Counter-Terrorism and Border Security Bill
Monday 11th June 2018
(5 years, 10 months ago)
Commons ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts
The Secretary of State for the Home Department (Sajid Javid)
I beg to move, That the Bill be now read a Second time.
This country faces significant threats to our national security. The first is the ongoing threat posed by terrorism to the safety and security of our communities and to the freedoms that we cherish as a nation. Another is the threat posed by hostile state activity, which we saw most recently in Salisbury.
As has been said many times before in this House, our police and intelligence agencies are unwavering in their commitment to protecting us and to keeping the country safe. They are ready to put their own lives on the line to help to save others. It is because of this commitment and professionalism that 25 Islamist terrorist attacks have been disrupted since 2013. Four extreme right-wing plots have also been foiled since the Westminster attack. But as we know all too well, there were five terrorist attacks last year. Thirty-six people were murdered, and many more are still grieving or coming to terms with life-changing injuries as a result of the terrorist atrocities in London and Manchester. We owe it to the victims and survivors to do our very best to prevent such attacks from happening again.
Of course, as Home Secretary, I do not want to offer false hope. No Home Secretary can guarantee that there will not be another terrorist attack on their watch. It is impossible for me to promise that there will not be more grieving parents, partners and children because of some senseless act of terrorist violence in the future. But what I can do as Home Secretary is to take a long, hard, forensic look at the powers available to the police, security services, prosecutors and judiciary, and to make sure that they have what they need, including powers to tackle the evolving threat to the UK from terrorism and from hostile state activity and powers to keep the public safe and protect our national security. This is what the wide-ranging Counter-Terrorism and Border Security Bill is all about; it is about keeping the people of this country safe.
Simon Hoare (North Dorset) (Con)
My right hon. Friend used the term “wide-ranging”. Is not that the key thing? The legislation should be wide-ranging and flexible because those who wish this country and our fellow citizens ill are always trying to keep one step ahead of our rules and regulations. It is important to have the flexibility to ensure that all the tools that our agents need are available to them.
Sajid Javid
My hon. Friend is absolutely right. He and other hon. Members will see that much of this Bill is about updating existing powers to reflect the modern age—for example, some of the powers regarding the internet and online content.
This important piece of legislation will allow the police and MI5 to disrupt threats earlier and to ensure that our laws reflect modern use of the internet. It will change existing laws to manage terrorist offenders better and it will allow for more effective investigations. It will also give police more powers to investigate hostile state activity.
Sir William Cash (Stone) (Con)
My right hon. Friend may be aware that, on the previous Bill dealing with the same subject matter, I tabled an amendment relating to terrorists coming from other countries. It said, in effect, that they should not be allowed back into this country and that measures should be taken. I know that the Security Minister is aware of this matter, and I do not want to go into it in detail, but I intend to table an amendment during the Committee stage. I would be grateful if it were given careful consideration because, relying on human rights legislation, far too many people are coming back into this country and then in a position to radicalise other people in the jails.
Sajid Javid
I know that my hon. Friend has taken a great interest in these matters for many years. I will listen carefully to anything he has to say on that issue and so will the Security Minister. I look forward to seeing any amendments that he tables.
In March, we saw the attempted assassination in Salisbury of Sergei Skripal using a deadly nerve agent. That also put his daughter Yulia, Detective Sergeant Nick Bailey, and many others in danger, including the brave men and women in the national health service and our frontline officers, who did all they could at the scene. They have continued to do so in the weeks and months since and have worked hard to save the Skripals. The attack was highly likely to be the work of the Russian state—a conclusion that is shared by many of our international partners. They have joined the UK in demonstrating to the Russian Government that the actions that they take are undermining the rule of law and international norms, and have serious consequences.
The events in Salisbury are part of a pattern of behaviour by the Russian Government, and the Russians are of course not alone in engaging in hostile activity that threatens our United Kingdom. So it is high time that we hardened our defences against hostile state activity.
Simon Hoare
My right hon. Friend mentioned my constituent Nick Bailey, the police officer at Salisbury. Wiltshire police have been incredibly helpful to Nick and to his family, with whom I am liaising. Can my right hon. Friend confirm that he, his Department and Wiltshire police will continue to give Nick and his family all the support that they need, given the unique circumstances of the incident and the ramifications that he and his family have had from it?
Sajid Javid
I am happy to give my hon. Friend that assurance. I think that the whole House has commended Detective Sergeant Nick Bailey for what he did and how he put himself in the line of danger just doing his job—as I am sure he would put it. We will work with him, through Wiltshire police and others, to make sure that he gets all the support that he needs.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
Given what the Home Secretary is saying about Russia’s attempts to undermine our society and engage in very hostile acts such as the one in Salisbury, will he say a little about the allegations that we have read about over the weekend in The Observer, The Sunday Times and elsewhere about other Russian attempts to potentially undermine parliamentary democracy and our democracy in this country? What steps is he taking to work with other Departments—notably the Treasury and the Department for Digital, Culture, Media and Sport—the Security Service and others to ensure that Russia is not attempting to influence and carry out potentially illegal activities in other areas?
Sajid Javid
The Cabinet Office is the Department responsible for overseeing elections and looking at allegations of that type. I know that it is taking this issue seriously. Alongside my Department, it is looking at intelligence and other information it is receiving. The two Departments are working closely together on this issue. I assure the hon. Gentleman that we are taking it very seriously indeed.
It is because of hostile state activity that the Bill provides new powers to stop, question, search and detain people at ports, airports and the Northern Ireland border to determine whether they are spies or engaged in other types of hostile state activity. If it is confirmed that someone is a spy, they could be refused entry, deported or have other action taken against them. Those powers will of course be subject to strict safeguards and robust oversight to assure their proper use at all times.
John Howell (Henley) (Con)
Will my right hon. Friend confirm that this is also about reducing the risk to the UK’s interests overseas from terrorism, as is the Contest strategy?
Sajid Javid
Yes, I can confirm that. The powers in the Bill are designed to better protect us against all types of terrorist threats, including those from overseas, and against hostile state activity.
The other provisions in the Bill are about ensuring that we can respond more effectively to the changing terrorist threat. Part of that is arresting, prosecuting and convicting terrorists and imprisoning them for longer, as well as more rigorous management of those terrorists following their release from custody to prevent reoffending. The Bill will enable us to do all those things, in part by closing gaps in a number of existing terrorism offences.
Nigel Dodds (Belfast North) (DUP)
Before the Home Secretary moves on, I just want to take him back to the issue of hostile states and checks on UK borders, including the border between Northern Ireland and the Irish Republic. Can he confirm what discussions he has had with the Police Service of Northern Ireland? We talk about no border and it being as frictionless as possible, but some checks do need to be carried out for national security and safety.
Sajid Javid
I have not had a discussion directly with the PSNI on this, but the Department has had discussions with our Northern Ireland counterparts, and I believe there have been discussions with the PSNI, to ensure that the measures we are taking, on the borders in particular, take into account the needs of Northern Ireland.
In particular, the Bill will help to stop terrorists exploiting the internet. We know that terrorists are using the internet and social media to spew out vile propaganda and to call on others to follow their murderous lead. We know that online platforms are being used to spread hate and to try to recruit more people to join the ranks, and we know that people are being rapidly radicalised via the web. That is why the Bill includes measures to combat what is happening online as well as offline. For instance, the Bill will make it a criminal offence to display a terrorist flag online, in the same way that it is already a criminal offence to march down the high street waving one to show support for a terrorist organisation.
Provisions in the Bill will also make it easier to tackle those who stream or repeatedly view extremist material online. At the moment, if someone downloads a bomb-making video from the internet, they are committing a criminal offence. However, if they watch the same video by streaming it, they could escape prosecution. That is not right. The Bill criminalises the repeated viewing or streaming of terrorist material online, which will close the loophole that allows some people to watch gruesome propaganda without any fear of prosecution. The Bill will mean that people who repeatedly view terrorist content online could face up to 15 years behind bars.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
The Home Secretary will know that I share his strong belief in taking strong action against the terrorist threat, but I am concerned about the wording of clause 3 and some of the other clauses. Would the clause apply if, for example, I streamed or watched on YouTube a National Action video? The Select Committee has been taking action to try to get its video removed. If, in the process of pursuing and pressurising YouTube to get the National Action video taken down, members of the Home Affairs Committee watched the video more than three times, would that mean we were guilty of a criminal offence? I can tell him that it was certainly left up there for rather more than three times and we were forced to watch it.
Sajid Javid
That is an important question from the Chair of the Home Affairs Committee, and I want to be clear in my response. This would not apply in the circumstances that she describes. The objective is clearly to find and punish those with terrorist intent. There will be a reasonable excuse defence, as there is for other laws, for those who have a legitimate use; the right hon. Lady gave one example, but it could apply to academics, journalists or news organisations. That defence will exist.
Mr Kevan Jones (North Durham) (Lab)
Like my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), I support many of these measures, but why is it three times? I accept the definition in terms of academic research, a journalist or the case of the Home Affairs Committee, but what happens, for example, if a teenager or someone with mental health problems watches a video more than three times? Do they automatically fall into this category, or does the reasonableness test apply?
Sajid Javid
The objective is to allow for the fact that it is quite possible for someone to accidentally come across such a video, be curious and watch it one time and perhaps a second time. I am not pretending that there is something magical about the number three. This is an attempt to capture repeated viewing, which may suggest that the intent is not innocent. Of course, should the Bill become an Act of Parliament and someone is prosecuted under this law, that decision would be made by the police, based on evidence and working with the Crown Prosecution Service. As with other criminal offences of this type, the CPS would use its judgment to decide whether it is in the public interest to prosecute.
Mr Kevan Jones
I am just intrigued why it is three times and whether this always has to be done in context. Clearly, if it is part of a pattern of behaviour and someone is watching not just one video three times but a series of videos, that is different but, if we are not careful, some opponents of the Bill will highlight the fact that anyone who watches such a video three times will necessarily get prosecuted, which I know is not the Home Secretary’s intention.
Sajid Javid
The right hon. Gentleman is right to make that point. Some people have already made similar comments, but clearly that is not the intention behind the Bill, and there are safeguards in place. I welcome his overall support for the Bill. This is why it is important to debate these issues and for Parliament to come to a collective decision. I am quite open to ideas from parliamentarians, and perhaps in Committee we can look more closely at these provisions to ensure that we have the balance right.
Sir Geoffrey Clifton-Brown (The Cotswolds) (Con)
I can tell my right hon. Friend that he has my wholehearted support for the Bill. It is one thing to go after the people who are looking at terrorist material online, but it is another thing under clause 4 to go after people who are publishing it online. Surely, what we really need to do is get this material offline as quickly as possible. Will the Bill do anything to shut down the internet providers that allow such material to be put online?
Sajid Javid
I will give my hon. Friend two responses. First, he may know that the Secretary of State for Digital, Culture, Media and Sport is looking separately at the whole issue of internet safety and potential legislation, which I am sure he will discuss with the House at the right time. Secondly, I was in silicon valley just last week to meet all the big internet and communications companies. While recognising that they have done a lot to remove terrorist content, especially in the past year, there is still a lot more that can be done. Those efforts will continue beyond the Bill, and given the meetings that the US Homeland Security Secretary and I have had with those companies, I hope that we will be able to announce in due course further measures that they will take to do just that.
Yvette Cooper
The Home Secretary is being generous in giving way. The Bill will make it illegal to watch the streaming of such material, but will he confirm that it is definitely an offence for YouTube or any such platform to stream terrorist material?
Sajid Javid
It is not an offence for internet companies to stream such material under UK law—currently—and the Bill will not have an impact on that. That said, as I mentioned a moment ago in response to my hon. Friend the Member for The Cotswolds (Sir Geoffrey Clifton-Brown), the Government, led by DCMS, are separately looking at what further internet safety measures may need to be taken.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
The Home Secretary is being very generous in giving way. He mentioned that social media providers have taken lots of action, but it is my understanding that the Metropolitan police have asked for 400 videos to be taken off YouTube that are essentially about incitement to violence. Is this Bill not an appropriate vehicle to provide a power for all police authorities to compel social media providers to take down videos that are about incitement to violence?
Sajid Javid
The hon. Gentleman mentioned YouTube, and I think—if I remember the number correctly—that it has removed something like 300,000 pieces of terrorist material. There is, however, a lot more that needs to be done not just by YouTube, but by many other internet companies. There is already an ability for the Government or, more likely, the police and other trusted organisations to flag up certain content on the internet, whether videos, stills or other types of content. So far this year, we are seeing a marked improvement in the speed with which that content is being taken down. In many cases, it is being taken down within the hour.
The hon. Gentleman may be interested to know that what has also grown considerably in relation to taking down content is the use of machine learning—trying to have the right algorithms to take down content much more quickly. For example, Facebook removed some 1.9 million pieces of content in the first quarter of this year, which is up some 70% on the same quarter of last year. In many cases, the content is being removed within minutes, and in some cases it can be stopped even before it is uploaded.
Stephen Doughty
Further to the point made by my hon. Friend the Member for Bermondsey and Old Southwark (Neil Coyle), I was very concerned to hear, when the companies appeared before the Home Affairs Committee, that they are not routinely searching even for the basic list of all proscribed organisations. I accept that some of this is stuff is in quite a grey territory and may sometimes not be picked up by machine learning, but one would expect that they, at a very basic level, would be searching for the names of proscribed organisations. I have found multiple examples of such content, including from Northern Irish terrorist organisations and others, on all these platforms that is not being removed even by the most basic checks. Why can we not compel the companies to do this?
Sajid Javid
The hon. Gentleman makes another good point in this debate. He is right to say that many leading internet organisations were not searching for proscribed organisations, or certainly not for all of them. So far this year, however, there has certainly been a significant improvement. We are monitoring this ourselves, and we are in constant dialogue with those companies. I am not going to pretend that every single one of them is doing that now, but there has been a huge improvement.
Sir Edward Davey (Kingston and Surbiton) (LD)
I am slightly confused about the Government’s direction of travel. I think that there is quite widespread support across the House for action against the people publishing this material, to get it before it is put up. The Government are clearly looking at that, and if they come forward with such measures, they would be welcomed. However, the Home Secretary has said of the provisions in the Bill that the Government are not sure that the three clicks approach is right because it could catch innocent people. Is it not more advisable to focus on what would actually work, solve the problem at the root cause and get support from across the House?
Sajid Javid
To be absolutely clear, what the right hon. Gentleman referred to as the three clicks approach—let us call it the multiple viewing approach—is absolutely the right one, which is why it is in the Bill. From the discussions that I and the Minister for Security and Economic Crime have already had with colleagues on both sides of the House, I think that it commands a wide body of support in the House, and that will of course be tested during the passage of the Bill.
The wider issues of internet regulation—those applying not just to terrorist content, but to child sexual exploitation, serious violence, gang violence and such offences—and the collective harms of some internet content are together being looked at by the Digital, Culture, Media and Sport Secretary, and I believe that a consultation is going on at the moment. That is the right place to look at those issues, because the kind of regulation mentioned by the right hon. Gentleman is not covered by the Bill.
Sir Geoffrey Clifton-Brown
I am very sorry to labour this point with my right hon. Friend, but one of the most critical aspects of defeating terrorism is getting this content off the internet as quickly as possible. Surely, a voluntary approach is better than a legislative one, so can he give the House any information from his private meetings with the internet companies? After all, Google, Facebook and others have some of the cleverest IT writers on the planet, so they should surely be able to take down this stuff almost before anybody notices it.
Sajid Javid
As my hon. Friend knows, because I have already said it, I met the companies he has mentioned and others last week. This was the only topic that we discussed: the meetings were very focused on terrorist content on the internet. He is right to point out that, through voluntary action and persuasion, a lot has already been achieved, and all these companies understand that legislation has not been ruled out.
My hon. Friend asked me to say a bit more about some of the newer work that the companies are doing, but I hesitate to do so. That sort of thing should be announced at the right time, because it requires international co-ordination. There is a lot more work, and I will say that a lot more effort is going into the use of both machine learning and artificial intelligence to deal with this very important issue. I must now make progress, because a number of Members wish to speak in this debate.
The Bill will extend the ability of police and prosecutors to bring charges for terrorist offences that are committed overseas. It is not of course for the law enforcement agencies in this country to police the world, but if someone travels from the UK and commits a terrorist offence abroad, it is right that they are brought to justice if they return here. This is already the case for many terrorist offences, but there are a few gaps in the coverage. That is why the Bill extends the jurisdiction of the UK courts to cover further terrorist offences that are committed abroad, including the dissemination of terrorist publications and the possession of explosives for the purposes of an act of terrorism.
