I will start by apologising to you, Madam Deputy Speaker, for being slightly tardy in taking up my seat for this debate. No offence was meant. It is a pleasure to follow the hon. Member for Stockton North (Alex Cunningham). As well as sharing our country of birth, we share many of the same views about the Bill.
I wish to speak to new clause 6 and amendments 35 and 36, which are tabled in my name and that of my hon. Friend the Member for East Lothian (Kenny MacAskill). I will also speak to amendments 52 to 60, which have been tabled by the right hon. and learned Member for Camberwell and Peckham (Ms Harman). She chairs the Joint Committee on Human Rights, and the amendments reflect some concerns held by that Committee, on which I also sit, about our duty to consider the human rights aspects of any legislation that passes through the House.
The SNP has made it clear from the outset that we recognise it is the duty of any Government to keep our citizens safe and secure, and all who serve in Parliament have an obligation to assist in that endeavour. I and my colleagues in Edinburgh have assured the UK Government that we will attempt to be as constructive as possible, to ensure that the challenge of terrorism is met and that people across these islands are kept as safe is as reasonably possible. SNP Members are also mindful of our duty as parliamentarians to uphold the highest standards of human rights protections, and we have accordingly tabled a number of amendments to address the devolved aspects of the Bill, and raise some concerns about civil liberties.
Counter-terrorism is a reserved matter, but sentencing is not. The Scottish legal system, including policing, sentencing and parole, and the management of the Scottish prison service are devolved matters, and elements of the Bill that touch on those things will require a legislative consent motion. The Minister accepts that, and there are ongoing discussions with my colleague, Humza Yousaf, who is the Scottish Cabinet Secretary for Justice. Until those discussions have been resolved to the satisfaction of the Scottish Government, SNP MPs cannot give the Bill their unqualified support, but we will continue to work constructively with the Government.
We are particularly pleased that the UK Government have addressed an issue that I and my hon. Friend the Member for East Lothian raised in Committee—namely, the interplay between the new sentencing regime proposed in the Bill and the existing sentence of an order for lifelong restriction in Scotland. That unique sentence is imposed not so much for the crime committed but because the offender poses an ongoing risk. It was designed to deal with high-risk violent and sexual offenders rather than terrorists, and its purpose is to ensure that those people are not released until they are rehabilitated, and that even then they are subject to a risk management plan for the rest of their natural life.
I welcome Government amendments 9 to 16, which have been tabled to address the interplay between the new sentence and the order for lifelong restriction. As I understand it, they will ensure that an order for lifelong restriction will remain available to the Scottish courts when they are considering sentencing someone for a serious terrorist offence, provided that if an OLR is imposed instead of a serious terrorism sentence, the person sentenced must serve at least 14 years. I am pleased that the Government have taken our concerns on board, and we hope that the outstanding discussions on the legislative consent motion will have the same fruitful outcome.
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The most important aspect of those outstanding discussions relates to the use of polygraphs, which is what SNP amendments 35 and 36 address. The Bill proposes to introduce the use of polygraphs for the first time within the devolved Scottish criminal justice system.
Current Scottish legislation operates in such a way that there is a broad ability for the Parole Board and Scottish Ministers to set conditions of licence, which could include polygraph testing. There is no statutory barrier in Scotland to the introduction of polygraphs, such as exists, as I understand it, in other parts of the
UK, so it is not necessary for the Bill to introduce measures to allow their use in Scotland. That could be achieved by the Parole Board and Scottish Ministers under existing statutory powers. The reason the Scottish Government have not introduced polygraphs is that they are unconvinced by the evidence regarding their efficacy. They are not used in Scotland at present for that reason, and operationally there is no infrastructure to support their use.
The Joint Committee on Human Rights has also recognised that the use of polygraphs is controversial, and we have tabled amendments 55 to 60 in that respect. Polygraph testing could engage article 5, the prohibition against arbitrary detention. Recalls to prison while on licence are unlikely to fall foul of article 5 provided that they are not arbitrary, but we on the Joint Committee believe that using polygraph test results as evidence for recall ought to be given a high level of scrutiny, given the controversial nature of polygraph testing.
It is fair to say that although the Bill Committee heard some very interesting evidence about polygraphs, the evidence conflicted as to their efficacy and reliability. The Joint Committee’s concern is that the Government have not put forward a convincing case for the use of polygraph evidence in the way that is proposed in the Bill. We in the SNP would prefer the polygraph provisions to be removed from the Bill in so far as Scotland is concerned, and that is what amendment 56 would do.
