16: After Clause 31, insert the following new Clause—
“Review of sections 1 to 31
(1) The Secretary of State must arrange for an independent review of the impact of sections 1 to 31 of this Act to be carried out in relation to the initial one-year period.(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to imprisonment for offences of terrorism to conduct the review. (3) The review under subsection (1) must consider but is not limited to considering any evidence as to any effects of this Act—(a) by the imposition of longer prison sentences upon the reform or rehabilitation of those offenders on whom they are imposed;(b) upon the reform or rehabilitation of those offenders required to serve a greater proportion of their sentences in prison and a correspondingly smaller proportion on licence;(c) upon the radicalisation of prisoners other than those upon whom longer prison sentences are imposed or who are required to serve a greater proportion of their sentences in prison;(d) on the degree to which those prisoners upon whom a serious terrorist sentence is imposed are segregated from other prisoners.(4) The review must be completed as soon as practicable after the end of the initial one-year period.(5) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—(a) produce a report of the outcome of the review, and(b) send a copy of the report to the Secretary of State.(6) The Secretary of State must lay before each House of Parliament a copy of the report under subsection (5)(b) within one month of receiving the report.(7) In this section, “initial one-year period” means the period of one year beginning with the day on which this Act is passed.”Member’s explanatory statement
This Clause would require an independent review of the impact of sections 1 to 31 of the Act after one year, with particular attention to radicalisation in prisons and the effects of longer periods of imprisonment on reform and rehabilitation and radicalisation in prisons and of segregating serious terrorist offenders.
My Lords, by the amendments in this group noble Lords from around the House seek reviews of the impact of this legislation on the operation of our criminal justice system. Such reviews would consider: how we are dealing with terrorist offences, including the effects on the Prison and Probation Service and, in particular, the effects on prison capacity; the financial impact of the legislation; and the effect of the legislation on Northern Ireland.
The very fact that so many noble Lords seek such reviews, each with different emphases, demonstrates that however much the Bill’s provisions may chime with the prevailing public mood, for many of us they nevertheless cause uncertainty and misgivings. While we all recognise that terrorism must be dealt with extremely severely, on any view the Bill provides for radically harsher sentencing than we have had before. I suspect that the Minister and the Government recognise that this approach is not risk-free.
I shall concentrate on the review called for in the amendment in my name and the names of my noble friends Lady Hamwee and Lord Paddick. Our amendment is concerned with Part 1 of the Bill. To remind ourselves briefly of the ground we covered on day one in Committee, Part 1 deals first with sentences for what I might call ordinary criminal offences, punishable by two or more years’ imprisonment but aggravated by a terrorist connection; then, with serious terrorism offences and minimum custodial terms for offenders; with increased extended sentences for specified violent offences; and with other special custodial sentences for offenders of particular concern. The common threads running through all these provisions are, first, that judges’ discretion to impose more lenient sentences than prescribed in the legislation is considerably limited and, secondly, that terrorist offenders will generally spend much longer in prison than has been the case to date.
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We should not forget four further recommendations of the Acheson review:
“systematic recording of the promotion of extremist beliefs and threats of violence to staff, with tougher sanctions … suitable training provided for staff … tackling the availability and source of extremist literature … improved capacity for responding swiftly to serious violent incidents, with … improved coordination with the police”.
For all that this report was hard-headed—unsurprising from a former prison governor and expert in counterterrorism—it was still focused on deradicalisation, reform and rehabilitation. It still attributed great importance to the involvement of the probation service.
The significance of this approach is quite simply this: in the light of appalling attacks, the public and this Government demand tougher sentences for terrorists. They may be justified, but the importance of reviewing the impact of Part 1 of this legislation in just over a year’s time is to highlight the continuing need to deal better with extremism and terrorist offenders, both within prisons and on licence. But tougher sentencing alone can never provide a complete answer or anything like it. Our approach must be subtler, more principled, better organised and a great deal more sophisticated.
Lord Morris of Aberavon (Lab) [V]
My Lords, I make a short intervention to support the amendment so ably moved by the noble Lord, Lord Marks; it is carefully put and more than adequate. I support it because it is important that a close look is had into the workings of these important sections. One year should be sufficient, with the emphasis on consultation, which is vital to get an independent reviewer to take the temperature of how the Act is working.