John Woodcock (Barrow and Furness) (Ind)
Why has the Home Secretary decided not to include the Australian scheme using the declared area offence, whereby Australia deems it illegal for people to travel to certain designated terror hotspots, such as Iraq and Syria? The Minister for Security and Economic Crime has been looking at this for some time, yet it is not part of the Bill.
Sajid Javid
The hon. Gentleman mentions the Australian extraterritorial offence that has been created, and I am looking at just that. There is a bit more work to do, and it is not as straightforward as it might sound. If it is to become a legislative proposal, I obviously want to make sure that we have considered it properly. If I am persuaded by it and we can complete the work in time, I intend to bring that forward as a Government amendment to the Bill.
Kevin Foster (Torbay) (Con)
The Home Secretary has my support on the thrust of the Bill. However, on matters such as the one that has just been raised, will he assure me that he will ensure there are exemptions and defences for quite legitimate purposes? For example, we do not want to get into arguments about whether an aid worker has crossed a particular line when they are in an area for purposes that none of us would view as criminal.
Sajid Javid
Yes, I absolutely give my hon. Friend that assurance. As with many of these types of measures, there is always the need to consider what I would call a reasonable excuse defence.
Once we have brought terrorists to justice and secured their conviction by a jury, we want to make sure that the public are protected by locking up terrorist offenders for longer and allowing more robust supervision on their release. The punishment for terrorism must properly reflect the severity of the crime. That is why the Bill allows for the introduction of longer sentences, of up to 15 years, for a number of offences, including the collecting of terrorist information, the encouragement of terrorism and the dissemination of terrorist publications. Previously, the maximum sentence was up to 10 years for such offences.
As well as increasing the maximum length of sentences, we need to ensure that terrorist offenders are not released from custody until it is safe to do so. When they are released, they need to be subject to longer periods of supervision on licence. The Bill will achieve this by enabling the courts to impose a public protection sentence for a wider range of terrorism offences. Offenders will not be released automatically at the halfway point of their sentence, but will instead stay in prison until the Parole Board decides to release them.
We are also extending sentencing provisions to Northern Ireland that already operate in the rest of the United Kingdom. The sentences handed down by the courts in Northern Ireland have been of particular concern to some hon. Members, and the Bill will help to address that.
The Bill will make it easier to monitor terrorist offenders once they have been released by requiring them to notify the police of their bank or passport details and any vehicles that they may possess or have access to.
Mr Kevan Jones
I support the measures that the Home Secretary is outlining. In the briefing documents he sent before the debate, he referred to this measure as being similar to the monitoring of sex offenders in the community. In those cases, there is clear joint working between the probation service and police at local level. Is he envisaging a similar system for monitoring those who have been convicted of terrorism offences?
Sajid Javid
Yes, I am.
The Bill will update the law relating to terrorism reinsurance. The attack last year on Borough market highlighted a gap in the current arrangements that the Bill now addresses. In particular, I thank the hon. Member for Bermondsey and Old Southwark (Neil Coyle) for the important work that he has done on this issue on behalf of his constituents.
Next Tuesday will mark the anniversary of the attack outside the Finsbury Park Islamic centre last year. Our thoughts are with the family and friends of Mr Makram Ali, who died on that day a year ago, just as they are with the victims and survivors of other attacks last year in Westminster, the Manchester Arena, London Bridge and Parsons Green. We cannot turn back the clock to undo what was done in those five attacks, but we can and must learn the lessons and do everything in our power to prevent such suffering from being inflicted ever again. The Bill plays an important part in ensuring we do just that and I commend it to the House.
Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)
In 2017, as the House has heard, the UK was subject to five terrorist attacks, which killed 36 people, injured many more and terrified millions. Furthermore, this year there was the shocking assassination attempt on Sergei and Yulia Skripal. So it is reasonable that the Government should review, and if necessary update, counter-terrorism legislation and arrangements for border security.
First, I want to pay tribute to the survivors and the bereaved of the terrorist atrocities in London and Manchester last year. The young girls at the Manchester Arena who came to see their favourite singer saw sights that children of that age should never have to see. I also want to pay tribute to all the brave women and men of the emergency services, who often run into danger and step forward in dreadful times. We should not forget the NHS workers—together with support from Porton Down—who were confronted with circumstances that they could never have dreamed of, but who saved the lives of Sergei and Yulia Skripal.
I turn to the Bill before us. Let me begin by saying that I agreed with the Home Secretary when he said recently that there is no binary choice between security and liberty. What makes us free is often what makes us safe. It is certainly what makes ours a country and a way of life worth serving and defending. I am not saying that just as a member of Her Majesty’s Opposition—I fought infringements of our civil liberties, together with some of his Cabinet colleagues, when a Labour Government tried to introduce them, notably ID cards and 90 days’ detention without trial. I defend civil liberties without fear or favour.
The question that arises is whether the Bill is necessary, appropriate and proportionate. Although we support the Bill overall, a careful examination will show that it does not necessarily meet all those criteria. That is why we will seek to amend clauses of the Bill in Committee.
The Home Secretary will be aware that the Home Affairs Committee said in 2001:
“This country has more anti-terrorist legislation on its statute books than almost any other developed democracy.”
In 2008, Lord Lloyd of Berwick told the other place:
“No other country in the world…has had anything like the same plethora of”
anti-terrorism
“legislation that we have had.”—[Official Report, House of Lords, 8 July 2008; Vol. 703, c. 700.]
More recently, Max Hill QC, the independent reviewer of terrorism legislation, said last year that Britain
“has the laws we need. We should review them and ensure they ensure remain fit for purpose, but we should have faith in our legal structures, rather than trying to create some kind of new situation where the ordinary rules are thrown out.”
To the extent that the Bill does not throw out the ordinary rules, it has our broad support.
Finally in relation to expert opinion, I turn to the review by Dave Anderson, QC, of the terrorist incidents last year in Manchester and London. He made a series of recommendations, ranging from multi-agency working to greater intelligence sharing and more consistent handling of intelligence, but there was not a single recommendation of new laws or powers.
Nevertheless, we have the Bill before us, and the Opposition broadly support it. I will now set out our reservations. First, it will update offences in a way that will potentially criminalise information seeking, playing of videos and expressions of opinion. In relation to the playing of videos, the Home Secretary will have heard the opinion of my right hon. Friend the Member for North Durham (Mr Jones) about three clicks being a significant number. We will seek to clarify the point in Committee.
On the question of expressing opinion, the Home Office says in its note on the Bill that it is
“not making it unlawful to hold a private view in support of a terrorist organisation”.
The Home Office also says:
“Operational experience has shown that there is a gap around individuals who make statements expressing their own support for terrorist organisations...but who stop short of expressly inviting others to do so”.
The Home Secretary will expect that we will press that point in Committee, because we would say that gap between having an opinion and inciting others to unlawful acts is not an anomaly but an important principle in protecting freedom of speech. We are in danger in the Bill of confusing bad thoughts with bad deeds. We hope to clarify this issue as the Bill makes progress.
Another concern about the Bill is the extent to which it allows the retention of biometric data on anyone arrested, including DNA and fingerprints, even if they are mistakenly or even unlawfully arrested. There are already abuses of the national police database, which the Government have failed to correct. The state has no business keeping records on people who are not criminals. It is an essential part of our liberty that we can go about our day-to-day lives unhindered by state agencies. That is not the case if the state can retain data on all of us. It is an even greater breach of our civil liberties if the retention is done without our knowledge.
A further concern about the Bill is what it has to say about the Prevent strategy. It proposes extending the Prevent strategy by allowing local authorities, as well as the police, to refer people to the Prevent programme. Let me be clear that there will always be a need for a programme that does what Prevent purports to do. I have met Commissioner Neil Basu and other Metropolitan police leads on Prevent, and I visited Prevent-funded programmes in Birmingham and elsewhere. I have no doubt that there is some good work being done in the name of Prevent, but Prevent as a whole is a tainted brand, particularly among sections of the Muslim community. From a recent study by the Behavioural Insights Team, commissioned by the Home Office itself, we also know that more than 95% of deradicalisation programmes are ineffective. I suggest that those two facts—that Prevent is a tainted brand and that so many of the deradicalisation programmes are ineffective—are not unrelated.
Labour is committed to a thorough review of the Prevent programme, which we believe is currently not fit for purpose. In the interests of transparency and accurate evidence-based policy making, I call on the Home Secretary today to publish the research by the Behavioural Insights Team, which has been so widely reported and seems to run counter to the claims made for the success of these programmes.
Mr John Hayes (South Holland and The Deepings) (Con)
I did not intend to intervene—I will speak at length later—but is the right hon. Lady aware that about 75% of people referred to Prevent are, having been through the programme, of no further interest to the police or security services? That sounds like success to me.
Mr Deputy Speaker (Sir Lindsay Hoyle)
Just to advise Members who may want to speak at length later, they will have up to 15 minutes and no more.
Ms Abbott
I have visited Prevent programmes and I am aware that good work is being done, but the figure that 95% of deradicalisation programmes are not effective should not be put to one side. We have to address it and we have to address whether there is any connection at all with the fact that Prevent is a tainted brand among the members of some communities.
Vernon Coaker (Gedling) (Lab)
My right hon. Friend is making a fair point. I think we need some sort of Prevent strategy, so I accept the need to review it. Does the fact that over 6,000 individuals were referred through the Prevent strategy, over half of whom were under 20, show how careful we need to be in pursuing this policy, even if it is the right policy for the Government to have?
Ms Abbott
I accept the need for a programme that does what Prevent purports to do, but there is a danger. If we do not review the activities of Prevent, it may prove counterproductive in the very communities we want to work with. As for the question of local authorities becoming referral agents, at least the police have had some training in this matter, whatever we think of the programme, but local authorities have no expertise in counter-terrorism. The danger is that pointless referrals and what seems, I am afraid, to be useless deradicalisation counselling will snowball.
Simon Hoare
I am listening carefully to the right hon. Lady. Just to clarify, is she saying that she would review the Prevent strategy, or, given the data or allegations she has repeated—from, I think she said, a lawyer—that she would press the pause button on Prevent, stop it and invent something else? If it is the latter, what is the something else? I think that goes straight to the point made by the hon. Member for Gedling (Vernon Coaker).
Ms Abbott
I said quite clearly that we would seek to review it. We could not at this point press the pause button, but the data we have about the effectiveness of deradicalisation programmes and what we know about how Prevent is regarded in some parts of the community means that we would want to review it.
One of the most worrying aspects of the Bill is the creation of powers of detention, interrogation, search or seizure without any suspicion whatever of crime, but simply while people are crossing borders. That is to treat anyone, British citizen or not, as a potential terrorist simply in the act of crossing the border. Such powers should be granted only with due care. All inhibitions on the rights of the citizen by the state must be based on evidence or reasonable grounds for suspicion. They must be subject to challenge—[Interruption.] I hope the House will allow me to conclude my remarks. If suspicion-free detention, interrogation and search is allowed, then it cannot be challenged. If there is no basis for challenge, there is likely to be no basis for detention. How does that accord with the Government’s claim to be building a new, global Britain?
Sir Geoffrey Clifton-Brown
The director general of MI5, Andrew Parker, said in a speech in October last year that the ongoing terrorist threat was operating at a scale and pace we have not seen before. Does the right hon. Lady’s party support the Bill in principle or not?
Ms Abbott
I think I have said three times that we broadly support the Bill in principle, but we are Her Majesty’s Opposition and we are entitled to set out our reservations on Second Reading.
There is much in the Bill about increasing sentences for terrorism-related activity. I say seriously to the Home Secretary that he also needs to look at what more could be done to guard against radicalisation in prison. A certain amount has been done in trying to separate imams and so on from other prisoners, but the fact is that too many young men not of a Muslim background get caught up in extremist ideology while behind bars. We cannot continue to have a situation where people emerge from prison more radicalised than when they went in.
Alex Chalk (Cheltenham) (Con)
On that point, does the right hon. Lady agree that we should be concerned by reports that emerged from Belgium that the suspect in the appalling and brutal murder of two police officers was a small-time crook who, it appears, had been radicalised in custody? Does she therefore agree that she should support all the Government’s excellent efforts to try to deal with this important issue?
Ms Abbott
I think Members are seeking to have me say what they want me to say and are not listening to my speech. What I am saying is that it is all well and good to put more people in prison for longer, but there is more we could do about radicalisation in prison. It is shocking to me to see young men, who had no connection with Islam before going into prison, coming out of prison as Islamic radicals. We can do something about that, because while they are in prison they are in the hands of the state. I think there is more that can be done.
In Dave Anderson’s review, he called for greater collaboration between the counter-terrorism police, MI5 and neighbourhood police, but—I make no apologies for repeating this—the Government have cut police numbers by 21,000. In practice, their cuts have undermined Dave Anderson’s recommendations. We cannot have greater collaboration between counter-terrorism and neighbourhood police if the numbers of neighbourhood police are being cut. The Metropolitan Police Commissioner Cressida Dick has said that coping with counter-terrorism is putting an unsustainable strain on the police. The head of the National Police Chiefs’ Council, Sara Thornton, said:
“Fewer officers and Police Community Support Officers will cut off the intelligence that is so crucial to preventing attacks.”
New laws, whatever their merits, are no substitute for effective policing, and not just counter-terrorism policing. Ministers will tell us how much more they are spending on counter-terrorism, but almost as important as actual counter-terrorism officers is ordinary neighbourhood policing, which is our frontline against terrorism. Laws, whatever their merit, become a dead letter without enough police officers.
Stephen Doughty
I completely agree with my right hon. Friend on that point. We are very lucky in Wales that, thanks to the investment from the Welsh Labour Government, we still have substantial numbers of police community support officers on our streets. They play a crucial role. All the police officers I talk to, including senior police officers, tell me about the real pressures and strains they face, and the impact of the lack of community policing on the frontline in the fight against terrorism.
Ms Abbott
I agree with my hon. Friend. That is what we are hearing from police leaders all the time. They want to do their very best against terrorism, but the cuts to the number of officers puts them under a great deal of strain.
Broadly, and in principle, we support the Bill. As the Home Secretary would expect, we will give it particularly careful scrutiny in Committee. We hope it will come out of Committee a better Bill. The safety of the nation depends on it.
Several hon. Members rose—
Mr Deputy Speaker (Sir Lindsay Hoyle)
Before I bring in the next speaker, just a reminder—I have told speakers that this is a very important debate, so please let us not abuse other people’s time. I call John Hayes; you have up to 15 minutes.
Mr John Hayes (South Holland and The Deepings) (Con)
Terrorism blights lives and in some cases, of course, it takes lives. We have already heard from Members on both sides of the House about the appalling events of the last year, and they will be in all our minds as we debate these measures. The right hon. Member for Hackney North and Stoke Newington (Ms Abbott) was right to focus on the events in Manchester, not because any terrorist event is greater or less than any other, but because of the chilling image of those children, which she rightly focused on in her remarks.
Terrorism is not just about the people whose lives are lost. All of us are affected by it, including those who are related to the people who died, those in their communities, those in the wider network of people who came into contact with these events—the emergency services have been mentioned—and others. All of us are a little diminished, are we not, when these things happen in our country? Fear is spread. Doubt is fuelled. That is part of the terrorists’ aim, of course: to intimidate us, change us and frighten us. It is right to say that in our response, we must be mindful of the need to retain the freedoms that terrorists seek to extinguish. Nevertheless, it is equally true that we must ensure that we are well equipped to deal with terrorists as they change their modus operandi.
There are two things that have altered most about terrorism in recent times. The first is the terrorists’ ability to communicate their message using modern methods—to proselytise, to convert, to recruit. They do that by messages and images, and modern media is such that it can be done much more easily than in years gone by. They are ruthless and merciless in the way they go about that business. When I was the Home Office Minister responsible for security, I was well aware of the good work that is done in Government to deal with that, but it is a constant challenge. Every day images are put up, and every day they are countered or we aim to get them taken off the internet. They only have to be there for a very short time to have their effect, or their possible effect, as they are digested by vulnerable people.
The right hon. Member for Hackney North and Stoke Newington also talked about the young people who are referred to the Prevent strategy, and I want to return to that in a moment. Young people, in particular, are at the greatest risk. They are impressionable and vulnerable. They may simply be lonely and in need, and the terrorist acts much like any other kind of social or cultural predator. They recruit by corrupting. They seek to own that young person, and once they own them, they direct them with wicked purpose. There are parallels with other kinds of corruption. People are recruited in the same way by sexual predators: they are groomed. We know this from evidence that has been brought before the House, from the work of Select Committees and from the Home Office.
