Terrorist Offenders (Restriction of Early Release) Bill — House of Lords, 2020-02-24
Topic: Law and Crime
David Pannick (Crossbench, Unknown): My Lords, I agree with the Government that the changes to the early release provisions which will be introduced by this Bill are not a retrospective increase in the offender’s penalty, in breach of their rights under the European Convention on Human Rights. It is well-established that the penalty imposed on the offender is the term of years which he or she receives when sentenced by the judge: four years, for example. An alteration in the early release provisions within that four years does not affect the penalty, and so such a change may be imposed on serving prisoners. A long line of cases, both in this jurisdiction and in the European Court of Human Rights, establishes that proposition—most recently, as I suggested to the noble Lord, Lord Marks, the decision of the European court on 12 November 2019 in the case of Abedin v the United Kingdom. The noble Lord, Lord Marks, then argued that there is a common law principle against retrospectivity. Well, there is certainly a presumption against retrospectivity, but it is not an absolute rule The question in every case is whether there is a justification for acting in a retrospective manner. It seems to me that, in this context, there is such a justification. Offenders are about to be released early without a Parole Board assessment of whether that is safe. No doubt the Government should have acted more speedily to address this problem, as the noble Lord, Lord Harris of Haringey, and others have suggested, but any fault does not alter the situation in which we now find ourselves. My noble friend Lord Carlile is no doubt correct that further measures are needed to disengage terrorist offenders from their perverted ideology, but again that does not remove the urgent need to disapply the right to automatic early release of those who pose a real danger to the community I agree with the Government on all of that, but I have two concerns about the Bill. The first is why it does not provide for a Parole Board assessment by the time these offenders have served half their sentence—a point made by the noble and learned Lord, Lord Falconer of Thoroton, and my noble friend Lord Anderson of Ipswich. As noble Lords have heard, the Bill confers a right to a Parole Board assessment only after two-thirds of the sentence has been served. Since these offenders were previously entitled to release after half their sentence, the proportionate step to take to meet the mischief that there is currently no safety valve of a Parole Board assessment may be to provide for a Parole Board review after half the sentence has been served. That would mean that only those assessed as safe to be released early would be so released. Indeed, the effect of the Bill will be to keep in prison those who have served half their sentence, who would be assessed by the Parole Board as safe to be released. It is unfortunate that the Minister did not address this issue at all in his opening remarks, despite the fact that there is an amendment down. I very much hope that he will enlighten the House on this matter in his closing remarks My second concern is that the Government have not followed the recommendations in the 2009 report of your Lordships’ Constitution Committee on fast-track legislation, a matter which, again, the Minister did not address in his opening remarks. I was a member of that committee in 2009 and, like the noble Lord, Lord Beith, I remain a member. The 2009 report recommended that when fast-track legislation is enacted, there should be a presumption of a sunset clause as a safeguard, because the normal process of parliamentary scrutiny would not have occurred. It seems all the more important that the Constitution Committee recommendation should be applied in this Bill. As your Lordships know, relevant parliamentary committees that would normally scrutinise this Bill have not yet been appointed; I refer to the Joint Committee on Human Rights, the Justice Committee, the Home Affairs Committee and the Intelligence and Security Committee. None of these has been appointed yet—I find that extraordinary—and, therefore, they have not been able to scrutinise this Bill We are told that the Government plan to introduce a counterterrorism Bill later in this Session, dealing with sentencing and release, but we all know that such plans do not always come to fruition. Indeed, the noble and learned Lord had that experience in relation to the online courts Bill; we are still waiting for it to come back. Bills that are anticipated do not come forward for a variety of reasons. It seems therefore very unfortunate that we are being asked to enact, on a fast-track basis, a Bill that does not contain a sunset clause. I hope that the Minister, in closing the debate, will address that matter.