In my many visits to prisons in my professional career, I was deeply aware of how prisoners live cheek by jowl. Particularly in the absence of other subjects of conversation, I would have thought, as a lay man, that prisons were fertile ground for radicalisation. It goes without saying that expert advice is needed. We are considering longer sentences, reform and rehabilitation, radicalisation and segregation—all vital subjects—and we should look at how the Act is working. With those few words, it is a pleasure to commend the amendment.
My Lords, as my noble friend Lord Marks of Henley-on-Thames has outlined, our Amendment 16 in this group calls for a review of the impacts of Part 1of the Bill. Why is such a review needed? The Explanatory Notes to the Bill describe its purpose as being to better protect the public from terrorism, effectively by two main means: ensuring that serious and dangerous terrorist offenders spend longer in custody, and supporting their disengagement from extremism and their rehabilitation.
I am pleased to note there is no longer any pretence that longer sentences act as a deterrent to terrorist offenders. There was no such claim from the noble Lord, Lord Parkinson of Whitley Bay, either, when he introduced the Bill to this House on Second Reading. That will save some time.
The two premises on which the Bill is based appear to be these: that the public are better protected from terrorists if terrorist offenders are in prison longer; and that a range of tailored interventions while they are in prison will lead to their disengagement from extremism and their rehabilitation. In short, the longer they are in prison, the less likely they are to pose a threat to the public and the more time is available to deradicalise and rehabilitate them.
The first and most obvious problem with the first premise is that you cannot detain every suspected terrorist for the rest of their lives, despite the Government’s attempts in this Bill to achieve exactly that for some terrorist offenders. With an increasing number of exceptions were this Bill to be passed unamended, you cannot normally lock up suspected terrorists indefinitely or so curtail their freedoms as to effectively deprive them of their liberty indefinitely. We will come to the indefinite deprivation of liberty without charge or trial when we come to the changes to the terrorism prevention and investigation measures.
The Government’s current Prevent strategy, at paragraph 3.5, says that
My Lords, we have had a wide-ranging introduction to this group from both the noble Lords, Lord Marks and Lord Paddick. As the noble Lord, Lord Marks, said in his introduction, the amendments in this group call for a series of reviews of different aspects of the system. He expressed his misgivings and uncertainty that the system as it currently operates is succeeding and concluded his remarks by saying that a more sophisticated approach is needed.
Amendment 16 is the first amendment regarding the independent review of provisions, to which the noble Lord, Lord Marks, has spoken. The second in the group, Amendment 34 in the name of my noble and learned friend Lord Falconer, is concerned with the financial impact of the changes. The amendment would require the Secretary of State to publish a financial impact assessment of the Act within three years of it coming into force, and this would include the financial impact of extended sentences, extended licence periods, and any additional staffing resources needed as a result of the Act.
Amendment 36 in my name calls for a capacity impact assessment. This amendment would require the Secretary of State to publish an assessment of the capacity of the system as a whole. In their 2016 White Paper, Prison Safety and Reform, the then Government committed to £1.3 billion to create 10,000 new prison places by 2020 and to renovate the existing estate. The 2020 target was later changed to 2022; so far, only 206 new prison places have been built, with 3,360 under construction. The main reasons for those failures and delays were the delays in agreeing and receiving funding to build new prisons. This meant that the construction work began later than planned. In addition, HMPPS was not able to close all prisons and replace them with new ones, due to high demand, which meant it received less money from the sales of old prisons.
Amendment 38, also in my name, proposes a review of the legislation as it affects Northern Ireland. All measures in the Bill as they pertain to Northern Ireland would be reviewed annually with the Northern Ireland Minister for Justice and the Northern Ireland Executive; a report would also have to be published and laid before both Houses of Parliament. This would ensure that the Government worked constructively with the Ministry of Justice and Northern Ireland Executive, and that all the Bill’s implications were subject to regular review through the prism of Northern Ireland.
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I have spoken to my amendments in detail but the scene-setting—if I may put it like that—by the noble Lord, Lord Marks, is most appropriate. We are having some very radical reviews, including Jonathan Hall’s review of terrorism and its effect on other prisoners in the prison system and, as he put it in a quote that I picked up as well, the “drumbeat of links” between terrorism and the prison service. I hope that the Government will look favourably on those individual aspects, which need review.