The Secretary of State is absolutely right to say that it is both our responsibility and our duty to ensure that all those missions to keep young people and others safe are best equipped to do so not only by their training and skills, but also by the legislation that underpins their work. Successive Governments have recognised that over time. Indeed, it is a sad strength of this country that we have more experience of dealing with terrorism than most others, because of the events in Northern Ireland. That knowledge and understanding of terrorism has allowed us to develop skills that other countries do not always have—as I said, it is a matter of sadness that we should have had to do so. None the less, those skills have to be updated and refined over time, for the other principal change in terrorism is that terrorists have become more flexible.
Countering terrorism is largely about trying to anticipate events. The Contest strategy is about prevention—it is about anticipation as well as response—and anticipating events is, in essence, rooted in the idea that patterns of behaviour and likely courses of action can be measured. When terrorists become less predictable, they are harder to counter, and they have become less predictable over time as the more recent terror events show. For example, let us take the use of vehicles as a weapon—it sounds pretty straightforward, does it not? It is horrible, of course, in its effect. Vehicles are routine things that can be obtained without too much fuss or bother, and once someone knows that they merely need a vehicle rather than a bomb, they know that they can go about their deadly business, as we saw in Westminster and elsewhere. That additional flexibility—that new approach by the terrorists—requires laws that are fit for purpose and which allow us to respond to the changing character of terrorism. That is what has been brought before the House today.
I was pleased as a Minister to bring the Investigatory Powers Bill—now the Investigatory Powers Act 2016—to the House. It was very challenging because, of course, questions were asked about it. The right hon. Lady spoke about scrutiny and the role of the Opposition. She knows that the Opposition and I worked very closely together on that Bill. The Government made key changes as the Bill made its way through the House, because we recognised that part of the Opposition’s role is to challenge and oblige Government to question themselves about the appropriateness of various aspects of what they are proposing. We ended up with a good piece of legislation, which has further enabled the security services and police to go about their business in respect not just of terrorism, but of serious organised crime. This Bill is very much in the same spirit. It updates the legislative basis on which our security services and the police can do their work by recognising the changes in the pattern of behaviour of those we face.
The Secretary of State went through the details of the legislation—I have it all here, but to do so again would both be tedious and, I suspect, would test your patience, Mr Deputy Speaker, given the overture at the beginning of the debate that many wanted to speak and none should do so for too long.
Sir Geoffrey Clifton-Brown
My right hon. Friend has talked about terrorist methods continually changing. Did not the situation in Northern Ireland tell us that we needed constantly to update our legislation, often by emergency legislation, to keep one step ahead of the terrorists?
Mr Hayes
Yes, that did happen, but I would go as far as to say—reflecting what Andrew Parker said—that the scale of what we now face and its character is unprecedented in modern times. I am cautious about being too definitive about these things, because it is never wise to be so, but I defer to the man who runs MI5, who is closest to these matters. I think that we are facing new challenges of the kind that we have never really seen before. To go back to my earlier remarks, when we think of Irish terrorism, there was, for the most part, a degree of predictability, and the key difference with terrorism then was that most of the terrorists did not want to risk their own lives. They wanted to save the lives of the operatives. That is a fundamental difference from the sort of terrorism that we have seen in more recent years. There are also differences in the command structure of terrorism in Ireland compared with what we now face. Many of the terrorists that we seek to counter, and which this legislation addresses, are people who have been radicalised in their own home. They are inspired by rather than part of an organised network. Given what I said about the availability of weapons, in that a vehicle can be a weapon, one can imagine the damage that an inspired terrorist, possibly unknown to the security services and police until they commit the act, might do.
Simon Hoare
Does my right hon. Friend also agree that one acute difference between Irish terrorism and the threat today is that in the Irish situation an agreed code word was usually used to alert the security services that something was about to kick off? We do not have that today, which is why this very flexible, proactive approach to regulations required to try to keep us safe—we will not manage it in all circumstances, but we will do our damnedest—is pivotal.
Mr Hayes
The Irish people endured the horror of terrorism for a very long time, and we should not be complacent about any part of our kingdom, but there are differences with what we face now, which I have already mentioned and others will no doubt elaborate upon during the debate.
Before coming to the end of this brief speech—certainly brief by my standards—I want to deal with Prevent. I worked with Prevent and I will mention two things that the right hon. Member for Hackney North and Stoke Newington said with which I fully agree and then I will deal with the things I did not agree with, as that is the polite thing to do. She is absolutely right about radicalisation in prisons. No Government have got this right. In a previous incarnation, I was the Minister responsible for prison education, would you believe? It is not an easy job, I can tell you, and I was never really satisfied that we got it right. I do not think the previous Government got it right either. This is not about party politics. We probably need to look at it afresh. I agree with her about that.
It is, in my view, a good thing, by and large, to keep people who do dreadful things in prison for longer, but the right hon. Lady is quite right that if we are keeping them in prison ever longer, and given the serious chance that they will be radicalised accordingly, there is a risk that they might do a degree in being radicalised, rather than just an A-level. I am inclined to her view that we need to look at that with even greater determination than in the past. With this Home Secretary and this Security Minister, we have the best chance ever of bringing fresh eyes to this. Proust, I think, said that there was no such thing as “new landscapes”, only “new eyes” to see them. Perhaps, in a Proustian fashion, they will look at the right hon. Lady’s suggestion.
The second thing I agree with the right hon. Lady about is the need to ensure that there is proper oversight of Prevent and that we measure its effect properly. When I was Minister, I revitalised the oversight board in the Home Office—I am sure that my successor has added even greater value than I could have hoped to add in that respect—and I was also determined to measure the effect of Prevent more routinely and more transparently.
None the less, I disagree with her about Prevent as a concept. The work of our Prevent co-ordinators, at the very frontline of radicalisation, is heroic. I met them time and again all over country. I went around the country to see the Channel operation and the Channel panels. The people who contribute to Channel and who co-ordinate and run Prevent are doing immensely good work in very difficult circumstances. I do not say that they always get it right—perhaps they do not—but I do say that without them the circumstances we face would be altogether worse. They are making a huge difference in towns and cities across the country day by day. I celebrate their achievements while never being uncritical, as in my comments on measurement and oversight.
Sir Edward Davey
Did the right hon. Gentleman meet any representatives from Muslim communities who perceived it to be a flawed scheme?
Mr Hayes
There is an argument about how Prevent is perceived and how communities in which the co-ordinators operate understand it, and, consequently, there is an argument for promoting it more effectively—I will meet the right hon. Gentleman halfway—but do not forget that some of the critics of Prevent are people who do not want it to work. Some of its critics are critics because they do not believe in what we are trying to achieve. We have to start from the perspective that not everyone is a balanced and reasoned critic, and perceptions are, to some extent, coloured by that. I introduced the Prevent duty when I was the Minister so that local authorities, health authorities, schools, colleges and others could add value to Prevent by identifying those most at risk. Let us be clear: these are people at risk of being groomed to do wicked things.
With that and to give others a chance to speak far more persuasively than I could ever hope to do, I end by saying that our will to combat terrorism must never falter, our resolve never waver. This House must have the same kind of certain confidence as our security services and police have in their certain determination—their mission—to defeat terrorism.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
It is a pleasure to follow the right hon. Member for South Holland and The Deepings (Mr Hayes), who made some thoughtful remarks but inexplicably failed to stick to his 15-minute time limit, which was a surprise to us all in the Chamber.
In the past couple of years, we have seen deadly terrorist attacks across the world, including in Mosul, Baghdad, Istanbul, Kabul, New York, Paris, Nice, Munich and Stockholm, and last year the UK was subjected to five terrorist attacks in London and Manchester that killed 36 innocent victims and injured many more. We may have honourable disagreements about many aspects of the Bill, but we owe it to the people affected by last year’s attacks to debate these differences as a matter of principle and efficacy rather than on the basis of petty party political interests.
Glasgow airport, in my constituency, was the target of an attempted terror attack in 2007. It came as a huge shock to all Scots given that we had had very little experience of dealing with terrorist acts on Scottish soil. It proved that nowhere and no one is immune to the threat of terrorism. With that in mind, I can assure the Minister and the House that the Scottish National party will engage in this debate in the appropriate manner, treating it with the respect and seriousness that it deserves.
In an increasingly changing and digital world, the SNP supports giving law enforcement agencies the necessary powers to fight serious crime and terrorism. The world is becoming ever more complex, and terrorists are utilising sophisticated measures to plan their attacks. As such, it is of extreme importance that we keep our response and policies under continual review to ensure that we take the most effective action possible to prevent terrorist acts from occurring, while—crucially—respecting and upholding our civil liberties.
During the debates that will follow, the SNP will judge any proposed new powers or the extension of existing ones according to whether they are appropriate, effective, proportionate and respectful of civil liberties. This is the approach we adopted during the passage of the Investigatory Powers Act, during which my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) and I argued that aspects of the Bill were unlawful. We might have been defeated in this place, but we were not alone, and successful court challenges by the hon. Member for West Bromwich East (Tom Watson) West Bromwich and the right hon. Member for Haltemprice and Howden (Mr Davis), and subsequently by Liberty, proved that we had been right to oppose the measures. I hope that the Government have learned from that experience.
The Minister for Security and Economic Crime (Mr Ben Wallace)
I just want to clarify the point about the Investigatory Powers Act. It is important for the House to know that in the legal challenge the Government were successful in defending the Act on three out of four measures. It was on the measure about judicial oversight that we conceded, as hon. Members will see in the Bill.
Gavin Newlands
I appreciate the Minister’s intervention. As I outlined, my hon. and learned Friend made these points during the Committee stage of the 2016 Act, but I accept his point.
I hope that the Government have learned the lesson and will work with all parties to ensure that the policy can survive any potential legal challenge and carry the support of the House. There will be no petty opposition for opposition’s sake, but we will cast a critical eye on the Bill and table amendments to improve it in Committee and on Report.
After the London Bridge attack last year, the Prime Minister announced a review of the Contest strategy to establish whether the police and the security forces had the powers that they needed to tackle those who would seek to cause us harm. Following David Anderson’s very thorough review, the Bill is intended to bolster the Government’s counter-terrorism approach and strengthen a variety of measures to respond to the terrorist threat, allowing earlier intervention to disrupt terrorism.
I agree with the Government’s desire to intervene at an early stage. Such intervention is not only effective in stopping terrorist attacks, but helpful in preventing young people from becoming radicalised. Terrorist organisations are using 21st-century measures, including social media, to promote their propaganda as a means of radicalising youngsters. It is only right for the Government to review their approach to ensure that it is fit for the 21st century and future-proofed as far as is practically possible, but the internet providers and the social media companies also have a responsibility to ensure that terrorists cannot exploit their systems to promote their poisonous agenda. They must be involved in this process as well. On too many occasions they have been unwilling to take down terrorist content, and slow in doing so.
We are broadly in favour of the aims of the Bill but, while some of its provisions will attract our support, others will need to be tested in Committee. We must ensure that lowering thresholds and the burden of proof does not become so extreme that it impinges severely on civil liberties.
The Bill seeks to amend the offence of collecting terrorist information to cover the repeated viewing or streaming of material online. I accept the point that streaming material has become far more common since the previous legislation was drafted, and that we need a more robust approach. The implementation of this policy will give our police and security services the power to compel internet companies to assist them in carrying out covert surveillance on suspects streaming terror-related content. However, the way in which the process is set in motion is key.
In Committee, the Government will need to set out their case very well, explaining their proposed definition of “streaming” and the new three strikes, three clicks approach to people who stream extremist terror content. The right hon. Member for North Durham (Mr Jones) pressed the Home Secretary on that point earlier. In all likelihood, the approach will prove to be over-simplistic. While we are sympathetic to the Government’s goal of early prevention of potential terrorist acts, we must ensure that their proposals are evidence-based, and that civil liberties are not eroded or forgotten in the process. Like others who have spoken, I feel that the Government should be doing much more to stop the material at source by placing a statutory duty on the online platforms on which the material is viewed.
The Government intend the offence to cover circumstances in which the defendant is in control of a computer but, in addition, and with a much higher degree of difficulty, circumstances in which an individual is viewing the material, for example, over the controller’s shoulder. That may prove to be impossible, and is an obvious example of parts of the Bill which, if unamended, may be open to challenge in court. Campaigners have already voiced concerns about the proposed policy, suggesting that it unfairly targets innocent people. Rachel Robinson, of Liberty, has said:
“Blurring the boundary between thought and action by locking people up simply for exploring ideas undermines the foundations of our criminal justice system. Terrorists’ primary goal is to undermine our freedom. With proposals like this, the government risks giving them exactly what they want.”
Along with the Scottish Government. we will work with the Minister to ensure that that is not the case and that we get this important part of the Bill right. Campaigners have also pointed out that an attempt to introduce a similar terror streaming law in France last year was struck down twice. I should be keen to learn from the Minister what discussions he has had with his counterparts in France about their experience of trying to introduce a similar law, and whether the Government have been able to learn any lessons from them.
The Home Secretary also seeks to amend the offence of encouragement of terrorism so that action can be taken to target those who seek to radicalise children or young people who may not understand what they are being encouraged to do. It is vital that we reassess our approach to preventing vulnerable youngsters from becoming radicalised, and send a clear message to the recruiters that they will face the full force of the law if they attempt to prey on our young people. In my role on the Justice Committee, I had a long conversation with a now convicted terrorist. That has had a profound effect on me and, in particular, on my thoughts about how we can try to protect young people from terrorist influence online.
I understand the arguments that certain provisions in this Bill unfairly target innocent individuals’ personal liberty. The fact that the Home Office guidance that accompanies the Bill also accepts that point is telling. However, it attempts to alleviate the concern by stating that it would not be
“unlawful to hold a private view in support of a terrorist organisation”;
it would be unlawful only to
“recklessly express those views, with the risk others could be influenced”.
I think that the Government will need to clarify what is meant by recklessly expressing a particular view. That seems to me to be an unnecessarily wide and vague phrase that will undoubtedly be tested later in the Bill’s progress.
There will always be a fine balance between giving the police, the security services and the judiciary enough powers to keep us safe, and liberty itself. Ultimately, it could be argued that, if we restrict our personal freedoms excessively, the terrorists have already won. The Government must tread very carefully, and engage fully not only with the Opposition, the Scottish Government and other Administrations, but with those who instinctively oppose any perceived restrictions of liberty.
The Scottish Government support giving law enforcement agencies and the intelligence services the necessary and proportionate powers that are required to fight terrorism. In the past, the UK Government have chosen not to engage with the Scottish Government before publishing Bills and guidelines on the issue. I am pleased that that has not happened in this instance. I also welcome last week’s telephone conversation with the Minister, but will he assure me that he will engage with the Scottish Government at every opportunity and throughout this process?
Keeping people safe is the primary function of any Government. By means of the Prevent strategy, the Scottish Government will continue to work with key partners to tackle all forms of violent extremism—for instance, through Police Scotland’s model of community engagement. Working with the Scottish Government will enable people to learn lessons about the range of positive work that Police Scotland and other agencies do in our local communities to keep people safe. The distinct Scottish approach to the delivery of Prevent benefits from the positive relationships that are fostered in our communities. That includes our work to develop a range of credible grassroots community-led projects that help to challenge extremist narratives, giving support and guidance to people who are potentially vulnerable to radicalisation.
John Woodcock
The hon. Gentleman’s description of the “distinct Scottish approach” to Prevent sounded exactly like what Prevent is supposed to do. Will he elaborate on the difference between the Scottish version of Prevent—which he apparently fully supports, unlike Labour Front Benchers—and the English version?
Gavin Newlands
I think that it is a resource issue. In Scotland, resources are invested to ensure that the necessary community engagement takes place and there is support for the policy in the community. At present, that is not always the case south of the border.
John Woodcock
Is the hon. Gentleman saying that there is no difference whatsoever between English Prevent and Scottish Prevent, that it is purely a resource issue, and that he does not share the view of Labour Front Benchers that the policy should be changed?
Gavin Newlands
I have to say that I am no expert on the delivery of the Prevent strategy in England. I represent a Scottish constituency, and I speak on behalf of the Scottish National party.
John Woodcock
The hon. Gentleman said that the Scottish approach was distinct.
Gavin Newlands
It is distinct in terms of its success, in comparison with the success of the strategy as it currently operates south of the border.
Gavin Newlands
I have already outlined in what way.
The Scottish Government recognise that resilient communities which look out for one another are key in keeping people safe and, furthermore, that communities are our greatest ally in that respect. We must ensure that the Bill takes account of the separate and distinct Scottish legal system, respecting the current devolution settlement, and is proportionate and appropriate for Scotland.
