No sooner had I despatched last week’s column than it was overtaken by events at Streatham.
I had concentrated on the on provisions to end automatic early release of violent and sex offenders and merely hinted that further similar legislation was expected shortly with respect to terrorists.
Now the terrorist legislation is of much greater urgency.
The provisions for violent and sex offenders were made under an order making power granted to ministers in an earlier Act of Parliament. All the Government had to do was to lay the order before Parliament for the requisite number of sitting days and secure an affirmative resolution in both houses. The order was not amendable and did not need to go through the lengthy procedures associated with a bill.
The Change in the law to end automatic release on licence halfway through a sentence for terrorists however, is more complicated and will require the full legislative treatment of a parliamentary bill. This is because we are seeking to achieve something much more ambitious with terrorist offences.
The order that changed prison sentences for violent and sex offenders, about which I wrote in this column last week, does not apply retrospectively: it only applies to offenders sentenced from now on. Those offenders already in prison before the order was made will, alas, still be released halfway through their sentences.
With terrorists, we want the change to apply retrospectively to those already sentenced and in prison now. The halfway automatic release for dangerous terrorists is approaching and we urgently need to keep them inside for longer and make their release subject to a risk assessment by the Parole Board.
For this reason the law requires to be changed by primary legislation: an Act of Parliament and not just an order.
Will this offend against Article 6 of the European Convention on Human Rights ?
A heavier penalty may not be imposed than the one that was applicable at the time that the offence was committed.
Well, the Government will argue that it doesn’t, because it is not changing the penalty, merely the administration arrangements of the penalty. A 10 year sentence will remain a 10 year sentence even if the amount of time spent inside is longer, and the amount spent on licence is shorter.
This is bound to be challenged in court under the Human Rights Act 1998 and I rather suspect that the judges will give the Government another poke in the eye.
What happens then?
Well, actually nothing necessarily: A ruling that an Act of Parliament is incompatible with the Human Rights Act is merely declaratory: it doesn’t change or set aside the Act of Parliament; Parliament remains supreme…for the moment at least.
Only when the case finally gets to the European Convention Court in Strasbourg, as it inevitably would, and were the Government to lose there, it would be required to seek to change the law back again in Parliament (the Ministerial Code requires ministers to comply with international law and treaty obligations).
I should point that the Strasbourg Court has nothing to do with the EU which we’ve just left. It is the creature of a Treaty largely designed by the UK in 1950 with the objective of preventing Europe from slipping back into tyranny from which we had so recently fought to deliver it.
Were that Convention however, to become an obstacle in the way of our determination to maintain public safety in the face of the terrorist threat, I do hope we would conclude that it had outlived its usefulness, and make different international treaty arrangements.