My Lords, Amendment 16 would introduce a new clause requiring the Secretary of State to arrange for an independent review of the impact of Clauses 1 to 31 in the first year of the Act coming into force. I must respectfully disagree that this amendment is necessary. As the House has heard in Committee, the Government already have an Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and his remit covers the Bill. Indeed, as the noble Lord, Lord Marks, referred to, he has announced his intention to conduct a review in prisons, which we welcome. He has already shown his expertise and engagement with the Bill in its entirety by providing detailed comments on its provisions—contributions that I know this House and those in the other place valued highly. We have every confidence that he will continue to provide valuable and important scrutiny following its enactment and through the prisons review which he will be undertaking. I therefore disagree that there is any need to appoint another reviewer to focus on just some of the Bill’s provisions.
That said, I recognise that the noble Lord, Lord Marks, and others indicated particular concerns by specifying the areas which such a review ought to consider. I shall take these points in turn, which I hope will assuage noble Lords’ concerns. First, there is the question of the impact of longer sentences—or a longer proportion of the sentence spent in custody—on prisoners’ rehabilitation as a result of the Bill. I start by reflecting that within a year of the Bill’s commencement, the impact of longer sentences will not yet be available for us to analyse. Importantly, however, the rationale behind longer custodial sentences for the most serious and dangerous terrorist offenders is one of public protection, which is this Government’s primary concern. Ensuring that these offenders are incapacitated for longer meets this ambition. The noble Lord, Lord Marks, spoke of the crucial importance of the hope of reform and rehabilitation, and we on this side share that hope. It is not that we consider that rehabilitation is unimportant; it will remain central to the work that is undertaken with terrorist offenders in custody.
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I acknowledge the critical role that the National Probation Service plays in managing terrorist offenders. Last year, we tightened measures for terrorist offenders on licence to ensure that there is robust risk management from all relevant agencies. This will be strengthened further by the actions that the NPS and other agencies are taking in response to the MAPPA review recommendations from Jonathan Hall QC. We have also strengthened supervision arrangements, ensuring that all terrorist offenders report to their probation officer at least once a week, introducing increased restrictions on travel and extending GPS tagging.
However, we know that we must ensure that our probation services have the capacity and capability to manage such cases. That is why we have made a major investment in the NPS to establish a national security division, which will see a doubling of counterterrorism specialist staff. This will mean that, by March 2021, we will have sufficient specialist capacity and capability to bring the management of all terrorist offenders in the community under the national security division rather than their being managed by local probation areas.
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The review called for by our amendment is to be concerned, first, with the effect of the imposition of longer prison sentences on the reform and rehabilitation of those who serve them; secondly, with the likely outcome that longer sentences will mean offenders spending a greater proportion of them in custody and a lower proportion on licence; thirdly, with the radicalisation of other prisoners by those who will now spend far longer in custody and may have the dangerous potential to radicalise others who come into contact with them while in prison; and finally, on the segregation of serious terrorist prisoners serving these very long sentences. I make no apology for the fact that Liberal Democrats start from the position that while punishment plays an extremely important part in sentencing and that the more serious the offence the greater the punishment element in any sentence, nevertheless reform and rehabilitation, even in very long sentences, is a central purpose of sentencing.
Hope of reform and rehabilitation should motivate all who work within the system, as well as society at large. That belief is in our DNA. We do not believe that we should give up on serious offenders, even terrorist offenders. Nor do we accept that the lives of at least some among those whom we punish cannot ultimately be turned around.
Importantly, the review we seek calls for a person with professional experience of imprisonment for terrorist offences to be appointed by the Secretary of State, in consultation with the Independent Reviewer of Terrorism Legislation. It was therefore heartening to note that on 25 January Jonathan Hall QC, the independent reviewer, issued a statement saying that he had decided to review the subject of terrorism in the prison estate in England and Wales as part of his annual review of the terrorism Acts. His statement said that he was particularly interested in criminal behaviour which effectively encourages terrorism within prisons, in the status and influence of terrorist prisoners within them, in any connection to prison gangs, and in how to secure evidence of terrorist offences or terrorism-related activity in prisons. He is clear that his focus will be on terrorism because there is, he says, considerable literature already on radicalisation and extremism in prisons. Nevertheless, I would be surprised if he did not feel driven to consider, as part and parcel of considering terrorist activity within prisons, the question of radicalisation and extremism, and its effect on the prison population as a whole. Inevitably, he will also consider how to achieve reform and rehabilitation for as many terrorist offenders as possible.