I nearly got through an entire speech without mentioning it, but a potential threat to our national security is, of course Brexit, and the loss of access to multilateral information-sharing tools that we face. Organised crime and terrorism do not respect borders, and it is essential for Police Scotland to have continued access to the information systems, support and technical expertise that are available through Europol—not only to keep Scotland safe, but to contribute to making Europe safer through cross-border collaboration. I fear that, after the UK leaves the EU, there will be a major risk that any new arrangements will be sub-optimal in comparison with those that exist at present. I hope that the Minister will give a guarantee that any new legislation will be prepared in time to fill any gaps that arise from our leaving the EU, and that he will explain, as far as possible, how he intends to ensure that that happens. We need to ensure that our law enforcement agencies can retain the level of access to Europol that they currently enjoy.
Let me end by saying that 2017 was a difficult year for the UK, and we owe it to everyone affected by last year’s attacks to work together on this important Bill to give our law enforcement agencies necessary and proportionate powers to eliminate and to prevent terrorism without eroding vital civil liberties.
Alex Chalk (Cheltenham) (Con)
It is a pleasure to follow the hon. Member for Paisley and Renfrewshire North (Gavin Newlands).
We meet in the shadow of a grim situation for our country. As the shadow Home Secretary said, in 2017, 36 people were killed and, since 2013 alone, some 25 terrorist plots have been foiled. I want to take this opportunity to pay tribute to my constituents at GCHQ, who through their hard work, dedication and professionalism have, I feel sure, contributed to the foiling of a good number of those plots both in the UK and overseas.
I entirely support the Bill, but it is absolutely right, and the duty of the Opposition and all Back Benchers, to scrutinise these matters with great care. I sense the same spirit in this House this evening as there was when it dealt with the Investigatory Powers Act 2016: a spirit of constructive discussion, and at times criticism, to ensure that the provisions we arrive at strike the balance between liberty and security. I remember being in the House listening to discussions on the Investigatory Powers Bill. I am entirely sure that the end statute was better for the process of debate that took place in this House.
I want to examine some of the provisions in the Counter-Terrorism and Border Security Bill and explain why it is appropriate. In simple terms, the Bill serves to clarify existing measures, to extend in a common-sense way their provisions, and in appropriate circumstances to modestly strengthen penalties. I will deal with those three headings and explain why in my view the provisions are justified.
The Bill seeks to
“clarify that the existing offence of displaying in a public place an image which arouses reasonable suspicion that the person is a member or supporter of a proscribed organisation covers the display of images online”
as well as in the analogue world. That is appropriate. It clarifies the position and for the position to be otherwise would make a nonsense of the digital world we are in, so I anticipate that that will not be controversial in Committee.
However, I want to deal with the point raised by the shadow Home Secretary about extending the offence of inviting support for a proscribed organisation to cover expressions of support that are reckless as to whether they will encourage others to support the organisation. The concern has been raised that moving the mens rea from intention to mere recklessness risks broadening the ambit of the offence too greatly. It is absolutely right to have this discussion because it would be a matter of grave concern if we inadvertently broadened an offence so that it unintentionally caught people within it that we were not comfortable being caught within it. Having thought about it, however, my view is this provision is on the right side of the line and I will explain why.
Let us suppose the facts were as follows. The defendant deliberately went to his friend’s house from school and said, “I really think you should be joining this proscribed organisation”—be it Isis or al-Muhajiroun—and his intention was to get that individual to sign up, but in the room at the same time was his friend’s younger brother, aged 16, and he was not in any way intending for that younger brother to be radicalised but was being reckless as to whether that would happen. In those circumstances, if the message was in fact heard by the younger brother rather than the contemporary friend, should the law have this loophole so that the defendant could not be liable in those circumstances? That would be nonsense. It would create an unconscionable loophole because the mischief at which the legislation is aimed is the propagating of propaganda material that encourages others to support proscribed organisations.
Sir Edward Davey
I agree that we should be debating these issues, but can the hon. Gentleman point to anywhere in case law where there is real development of the concept of recklessness compared with the concept of intentionality?
Alex Chalk
That is pretty much everywhere, and I will give the right hon. Gentleman an example. How about an allegation of assault? Let us suppose the defendant goes out in the high street in Kingston in the right hon. Gentleman’s constituency with a baseball bat and starts swinging it around outside the pub, being reckless about whether someone might be struck by it. If he does recklessly strike someone’s jaw and they have a fractured jaw, the defendant can, and will in those circumstances, be convicted of a section 20 offence of grievous bodily harm. So the law does recognise that where there is recklessness, that can be sufficient mens rea for a large number—probably even the majority—of offences against the person. So to that extent all this measure would do is make sure the new legislation chimes with existing legislation.
The second provision I want to deal with has already properly been discussed: to
“update the offence of obtaining information likely to be useful to a terrorist to cover terrorist material that is just viewed or streamed over the internet, rather than downloaded to form a permanent record”.
First, we need to consider what material is being addressed here. It could be digital copies of “Inspire”, an online publication produced by al-Qaeda in the Arabian Peninsula. One edition of that publication contains material giving instructions about how to make a bomb using household materials; these are step-by-step instructions on how to manufacture an improvised explosive device with materials that we could buy in a hardware store and a regular supermarket. That is extremely serious and dangerous material if it gets into the wrong hands. Another example of the kind of material published in these online magazines is instructions on how to wreak the maximum amount of destruction using a vehicle in a crowded area.
To be caught by current provisions, such material has to be downloaded, but that creates a loophole because an individual who chooses to view this pernicious content by simply restreaming it could be outside the net. That would be ridiculous, particularly as every time one of these items is streamed, it will create digital artefacts on the computer. So an individual who downloads it—who has the full digital content on their computer—is liable to be prosecuted, but an individual who keeps streaming it, notwithstanding that that leads to some digital artefacts on their computer, would be outside the net. That would be truly perverse.
So while it is right to say that we should be mindful of the risk of people coming within the ambit of this provision, so long as the defence of reasonable excuse exists, we can be confident that that proper balance is struck.
Mr Kevan Jones
I am not a liberal on any of these issues, but there is a problem with this. One difficulty the security services face is dealing with the amount of material that is out there and targeting the right people. If someone who has viewed such material three times can be pulled in by this provision, does that not throw the net rather wide, making it more difficult for law enforcement to target the right people?
Alex Chalk
The right hon. Gentleman is right to raise that question, but I do not think that is the case. We accept that an individual deciding to view this material online and then download it on to their computer so that they can watch it at their leisure three times commits an offence—and we do so because terrorist offences often escalate quickly from the viewing of such materials. Given that we accept that, would it not be perverse to say that an individual who simply views this material three times—and while doing so takes account of the instructions in that material to build a bomb or wreak havoc with a vehicle—would be outside the law? That would be a bizarre anomaly, and it would say more about the digital habits of that individual than the pernicious nature of the content. So while we should always be mindful of the point the right hon. Gentleman makes, in my view the risks of doing nothing simply leave open huge loopholes that terrorists, who are increasingly digitally savvy, can exploit, so this is a proportionate and appropriate step to take.
Alex Chalk
I am not going to give way again on that point.
If I may, I will move on to the issue of increasing the maximum penalty. At the moment, the maximum penalty under section 58 of the Terrorism Act 2000 is just 10 years’ imprisonment. The Bill proposes to increase that to 15 years. It is important to make the point that, certainly until the recent sentencing guidelines increase, someone pleading guilty to being in possession of material that might be of assistance to a person planning an act of terrorism could expect to be sentenced to just 14 or 15 months and to be released in seven months. We have to recognise, when we are dealing with these kinds of offences, that part of the necessity for the legislation is to ensure that dangerous people are kept out of circulation. In those particulars, this proposal is necessary and proportionate.
Elsewhere in the Bill, there are common-sense extensions including the proposal to add terrorism offences to the list of offences for which an individual can be subjected to a serious crime prevention order. That makes perfect sense, because SCPOs enable the authorities to continue to manage an individual convicted of a terrorism offence. In the interest of balance, it is important to note that the proposed legislation also contains protections for individuals. For example, it introduces a statutory bar on the admissibility as evidence in a criminal trial of oral admissions made in an examination at a port under schedule 7 to the Terrorism Act, so it would be wrong to get the impression that this is one-way traffic. Overall—certainly so far as part 1 is concerned—these measures serve to clarify and to extend in a way that chimes with common sense. They update the law, and they will lead to a modest strengthening of penalties, which is a calibrated, proportionate and modernising approach that I am happy to support.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
It is a pleasure to follow the hon. Member for Cheltenham (Alex Chalk), and I echo the spirit of consensus in which he began his contribution. I wish to speak exclusively to the extension of terror reinsurance in clause 19 in chapter 4 of the Bill. This crucial clause might appear under the miscellaneous provisions, but it offers a significant opportunity to protect businesses and people from future attacks, as well as helping those who have already experienced an attack.
The Home Secretary is no longer in the Chamber, but I would like to thank him for his kind words about my own work over the past 12 months. I speak as the representative of a constituency and community that was attacked last year in the attack on London Bridge and Borough market on 3 June. I do not wish to dwell on the barbaric and savage motives of those attackers, but clause 19 links directly to the statements from the Prime Minister and other Ministers at the time about not letting the terrorists win and about how we can combat their motives and their potential to change our way of living and working.
I would like to extend my thanks to Bishop Christopher, the Bishop of Southwark, who sits in the other place here, to the dean of Southwark cathedral, Andrew Nunn, and to their whole team for their efforts over the past year and in particular for hosting such a moving commemorative service last week. It focused on the people who had been directly affected, including the loved ones of the eight people murdered last June and those who were injured. It also provided a sense of purpose for now and the future by planting a new tree of life, whose growth will be fuelled by the compost from the flowers laid by well-wishers on London Bridge last year. That symbol of ongoing life and vibrancy in the area is genuinely well conceived and was delivered very sensitively last week. I would also like to extend my thanks to the Prime Minister, the Leader of the Opposition, the Home Secretary, the shadow Home Secretary and the Mayor of London, Sadiq Khan, for attending last week’s service. I should also like to thank Southwark Council’s leader, Peter John, and its chief executive, Eleanor Kelly, for providing space on the bridge for a minute’s silence and for more flower-laying last week.
In the service, the sentiments of the local community came through very strongly. There was a sense that we must continue living our lives, but also that something had dramatically changed. A community project was run after the attacks for people to provide their own testimony and personal experience, and the words of one local resident were echoed by the Home Secretary last week. That person said that
“the terror attack changed this neighbourhood forever but not in the way the terrorists had planned. This community is going to carry on being diverse, inclusive and welcoming.”
That sentiment was echoed when the cathedral was reopened by the Archbishop of Canterbury after the attack. He stated that the terrorists had unwittingly created a “renewed sense of community”, and that is very much something that I have felt and seen in the past 12 months.
My community stood tall last year. The immediate response was incredible. The police and the NHS deserve our thanks and praise for their incredible efforts, as do the extraordinary individual people who stepped in to prevent others from being attacked and to confront the terrorists directly, putting their own safety at risk. Taxi drivers provided free transport out of the area to those who were worried. Local people opened their doors to complete strangers to allow them to charge their phones or to give them refuge, and hotels and local businesses offered overnight shelter. In the ensuing days, the public response was also incredible. Public donations of almost £50,000 were received, and support of a similar level was received from businesses. Practical support was given by Barclays on Borough High Street, which provided office space to people who could not access their own premises. Even the British Transport police opened up their counselling service to those who had been traumatised by what they had seen.
In the weeks after the reopening, the solidarity within the local community was also incredible. Businesses such as News UK and Merger Market provided vouchers to staff worth tens of thousands of pounds to use at Borough market. Southwark Council provided rates relief of more than £100,000, and Sadiq Khan freed up £300,000 from City Hall to help the local community. The funding was administered by United Saint Saviour’s, a brilliant local charity with a long history of helping the local community.
Those responses were much-needed. The attackers could not have known what a huge outpouring of solidarity they would trigger. The attack might have lasted for no longer than eight minutes, thanks to the extraordinary efforts and heroism of the police, but the cordon and the investigation closed the area for 10 days, affecting 150 local businesses. Many people will be familiar with Borough market, but it is not just a place that provides bits and bobs and personal groceries. The market has been there for 1,000 years, and tonnes of produce come into the market daily. It supplies restaurants and hotels across the capital and far beyond, and tonnes of produce were lost during the closure after the attack. Contracts to supply other restaurants were lost. Bookings at restaurants were lost. The London Bridge Experience was also directly affected and lost bookings.
The total bill for those 150 businesses is estimated to be more than £2 million. I shall give the House a couple of examples. Cannon and Cannon, a wholesaler of British charcuterie, lost about £11,000, but it was able to access compensation. Turnips, the fruit and veg distributor, lost nearly £100,000 as a direct result of the attack and the closure. Its insurer is Aviva, and Aviva has not paid out despite repeated requests to reconsider. It stands out in this regard, sadly, because it is the only insurer that has not responded with flexibility. It is the only insurer to have badly let down the local community, and I hope that its shareholders are aware of its terrible response. It is an insult to British values in the exceptional circumstances following the attack. I should add that many other insurers, including AXA, RSA and Zurich, worked flexibly to provide help, and I am grateful for their advice and support.
I should also like to thank the British Insurance Brokers Association and the Association of British Insurers for all their help over the past 12 months. I did not know about this particular area before. They all accept that clause 19 is needed, and they have worked together to get the Government to this point. Many of those organisations had already raised concerns, and I believe that the Treasury was warned about two and a half years ago. Sadly, the warnings were not heeded. The insurance challenge was recognised, as is clear from the briefings for this debate and the Home Office Bill briefing. The Government-backed pool reinsurance system set up in the 1990s covers only physical damage and not business interruption resulting from investigations into terror attacks.
I welcome the fact that the clause will close that loophole, but the Government are planning only for future incidents, despite the fact that the explanatory notes to the Bill make specific reference to Borough market and the difference that this measure could have made to those affected in my constituency last year. The Home Office has stated that this clause will not be used to help those who were so badly affected last June, and that is a bitter pill to swallow. I find it difficult to understand.
I hope that the Government will reconsider the matter and allow retrospective coverage for all of 2017, and I do so for four key reasons. First, my constituency needs it. London Bridge and Borough market need it. If it had not been for public donations, firms and jobs would have been at risk, and Treasury revenue was at risk. The owners of one microbusiness even had their home mortgage covered as a result of public donations. That situation did not need to happen.
Secondly, despite the public response, the Government were not there last year, and I find that shocking. The Prime Minister visited and showed the Australian Prime Minister around, a Business Minister came and met employers directly, and the Economic Secretary to the Treasury’s predecessor held a meeting here for some of the affected businesses. However, not a penny of central Government support came to help my local community, and clause 19 represents a chance to rectify that absence from 2017.
Thirdly, the fact that the Government were warned of the need to close the loophole, but failed to do so, is justification enough for retrofitting this scheme now with this clause. My local firms and employers were unacceptably exposed to that loophole.
Finally, Pool Re, the Government scheme, has the funds. There would be no cost to the Treasury, to insurers or to taxpayers for retrofitting coverage for last year. It is simply wilful negligence to deny help to an area so badly hit when the finances are there to allow support.
I close with a plea to the Government to extend cover to last year. I welcome clause 19, but I want coverage to be retrofitted. I hope that Ministers will be sympathetic to that aim as the Bill goes through Committee, in which I hope to participate.
John Howell (Henley) (Con)
Since this is the first time that I have seen you since the weekend, Madam Deputy Speaker, may I start by congratulating you on your damehood? I am sure that it is much deserved.
The Bill follows up on the 2017 Queen’s Speech and reviews our approach to counter-terrorism. Its specific purpose is to amend certain terrorism offences to update them for the digital age, to reflect contemporary patterns of radicalisation and to close gaps. I will comment first on the potential for the prison system to add to radicalisation. I am a member of the Justice Committee, and we have never made a prison visit without raising the question of the radicalisation of prisoners, which is everywhere in the prison system. The prison officers we speak to are trying their best to deal with it, but there is great difference in the levels of success. The right hon. Member for Hackney North and Stoke Newington (Ms Abbott) was right to refer to the issue, which we ought to be taking seriously and considering carefully to ensure that everything is taken into account.
Sir Geoffrey Clifton-Brown
My hon. Friend knows that the Bill contains provisions to lengthen both the period that prisoners serve and the length of sentence for certain terrorist offences. Is he worried that that will mean that terrorists will serve more time in prison and have more time to radicalise other prisoners?
John Howell
I thank my hon. Friend. In fact, in my notes for this debate I have written next to my previous point “so they will be more radicalised by spending more time in prison.” By extending prison sentences, we run the risk that prisoners will be more susceptible to the influences that will affect the radicalisation process. We need to address that matter in total from the beginning.
