amended as follows.(2) In section 247A(7) (restricted eligibility for release on licence of terrorist prisoners), at the beginning insert “Subject to section 247B,”.(3) After section 247A insert—247B Continued imprisonment of terrorist prisoners during extension period of an extended sentence of imprisonment(1) This section applies to a terrorist prisoner within the meaning of section 247A, where— (a) an extended sentence of imprisonment was imposed on the prisoner under section 226A or 226B, or under section 254, 266, 268A, 279 or 282A of the Sentencing Code, and(b) the prisoner is in custody, in accordance with section 247A, immediately before the expiry of the appropriate custodial term.(2) The prisoner must only be released under section 247A(7) in accordance with the provisions of this section.(3) It is the duty of the Secretary of State to refer the case of the prisoner to the Board—(a) as soon as the prisoner has served the appropriate custodial term, and(b) if the prisoner is still in custody, every year, before the anniversary of the conclusion of the appropriate custodial term.(4) It is the duty of the Secretary of State to release the prisoner on licence as soon as the Board has directed the release of the prisoner under this section.(5) The Board must not give a direction under subsection (4) unless—(a) the Secretary of State has referred the prisoner’s case to the Board, and(b) the Board is satisfied that—(i) the prisoner does not represent a grave risk to the public, and(ii) it is no longer necessary for the protection of the public that the prisoner should be confined.(6) Where the Secretary of State has not released the prisoner in accordance with subsection (4) by the conclusion of the extension period, it is the duty of the Secretary of State to release the prisoner immediately upon the conclusion of the extension period.(7) For the purposes of this section—“appropriate custodial term” has the same meaning as in section 247A,“extension period”, in relation to a sentence imposed under section 226A or 226B, or under section 254, 266, 268A, 279 or 282A of the Sentencing Code, means the period determined as such by the court under that provision.(8) Nothing in this section affects the duty of the Secretary of State to release a person whose release has been directed by the Board before this section comes into force.””

[Lord Carlile of Berriew (CB) [V]]

My Lords, I should like at the outset to acknowledge the assistance that I have received from the Bingham Centre in preparing the amendment and the courtesy of Ministers in this House and their staff in discussing it. I will briefly give my reasons for the amendment.

First, I am clear in my belief, which is shared by many others, that some men and women imprisoned for terrorist offences—I repeat, some—represent a threat to public safety and national security beyond the length of their sentences, and that the consequences of that risk may be the death of innocent citizens. Some examples of such people can easily be identified and are well known, but it is clear that others who present such a risk are much more difficult to identify.

It is to be noted that the recidivism rate for terrorist offences is extremely low compared with that for most other offences—under 3%, on the most recent figure that I have seen—and that a fraction of the recidivism rate therefore applies to terrorist offences. Their recidivism rate is a fraction of that for other offences, including serious offences such as armed robbery. So far, at least, projects in prisons to achieve deradicalisation or even recognition of the wrongness of the acts taken as radicals have been difficult to assess. It is extremely difficult to know whether prisoners are deradicalised and such efforts to assess prisoners have suffered significant failures. The room for erroneous judgments is high. I shall give only one of several examples, that of Usman Khan, the Fishmongers’ Hall terrorist.

As part of the effort to identify whether prisoners remain a serious risk to the public, I support the use of polygraphs but only as one instrument of assessment—one component only in such determinations. It has been proved in other areas—for example, in relation to sexual offences and in the context of some immigration matters—that polygraphs can provide useful corroboration, though one should be careful not to use them as primary evidence.

A great deal of work has been done to enable terrorist prisoners to be assessed because it is known that, to date, the evidential analysis of such prisoners has proved fragile. It has been extremely difficult to assess the threat that they may present on release. Where has most of the work been done in relation to making judgments about such prisoners? I emphasise that we are talking about judgments. It has been done by the Parole Board and it is about its potential role that I am mainly speaking.

The Parole Board in its ordinary duties deals at present with people who have been sentenced for terrorist offences and, indeed, with prisoners who have become radicalised in prison, though not sentenced for terrorist offences. To deal with that, the Parole Board embarked on an extensive and detailed training programme so that its members—chairs and lay members—could fulfil empirically their existing role with that cohort of prisoners. The board is recognised as offering a fair procedure that is legal and justiciable in a way that is familiar to prisoners and their legal advisers, and is understandable to commentators and us parliamentarians.

I have met the argument that it would be a mistake to extend the role of the Parole Board beyond its present functions. However, given what I have said about the training that it has given to its members in relation to terrorism offences, and looking at what the board does in a more rounded way, I suggest that it is entirely fitted to have its range of responsibilities broadened to deal with wider issues. They could properly include a possible extension of sentences within appropriate statutory limits. Those decisions may not be made by the Parole Board if the Government or others do not find that acceptable, although, in my view, the board is well suited to making such decisions about the possible extension of sentences. For example, it could refer certain cases to the Court of Appeal Criminal Division or the Senior Presiding Judge for England and Wales, so that if a sentence was to be extended beyond its temporal determination, that could be done by a senior judge or judges.