One of any reviewer’s main starting points will be the work and findings of the 2016 Acheson review of Islamist extremism in prisons, probation and youth justice, the recommendations of which many noble Lords mentioned earlier in the passage of the Bill. In setting out the context of his review, Ian Acheson wrote:
“Islamist ideology can present itself in prisons as a struggle for power and dominance in which perceived weaknesses are exploited by a gang culture which threatens or undermines legitimate authority and security”
and that Islamic extremism
“should therefore be a greater and more visible priority for NOMS, led by people with the time and resource to act swiftly and with authority.”
I make no apology for concentrating on Islamic extremism in the context of the type of terrorism that this country, and many others, have faced in recent years.
Perhaps the most significant of that report’s recommendations was that those few extremists who presented what Acheson called
“a particular and enduring risk to national security through subversive behaviour, beliefs and activities”
should be segregated in specialist units, where they would be given “effective deradicalization” programmes. It has been very disappointing that although the Government accepted this recommendation, as they did nearly all the Acheson recommendations, there has been so little action. When I have asked Ministers about this failure of promised implementation, I am afraid that the responses have been defensive or, worse, complacent.
In the wake of the London Bridge attack by Usman Khan on 1 December 2019, Professor Acheson wrote in the Times:
“I have evidence that the separation centres that I recommended be established to incapacitate those posing most risk are not filling up because of institutional timidity to deal with a terrorist threat that is more acute than senior officials want to admit.”
He then said that
“I remain deeply unconvinced that this service has the corporate leadership, competence or will to deal with terrorist offenders. I’m not sure any tangible progress has been made since my review concluded three years ago.”
My concern is that since the disastrous attacks in 2019, the Government have been so focused on tougher sentencing that other aims, just as important or even more so, have been sidelined.
“radicalisation is driven by an ideology which sanctions the use of violence; by propagandists for that ideology here and overseas; and by personal vulnerabilities and specific local factors which, for a range of reasons, make that ideology seem both attractive and compelling.”
Such propagandists exist in our prisons. The Government’s argument that the longer someone is in prison, the more time there is to support their disengagement and rehabilitation can also work against their deradicalisation and rehabilitation.
First, it provides more time for them to be radicalised, or further radicalised, by propagandists in prison. There is clear evidence that this is happening. On 25 January, the Times reports the current Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, as saying that there was an increasing “drumbeat” of links between prison and terror attacks, with offenders not being properly punished for owning radical material, preaching extremism and inciting violence. The Times notes that the man given a whole life sentence last month for murdering three men in a park in Reading in a terror attack last year was befriended by a radical preacher while serving an earlier prison sentence. Secondly, if these vulnerable people believe that the sanctions imposed on them are disproportionate, or that the system that led to their imprisonment was unfair, the ideology promulgated by these propagandists is made to appear even more attractive and compelling.
No one would argue against a proportionate sentence of imprisonment for someone convicted in a court of law of a terrorist offence, as my noble friend Lord Marks has just said, or that, for a limited time, a suspected terrorist who is believed to present a real and immediate threat should not have their liberty to carry out a terrorist attack prevented while evidence is gathered upon which to base a trial in a court of law. However, paragraph 3.6 of the same Prevent strategy says:
“There is evidence to indicate that support for terrorism is associated with rejection of a cohesive, integrated, multi-faith society and of parliamentary democracy. Work to deal with radicalisation will depend on developing a sense of belonging to this country and support for our core values.”
Disproportionately long sentences of imprisonment and indefinite deprivation of liberty without charge or trial would reinforce this rejection of our cohesive, integrated, multifaith society and parliamentary democracy. They would undermine any sense of belonging to this country and any support for our core values. Indeed, they begin to call into question some of our core values.