I was pleased to be able to intervene on the Home Secretary to get him to confirm that the Bill aims to reduce the risk from terrorism to the UK’s interests overseas. That fits in with the Contest strategy, to which the explanatory notes refer. I point to the UK’s enormous commercial interests in many parts of the world, including the middle east and Israel, that are under threat from terrorist activity. Those in Israel are under particular threat of terrorism from Lebanon. As we have discussed on many occasions, Hezbollah has long insisted that its military and non-military activities are indivisible. At the al-Quds Day rally this weekend, we saw the waving of flags of the alleged non-military wing of Hezbollah, but Hezbollah in its entirety meets the test for full proscription, which would then make it subject to the Bill. I wonder whether the Minister for Security and Economic Crime will refer to that in his summing up and mention whether an amendment to the Bill might proscribe the whole of Hezbollah. That would certainly send a strong message that, together with America, Canada and the Netherlands, we abhor terrorism in any form. It would also recognise that terrorist attacks on British interests overseas must be taken into account.
The Bill rightly points to the need to amend terrorist offences to update them for the digital age, as I said, and the need to then keep them updated. The reaction to terrorism is international, and if the Council of Europe convention on the prevention of terrorism is to mean anything, we need international co-operation and international action. If an individual commits a terrorist offence in a foreign country, they should be liable under UK law as if they had committed the offence in the UK. The explanatory notes refer to the Council of Europe’s convention, and I hope that this is last debate on this subject that does not mention the Council and its role in producing that convention. We are part of the Council of Europe—we were a founding member—and it plays an enormous role in sorting out such issues across Europe. Terrorism is a major subject for the Council of Europe, and during debates there I have been critical of the approach taken, for example, by the Belgian Government, who did not take the necessary steps to prevent terrorist activity on their own soil.
We can learn a lot from the international comparisons that we see at the Council of Europe, and I will provide a couple of examples. First, we could limit the finances of Daesh, which uses the internet to gain money and move it about. The Council has considered ways of preventing such movement. Secondly, the Council has considered cyber-attacks, which can have an enormous impact on the UK. A cyber-attack on an air traffic control system would cause absolute havoc, for example. I am also sure that everyone will agree with the Council of Europe’s “Terrorism: #NoHateNoFear” campaign.
In many ways, the opening paragraphs of the convention on the prevention of terrorism anticipate what is in the Bill, stating that no terrorist act can be justified by
“political, philosophical, ideological, racial, ethnic, religious”
considerations—there are no excuses for terrorism. Whatever the purpose behind an act of terrorism, we must ensure that we respect the rule of law, democracy and human rights, because otherwise we become just like the terrorists. That is a difficult thing for western democracies to do, but unless we do it, we are no better than the terrorists, and I hope we are considerably better than them.
We cannot do away with the values we hold dear in order to fight terrorism. The convention on the prevention of terrorism makes much of the need for international co-operation, and it encourages the public to provide factual help. I commend the Council of Europe’s excellent work to influence the sort of line we in the UK are taking in putting forward a strategy that is convincing in dealing with terrorism while having the necessary effect to make that help happen.
Gavin Robinson (Belfast East) (DUP)
It is a pleasure to follow the hon. Member for Henley (John Howell). I have enjoyed listening to a range of contributions this afternoon and this evening. A number of Members, including the right hon. Member for South Holland and The Deepings (Mr Hayes) and the hon. Member for Cheltenham (Alex Chalk), have referred to the Investigatory Powers Act 2016, the Second Reading of which was on the day when Adrian Ismay, a constituent of mine, died having been subject to an under-car booby-trap bomb 11 days earlier. It was a dissident republican-inspired terrorist attack. Although the need for this Bill clearly comes from Islamic-inspired terrorism and from a change of thought, emphasis and deed in this part of our United Kingdom, I want to mention that we have not passed the worst days in Northern Ireland. There are still those who wish to use the worst messages of terrorism to change the political outlook, to change the determination of our people and to destroy our country. It is important to say that at the start of the Bill’s passage.
I will mention just three issues, two that are specifically outlined in the Bill and one, which is not considered at all in the Bill, that I would like the Minister to engage with thoughtfully. Other Members who have had the pleasure or misfortune of participating in a Public Bill Committee may know more than me about them—I have never sat on a Public Bill Committee—but I would be delighted to do so and get involved in some of these issues. Members who have sat on Public Bill Committees tell me that I am mad and that it would be the worst thing to put myself forward for, but there are provisions in the Bill that it would be incredibly useful to have the opportunity to explore in greater depth.
We need to be careful about how we proceed with the plans on border security outlined in the Bill. Although I am a Brexit-supporting Member, I think it would be irresponsible of us to consider these provisions without having at least some cognisance of the issues raised by Brexit when it comes to border security. When the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), the shadow Home Secretary, raised her points earlier, the Secretary of State was right to indicate that schedule 3 emulates what is already provided for in the Terrorism Act 2000. That legislative provision has been in place for the past 18 years, and the only difference I can see is that, whereas the 2000 Act focuses on terrorism, schedule 3 covers “hostile acts” and talks about state party actors. I assume that is the main difference.
The most important border security provision is in paragraph 4 of schedule 3 to the Bill and in paragraph 2(4) of schedule 7 to the 2000 Act, which relates to section 40(1)(b) of that Act. Under those provisions it does not matter whether there is reasonable suspicion of engagement in terrorism or hostile activity. Both the 2000 Act and this Bill go to extraordinary lengths to outline what is meant by “terrorism,” “hostile acts,” “terrorist activity” and “state party activity,” and both pieces of legislation specifically indicate to the border officials who are asked to operate them that it does not matter whether they have reasonable grounds for suspicion. The truth is that, in both the 2000 Act and this Bill, a border official does not need to have any suspicion at all of terrorism or hostile acts. To my mind, that cannot be right.
When we consider the checks that will happen, this Bill and the 2000 Act specifically talk about travel to and from Northern Ireland, to and from Great Britain and between different parts of this United Kingdom—from Northern Ireland to Great Britain, and from the top of Great Britain to the bottom of Great Britain—but no reasonable suspicion whatever is required for a person to be stopped, questioned and potentially searched by one of our border officials.
I will not push the point much further now but, in the atmosphere created around border controls, whether on the island of Ireland or between Northern Ireland and Great Britain, we need to consider this more thoughtfully. When our Scottish brethren, of whom the Security Minister is one, complained during the 2014 referendum that it was inappropriate for a UK citizen from Scotland, when travelling to a UK airport in England, to be stopped and questioned, the answer was, “Well, this House voted for it in the Terrorism Act 2000.”
The common travel area does not allow for a person to be stopped and checked for citizenship or to be asked about their right to travel. When that happens to people travelling from Belfast to Birmingham, it is an affront to UK citizens that they are stopped by a Border Force official. Those stops, those checks and those questions, offensively, are conducted under anti-terrorism legislation, and this Bill gives us the opportunity to thoughtfully consider whether that is really what we want in this country. I will never tie the hands of a Government who want to protect us from terrorists, but is it appropriate that an average citizen from one part of the United Kingdom travelling to another part of the United Kingdom is stopped under anti-terrorism legislation? I do not think it is, and I hope that is something we can thoughtfully consider as the Bill proceeds.
Clause 7 will make terrorist connections an aggravating factor in committing another offence, and it is wonderful that Northern Ireland is being included in that provision. I am not sure why we were left out of the Counter-Terrorism Act 2008—I am sure there was good reason, following political discussions in 2007, but it was not right. When a person is perceived or known to be associated with a terrorist organisation, be it an Islamist group, some other fundamentalist group or an organisation originating in Northern Ireland, whether connected to loyalism or republicanism, it is appropriate that that serves as an aggravating factor.
But again I raise the question: how does the Minister believe prosecutors will be able to convince a court that an individual has a terrorist connection? I know from my experience of the judiciary in Northern Ireland, and from my experience both as a barrister and as a politician, that it is extraordinarily difficult to ask a court to accept that a person has a terrorist connection unless, as part of either that prosecution or a previous prosecution, they have been convicted of that offence. I make the gentle point to the Minister that this undermines community confidence in policing and security in this country. People know that a provision is on the statute book saying that an association with terrorism should be an aggravating factor in sentencing. They may know as the dogs in the street know—that is what they say in Belfast—that someone is associated with or involved in paramilitarism, yet there will be no motion in court for that individual to be sentenced for an aggravating offence. Why is that? It is because either there will be an unwillingness to prove it or an inability to do so. The unwillingness will stem from our security services not wishing to share the intelligence that they have in open court. Colin Duffy walks the streets of Lurgan in Northern Ireland because of an unwillingness on the part of the judiciary in Northern Ireland to allow intelligence to remain private. Dissident republicans who have terrorised and tortured our society to this day, and are still intent on destroying Northern Ireland and taking us out of this United Kingdom, walk the streets today because of the inability to present intelligence in open court. The judiciary have said, “If you can’t do it, don’t bring it to us. If you are not prepared to show it openly, don’t bring it to us.”
So although it is wonderful that we are being included in this provision for the first time in 10 years, because Northern Ireland did not feature in this as part of the Counter-Terrorism Act 2008, I would like to know—I would be keen to engage with the Minister on this—just how this provision will proceed through an open court process and how such prosecutions will be made. Without going into the details, because of sub judice rules, let me say that there are cases at the moment where individuals are being prosecuted in Northern Ireland because of how they signed off a text message with a Latin phrase, “quis separabit”, which means “who shall separate us?” It is the motto of a proscribed organisation in Northern Ireland. Is that as far, without divulging intelligence, as prosecutors are going to go to try to satisfy this provision of
“membership of a proscribed organisation”
or an association with such an organisation? If it is, although it is great to be included in this provision, I suspect that no sentence given in a court in Northern Ireland will ever benefit from an aggravating feature and, thus, an increase. So I look forward to having the opportunity to meet the Minister to discuss this further.
The final part of my contribution seeks to bring to the attention of Members section 1 of the Terrorism Act 2006, which dealt with encouraging support for terrorism or the glorification of it. When it was put forward in 2005 and enacted in 2006, there was some discussion not only about “encouraging” people to engage in terrorism, but about the glorification of past offences, and a 20-year limit was put on such provision. That was not done in the legislation; it was spoken about openly and formed part of the guidance to police services. The approach was, “It is okay to glorify terrorist crimes as long as they were more than 20 years ago.” That cannot be right and I hope the Minister will accept amendments to this Bill, be it in Committee or on Report, that will rectify that situation. It is appalling that people who are intent on removing life and destroying our society can legally eulogise such vile acts. I do not need to make that point from my perspective—from a Northern Ireland perspective—because we are seven years off 20 years since the 7/7 bombings. Does anyone in this Chamber think it would be appropriate for any group in this country to memorialise or eulogise the perpetrators of that vile act? We are seven years away from the potential for that happening, if the “20-year” guidance is accepted on historical acts under the 2006 Act. We should thoughtfully consider that.
Let me give the example of D company, an IRA company in Belfast who parade through its streets each and every year. They dress in paramilitary-style clothing. They wear black berets, black sunglasses, smocks over their faces and military jackets. They have flags, bands and replica arms. They are glorifying acts of terrorism. The Northern Ireland Office is responsible for a body called the Parades Commission, but does it even deem those parades sensitive, let alone ban them for breaching counter-terrorism legislation? No, it does not. It takes no interest in these parades. When we think about whether historical acts have the potential to glorify or not, we should consider this quotation from D company’s 2017 main speaker:
“British rule was wrong in 1916 and it remains wrong today in 2017. Let no one tell you different!”
D company of the IRA in west Belfast was one of the most notorious. It is attaching itself to the events in 1916 and it was responsible for historic acts during the troubles. It is making the connection very clear under the terms of the 2006 Act, saying that the same principles that applied then applied in 2017. If that is not a glorification of previous activities or an encouragement to others to recognise that the conditions under which they “proudly volunteered”—that is their view—equally apply today, and if that is not an “encouragement” under this legislation, I do not know what is. When those responsible for the Shankill bombing unveil a memorial 20 years to the day after carrying out that heinous act in 1993, we have a problem with legislation that tries to account for an historic act that cannot be seen as glorification or an encouragement. I raise this issue in hope, and I draw the analogy because not only have we had horrendous acts in the past year here in England, but we are not going to have to wait too long until it is 20 years after the 7/7 attacks. If Members in this Chamber are as horrified as I am at the prospect that such acts could be lawfully, sensibly eulogised in our society, this Bill gives us the opportunity to do something about it.
I want to thank the Minister, because he has engaged with us over the past weeks, and we have had the opportunity for briefings. I hope that during this Second Reading debate and in Committee we will get the opportunity to shape this Bill so that it does provide what we need to counter terrorism in all its forms in this country.
Eddie Hughes (Walsall North) (Con)
It is a pleasure to follow the hon. Member for Belfast East (Gavin Robinson), particularly as at least an element of my speech would have exhibited a degree of naivety without his. I will continue with it, but I think I should apologise for it in advance. The purpose of the first part of my speech was to juxtapose my experience of terrorism in this country with what was happening with regard to the IRA and its activities in this country. Part of my premise is that, after the Good Friday agreement we are in a position where any occurrences that happen in Northern Ireland make the news in a considerably lower-level format than they would have done during my time growing up. So it is almost easy to believe, viewing Northern Ireland from a distance, that all is well over there, peace has broken out and the world is a good place, whereas, the incident mentioned at the start of the hon. Gentleman’s speech clearly proves that that is not the case.
I was drawn towards making this comparison because it is my 50th birthday this year, the troubles started in 1968 and I wanted to talk about my experience of how they had an impact on us in this country over that time. I am not old enough to remember this, but in 1972 we might have had the first cynical ceasefire that the IRA announced over the Christmas period, and yet only a short time later we had the bombings in Birmingham.
I fully appreciate that nobody has been convicted of those bombings in Birmingham, so it is not possible for us to say so with a degree of certainty or to attribute the cause to it, but I would say that we are fairly comfortable in knowing that the IRA was responsible, and many people lost their lives at that time.
Jim Shannon (Strangford) (DUP)
Does the hon. Gentleman share the concern of those of us on this side of the Chamber within our party, and perhaps further afield, who see glorification in a play park in Newry being named after an IRA volunteer who was involved in a campaign of murder and terrorism, and in Gaelic Athletic Association clubs naming their venues and locations after IRA men and IRA women who have been involved in terrorist activity? Does he share our concern about glorification of their activities, which, hopefully, the Bill has the power to change—making it unlawful so that it cannot happen?
Eddie Hughes
I absolutely do share those concerns, and I sincerely hope that the Bill presents the opportunity to prevent that from happening. The hon. Member for Belfast East made the comparison that if we were to experience something similar in this country we would all think it an abomination, yet clearly, that is what is happening over in Northern Ireland.
Let us move through that period to come to a comparison that I want to make. In 1996 the IRA exploded in Manchester what I understand was the biggest bomb to be exploded on the mainland since the second world war—a 1,500 lb bomb. Fortunately, 90 minutes’ notice was given, and the excellent work of the emergency services allowed 75,000 people to be evacuated, although, unfortunately, those services were unable to defuse the bomb and I understand that 200 people were injured when it went off.
The cost of that bomb runs to the equivalent today of approximately £1.2 billion, I believe, but how this country responds to that sort of situation is to be celebrated. In 1996, England was hosting the European football championships. The following day, Germany was due to play Russia. That game proceeded and turned into a celebration of the fact that countries around the world would not be oppressed by terrorism and actually joined together in a celebration that said, “Terrorism will not win.”
Compare and contrast that with the bombing in Manchester last year. An Ariana Grande concert was targeted with the perpetrator knowing full well that parents would be there with very young children. It was completely despicable. My understanding is that the perpetrator, who was also killed in that attack, had been to Libya and had some Libyan connections. To draw back to that parallel, clearly Libya has been a source of great difficulty given that association and its previous association with the IRA over the suggestion of the supply of arms and a fight against what was considered British imperialism.
We need to say that we are not going to accept terrorism and that we are going to do everything we can to ensure that our laws are tidied up to prevent it. An element of that, which I would like to celebrate, is biometric data. We should celebrate the fact that, many years ago, DNA was discovered in this country, and the double helix formation was subsequently identified, but it was not until 1984 that Sir Alec Jeffreys was able to realise the benefits of using DNA to profile people and help to determine the difference between pieces of evidence.
We should celebrate that because DNA profiling is now used by 120 countries around the world, and 54 of them have DNA databases. This technology is not only used to help to identify people who are guilty; it helps those who are innocent. Its first use was in a case just two years after its discovery. It was a case in Leicester, where somebody had admitted rape and murder only to have the DNA evidence prove that they were not responsible. Some time subsequently, Colin Pitchfork was identified as the murderer as a result of DNA evidence.
