National Security Bill

Debate between Lord Marks of Henley-on-Thames and Lord Anderson of Ipswich

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I have very little to add to the powerful speeches the Committee has already heard, but, as a supplement to what the noble Lord, Lord Pannick, has just said, I will remind the Minister of two other facts.

First, terrorist offences are by no means all at the top end of seriousness. Schedule A1 to the Sentencing Code includes offences such as

“inviting … support for a proscribed organisation”

which may no longer be concerned with violence, as a number are not, and

“failure to disclose professional belief or suspicion about”

the commission of terrorist offences by others. Those are offences on which the clauses bite.

Secondly, even for those offences which are serious enough to merit a period of imprisonment, recidivism rates for released prisoners are—I think in most developed countries, and certainly in this one—very much lower than the recidivism rates for ordinary crime. Professor Andrew Silke calculated in 2020 that the recidivism rate was around 3% for those who had committed terrorist offences and been released between 2013 and 2019.

I hope that the question the Minister will address is why that particular category of offence merits the removal of a right enjoyed by everybody else, including people convicted of murder, rape and the other most serious crimes that our law knows.

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

My Lords, there is one simple principle that everybody has referred to in the debate: access to justice. I will be brief.

If the principle still stands that cases that are still in scope of legal aid with sufficient merit ought not to be restricted by lack of means to bring them—that principle underlies the availability of legal aid—it should not be undermined by the removal of legal aid from cases that have merit and ought to be brought. What is particularly invidious about these clauses is that the restrictions on the grant of legal aid apply to all cases that might be brought by an individual to whom the clauses apply. As has been pointed out, that is entirely irrespective of whether the cases have any connection with any past terrorist activity or whether they are good or bad, and irrespective of who might be affected by them; for example, members of an individual’s family might lose their rights in a housing case brought against a defaulting landlord where housing conditions were making that tenant’s children ill. These are blanket restrictions that are entirely inappropriate.

As the Committee will know, eligibility for legal aid is governed by a merits test in every case. If a case does not stand a reasonable chance of success, legal aid is not available. There is a financial eligibility test, which means that legal aid will be available only if an applicant is unable to fund litigation. These provisions are positively designed to deprive of legal aid a claimant who might otherwise secure it. A claimant who, by definition, has a good case, would otherwise be eligible on the basis of the merits test, and who cannot afford a lawyer would be deprived, under these provisions, of any legal representation before the courts, even though, as the noble Lord, Lord Pannick, said, the claimant’s case may be utterly irrelevant to any present or past wrongdoing and vice versa. As the noble Lord, Lord Anderson, pointed out, the gravity of the terrorist offence relied on may be low. That is a denial of access to justice which we simply should not countenance, and I suggest that the Minister should not countenance it either. It is, quite simply, wrong.

National Security Bill

Debate between Lord Marks of Henley-on-Thames and Lord Anderson of Ipswich

Committee stage
Monday 19th December 2022 Lords Chamber

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

My Lords, our Amendment 6 would omit Clause 1(2)(b). Your Lordships will know by now that Clause 1(2)(a) deals with protected information as being when

“access to the information, document or other article is restricted in any way”,

as my noble friend Lady Ludford has explained. However, Clause 1(2)(b) goes on to say that

“it is reasonable to expect that access to the information, document or other article would be restricted in any way”—

that way being entirely unspecified.

It is our position that the inclusion of Clause 1(2)(b) takes the clause far too wide. There is no answer to who would be doing the restricting, or what the determinant would be of when and how it would be reasonable to expect restriction. It might be completely reasonable to expect a mad authoritarian Government to restrict the most innocuous but possibly controversial informational document for the purpose of saving public or national embarrassment. Yet that would not make the entirely unjustified restriction on the information or document any less unreasonable; nor would it make the removal of the document from the public domain more justifiable.

This is a misplaced provision, and it should go. We agree with my noble friend Lady Ludford on the JCHR’s Amendment 4, that the restriction of prohibited information ought to be limited to “secret” and “top secret” categories as a matter of definition.

[Lord Anderson of Ipswich (CB)]

My Lords, I apologise for not being present at Second Reading. I cannot even claim, like the noble Lord, Lord Purvis of Tweed, that I was broadcasting the benefits of line-by-line scrutiny to a foreign power. I was performing a long-arranged judicial function in the Channel Islands.