Given the very serious risk posed by a small percentage of terrorist prisoners, there is a danger that the majority who have been reformed may become the victims of the 3% or so who are unreformed. That should be avoided if at all possible, for I am sure that we would agree that what may seem like a failure to recognise that a prisoner truly is reformed and remorseful may create the very opposite effect and leave them to become reradicalised.

The aim of my amendment is to attempt to persuade Her Majesty’s Government to change the architecture of the process of extended sentences in relation to terrorism offences. I accept that the amendment does not complete the task, which is why I will not press it to a Division. However, I hope that it will be possible to discuss this matter further with Ministers before we reach the end of the procedures of the Bill.

I suggest that the changed architecture, as I have called it, should allow, first, the sentencing judge to inform and warn a defendant at the time of sentence—no ifs, no buts—that at the time when otherwise they may or should be released, they will be subject to assessment by the Parole Board and that that assessment will be based on whether they represent a serious and continuing risk to the public. It should be clearly said by the judge at the time of sentencing in accordance with the discretion of judges, who as has been said earlier, not least by the noble Lord, Lord Parkinson of Whitley Bay, are used to dealing with sentencing scenarios.

Further, I suggest that the changed architecture should allow the following: if a prisoner presents a serious and continuing risk to the public, the ensuing procedure, founded on comprehensive evidence from both sides, as happens at Parole Board hearings, could result in the sentence being extended further, and possibly on more than one occasion. In my view, such an architecture would provide for a fair process that is clearly understood by a prisoner at the time he or she is sentenced. I suggest, therefore, that such a procedure would be fairer and certainly more capable of review before the courts, and safer for the small cohort of very dangerous prisoners envisaged by this Bill.

I also invite the Minister to confirm in his reply that the Parole Board has been consulted about any additional roles it might take, either along the lines that I have described or in the general context of this Bill. I would, as I have said, welcome further discussions with Ministers.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, it is a great privilege to follow the noble Lord, Lord Carlile of Berriew, particularly given his deep and long experience in counterterrorism and the legislation in this area, along with his wide experience of the workings of the Parole Board.

Clause 27 was the subject of considerable controversy in Committee because as it stands, it would remove the role of the Parole Board from the determination of whether, and at what stage, a terrorist offender should be released from custody. Without wishing to repeat the arguments that were canvassed in the debate on the clause at that stage, many of us felt then and continue to feel strongly that the Parole Board has had, and should continue to have, an important part to play in determining whether and at what stage even dangerous terrorist offenders should be released on licence.

The amendment of the noble Lord, Lord Carlile, refers to prisoners who are serving extended sentences and applies after they have completed their custodial term, thus changing the architecture of extended sentences, as he has put it. Such prisoners’ release would be contemplated only after the custodial term, at which stage their cases would be referred to the Parole Board for consideration, as they then would on every further anniversary of the completion of that custodial term.

As the noble Lord, Lord Carlile, has explained, before the board could direct release, it would have to be satisfied that two important conditions had been met: first, the prisoner did not represent a grave risk to the public, and secondly, it was no longer necessary for the protection of the public that the prisoner should be confined. We would have preferred that the amendment went further and applied more widely for the reasons that we expressed in Committee, but we regard the work of the Parole Board, whose members are specialists in the field, as extremely valuable. We are firmly of the view that a full hearing before the Parole Board is the best way to determine whether a prisoner should be released after a suitable minimum custodial term, having regard to the elimination of the threat that the prisoner posed to public safety and to such progress as might have been made in the prisoner’s deradicalisation, rehabilitation and reform.

I should emphasise that throughout our approach to this Bill, we have maintained the position that hope of rehabilitation should always be part of the process of punishment, even in severe terrorist cases, and that sentences which offer no hope are counterproductive. We recognise that all prisoners are likely to be released one day and that rehabilitation is more achievable in the context of a release on licence than it is in the context of continued incarceration. That is a position that was rightly taken and recognised by the experts who briefed a number of Peers at the Joint Extremism Unit drop-in session that was arranged for us by the Ministry of Justice. Those who attended found it to be interesting and informative, and we are all very grateful. For my part, however, I confess to remaining perplexed that the Government have decided to cut the role of the Parole Board in the way set out in Clause 27. This amendment would reduce the impact of that particular cutting axe, and I therefore support it.

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[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I understand that the intent of this amendment, tabled by the noble Lord, Lord Carlile of Berriew, is to do two things: first, to introduce a role for the Parole Board where, otherwise, the changes in the Bill would make its role superfluous; and, secondly and at the same time, not to reintroduce eligibility for early discretionary release for this cohort.