It is important that we realise the benefits of modern technology and the pace with which it can change. We need to ensure in this House that the law tracks those developments, because people can now be radicalised in their home in the UK by reading literature produced in other countries. We need to ensure that we act appropriately to prevent the dissemination of that sort of information. To return to the bomber in Manchester last year, that person acting alone, thanks to the internet and those illicit sources, had the opportunity to learn how to make a bomb using items that are freely available in this country. Without physical contact with other people, they were able to garner the information, be radicalised and carry out a dreadful act. It is surely essential that we do everything we can to tidy up the law in this country to prevent that.
I want to end with a quote I heard yesterday:
“The law is reason free from passion.”
Aristotle apparently said that. I think it is important that in this House we are not totally free from passion, that we remember these dreadful atrocities that have been committed and that we ensure that we have law that prevents them.
John Woodcock (Barrow and Furness) (Ind)
It is a pleasure to follow the hon. Member for Walsall North (Eddie Hughes). I have sat here and listened to some thoughtful speeches. In particular, the hon. Member for Belfast East (Gavin Robinson) gave us a lot to think about on an issue that I had hoped the Home Secretary would cover in his opening remarks—the new provision on encouragement, effectively, of terrorism through statements that fall short of specifically inciting support for proscribed terrorist organisations. This is a really important provision, as the hon. Gentleman set out cogently in relation to Northern Ireland.
This is a difficult subject to raise, but I am brought back to remarks made in the past by Members who sit on the Labour Benches, some when they were MPs. We have the man who would be Chancellor of the United Kingdom having apparently, in 1986, praised the ballot, the bomb and the bullet. That is deeply, deeply serious. If my understanding of the new legislation is right, had it been in place at the time that that Member apparently made those remarks, he would have been guilty of a terrorist offence. Is the Minister able to share his understanding on that, or is he going to let me raise the matter alone? This is a serious matter in and of itself, but how wide-ranging these new powers could be deserves great thought from Members who will consider the Bill in Committee.
I want to spend a little time talking about the case of Ethan Stables, a young man from Barrow, aged 20, who has just been committed under existing terrorism legislation. On 23 June last year, Ethan Stables posted on Facebook that he was going to war, that he was preparing for a slaughter and planning to attack a lesbian, gay, bisexual and transgender Pride event at the New Empire pub. Fortunately, those posts were immediately seen by someone local. The alarm was raised and he was picked up by the police as he was walking to the New Empire pub. He was convicted of terrorism offences. It was found that he had a machete and knives in his home, that he was a neo-Nazi sympathiser and that he had googled things such as “I want to go on a killing spree” and “What is prison like for a murderer?” Clearly, the signs were all there. There is a separate question about why it took so long to pick up Mr Stables. He was literally on the verge of attacking people who were celebrating a community event in the New Empire pub. If the legislation had been in place, the fact that Mr Stables had repeatedly viewed violent videos online and looked at how to download and create his own bombs, would have made him guilty of an offence long before he got to the stage of actively planning. That in itself is surely a reason to welcome this new legislation.
The case of Mr Stables raises the wider question of resources. It is all very well having the offences in place, but the Government will need to explain how they will be able to secure prosecutions earlier on in the process, rather than finding a reason, once someone has been apprehended for other reasons, to go through their viewing history.
It is my understanding that there is no requirement, or indeed any legal possibility at the moment, for internet companies such as YouTube routinely to provide the IP addresses of people who have viewed banned material more than three times, which would make them subject to criminal action under this terrorist legislation. I am talking about videos which would potentially see YouTube found guilty of a criminal offence, or certainly a civil offence, if it kept them up after having being warned about them. Will the Minister address that matter in his summing up? Will he consider bringing that forward so that there is potential to catch more people who are online at the time they are doing this, rather than as part of some retrofitting?
The Home Affairs Committee took evidence last week from the Met police commissioner, Cressida Dick. She was quite clear about the scale of pressure that her resources are under, even at present. She went through a number of areas, including, of course, counter-terror, where more resource was needed and where the amount available was inadequate at the time. Yet this legislation creates a new tranche of offences, which, unless the Minister can explain otherwise, will not be sufficiently resourced to be properly policed.
The other major omission, which the Minister will expect me to raise as we have been backwards and forwards on it both inside and outside the House for many months now, is on the issue of returning jihadis. It is good to get the recognition from the Home Secretary in this debate that he is considering introducing the Australian-style offence at the amendment stage. I can see no other way in which the Government will be able to get close to securing sufficient evidence to prosecute people who are returning from places such as Iraq, Syria or wherever the next terror hotspot is.
The Minister knows that I was able to interview at length someone who was being held in a removal centre in Izmir, Turkey on suspicion of supporting Daesh. She was being removed back to the UK on those grounds. There was a suspicion at the time about what would happen to the woman whom we interviewed. The very tough rhetoric that we hear from the Government, which is that we always seek to prosecute individuals, is not actually commensurate with being able successfully to prosecute individuals once they are here. Clearly, people are going over. They are travelling to Syria without a specific or verifiable reason, such as being part of aid work. They are clearly not going for a valid reason, yet, at the moment, we need verifiable proof, which is very hard to find, to be able to prosecute such people.
A number of us have repeatedly pressed the Government on this. The Minister can enlighten us all on this in his closing remarks if he wishes, but for many months now the Government have refused to give the number of people who have returned from Syria who have been successfully prosecuted. The response now is that those numbers are not quantified in that fashion. Well, they were quantified in May 2016, when the Advocate General, Lord Keen, in the other place gave a written response. Back then, he said that 54 people had been successfully prosecuted, with 30 ongoing cases. Clearly, it is possible to update the House on this and the Government are choosing not to do so. Our strong suspicion is that that is because so few are able to be prosecuted—
Mr Wallace
I may be able to help the hon. Gentleman. Approximately 40 have been prosecuted so far—either because of direct action they have carried out in Syria or, subsequent to coming back, linked to that foreign fighting.
John Woodcock
I thank the Minister very much for updating the House. I note that 40 is fewer than the 54, the number we apparently prosecuted, according to Lord Keen, in May 2016. I need to examine those figures to see why they are different. I am grateful that, after many months of pushing, the Minister has given us a figure of 40. As he will know, the Government have said that 400 have come back, so we have been able to prosecute successfully only one 10th of those people. That is very significant.
Ministers in response are now saying that a significant proportion of the people coming back are no longer of concern to the security services. That is as may be, and we want the number of people who are no longer of concern to be as high as possible, but that does not mean that they are innocent of terrorism charges. If they have been to Iraq or Syria, have been aiding Daesh, in whatever form, and they are British citizens and they are returning, they have been aiding enemies of the British state. They are people who are wanted for enacting violence on our civilians and on our armed forces and they should be able to be prosecuted, which is why the Australian-style legislation, the declared area offence, is a step forward. It would mean that anyone who has visited a designated terror hotspot without good reason—with declarations overseen by a judge—can be prosecuted for terror offences on their return. That would go a long way towards the deterrent effect that the Government understandably want to create to stop people from taking the crazy journey into war zones to support jihadi organisations that seek to destroy our way of life.
Kevin Foster (Torbay) (Con)
It is a pleasure to be called to speak in this debate and particularly to follow the hon. Member for Barrow and Furness (John Woodcock), who made a thought-provoking speech. It was certainly interesting to hear references to one or two of his party’s Front Benchers, although it is probably better that I focus on the substance of the debate than on whether I agree with his comments.
It is important to discuss how to ensure that those who actively set out to support terrorists and organisations that wish to destroy democracy, rather than to engage in debate and democracy, feel the force of the criminal law. I am pleased that this Bill will update the legislation to reflect the fact that we are now in the internet era. However, we must temper this with ensuring that nobody can innocently fall foul of the offences. That can be considered in detail in Committee. I was reassured to hear the Home Secretary’s responses to a number of interventions on this point. He said that there will almost certainly be a reasonable excuse defence for those who might stumble on material or for those who might be engaged in research that we would want them to do and that is not connected to another intention.
I am conscious that these definitions need to be drawn fairly tightly to ensure that we do not create a loophole that could be used by someone just claiming that they were engaging in research. For example, we would need them actively to show that they were part of a recognised research project. I am sure that we can sensibly work out such matters when we discuss the Bill in detail. We must always ensure that our intention is clear in the legislation that we pass, rather than hoping that the courts will listen to what we have said. It is the wording of the legislation that courts will ultimately consider when making decisions about any defence.
I am very pleased with what I have heard. It is right that we end the position whereby the law is not necessarily brought into effect by people streaming material, especially given the explosion—figuratively, not literally—of available sources. People can now stream video to their mobile devices in particular, whereas they would have downloaded material from sharing sites in the past. It is also appropriate that the protections are in place to ensure that nobody is innocently caught by such offences.
It is appropriate that more significant sentences are available to the courts for the offences listed in the Bill. Those who are looking to take part in plots to cause significant loss of life should know about the sentencing powers available to the courts and that those powers will actually be used. I was particularly interested to hear my hon. Friend the Member for Cheltenham (Alex Chalk) mention the possible sentence for someone who pleads guilty. This legislation is not just about everyone getting the maximum sentence, which is very unlikely to happen, but it will raise the bar for each person convicted or pleading guilty to such offences and ensure that they get time in prison that is commensurate with their offence, time in which it might also be possible for prisons to do useful work with them to turn them away from an extremist path.
We have debated Prevent. Ultimately, the motivation behind this type of behaviour does not matter. It could be the politics of the extreme left or right, or a totally perverted interpretation of a religion. I must be clear that in such cases of extremism or terrorism, the interpretation of the religion is always a perverted one. No religion genuinely backs the actions of extremists walking into a concert and blowing themselves up among women and children who are just enjoying the evening. We need provisions in place to turn people away from that path.
I have certainly found it interesting to listen to this debate. The public are clear that there should be increased sentencing provisions to allow the courts to deal with those who commit such offences. We have seen many stories over the past few years. In particular, I look back at the events of a year ago, when those who were hoping to use terror attacks to deflect from the general election campaign attacked innocent civilians. They hoped that they would somehow terrorise people to change policy or elect people to this place who might not agree with tackling such issues. In fact, all they did was strengthen the resolve of those of us who are democrats, as happened when this Parliament and its Members—some of whom are commemorated on the walls of this very Chamber—were under attack in the past. We were not deflected from our confidence in democracy then, and we will not be deflected in the 21st century from tackling those who wish to destroy democracy. We will ensure that those who believe that they can express views with impunity online that they would never think of expressing in another public forum know that the law will catch up with them.
Members have discussed the retention of materials, particularly fingerprints, as the shadow Home Secretary picked up on the point regarding biometric details. This issue clearly needs further detailed scrutiny and debate. I think that we would all say that there are legitimate intelligence grounds for the police keeping such details following an arrest in circumstances where particular conditions are met. We would not say that details should be destroyed immediately merely because an offence was not proceeded with. I accept that this needs to be balanced with the fact that those who are wholly innocent should not think that their data will always be on a database. For example, there may be a case of mistaken identity that leads to an arrest, or a piece of intelligence may be found leading to the discovery that someone is not, or is unlikely to be, guilty of an offence. It will be interesting to explore how this balance can struck in more detail in Committee. Clearly, it would not be sensible to throw away potentially valuable evidence that might at a later stage allow us to proceed on an offence, to prevent the commission of a further offence, or simply to identify someone. Again, we have to balance that against rights. The principle is right and the overall thrust of the Bill is correct in this matter, but we could explore it in more detail in Committee and on Report.
Overall, the Bill is timely. The threats against this country are growing—not just from non-state actors such as Daesh, but from rogue state actors who seek to engage in behaviour that few of us would have thought likely even a few years ago. The use of chemical weapons against two people on our soil would have been unimaginable only a decade ago. It is therefore right that our legislation is kept fully up to date. The Bill will allow the House and Parliament as a whole to review the legislation, look at it in more depth and produce an Act of Parliament that is firmly rooted in the digital era. In the past, we would have been talking about people displaying flags in public places as our main worry. Now it is about what people are displaying online, particularly under a false flag of a fake digital identity.
This has been a useful debate. I look forward to seeing the Bill progress. It has my support. It has been encouraging to hear the views from across the House that indicate that it is likely to receive cross-party support at this stage, subject to the further debate that we can have only by giving the Bill its Second Reading today.
Sir Edward Davey (Kingston and Surbiton) (LD)
I come to this debate wanting to be positive about attempts by the Government to give our police and security forces the powers that they need in the fight against terrorism and to balance that with the equal priority of ensuring that we do not hit our civil liberties and therefore give the terrorists a victory. Already we have heard how different aspects of this Bill will be judged by those tests.
No one who witnessed the horrors in London and Manchester last year can be in any doubt that we need to redouble our efforts to protect the public. The evidence is clear, and the terrorist threat across the UK remains severe. With that threat morphing into a diverse range of threats, including people acting alone, and with the numbers involved increasing, if anything, the terrorist threat for our security forces and the police is probably the most difficult it has ever been.
Liberal Democrats will not, at this early stage, seek to oppose this Bill, but Ministers and those watching this debate should not take that as agreement, in full or in part, to these proposed laws. We need to scrutinise the Bill to make sure that we get the balance right. It is already clear from this debate that there are serious questions whether some of these proposed laws are necessary, whether they are properly based on sound evidence and whether there are sufficient safeguards to prevent their being abused against totally innocent citizens. The Government may have a job in persuading this House and the other place that these measures should pass totally unamended in the form that we see them tonight.
In considering yet another piece of terrorism legislation, the House should recall the opinion of the independent reviewer of terrorism legislation, Max Hill, when he was appointed just over a year ago. He said that he thought that the UK had sufficient offences in the fight against terrorism and that we did not need any more. In a speech in October last year, he said:
“I would suggest that our legislators have provided for just about every descriptive action in relation to terrorism, so we should pause before rushing to add yet more offences to the already long list.”
In his early comments on this Bill, he has gone on to say that
“the Counter-Terrorism Bill does not contain a single new terrorist offence.”
This assessment may seem at odds with what Ministers have sought to persuade the House that they are doing and with complaints by organisations such as Liberty. How Max Hill squares this circle is quite important. He believes that the Bill is only clarifying what is meant by existing offences. Let us see in debate whether it is simply a clarification or whether we are creating new offences.
Clause 3, which is about obtaining or viewing material over the internet, brings in the three click rule that we talked about earlier. The question for the House is whether we think that the line between committing a criminal offence punishable by years in prison is one extra click of a mouse, such that someone moves from innocent at two clicks to guilty at three. There is good reason for the House to scrutinise this, because it is about the intention behind the clicks as opposed to the clicks themselves.
On one level, it might seem reasonable to question the motives of someone who continually looks at violence and hate-inciting material. But what if the intention of that person was never one of pursuing actual terrorism? Perhaps they were a journalist; we have heard that there are protections for journalists. What if the person was so shocked and appalled by the material that they were drawn to look at it again, in their disapproval? We need to make sure that genuinely innocent people are not caught. I was quite pleased by the way that the Home Secretary responded to that point, because it did appear that he was open to genuine scrutiny of it. That is very welcome.
We need to make sure that we abide by the normal ways in which we approach free speech. We usually criminalise free speech only if there is an intention to promote harm, violence and hatred, or to carry out terrorist acts as a result of viewing the material. There is potentially a danger that this proposal crosses a line, so we need to look at it in detail.
In my early reading of these proposals, I have had a few other concerns. The hon. Member for Torbay (Kevin Foster) talked about how important biometric data can be, and he is absolutely right. However—he touched on this in a very thoughtful speech—there are issues of innocent people’s biometric data being retained, such as people who have never committed a crime or people who have been unlawfully or wrongly arrested. Should their DNA—their biometric data—be kept by the police? Possibly for a short period, but what will be the rules on checking that their civil liberties and rights are not constrained and that that biometric data is disposed of in a correct and verifiable way when it is clear that they have nothing to do with any such crimes?
I am not just worried about civil liberties in this regard; I am also worried about the impact on the Government’s negotiations for an EU-UK security partnership should Brexit actually happen. Ministers will know, whether from debates over the general data protection regulation or recent European Court of Justice rulings, that the UK may struggle to get an adequacy agreement from the Commission. The recent immigration data exemption from data rights such as subject access requests are very likely—rightly, to my mind—to be sounding alarm bells at the Commission. Yet it is super-vital to our fight against terrorism and against organised crime, vital for this country’s security, that the data flows between the UK and the rest of the EU, whether the data relates to the work of Europol, Prüm, ECRIS—the European criminal records information system—or the Schengen information system II. I am not sure whether the Government, with all the different things they are doing in this area, are presenting a very strong case to our EU colleagues. Will keeping the DNA of innocent EU citizens help our case for an adequacy agreement? Will the Minister say whether an assessment has been made of how this Bill will affect the UK’s chances of securing this vital adequacy agreement, so that we can keep those data flows going to get these wicked people?