I am well disposed in principle to Clause 1, and I entirely understand why the concept of protected information is not limited to “secret” or “top secret”, as the JCHR recommended. However, in the interests of obtaining a little more clarity, perhaps I might press the Minister on this point. Paragraph 63 of the Explanatory Notes states:

“Protected information includes, but is not limited to, classified material.”


Three examples are given. One is about information on the identity of police officers working with security and intelligence services. One is about information on intelligence officers operating in a foreign state. I suspect that they do not get much more classified than that. One is classified information on a defence system.

Bearing in mind that those examples appear to relate to classified information, I would be grateful if the Minister could explain, first, what circumstances he can envisage in which it should be an offence to obtain or disclose information that is not classified, or that could not reasonably be expected to be classified, applying Clause 1(2)(b). Secondly, how is one supposed to know that non-classified information is protected, given that the only controlling factor, other than the purpose of protecting the safety or interests of the United Kingdom—which, as the Committee has just heard, is very broadly framed—is that access should be restricted in some way? On one view, “restricted” could apply to anything, however innocent, that is not actually published. I assume that such a broad meaning is not intended, but could the Minister give us more of a clue as to where the line is drawn?

Terrorist Offenders (Restriction of Early Release) Bill

Debate between Lord Marks of Henley-on-Thames and Lord Anderson of Ipswich

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 Lords Chamber

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

My Lords, my Amendments 3 and 5 seek a review of the working of this legislation one year after the Bill comes into force. Amendment 3 is concerned with Clauses 1 and 2, relating to England and Wales, while Amendment 5 is concerned with Clauses 3 and 4, relating to Scotland.

I suggest it is always sensible to review the working of legislation after it has come into force. That usually occurs in the case of non-urgent legislation after a period of years. However, review is even more important and urgent in the case of emergency legislation. This Bill cries out for a specific review of how its provisions are working, precisely because it is being put through Parliament as emergency legislation. We have had no time for consultation or proper scrutiny—one day in the other place and one day here. The result has been that a number of questions that have arisen today have been inadequately considered, so that the Government have no answers to them. That is not a criticism of the noble and learned Lord, nor of the Government in general. It is the inevitable consequence of the haste with which we are passing this Bill.

We have heard today from noble Lords around the House about the risks posed by the lack of measures to improve deradicalisation and rehabilitation in prisons, and of the risks of radicalisation in prison of non-terrorists. We have also heard of the dangers of legislation that in practice, even if not in law—as to which there has been much argument—has retrospective effect. I agree with the noble Lord, Lord Pannick—which I have not always done today—in his point that this Bill involves keeping in custody terrorist prisoners who have served half their sentences and who would have been released had they had a safety assessment by the Parole Board at that point.

I have discerned no indication from the Government that the point made by the noble Lord, Lord Pannick, has been considered by them. The noble Lord made his point in the context of serving prisoners, whose time in custody is to be increased by the enactment of this legislation. However, this is presented, rightly, as a public safety Bill, and the point might also be relevant in relation to some terrorist offenders, not yet sentenced and probably at the lower end of the scale, who would plainly have a better chance of rehabilitation if released following the halfway point on a favourable Parole Board safety assessment.

Then there was the argument put forward by the noble Baroness, Lady Meacher, that a breathing space could be secured by interposing a Parole Board safety assessment, when it can be prepared, but before a release following the halfway point and such an assessment, and before the two-thirds point. That, again, was an argument that the Government could not meet.

Those are all concerns that cry out for review because the emergency treatment of this Bill has cut its consideration to the bone; yet, far from accepting the need for an urgent review, the Government’s position is unclear, inconsistent and, bluntly, all over the place. At paragraph 58 of their impact assessment the Government wrote:

“In the normal way, the … Bill will be subject to a post-legislative review to determine whether this legislation is working in practice as intended. This will take place between three and five years following Royal Assent.”


Therefore, there will be a review but very late. In contradiction to that position, in the Explanatory Notes, the Government say the following at paragraph 16, in question-and-answer form, on issues raised by fast-track legislation. The question is:

“Are mechanisms for effective post-legislative scrutiny and review in place? If not, why does the Government judge that their inclusion is not appropriate?”