What evidence is there that it is easier to develop a sense of belonging to this country and support for our core values while someone is in prison, compared with when they are on licence in the community? The Times article I quoted previously reports the Independent Reviewer of Terrorism Legislation as saying that encouraging and inciting terrorism were being
“successfully combated in the community”,
unlike the failure to address these issues in prison. Although he is to conduct a review of what is happening in prisons, it appears to be limited to examining how terrorism is detected, disrupted and prosecuted behind bars and whether improvements can be made, rather than the comprehensive review called for in our amendment.
For all these reasons, there is serious doubt whether Part 1 of the Bill will achieve what the Government intend by it; therefore, our Amendment 16 is necessary. Other amendments in this group call for a review of the financial impact of the Bill and the impact on the prison population, both of which could hamper the effectiveness of any deradicalisation or rehabilitation strategy and any attempt to prevent radicalisation or further radicalisation in prison. Reviews are called for on the specific impact of the Bill in Northern Ireland and on the National Probation Service, and we support these amendments as well.
Amendment 39 proposes a review of the National Probation Service. This would require the Government to commission and publish a review of the impact of the Bill on the National Probation Service within 18 months of it coming into force. The review would have to consider, among other things, the level of probation support offered to offenders, as well as the number of specialist staff employed by the National Probation Service, and their skills.
I have received some briefing material from Napo—formerly the National Association of Probation Officers —which makes the point that the probation service is in crisis and that many of the offender management teams are struggling to maintain a balance between experienced staff and newly qualified staff. It is not uncommon to find teams in the community where the most experienced officer has only two to three years of post-qualification experience. As recruitment increases, as it is projected to increase, the pressure on the frontline staff will grow, with more probation officers being moved into management and training roles to support the trainees. The point made by Napo is that a properly remunerated and supported expansion of the probation service is needed to face the challenges ahead.
Second is the question of the Government’s ability to protect other prisoners from radicalisation within the prison estate and the use of separation centres to this end. These issues are raised in reference to the Acheson review recommendations. I assure the noble Lord that most extremist prisoners are and should be managed in the mainstream prison population, with appropriate conditions and controls.
Across the entire prison estate, we have, and seek to maintain, robust case-management processes to manage the risks posed by extremists and to prevent them radicalising others, including co-located offenders. The Government, however, have designed separation centres to hold the most subversive extremist prisoners, preventing them spreading their malicious ideology to other prisoners. These centres were never intended for use with significant numbers of terrorist offenders, as this would undermine their main purpose: to separate the most dangerous from those most vulnerable to radicalisation. The Government use these centres only when it is necessary and, for reasons of national security, the Government do not confirm the numbers of prisoners in individual separation centres.
Finally, I note that the Bill will be subject to the usual practice of post-legislative scrutiny three years after the Bill receives Royal Assent, as is the case for all legislation. In light of this, and the existing position of the Independent Reviewer of Terrorism Legislation, who already has authority to review this legislation, I do not believe this amendment to be necessary.
Amendment 34, spoken to by the noble Lord, Lord Ponsonby of Shulbrede, and in the name of the noble and learned Lord, Lord Falconer of Thoroton, would insert a new clause requiring the Secretary of State to lay a report within three years on the financial impact of the provisions of the Bill, specifically detailing the effects of extended sentences and extended licence periods; the expansion of the sentence for offenders of particular concern regime; the use of polygraph testing as a licence condition; and, as a result of these measures, any increased staffing resources required in Her Majesty’s Prison and Probation Service. I appreciate from the terms of the amendment that there is a concern to examine the cost of these measures when set against the impact assessment already published by the Government.
I make the point that numbers of terrorism offences are so low, comparatively speaking, that the impact of the measures the Bill puts in place is minimal. The impact of licence periods will depend on judicial discretion in setting them and, if the impact assessment carried out and published by the Government was inaccurate, that would be shown up by the process of post-legislative scrutiny. I cite to the Committee a number of figures to inform what I have just said. On 31 December 2020, there were 78,180 in the prison population. The impact assessment estimates the impact of the measures will be around 50 additional cases at any one time. On 30 September 2020, there were 222,657 cases on the probation caseload. The Bill’s impact assessment estimates that the impact of the measures will be around 50 additional case at any one time. The additional polygraph testing as a licence condition is estimated to affect fewer than 150 offenders at any one time, at a cost of about £400,000 annually in steady state.