My concern about safeguards relates to the way in which the Home Office often operates. In Westminster Hall this coming Wednesday, there will be a debate about section 22, paragraph 5 of the immigration rules, whereby they are used to refuse leave to remain in this country on the basis that the applicant is somehow a threat to national security. This immigration rule has been used when applicants have committed minor tax offences—conduct that was not foreseen when Parliament gave the Home Office these powers. When we debate new rules and new powers for officials, we have to make sure that there are safeguards so that they are not used for unintended purposes.
Let me move on to the Contest, or Prevent, strategy. The Home Secretary seemed rather complacent that all was well with this strategy. When we look at the perception and experience of some people, we might think that expanding referral rights to local authorities seems a terribly modest measure—I know that the Security Minister thinks so—but the question is, how it will be perceived? Although I am sure that the Minister believes that the measure is harmless, if it is based on the assumption that there are many communities out there who think that Prevent is fine, that is an incorrect assumption. For many communities, rightly or wrongly, Prevent is a flawed programme. As I said to the right hon. Member for South Holland and The Deepings (Mr Hayes), this may be a matter of perception.
I absolutely accept that there are many successful individual projects and areas of work within the Prevent programme. No one can deny that. However, a long list of organisations inside and outside this House have pointed to how Prevent has alienated at least some communities. We should think about that before we act. The Home Affairs Committee has warned about this, as have the Joint Committee on Human Rights, the UN special rapporteur on the rights to freedom of peaceful assembly and of association, the National Union of Teachers, Muslim community associations and the independent reviewer of terrorism legislation. All these people have expressed worries about how the Prevent programme is seen. Given those widely held concerns, I am surprised that the Government are choosing this moment to expand the programme.
Surely it would be far better to restore confidence and trust before involving people’s local council. Many of us would support an independent review of the Prevent strategy, as the shadow Home Secretary said, and I hoped that the Government’s Commission for Countering Extremism might lead on that. I hope that the Government will reflect on that matter further before pursuing it.
There are clauses in the Bill that one really welcomes, such as clause 19, through which the Government are attempting to improve the system of insurance against terrorist acts. We have heard other Members comment on that. I want the Minister to look specifically at the problems that small businesses and larger businesses involved in hiring and leasing vans and cars are getting into. This is a real concern for them, and I know they are lobbying the Treasury on it. After relatively recent changes in the law, those businesses face unlimited liability if the person who rented or leased a van goes on to use it to commit a terrorist act. Because of the unlimited liability, those businesses’ insurers are saying, “We’re not going to insure you.” If a whole sector is hit because it cannot get insurance, that is a huge problem for our whole economy and society. There may be industry and private sector solutions—I am told that there may be a mutual arrangement in the sector—but if that does not work out, the Bill may be a vehicle to tackle that problem, so that terrorists cannot undermine our economy indirectly in that way.
The last measures I would like to talk about are clauses 1 and 2. As we have heard, clause 1 extends the existing offence of inviting support for a proscribed organisation, so that a person commits that offence if they show support for a proscribed organisation and are reckless in that expression of support. I intervened on the hon. Member for Cheltenham (Alex Chalk) on the issue of recklessness, but he may have misunderstood me; he is not in his place, so he cannot respond. Clearly the concept of recklessness exists in law at the moment and is used particularly in relation to the actions that he cited. However, even judging whether people have behaved recklessly in physical acts of violence is pretty controversial, because it is not seen as terribly objective. Different interpretations of recklessness in relation to physical violence—the Caldwell and Cunningham versions—have been found by the courts. That test is much more difficult when applied to speech. If it is subjective with respect to actions, its subjectivity in terms of speech and the impact of that speech on other people seems very difficult to measure. We will have to look at that in some detail.
Clause 2 relates to how clothing might be linked to a proscribed organisation. My concern is how general the clause is. The Minister will know that there are 88 proscribed organisations. I think all of us would be extremely worried if people were going around with flags and encouraging people to join some of those organisations, but when was that list last looked at?
I will give one example from Sri Lanka that may be controversial among some Members. I think the last Labour Government were wrong to proscribe the LTTE, or the Tamil Tigers. It has committed some horrific acts and atrocities—there is no doubt about that—but it was involved in what many people regard as a civil war. In this country there are British Tamils who have become refugees and Sri Lankan asylum seekers who support the aims of the Tamil Tigers, but not its methods, and for them, it is a political movement. I have met young Tamils living in the UK who wear T-shirts bearing one of the emblems of the Tamil Tigers, which is a roaring tiger head with two rifles. I have refused their kind offer of such a T-shirt and have not worn one, but I do not think their offer of a T-shirt should be punishable by a prison term. Does the Minister think that wearing such a T-shirt of a proscribed organisation will result in the arrest of those people? Will individuals wearing clothing with Tamil Tiger emblems put their liberty in danger if the Bill is passed?
Those are the sorts of question we will have to subject the Bill to as it is debated. I know the Minister is a reasonable and thoughtful man who will want to avoid unintended consequences and injustices, and perhaps he will be able to satisfy us on the concerns we have raised this evening.
In concluding, I would simply like to quote from a letter to The Times last year signed by leaders of the legal professions and organisations such as Liberty and JUSTICE. They wrote:
“Suggestions made before the general election, that human rights prevent the police fighting terrorism, are misguided…Human rights exist to protect us all. Weakening human rights laws will not make us safer. Terrorists cannot take away our freedoms—and we must not do so ourselves.”
Sir Geoffrey Clifton-Brown (The Cotswolds) (Con)
Thank you for allowing me to catch your eye, Madam Deputy Speaker. As this is the first speech I have made in the House since your colleague, the right hon. Member for Epping Forest (Dame Eleanor Laing), received her damehood, may I, in her absence from the Chair, pay tribute to her?
There is nothing more important or more serious for this House to discuss than terrorist issues, because the terrorist seeks to destroy the fundamental rights enshrined in democracy by undemocratic means, which we must do all in our power to prevent.
Before I get on to the Bill, I want to address the comments made by the hon. Member for Belfast East (Gavin Robinson). I totally take to heart what he said about the glorification of terrorist acts once they are, as it is called, time-expired. If I were a member of a family who had lost victims in terrorist incidents, I would feel utterly sick, and I hope that he will succeed in his aim of somehow amending the Bill to prohibit that practice. In saying that, I take to heart what he said about excesses by our military, but I think we owe it to the military—I do not suppose that this will form part of the Bill—to limit the time when a member of our armed forces can be prosecuted for events that took place while serving in a military campaign, including in Northern Ireland. I hope that the Government will somehow find a way to do that before too long.
As I mentioned in an intervention earlier, this debate takes place in the atmosphere that was described by Andrew Parker, the director general of MI5. On 17 October 2017, in a rare public speech by such an official, he described the ongoing terrorist threat as
“multi-dimensional, evolving rapidly, and operating at a scale and pace we’ve not seen”
from such threats. Indeed, in the year ending 31 December 2017, there were 412 arrests for terrorism-related offences in Great Britain, an increase of 58% on the 261 arrests in the previous year.
In his speech earlier, my right hon. Friend the Home Secretary said there have been 25 Islamic attacks since 2013, including four external plots since the Westminster atrocities. I therefore want to pay a sincere tribute to the police and the security and intelligence services, who often put their lives at risk in very difficult and dangerous circumstances to keep us all safe, and they do a terrific job. As if that were not enough, we then had the horrific attack on Yulia and Sergei Skripal, and indeed Sergeant Nick Bailey, on 12 March. Following those attacks, the Prime Minister announced on 14 March that, as part of a response to that incident, the Government would
“urgently develop proposals for new legislative powers to harden our defences against all forms of hostile state activity”.—[Official Report, 14 March 2018; Vol. 637, c. 856.]
I will move on to one or two of the provisions in the Bill. The first is the provision to make a temporary exclusion order to disrupt and control the return to the UK of British citizens reasonably suspected of being involved in terrorism abroad. As we have heard in the recent exchanges, that is a very difficult offence to prove, and it is clear to me that it needs tightening up. It is also clear to me that, where there is intelligence or other evidence that people have deliberately travelled abroad to take part in terrorist training or atrocities, they deserve to be prosecuted when they come back.
I was quite attracted to the idea of proscribed areas. Why would anybody want to go to Syria, for example, and put their life at risk, unless it was for a specific valid reason such as being a journalist or overseas aid worker? There is a defence in the Bill of having a reasonable excuse for having travelled to these areas, and I am very pleased to hear that my right hon. Friend the Secretary of State is considering such a provision as a possible amendment to the Bill.
I am also pleased that the Bill contains provisions to be inserted into the Road Traffic Regulation Act 1984 relating to anti-terrorism traffic regulation orders—the so-called ATTROs. As we have so sadly witnessed in the Westminster attack and others elsewhere, an ordinary car, van or lorry can be a weapon in the hands of a terrorist. The ability to prevent people from being in certain areas at certain times is a sensible one to have. In fact, we should be able to ban traffic from a wider area around any events that are likely to be attended by large numbers of people.
I was pleased to see that the Bill will extend sentences for certain terrorist offences from 10 years to 15 years, and that the sentence actually served will be longer than the norm for non-terrorist offences. As I said in an intervention on my hon. Friend the Member for Henley (John Howell), however, we will have to watch radicalisation in our prisons. I know from hearings of the Public Accounts Committee that conditions in our prisons are getting ever more difficult, including the smuggling in of more dangerous drugs and understaffing. It is very difficult to police what goes on in our prisons, but our prison warders and others have to be ever more vigilant for radicalisation taking place in our prisons, and we must do our level best to try to prevent it.
I am also pleased that the Bill contains provisions for allowing Government-backed reinsurance, so-called Pool Re, to be taken out for business interruption. Sadly, some of the small market traders in Borough were put out of business because they were unable to trade for so long.
I made several interventions earlier on the subject that I wish to concentrate on in my final remarks—terrorists’ use of the internet. As has been said, the terrorists’ modus operandi is getting ever more fleet of foot and using ever more innovative methods. We as legislators, therefore, have to be ever more fleet on our feet to counter them. Terrorists are making still greater use of the internet, and we do not yet have the powers to deal with that. I take strongly to heart the point made by my right hon. Friend the Home Secretary that 1.9 million items of potential terrorist material have been removed from the internet—a 17% increase on last year. The use of the internet is clearly getting greater.
It has already been possible to prosecute people for downloading offences, but it has not been possible to prosecute people for streaming and viewing possible terrorist material on the internet. I know much has been said in the debate about the three strikes approach to viewing such material. A balance has to be struck. Personally, I would make it two views. While once might be a mistake, twice almost certainly is not, and three times establishes a pattern of behaviour that clearly indicates that someone is looking at the material with some form of purpose or intent. The Bill contains a “reasonable purpose” excuse, so a journalist or researcher looking at the material would have a reasonable excuse, but it is right to make looking at it an offence.
It is also right, as the Digital, Culture, Media and Sport Committee is doing, to look at how the internet providers can remove such material as quickly as possible. There may well be a need to legislate if that does not happen with increasing rapidity. As I said in an intervention earlier, I cannot see why the likes of Google and Facebook, which have some of the best IT writers on the planet, cannot write programs or use AI to recognise such material and take it down immediately. After all, that is the best remedy, so that people do not have the opportunity to view it. It is all very well prosecuting when they do view it, but it must be best if they do not have the opportunity. I did not want to know the precise mechanisms, because of security implications, but I was interested to know what discussions my right hon. Friend had had with internet providers in the United States on what they could do on a voluntary basis to make the withdrawal of such material much swifter and much more effective.
There are some very important provisions in the Bill, which I welcome. We need to keep ahead of the terrorists. These are some of the most vile crimes on the planet, and we need to ensure that people who contravene the norms of our democratic society are prosecuted, convicted and locked up for a long time. We need to ensure that they know that that will happen, and hopefully that will be a deterrent.
Mr Kevan Jones (North Durham) (Lab)
The first duty of any state is to protect its citizens. Historically, this has meant protecting ourselves from other states. That is still relevant today, but increasingly the threat is from terrorism, whether generated here or internationally. Is that going to diminish in the near future? Not from the evidence I have seen.
I would like to begin by adding my thanks to the members of the security and emergency services who reacted so professionally to last year’s tragic events in Manchester and London. We should not forget that members of our police, security agencies and armed forces keep us safe 24 hours a day. We should not take that for granted. The reaction to such events tends to be to want more legislation, but Dave Anderson, the independent reviewer of terrorism legislation, got it right when he said that the necessary legislation already exists. The intention of the Bill is to tighten up existing legislation. I broadly welcome the provisions in it.
It is clear that radicalisation is taking place through the internet. Dissemination of propaganda is not new. In times past, it would been done through pamphlets, books and meetings. In the 1790s, sedition Acts targeted radicals who argued for revolution from France. Throughout history, Governments have introduced various Acts to try to stop the spread of terrorism and what has been perceived to be radical thoughts against the interests of their citizens.
The situation today is rather different. Online radicalisation is not something we can put our hands on—we cannot put our hands on a book or a pamphlet; we cannot close down a meeting—and it is an international global phenomenon. The access point is relatively low. Sophisticated equipment is not needed to produce a video and upload it. It can be done using a smartphone or even a simple watch on one’s wrist. That is very different from what we talked about in relation to the Terrorism Act 2000. That shows the rate of change. It is right for the Government to react to this type of threat and to the changing way in which this type of radicalisation and propaganda is being put out there.
Another side to this issue, which is not covered in the Bill, although it would be interesting to know what the Government are considering, is terror and finance. I know the Government have taken some steps, but if we look at the open source literature, we see that the dark net is being used to raise money for terrorism organisations and organised crime. This is an area seen to be beyond the reach of law enforcement. In terms of extending that reach, I support the proposal in the Bill for extra-territorial reach to enable actions to be brought against those who radicalise individuals from overseas. This has been an issue. Those returning from Syria, Iraq and other places have been using that so-called safe haven to put out propaganda deliberately aimed at vulnerable people to ensure that they can be radicalised and to incite acts of terrorism here. The change in the Bill that allows those individuals to be prosecuted is right.
Many people who know me know that I am not a bleeding-heart liberal on this subject, but I am a bit concerned about some things in the Bill. There are two issues. First, are the measures practically going to make a difference? Secondly, will they give the opponents not just of this Bill, but of counter-terrorism legislation generally, a club with which to beat the Government? I think the Government have given them that on the viewing of online material, in terms of the three views. As my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) said, it would be illegal for someone to view something three times, but it would not be illegal, for example, for Google or another provider to host the material. The problem I have is not necessarily about whether this needs to be looked at—I think it does. However, it comes down to proportionality and whether there is the capability so that this does not overwhelm our security services and police. Clearly, if someone is viewing things on a regular basis and we can build up a picture of what they are doing, we need to have legislation or measures to take against them.
I give credit to the former Home Secretary, the right hon. Member for Hastings and Rye (Amber Rudd), for her efforts to try to get internet providers to take such material down in the first place. Hon. Members have spoken in this debate about artificial intelligence and other ways in which this may be done at a quicker pace in future—although sometimes we might want it to stay up longer, so that we can find out who is producing it. However, I want to ask the Government: how is this part of the legislation practically going to make a difference? If it is, the Government will have my 100% support for it, but I think it will be a diversion for campaigners against this entire Bill, which would be unfortunate. The right hon. Member for Kingston and Surbiton (Sir Edward Davey) is not in his place, but he talked about the issue of intent, and this is about intent. If someone is clearly downloading or sharing information that is already illegal on a regular basis, it is quite right that they are prosecuted, but I just wonder what practical effect the measures will have and whether we have the resources to police this or enact it in the first place.
I want to touch on a couple of other areas in the Bill. One is the management of those convicted of terrorism offences. Many of my constituents would think that if someone has been convicted of terrorism, they should stay in jail for life, never being released, but we know that that is just not practical. The Bill highlights an important point, which is how we manage these individuals once they have served their sentence. I asked the Home Secretary in an intervention earlier whether this would be done in the same way as it is, for example, for sex offenders who are released and monitored in the community, and he said yes. If that is the case, that is a good model, but it is expensive. If we are going to have that type of monitoring—I know it is effective and I know about the good cross-working in my area between the probation service and the local police— I just want to be sure that we have the necessary resources at local level. These individuals will need monitoring in some cases and that will be necessary and right if we are to protect our citizens. Therefore, I welcome that provision, but only with the proper resources at local level to be able to do it.
I support the provisions in the Bill that refer to Channel panels from local authorities. At the moment, the police can make referrals, but many individuals come into contact with other agencies, and there should be a mechanism for referring them to Prevent programmes. My only caveat is that training or some resource has to be provided for local authorities and others to ensure that they understand exactly how the system works.