I will begin by outlining briefly the effect of the amendment in a little more detail. It would replace Clause 27, which restricts early release for offenders convicted of a serious terrorism offence—that is, those listed in Schedule 2 to the Bill—who receive an extended determinate sentence, or EDS, or a new serious terrorism sentence so that they instead serve the full custodial term of their sentence. In its place, the amendment would insert a provision that would change the release provision for all terrorist offenders sentenced to an EDS. Further, and while I understand that this may not be the noble Lord’s intent, this amendment would also apply to those currently serving an EDS for a terrorist offence.

The replacement release provision in the noble Lord’s amendment would continue to restrict early release, but there is an important difference. At the end of the custodial term, the scheme set out in the amendment would instead refer the offender to the Parole Board. The Parole Board would then determine whether the offender represents a grave risk to the public and whether it is necessary for the protection of the public that the offender continues to be imprisoned. Under the scheme in the amendment, this consideration would continue annually until release was granted, or to the end of the extended licence period, when the offender would then be released, unconditionally, into the community. The effect would therefore be that, if release were not granted until the end of the extended licence period, there would be a cliff edge and the offender would at that point be released unconditionally into the community. There would be no period of supervision and reintegration. For the reasons set out by the noble Lord, Lord Marks of Henley-on-Thames, that is a matter of concern.

I have carefully considered the proposed changes, especially as they arise from an amendment from the noble Lord, Lord Carlile. I hope I may be permitted to say that contributions from him on this subject always merit the most careful consideration, and I can assure both him and the House that I have done so in this case. None the less, having undertaken that careful consideration, I must set out the Government’s view that the changes to the release provisions for the EDS, as set out in the amendment, would be contrary to safeguards set out in the European Convention on Human Rights and its case law governing sentencing and release. That case law is usefully summarised in a recent decision of the Supreme Court of this country in Brown v Parole Board for Scotland—we seem to be referring to Scottish cases everywhere today. It is reported at [2017] UKSC 69, in particular the discussions between paragraphs 49 and 55. While every decision of the Supreme Court is obviously a decision of a strong court, that court, for which the noble and learned Lord, Lord Reed, spoke, contained three former and current Presidents of the Supreme Court.

The reason the proposal would be contrary to the case law is that the EDS comprises two distinct parts. The first is a punitive component—namely, the custodial term—imposed for the length a judge considers commensurate with the seriousness of the offending. The second is a separate preventive element—namely, the extended licence—imposed to protect the public from the danger posed by other, future, yet to be determined serious offending. To that extent, we agree with the noble Lord, Lord Carlile, who was right to draw attention to the question of serious risk to the public. That is what the second part of the EDS does.

If the Government were to detain EDS prisoners into their extended licence period for reasons related to their initial offending, that detention would be contrary to the nature and intended purpose of the community supervision component of the sentence, and contrary to the court’s order imposing the EDS. As the noble and learned Lord, Lord Reed, for the Supreme Court, put it in the Brown case,

“the purpose of detention during the extension period is materially different from that of a determinate sentence.”

The noble Lord, Lord Carlile, acknowledged that this amendment would require further development, either in the form of a new sentence or by further alteration to the existing EDS regime. I am grateful for that acceptance. However, I must state that the Government would not support such a proposal, because there is no need for such a new sentence. The EDS and the new serious terrorism sentence are deliberately structured to do two things: to provide punishment and, separately, to aid public protection and reintegration through the licence period. We have no desire to change this overall approach or, to use the metaphor of the noble Lord, Lord Carlile, to change the architecture.

For those who are not dangerous, the sentence for offenders of particular concern sufficiently caters for release with a role for the Parole Board and yet without the risk of an unsupervised cliff edge, which the amendment would introduce. I understand, as the noble Lord, Lord Carlile, noted, that the amendment is born of a desire to introduce a role for the Parole Board. But there is no role for the Parole Board here because it is not necessary. There is no early release and no parole so, accordingly, there is no role for the Parole Board. That is, therefore, my answer to the question put to me by the noble Lord, Lord Marks, who asked why there is no role for the Parole Board. It is for the reasons I have just given. While I suspect that my answer may not leave him persuaded, I hope it means that he is no longer perplexed.

The noble Lord, Lord Ponsonby, asked me whether we are saying that the alternative can do a better job than the Parole Board. I accept that, as the premise behind that question would admit, some Peers consider the Parole Board the only qualified body to deal with the specialised nature of setting licence conditions for terrorist offenders. But in answer to the noble Lord, Lord Ponsonby, I must respectfully reject that approach. The reason the Parole Board is responsible for setting licence conditions when it directs the prisoner’s release is that that is part and parcel of the Parole Board’s decision that the offender can be safely released and managed in the community. The Parole Board decides that the offender can be released and, as part of that, decides the licence conditions that will govern such release.