The Government’s answer is:

“No post-legislative scrutiny is planned. However, the Government intends to introduce a Counter-Terrorism (Sentencing and Release) Bill later in this Session.”


However, we do not know what will be in that Bill, and it does not seem to answer the need for a specific review of the working of this Bill.

Today I have been told by the Government that they are not prepared to agree to a review because the independent reviewer is already engaged upon his review of the Multi Agency Public Protection Arrangements —the so-called MAPPA—and the release and supervision arrangements will inevitably be included in that. Also, it is to be expected—and the independent reviewer, Jonathan Hall QC, has confirmed—that he will scrutinise this legislation in his regular annual review. I am sure that that is so, and it is indeed very welcome, but neither of the independent reviewer’s reviews will be specifically directed to the efficacy or merit of the provisions of this legislation. They cannot therefore take the place of proper parliamentary scrutiny, which we have been denied. It is an inappropriate treatment of Parliament to attempt to piggyback post-legislative scrutiny of this Bill on reviews conducted for a separate and different purpose, however good those reviews might be expected to be.

Our amendments would require the Government to commission a review by an independent professional, whose appointment would be made in consultation with the Independent Reviewer of Terrorism Legislation. No one has seriously challenged the mechanism of our proposed review. I beg to move.

[Lord Anderson of Ipswich]

My Lords, I want to pick up on the point just made by the noble Lord, Lord Marks, about the independent reviewer. As a former independent reviewer myself, I am temperamentally rather inclined to the merits of independent review. However, in his note of 19 February on this Bill, Jonathan Hall said:

“I consider that the effect of sentences passed under the Terrorism Acts falls within my remit as Independent Reviewer of Terrorism Legislation, and therefore I would propose to report on the impact of these changes (and of the changes likely to be made by the more sizeable Counter-Terrorism Sentencing Bill later in the year) in one of my forthcoming annual reports, most likely my report on the Terrorism Acts in 2020.”


Perhaps I may ask the Minister, when he responds, to confirm whether it is his impression, as it is mine, that reviews of that nature fall within the existing remit of the independent reviewer. Perhaps I may also ask the noble Lord, Lord Marks, to comment on whether, in the light of that fact, his amendment will really add anything at all.

Counter-Terrorism and Border Security Bill

Debate between Lord Marks of Henley-on-Thames and Lord Anderson of Ipswich

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

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

My Lords, this group also includes the question as to whether Clause 7 should stand part of the Bill. I speak in favour of the proposition that it should not and in support of my noble friend Lady Hamwee’s amendment, to which she has just spoken.

At Second Reading I mentioned the dangers of sentence inflation. It is not just many of us in this House who, in the course of numerous debates on prisons, have talked about the dangers of overcrowding and the fact that it is caused to a very large extent by sentence inflation, both statutory and as demanded by public opinion and the press. Senior judges, including the Lord Chief Justice, the organisation Justice, the Howard League and many others have spoken about the dangers of a prison system in crisis—overcrowded, understaffed, violent beyond anything we have ever known before, with little opportunity for education and training or reform, and very little success in reforming offenders.

I echo the point made by my noble friend that there is absolutely no evidence of a deterrent effect of longer sentences when long sentences are already passed. That is as true of terrorism as other areas. However, there is plenty of evidence of the effect of prison sentences and the experience of being in prison for terrorist offences in radicalising other prisoners. A collection of studies edited by Andrew Silke, published in 2014 under the title Prisons, Terrorism and Extremism: Critical Issues in Management, Radicalisation and Reform, contains considerable evidence on the risks of imprisonment in this area. The danger, without wishing to overdramatise it, is that our prisons become academies of terrorism.

The problem has been recognised by the Government. They have introduced two so-called separation centres, the first at Frankland, the second at HMP Full Sutton. A third is opening shortly. But there is limited evidence that these centres will do anything but encourage subversive prisoners to draw strength from each other in furthering terrorism elsewhere. The number of inmates involved in the separation centres will be very small; I understand that a figure of 28 is intended. There are very large numbers of those convicted of terrorist offences in prison and a very large population of prisoners who are liable to be converted to terrorism when they might not have those tendencies so far.