Alternatively, we would like control of the implementation of the provisions to sit with the Scottish Ministers, which is what we seek to achieve by amendments 35 and 36. That would ensure that such a significant introduction to the devolved Scottish criminal justice system as the use of polygraphs is undertaken only if and when the Scottish Government, who have overall responsibility for the running of the devolved criminal justice system, have indicated that it is a development that they consider is appropriate in Scotland.
I will not press these amendments to a vote, because I know correspondence between the two Governments is ongoing in this respect and the Minister may have further proposals as to how détente, or a compromise, could be achieved.
I turn next to the SNP’s new clause 6, which comes back to the issue addressed by the hon. Member for Stockton North: the Bill’s impact on children and young persons. I will preface this by saying that I absolutely accept that the Bill deals with sentencing for only the most serious terrorist offences, and I accept that the numbers of children and young persons who are sentenced may be very small. Nevertheless, the evidence that the Bill Committee heard from Jonathan Hall, the independent reviewer of terrorism legislation, Peter Dawson, the director of the Prison Reform Trust, who has an extensive career as a prison governor, and the Law Society of Scotland suggested that it would be prudent to carry out a review of the effect of the provisions in the Bill on children and young offenders. That is what new clause 6 seeks.
I touched on the reasons for that in my earlier intervention. It is a concerning fact that increasing numbers of young people are caught up in terrorism, and we heard evidence to the Bill Committee that young offenders have often been manipulated by terrorist groups or other unscrupulous individuals, operating either in the real world or online. However, there is a much better
opportunity for reform, rehabilitation and deradicalisation with a young person than with a middle-aged or older person.
When it comes to sentencing, traditionally it is recognised that people are not necessarily that different when they are one month over 18 from when they were one month under 18, so there is a strong argument that the age for a mandatory minimum sentence, meaning no prospect of early release and effectively putting to one side the possibility of reform and rehabilitation, should be raised to 21, rather than such a sentence being available for those in the 18 to 21 bracket.
As has been alluded to, the Scottish Sentencing Council is consulting on its third draft guideline, “Sentencing young people”, and looking at proposals for special sentencing sentences to apply to offenders up to the age of 25. My understanding is that that is because up to the age of 25 there is a better chance of getting to someone, changing their world view and rehabilitating and deradicalising them. There is a serious question over whether children who receive extended sentences for serious terrorist offences are so very different from children who receive extended sentences for other serious offences, and whether, therefore, the removal of the Parole Board’s role is justified.
We heard an important piece of evidence from the director of the Prison Reform Trust, who said that if we do not seek to rehabilitate young people, who are more prone to rehabilitation, public protection is undermined rather than enhanced. Every time we manage to rehabilitate or deradicalise someone, it makes the public a little bit safer.
In summary, there are two good, overarching reasons to have the review that is proposed in new clause 6: our responsibilities to children and young people in general, and, perhaps more importantly, our responsibility to the public and British citizens at large to do what we can to deradicalise convicted terrorists. We know that we are much more likely to be able to do that with children and young people. All that the new clause asks for is a review. If the numbers turn out to be small, as they are expected to be, the review will not be complex or time consuming.
Finally, I turn to amendments 52 and 53, which are in my name and that of the Chair of the Joint Committee on Human Rights, the right hon. and learned Member for Camberwell and Peckham. They mirror the concerns that I have just spoken about, and they are designed to disapply provisions of this Bill to terrorist prisoners who were under 18 at the time of the commission of the offence.
I will briefly address the underlying concerns. I remind Members that it is the responsibility of the Joint Committee on Human Rights to look at the human rights aspects of all legislation that comes before this House. Although we think that the removal of children’s eligibility for parole is not incompatible with the European convention on human rights per se, it does raise a serious question of policy. If a child terrorist offender serving an extended determinate sentence may be considered to have a high prospect of rehabilitation and reform as they mature, the denial of any prospect of release before the end of their custodial term may, as I have said, be counter- productive.
It is worth bearing in mind that the sentencing principles in England require that sentences for children should focus on rehabilitation where possible. The removal of
eligibility for parole appears to undermine that important principle. It also appears to undermine article 37(b) of the UN convention on the rights of the child, which provides that the imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. That sits uneasily with an irreducible, lengthy period of imprisonment for a child.
If anyone—perhaps understandably—rolls their eyes to heaven at the thought of caring about the human rights of someone who has committed a serious terrorist offence, I simply refer them to what I said earlier. It is in all our interests to try to get children and young people who commit serious terrorist offences rehabilitated and deradicalised. Even those who do not care about such people’s human rights should remember that deradicalizing young people will protect our constituents.