However, with an EDS for a serious terrorism offence and the serious terrorism sentence, there is no provision for early release before the end of the custodial period. The corollary of that proposition is that release at the end of the custodial period is automatic. Where release is automatic, there is no reason why the Parole Board specifically should consider licence conditions.

Furthermore, offenders will be subject to management under MAPPA—Multi Agency Public Protection Arrangements—through which the police and the probation and prison services work with other agencies to manage the risks posed by offenders living in the community in order to protect the public. In cases under the Terrorism Act 2000—TACT—and TACT-connected cases, that involves the probation service, the releasing prison, counterterrorism police, security services, the Joint Extremism Unit of HMPPS, and social services.

With the creation of the national security division of the National Probation Service, we will see even greater specialism in making such recommendations. That ensures that professionals with a detailed knowledge of the offender are involved in identifying the licence conditions which are necessary and appropriate. The key point is that that happens regardless of whether the final decision-maker on setting the licence is the Parole Board or HMPPS—the governor. While ultimately the board or the governor makes the decision, that decision is always directly informed by those with intelligence of and expertise in managing the offender. I therefore assure the noble Lord, Lord Carlile, that the process is no less rigorous and the outcomes are no different.

The noble Lord, Lord Carlile, asked a specific question about our discussions with the Parole Board. We have shared the Bill with the Parole Board and discussed its implications with it, but there has not been a formal consultation, if that is what the noble Lord was driving at in his question.

For those reasons, which I hope I have explained clearly and fairly, I remain of the view that there is no role for the Parole Board where there is no consideration of early release. That point, combined with the issues I have explained around the legality of this amendment from an ECHR standpoint, leads me to consider this amendment unnecessary. I therefore respectfully urge the noble Lord, Lord Carlile, to withdraw it. Of course, I am happy to continue our conversations with him about this matter, as I am sure we will continue to benefit from an exchange of views about other matters in the Bill also.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I am grateful to all who have spoken in this debate, to the noble Lords, Lord Marks and Lord Ponsonby, for their broad support for what I have suggested, and to the noble Lord, Lord Wolfson of Tredegar, for his detailed response.

When I was at school, I had a teacher who taught us about different forms of argument, one of which is entitled “argumentum ad maiorem”—argument using a greater authority. In those days, I suppose it was something like “Because Sir Winston Churchill said something, it must be right.” The Minister’s argumentum ad maiorem was about the case of Brown v the Parole Board for Scotland, which, it will not surprise your Lordships to know, I have read.

I do not propose to embark on and bore your Lordships with a legal moot about that case. I say simply that I respectfully do not agree with the noble Lord, Lord Wolfson, despite his eminence as a lawyer, about the effect of that case on my proposal. I believe that my proposal, because of the change of the architecture that I suggested, including the fact that the sentencing judge would clearly refer to the potential extension provisions at the time of sentence, would come within the judgment of Brown v the Parole Board for Scotland.

Counter-Terrorism and Sentencing Bill

Lord Carlile of Berriew Excerpts

3rd reading
Thursday 11th March 2021 Lords Chamber

[Lord Carlile of Berriew (CB) [V]]

My Lords, I echo the verbal applause given so eloquently by the noble and learned Lord, Lord Falconer of Thoroton, for the contribution and consultation given by Ministers. I have one regret about the Bill, which is that the potential role of the Parole Board is not recognised properly in it. However, with some confidence I express the hope that, outside the time pressures to complete the Bill in this Session of Parliament, Her Majesty’s Government will talk to the Parole Board at the most senior levels to ensure that best use is made of the board’s skills and of its long and successful rollout of relevant training on terrorism matters to its members. The Government should not forget that the Parole Board holds a high degree of accountability in public confidence.

I support the proportionate use of polygraphs, and I am heartened to hear that the Liberal Democrats have become converted to that use. I support it as one, but only one, of a larger set of psychological and neurological tools in assessing the risks presented by terrorist prisoners if they are released. I support the extension of TPIMs to the standard formerly available through control orders. When I was Independent Reviewer of Terrorism Legislation, I repeatedly opposed the dilution of those orders in 2010-11 by the coalition Government, and I only regret the passage of 10 years to reach today’s position. I recognise with acclaim the work of my noble friend Lord Anderson of Ipswich on raising the length and standard of proof of TPIMs to a sound and realistic level. What I believe is the now achieved compromise, the limit of five years, is acceptable, but as long as prosecution always remains the preferred option.

I could but will not say much more, other than recognising that your Lordships’ House has left a better Bill than we started with. Of course, in the years to come, we shall scrutinise the operability of the Act and not hesitate to suggest further changes.