The Parole Board has raised particular concern about radicalisation in prisons. I quote the report of the House of Commons Justice Committee of 21 February this year:

“The Board also raises concerns about radicalisation in prisons, a problem that it suggests will remain regardless of whether the Government decides to segregate prisoners or continues to spread them around the prison estate. In the Board’s assessment, there are concerns that increasing the penalties for less serious offenders will result in them becoming more likely to commit terrorist acts when they are released. The Board goes on to observe:


‘Most of the rest of Europe is devising interventions in the community to deradicalise less serious offenders. These programmes are more likely to be successful in the community than in prison where the influence of extremist inmates is likely to be stronger’”.


Before this legislation is introduced one would expect some evidence from the Government to support the case for longer sentences; certainly before the legislation is passed we should look for that evidence. But there is none produced by the Government. Page 14 of the Explanatory Notes merely sets out the new sentences proposed, without a word of justification. I remind your Lordships what they are. For failure to disclose information about acts of terrorism, the maximum sentence would double from five years to 10; for collection of information of a kind likely to be useful to a person committing or preparing an act of terrorism, the increase would be from 10 years to 15; for eliciting, publishing or communicating information about members of the Armed Forces of a kind likely to be useful to a person committing or preparing an act of terrorism, there would be an increase from 10 years to 15; for encouragement of terrorism, an increase from seven years to 15, and for dissemination of terrorist publications, an increase from seven years to 15. The last two represent a more-than-doubling of the existing maximum sentences. As my noble friend Lady Hamwee pointed out, the Joint Committee on Human Rights said simply that,

“the increase in sentences does not appear to be supported by evidence to suggest why it is justified or proportionate. We recommend that the Home Office provide further evidence (if they have such evidence) as to why they consider the current maximum sentences to be insufficient and how this increase is necessary and proportionate”.

We have not had it.

However, there is evidence on this subject which tends the other way. The Sentencing Council produced a definitive guideline in April this year. It considered all these sentences. Perhaps I may take as an example the offence of the encouragement of terrorism. It looked at levels of culpability, which they rated A to C; for instance, if a person was in a position of trust and had intention to provide assistance to terrorism, that would be the highest rating. It rated harm factors from one to three, so that a category 1 example was where others had either acted on or been assisted by the encouragement to carry out activities endangering life, while the lowest, category 3, example was a statement or publication with non-specific content encouraging support for terrorism activity not endangering life. So the range went from a category 3, culpability C, level of sentencing proposed—of a high-level community order to two years’ imprisonment—to, at the top, a category 1, culpability A, sentence range of four to six years, which is well below the maximum allowable at the moment and does not justify any increase. The council listed in detail aggravating factors—it is clear that such factors are always to be taken into account, whether or not they are listed in the statute—as well as mitigating factors.

The definitive guideline followed a statutory consultation under the Coroners and Justice Act 2009 and was considered by the Justice Committee, which produced in February this year the report from which I earlier quoted. There was no suggestion by the Justice Committee of any increase in the level of sentences for the offences with which this clause is concerned. Only at the top of the statutory limits proposed was there even a suggestion that consideration be given to any increase. It stated that the Sentencing Council might consider an approach where the recommended range was up to nine years when the statutory maximum was 10, but of the offences with which this clause is concerned, only failure to disclose information had a guideline range that went up to the five-year limit.

All that information was carefully considered by the Sentencing Council. It issued its definitive guideline in April and nothing has changed. There was no justification for increases in the ranges. The attacks with which we were concerned in considering the introduction of this legislation all happened before the sentencing guidelines were produced. We would be interested to hear any evidence from the Government to support these radically increased sentences in terms of better outcomes, deterrence, reform or the safety of the public. Without such evidence, we cannot support this clause.

[Lord Anderson of Ipswich]

My Lords, Ministers will know that the equivalent sentences in other European countries for the type of offences that we are talking about tend to be much lower than they are here. Perhaps that is no bad thing.

In light of these issues and the proposed very substantial increases to which the noble Lord has referred, will the Minister say what steps will be taken to address—or at any rate, given the sensitivities, to research—the disparities that have been observed by informed observers between sentencing levels for terrorism offences in England and those in Northern Ireland, where sentences imposed appear to be a great deal lower for conduct that on the face of it looks quite similar?