Terrorist Offenders (Restriction of Early Release) Bill — House of Lords, 2020-02-24
Topic: Law and Crime
Charles Falconer (Labour, Centre-left): My Lords, I support this Bill, save in one significant respect: increasing the point at which existing prisoners will be considered for release, from half to two-thirds of their determinate sentence. I agree with noble Lords who have said that we need a breathing space, but we can achieve that simply by introducing the Parole Board and asking it to consider existing prisoners’ release at half-time The Bill does three things. It provides a new sentencing regime for future terrorists—I have no objection to that—and does two things in relation to existing prisoners: it increases their release date from half-time to two-thirds and prevents release being automatic, and brings in the Parole Board at two-thirds. I have no objection to bringing in the board in relation to existing prisoners, as that will allow the state to consider whether or not that prisoner is safe to be released. If we as a state need a breathing period in respect of that prisoner, bringing in the Parole Board to make a decision deals with that What is objectionable as a matter of principle is increasing the length of sentence retrospectively. It is a terrible agony for me to disagree with the noble and learned Lord, Lord Judge, but he did not state in a way that I found compelling the position regarding how long existing prisoners are in prison for. Where there is a determinate sentence for this cohort of terrorists, they are automatically released at half-time without the intervention of the Parole Board. It is not a matter of discretion but of duty for the Secretary of State to release them. If the Secretary of State did not do so, there could be litigation and she would be compelled to do so If that period is increased from half-time to two-thirds, the sentence is increased retrospectively. What is so objectionable about retrospectively increasing a sentence is that it is not the courts that then decide how long the person is in prison for, it is the Executive or the legislature deciding, frequently pursuant to public pressure. That really undermines the rule of law Should we allow that? Article 7.1 does not allow it at all under the Human Rights Act; there is no entitlement to derogate from that principle, because that is the way despots behave. The common law is more flexible; it will allow derogation from the principle of retrospectivity by saying, as we are doing, "All your sentences are increased from half to two-thirds." Whatever sophistry is put forward, that is what is happening. The justification is given, and the noble Baroness, Lady Neville-Jones, put it well, that we need a breathing space. But you get your breathing space if you bring in the Parole Board to look at half-time and determine whether you can release that person, and do so only if it is safe to do so If and to the extent that one needs to take a proportionate step to protect the public—everybody who has debated this so far, including me, agrees that a proportionate step needs to be taken—that step is to let the Parole Board say, "Is this person safe to release?" If he or she is not, they are not released at half-time and you have the breathing space. I can see no justification whatever, whether it be under common law or the human rights convention, Article 7.1, for saying, "Up it from a half to two-thirds." It is worth pointing out that the person who committed the atrocities in Streatham would have been released four months later if his custody had been increased from a half to two-thirds. He would not have been released at all until the end of his sentence if the Parole Board had been brought in, so you solve the problem by bringing in the Parole Board I am very happy to say that the noble Lord, Lord Anderson of Ipswich, has tabled an amendment that accepts the proposition that the Parole Board should be brought in at half-time in relation to existing prisoners, but puts to one side the increase from a half to two-thirds. That is the right course for the legislature to take to deal with the problem of the risk and to deal with the need to give a breathing space. That would not infringe the principle that we have always accepted. We should not as a legislature say to a group of people—whether justified or not, because it will not be justified to keep some of those people in beyond half their sentence—that we the legislature, not the courts, are deciding what your sentence is.