Therefore, our impact assessment and the figures that support it estimate that the measures in the Bill will have a minimal impact on the prison population and the probation caseload of fewer than 50 additional cases at any one time. This impact, though small, will build up gradually over time and so will not be felt immediately. We are therefore confident that these changes will not have a substantial financial impact on Her Majesty’s Prison and Probation Service. I assure the noble Lord, Lord Ponsonby of Shulbrede, that the Government are already providing funding to support our legislative changes: an increase of £90 million in funding for counterterrorism policing this year; an increase in the resources dedicated to training front-line prison and probation staff through the counterterrorism step-up programme; and an immediate £500,000 package for the Victims of Terrorism Unit. The Government will continue to publish data on prison population and probation caseloads, and we will carry out an internal review on polygraph testing. I do not believe that a legislative commitment is required or necessary to review the financial impact of these measures.
The noble Lord, Lord Ponsonby of Shulbrede, spoke also to Amendment 36, which would insert a new clause requiring the Secretary of State to lay a report on the potential impact of the Bill’s provisions on prison capacity. Again, I respectfully draw his attention to the impact assessment the Government published alongside the Bill, which has already made that assessment. The estimates I have already spoken of are based on recent trends in overall numbers of terrorist offenders being convicted. As the cohort of offenders affected by the Bill is small, these changes will have only a minor impact on prison capacity. We will always provide places, of course, for those sentenced to custody.
In addition to the impact assessment, as I have said, the Government routinely publish data on prison population statistics. I do not believe that a legislative commitment will provide any greater opportunity for scrutiny in this respect. It is worth underlining that the Government’s ambitious programme of improvement in this area—the counterterrorism step-up programme—will put more specialist staff in prisons, working directly with prisoners on rehabilitation, as well as providing intelligence and monitoring of such prisoners. This will make our prisons, and ultimately our streets, safer, an ambition that I am sure noble Lords will support. I know that that is a matter of agreement across the Committee. This programme will be important to ensure that prisons can manage any increased demand from terrorists serving longer in prisons in the near future. Therefore, it is not necessary for us to legislate for a further assessment of the potential impact of these measures.
The noble Lord spoke also to Amendment 38, which would insert a new clause placing a statutory requirement on the Government to review all measures in the Bill that relate to Northern Ireland, in consultation with the Northern Ireland Minister for Justice and the Northern Ireland Executive. This review would be required annually and to be published as a report and laid before Parliament. First, I assure him that in developing the Bill, despite the fact that terrorism is a reserved matter, we have carefully considered Northern Ireland’s unique history with terrorism and taken great care not to tamper with provisions enshrined in the Belfast agreement and, particularly, the Northern Ireland (Sentences) Act 1998. Furthermore, when we have found concessions viable, we have made them, as we demonstrated through our removal of clauses providing for polygraph testing in licensed conditions, following assurances from the Northern Ireland Executive that they are satisfied that the legislative power to use such measures exists already. That said, I remain of the view that we need to take a robust approach to terrorist offending wherever it occurs in the United Kingdom and whatever ideology it aligns itself to. We must avoid a two-tier approach to the sentencing and release of terrorists across the United Kingdom.
The most recent data shows that in 2019-20, there were just 14 convictions for terrorism-related offending in Northern Ireland, and just six in the previous year. With numbers at that level, I submit that there will be too little information on which to base an annual review. The same amendment was raised in the other place, and I respectfully remind the noble Lord that the opportunity already exists for the House to review the Bill’s impact in the relevant committee three years after it receives Royal Assent, through the post-legislative scrutiny process. A review clause of this nature is therefore not required. Reviewing the impact of a Bill after three years will provide a more meaningful opportunity for review. For these reasons, I am not persuaded of the benefit of an annual review of the Bill’s measures in Northern Ireland.
Amendment 39 would insert a new clause placing a statutory requirement on the Government to report on the impact of the provisions in the Act on the National Probation Service 18 months after its enactment. I assure the noble Lord, Lord Ponsonby of Shulbrede, that we have considered fully the impact on the National Probation Service of the measures in this Bill, which we consider to be low. We set out the impact in full in the published impact assessment.