Meeting of the Parliament

Meeting date: Thursday, February 20, 2020

Official Report 1246KB pdf

Terrorist Offenders (Restriction of Early Release) Bill

The next item of business is consideration of a legislative consent motion. I ask Humza Yousaf to move motion S5M-20921, on the Terrorist Offenders (Restriction of Early Release) Bill.

Motion moved,

That the Parliament agrees that the relevant provisions of the Terrorist Offenders (Restriction of Early Release) Bill, introduced in the House of Commons on 11 February 2020, relating to Scottish Ministers’ power to refer prisoners to the Parole Board, Scottish Ministers’ power to release prisoners when recommended to do so by the Parole Board and disapplication of certain powers held by Scottish Ministers in respect of the early release of prisoners, so far as these matters alter the executive competence of Scottish Ministers, should be considered by the UK Parliament.—[Humza Yousaf]

Earlier this week, the Justice Committee was invited to consider this legislative consent motion. If it is passed, the Scottish ministers’ executive competences will be altered. It will disapply their existing powers of early release of relevant prisoners and it will alter their executive competence by making transitional provision relating to the operation of supervised release orders.

Committees play a vital role in scrutinising legislation in this Parliament. The proposal was set out in the Justice Committee clerk’s note on three sides of A4. It said:

“The Bill is currently subject to an expedited timetable.”

I think it entirely fair to record that the Scottish Government indicated its reservations about the pace at which the proposal is being dealt with—there was just over a week between its announcement and its introduction. The UK Government has not consulted on the bill. There is no financial impact assessment, there is no equalities impact assessment, there is no human rights impact assessment and there is no community impact assessment.

Public safety is paramount. Although we should never be complacent, I think that there is satisfaction with the systems that exist in Scotland for dealing with such offenders. The cabinet secretary told us that there are five of them.

What problem is the UK Government seeking to address? Is it the sentencing policy in England and Wales? Is it prisoner rehabilitation in England and Wales? Is it the risk assessment associated with prisoner release in England and Wales? Is it the role of the Parole Board for England and Wales? If it is, the UK Government should review and change those processes. If we legislate in haste, we repent at leisure.

I absolutely accept that policy matters to do with terrorism are reserved to the UK Government. Thus far at least, sentencing and penal policy have not been.

I believe that this legislative consent motion creates a dangerous precedent in both the speed of the proposed change and the overt intrusion into our legal system. We need to make evidenced decisions, and MSPs normally spend several months considering proposals, not 20-odd minutes. We did not hear from practitioners and did not hear anything on how the profile of prisoners in Scotland differs from that elsewhere. As I said, I certainly gained the impression that the Scottish Government was not actively promoting the LCM.

The Scottish Government asserts that the

“law will not be workable if relevant changes that affect executive competence of the Scottish Ministers are not made.”

Differences exist at the moment between the legal systems in the application of sentencing and release. Has there been a problem with that? If approved, the proposed change will mean different treatment within our legal system, and that may yet be a problem. We make laws because there is an evidence base, but no such evidence has been forthcoming in this case. The whole approach to the LCM devalues our Parliament and our legal system, and it should be voted down.

Members might be interested to know that Jonathan Hall QC, who was appointed in May 2019 by the Home Secretary as independent reviewer of terrorism legislation, has said that these proposals could backfire and are counterproductive, and that the House of Lords should consider striking them out. I would encourage members to heed Mr Hall’s wise counsel and oppose this legislative consent motion.

I can understand why John Finnie has decided to oppose this legislative consent motion. When I debated the LCM with Mr Finnie at the Justice Committee earlier this week, I made clear that I had deep reservations about the speed with which the UK Government bill is being rushed through Westminster. I also made clear that I had deep reservations about the UK Government’s policy intent of simply locking up terrorist offenders for longer without clear accompanying steps to effectively deradicalise them.

On that latter point, I was very clear that there is substantial evidence that suggests that one of the most challenging places in which to deradicalise individuals is a custodial environment. I am under no illusion that the UK Government might well be guilty with this legislation of simply kicking the can down the road. It is not just me who thinks that but also, for example, David Merritt, the father of Jack Merritt, who tragically lost his life in the London Bridge attack late last year. It is worth reflecting on what David Merritt said:

“Longer sentences by themselves just = kicking the can down the road, allowing prisoners to radicalise each other & build greater resentment. Key has to be deradicalisation, rehabilitation, supervision & diverting people from this path in the first place.”

Now, as John Finnie said, we also have the independent reviewer expressing concerns.

In that context, the Scottish Government was faced with a decision when the UK Government decided that its Terrorist Offenders (Restriction of Early Release) Bill would extend to Scotland. In order for the UK bill to work without error or confusion, some changes in the law on the functions of Scottish ministers are required and those changes trigger the need for an LCM. Without those changes being made, the law in the area of enforcement of terrorist sentencing would be unclear at best, possibly defective and inoperable at worst.

I will give the chamber a specific example that I also gave to the Justice Committee. Currently, a long-term prisoner can be considered for parole at the halfway point of their sentence and release will take place by a decision of the Scottish ministers if the independent Parole Board for Scotland recommends it. However, the bill requires a change to those Scottish ministerial functions as it requires consideration for parole from the two-thirds point of the sentence onwards. That is why the LCM is necessary, as the bill changes the executive competence of the Scottish ministers.

If the LCM is not agreed and the UK Government removes the relevant provisions from the bill, that will lead to confusion over when a long-term terrorist offender should be released from prison. Should they be released at the halfway point or the two-thirds point? There is the risk of errors arising in how that area of law operates. Whatever the rights and wrongs of the policy intent of the UK Government bill, I do not think that any member of the Scottish Parliament can think that such errors or confusion should be allowed to happen in the law.

It is also the case that the Scottish Government cannot legislate for terror offences, because they are, as John Finnie mentioned, a reserved matter. The UK Government’s policy intent of changing the point at which Parole Board discretionary release can operate from the halfway point of the sentence to the two-thirds point requires, as I said, a change in the functions of the Scottish ministers. The change in function will permit the Scottish ministers to release relevant offenders when recommended to do so by the Parole Board. As I explained, for long-term prisoners serving terrorism sentences, that will be from the two-thirds point of the sentence rather than the halfway point, as at present. There are other similar changes in the functions of the Scottish ministers, which are specified in the legislative consent memorandum.

On balance, and after careful consideration, with the reservations about the policy intent that I have expressed, I am asking members to support the LCM in my name, as not to do so could bring with it error and confusion in the law of sentencing.

I am pleased that the Justice Committee report recommended that Parliament approve the LCM. Although I respect the position of John Finnie—as I always do on human rights issues—in opposing the LCM, I ask members to approve it at decision time for the reasons that I have given.

The question on the motion will be taken at decision time.