We debated the entire Prevent programme earlier, and my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) said that it did not have support in certain communities. I recognise that. It is partly down to a sustained campaign by certain organisations to discredit it. I am not opposed to reviewing the situation, but what would we put in its place? There is a lot of talk about the Asian community, but people involved in potential acts of right-wing terrorism are also referred to Prevent. I congratulate the Government on their new emphasis on right-wing terrorism. It is a growing problem not only in this country but across Europe. Some of the groups across Europe are certainly not benign and they commit acts of violence and terrorism not only against local Muslim populations and other minorities but to terrorise other individuals. What then would we put in place of Prevent? I have not heard anyone answer that. I agree with the right hon. Member for South Holland and The Deepings (Mr Hayes). Things can always been improved, and we should always look for improvements, but what would we put in its place?
I am not sure how we tackle this, but I am concerned also about the old issue of vulnerable individuals in communities. At least one of the terrorist outrages last year had a mental health element. We need a mechanism for identifying and helping at-risk individuals who do not come into the orbit of a local authority or the health service. These are very vulnerable individuals whose minds can be preyed upon and used by people with bad intentions. I am not sure how we do that, but we do need to consider it.
On ports, I agree with the hon. Member for Belfast East (Gavin Robinson), who covered the problems very well. I see what the Minister is trying to do, but I cannot see the need for it. It is slapped under the label of state actors, and if it is to deal with that, it has my full support, but I take on board the hon. Gentleman’s points. A related matter, and one that raises issues of entry to and exit from this country, is that of closed subjects of interest. From what I have seen, Salman Abedi travelled in and out of this country without ever appearing on any radar screen. There is, then, an issue around monitoring closed subjects and others who could be a threat as they move between countries.
Finally, I want to mention something that is not in the Bill and on which I would welcome the Minister’s response. David Anderson made some very good recommendations in his report. Some were operational issues for the security services and police, but others were around the selling of precursors for explosives, such as fertilizers and peroxide, and the hiring of vehicles. Are the Government yet in a position to look at what David Anderson said about those matters? Will they present proposals to tighten the regulation or monitoring of people who buy the precursors of potential explosive devices, or to deal with issues relating to the hiring of vehicles, which were tragically used in some of the attacks that occurred in 2017?
I broadly welcome the Bill, but it clearly needs more scrutiny. I hope the legislation that eventually emerges is proportionate and, at the end of the day, effective, because that is what we all want. I do not think we will ever be able to prevent every single act of terrorism, but our aim must be to make such acts as hard as possible to commit.
Nick Thomas-Symonds (Torfaen) (Lab)
This has been a wide-ranging and thoughtful debate.
Two years ago, our late friend and parliamentary colleague Jo Cox was murdered, and between March and September last year there were five terror attacks. At the forefront of our minds are those who lost their lives in the incidents at Westminster Bridge, Manchester Arena, London Bridge and Borough Market, and Finsbury Park, and those who were injured at Parsons Green. We think of Jo and others who are no longer with us, and we think of the injured and their friends and families. We also think of our magnificent emergency services who, time and again, showed extraordinary bravery and courage in the most difficult circumstances.
I pay tribute to all the workers in our national health service who saved lives and treated the injured, and to all the services that were involved in the investigation and treatment of Sergei and Yulia Skripal—including Detective Sergeant Nick Bailey, who was rightly lauded by Members in all parts of the House during the debate. I also pay tribute to the work of our security services. We should think about what has not happened: since the terrible murder of Fusilier Lee Rigby in May 2013, 25 terrorist attacks have been foiled and numerous lives have been saved.
It is in the context of those events that the Bill is to be judged. We all want effective legislation in that context. Such legislation must always keep pace with technology and the times in which we live, and we support the Government in those aims. We also, of course, want to put public safety at the centre of policy in this area, and to make it as effective as possible. Aspects of the Bill build on the recommendations of the previous independent reviewer of counter-terrorism legislation, David Anderson QC. My right hon. Friend the Member for North Durham (Mr Jones) rightly highlighted the work that David Anderson has done in this area over a number of years.
We are anxious for the wider impact of terrorist incidents on surrounding communities and businesses to be taken into account, and clause 19 is welcome in that it seeks to widen the scope of losses covered. Business interruption costs are not currently covered when there is no physical damage to the commercial premises, although we know that such interruption occurs. I pay tribute to my hon. Friend the Member for Bermondsey and Old Southwark (Neil Coyle) for the work that he has done in that regard. We will press the Government in Committee on whether they will cover losses that have been suffered by businesses in connection with the incidents of the past 15 months, and not simply losses that will be suffered in future incidents. Will they compensate businesses that have lost out in the past when they should not have done so as a consequence of the current loophole?
We intend to table substantial amendments to the Bill in Committee. The Minister has indicated a willingness to be constructive, and I take him at his word. I hope that he will consider all our amendments in the constructive spirit in which they are intended. We will continue to make the case for proper resourcing, an issue that was raised by my hon. Friend the Member for Barrow and Furness (John Woodcock). I myself have asked the Minister about it on a number of occasions. We will continue to hold the Government to account for their funding of our police and other emergency services, and our security services, and, indeed, for how much we pay the workers who do so much for our society.
The first three clauses seek to update terrorism offences on expressions of support for a proscribed organisation, publication of images, and obtaining or viewing material on the internet—the so-called digital fixes. We agree of course that the law should be updated and keep pace with the times, but those clauses will need work in Committee. Max Hill QC, the independent reviewer of terror legislation, has said in recent days that
“the tweaks to existing offences range from pragmatic to problematic.”
Of course, with any change in the law, we have to ensure that there is wide public consent. The independent reviewer of terror legislation said last October:
“While we can all agree that there should be nowhere for real terrorists to hide, we should also agree that legislating in the name of terrorism when the targeted activity is not actually terrorism would be quite wrong.”
That is why the legal frameworks we set in this House must be forensically considered, seeking to protect our daily lives and our values of freedom and respect. It is vital that we guard in our criminal law against any unwelcome consequences.
We will therefore be scrutinising the Government carefully on what they mean by “reckless” in the context of an expression of support for a proscribed organisation. On the photographs provision, we will want the Government to distinguish genuine threat from immature behaviour or other motives. On the streaming of material as well as downloading, I agree that the law needs to be updated in that respect, but we need to be clear about what “streaming” means. At present it is specified in the Bill as three views, but, as a number of contributions to the debate from across the House have suggested, that will need to be carefully considered. Journalists and assiduous researchers accessing material for legitimate purposes—and indeed the Chair of the Home Affairs Committee—should not be criminalised, so we will be looking at the position of the Government with regard to the “reasonable excuse” defence.
On the additional sentences in the Bill, the Sentencing Council published its guidelines for terrorism offences on 28 March, but those were based on the current maximum sentences. I would be grateful for reassurance from the Minister that the Government will work with the Sentencing Council on the new proposed maximum sentences.
The release of terrorist offenders who are subject to extended sentences will be a decision for the Parole Board. There were concerns in a different criminal context with regard to the Warboys case, but I sincerely hope that the Government will be able to give reassurances that shortcomings have now been satisfactorily resolved and that there can be wide confidence in the Parole Board as it carries out such an important task.
On data retention, we will of course look carefully at the Government’s justification as to why the collection of data from people who are arrested but not charged is necessary and proportionate, and what mechanisms are in place for wholly innocent people who wish to have their data removed.
A number of Members mentioned the extension of the Prevent programme, and clause 18 gives local authorities the power to refer to Channel panels as part of that strategy. Labour’s policy is for there to be a review of Prevent, and we will of course consider carefully the capacity of local authorities in this regard in their current funding settlements. Indeed, at Home Office questions only last week, I raised with the Minister my concerns about local authorities being given additional duties in respect of data without appropriate data security and training and the resources required.
It is entirely reasonable for the Government to be looking at border security. Clause 20 activates schedule 3, which includes the power to stop, question and detain. That is a very broad power. Paragraph 1(4) of schedule 3 states that somebody can be stopped, questioned and detained
“whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity.”
In his opening remarks, the Home Secretary made it clear that there should be robust safeguards in circumstances such as these, and I absolutely agree with him. At the moment, the Bill provides for oversight by the Investigatory Powers Commissioner, but I suggest that working with the independent reviewer of counter-terrorism—who is at the moment the reviewer of schedule 7 to the Terrorism Act 2000—is going to be crucial. That relationship will need to be spelled out as the Bill proceeds.
Stephen Doughty
We obviously understand the need to detain individuals in certain circumstances, particularly at airports when they are potentially posing a risk. Does my hon. Friend agree that, if we are to exercise these powers sensitively, it is crucial to have regard to compensation for those who have been stopped and subsequently found not to be guilty of any offence—for example, if they have missed their flight or had property taken off them?
Nick Thomas-Symonds
I very much agree with my hon. Friend on that point. How we draw the law precisely in this area is very important. The powers will need to be backed up by appropriate safeguards and protections for those who are wholly innocent of any offence.
On the question of border security, the Bill as it stands means that a person who is detained for less than an hour will not have the right to access a solicitor, and that someone detained for more than an hour will be able to access a lawyer, but they could be required to do that within the sight and hearing of an officer. That will clearly have consequences for our cherished and valuable principle of legal professional privilege, under which people have the right to consult a lawyer and to do so in private. This is something that we will want to consider further in Committee, and I very much hope that the Government will listen to the points that have been made about the need for appropriate safeguards.
I hope that the considered nature of this debate will continue into the Committee stage. I look forward to working with colleagues on both sides of the House to scrutinise and, hopefully, improve this legislation in such a crucial policy area.
The Minister for Security and Economic Crime (Mr Ben Wallace)
This has been a good debate, and Members on both sides of the House have demonstrated a desire to take a collaborative approach to counter-terrorism legislation. I am heartened by that, and delighted that we can start the process in that spirit. Every point that I have heard today has been made with passion, consideration and genuine belief. I might not have agreed with some of the points, but I certainly recognise that this is not about posturing or anything other than trying to make an effective piece of legislation that will make us safer. Over time, while we are doing this Bill, I intend to do as much as I can to work with Members on both sides of the House and to be as collaborative as possible. I shall work to see whether there are better ideas to improve the legislation, to ensure that we can deliver it in such a way as to enable the intelligence services, the police and local communities to feel safer than they do today.
On 22 March last year, many of us who were in the House heard shots being fired outside and heard about the horrendous events on Westminster Bridge. I was about to come into the Chamber when I heard a police officer say, “Shots fired.” We lost our friend PC Keith Palmer that day. He did his very best to defend us from a man intent on killing indiscriminately and spreading terror. On 22 May last year, in this job as Security Minister, I remember being woken just after 11.30 pm by a phone call from my office telling me of the dreadful news that a bomb had been detonated at the Manchester Arena and killed a significant number of people. Manchester is my local city, and my own daughter had been at the Arena only the week before. Those events brought home to us the vulnerability that we face.
Every one of us in the House, while not directly affected by terrorism, will have fought the general election feeling—perhaps for the first time and perhaps because of social media—the level of hate and bile that is directed at us all. I think that that made us feel a little uneasy about the society that we are in, and about what lies at the extremes behind that hate. Some of my friends on the Opposition Benches are right now under threat from the extreme right, and we remember our dear fallen colleague. Also, a good friend in my part of the world has been under real threat from some particularly nasty people. I think that we have to reflect on these issues.
There is often pressure after such attacks to have new legislation—something must be done—and I am proud that this Government did not rush to legislation. We set up several significant reviews that were consolidated into four main reviews. The operational review produced a classified report of some 1,300 pages that went into every single decision, piece of intelligence and bit of work that went on in the lead-up to some of the attacks. I read all 1,300 pages not just because I am incredibly interested and because it is my duty, but because only then could I learn what legislation will put right, what is reasonable to be asked by our security services and police and what should not necessarily need to be placed on the statute book.
We also had the Home Office’s counter-terrorism legislative review, and we reviewed Contest, pausing its relaunch to see whether anything needed to be handled. Several of those reviews were “oversighted” by David Anderson, the former independent reviewer of terrorism legislation, or Max Hill, the current reviewer, who reviewed how police used their powers in the aftermath. That gentle but solid consideration is why we are here today with legislation that hopefully helps to answer some of the challenges we face.
When the terrorists unleashed attacks on us in 2017, that demonstrated clearly not only the empowerment that they now have through social media and encrypted communication, but how they had adapted to our statute book to find new vulnerabilities. They have shifted their ambitions to find where we are not as protected as perhaps we should be, and they have exploited that. Good terrorists do that. Terrorists are all about our soft underbelly and our vulnerability. If they cannot get an AK-47, they get a truck. If they cannot get a truck, they get a knife. That is part of what they do, and if they cannot do any of that, they intimidate and scare us with words and propaganda. They exploit our constituents, whether they are vulnerable or children.
Daesh are the among the worst. They have no fuss about who they twist and corrupt. They do not care whether they are Muslim, young, abused or vulnerable or whether they suffer from mental illness. Anyone will do to carry out their twisted, murderous campaign. Despite the loss of territory in Syria, they keep their flame alive. They are adapting, and as we speak there are people in this country planning to repeat what we saw last year. There were five attacks last year, four extreme right-wing, neo-Nazi attacks have been stopped over the past 12 months, and 25 plots have been disrupted since the murder of Lee Rigby. We have 3,000 current subjects of interest involved in nearly 500 live operations. I have never seen things at such a scale, and the threat is a great challenge not only due to encrypted communications, but due to the speed at which someone who does not mind getting caught can reach out, grab a knife, go out of their front door and literally kill people as they see fit.
I will now answer some of the points made today. The shadow Home Secretary offered some positive support for the Bill in principle, which I welcome, but she highlighted some of her concerns, which I may be able to answer. In clause 1, there was a worry about reckless encouragement, but it is our challenge to deal with people who go out to inspire others. It is no coincidence that al-Qaeda’s online publication, which contains sections such as “Just Terror Tactics”, is called “Inspire” because inspiration is one of the challenges we face. There are some very charismatic people in our communities, some of whom are currently in prison but are due to be released, who have used their presence and their inspiration to recruit without actually muttering the words, “And I want you to join Daesh, and I want you to go and fight in Syria.” That has been part of the challenge, and some of them—one individual, in particular, has been responsible for hundreds of people being drawn into extremism—have used it so well for so long, which is why we have sought to plug the gap in the space of inspiration.
I agree with a number of colleagues on both sides of the House on the substance of Prevent. Whenever I hear people criticise Prevent and I ask, “Okay, what would you do?”, they just describe Prevent, and they come back to the bit about the Prevent brand being tainted. Fine, the brand is safeguarding; I will sell safeguarding all day long. We call it Prevent, but it is about safeguarding people from being exploited.
The shadow Home Secretary is worried about whether local authorities have the expertise. They do not have expertise in counter-terrorism, but, by golly, they have expertise in safeguarding vulnerable people and children. We should put Prevent referrals in perspective. There are 9,000 Prevent referrals a year, of which half are of people aged up to young adolescence. There are 621,000 referrals a year to safeguard people from domestic abuse, sexual abuse and grooming. Let us put this in perspective. Prevent is not a Big Brother spying operation.
The end result has been that, in two years, more than 500 people about whom we had serious concerns they were on the path towards, or were about to engage in, violent extremism are now deemed no longer to be a threat. That is 500 people—it takes one man to drive a van across Westminster bridge—and, in my book, that is a success.
Yes, there are people who are worried about the branding of Prevent, about which I have two things to say. First, when I raise the extreme right or the neo-Nazis, people say, “Prevent is quite a good thing for them.” Secondly, when I look people in the eye whose families have been prevented from going to Syria, they do not argue with Prevent; they say that Prevent works. One of the reasons we publish the figures is that they put it in perspective and show that there are successes. It is not 100%, but 30% of the people it picks up need other types of safeguarding.
Often the people who attack Prevent the most are the ones who do not want Prevent to work because they are the flipside of the recruiters of extremism in this country. We should not forget that some people want the narrative to be, “Don’t trust the state. We don’t like the state, and we don’t want the state. Our way is the best way.” They peddle this myth that a child was reported to have said, “My uncle lives in a terrorist household”—we have all heard that one trotted out by the anti-Prevent lobby. What the child actually said was, “I live in a terraced house, and my uncle beats me.” It never was a Prevent referral; it was a referral because the child was being abused. The same people will peddle that myth until the cows come home.
Our ambition is to broaden Prevent, to get the local community engaged and to get local authorities alongside the police on referrals. One of the criticisms of Prevent is that it is too police-focused. Local authorities may understand some of the nuances in their community to determine whether a person is really being radicalised. If the local authority says, “We think they are being radicalised,” why should it not be allowed directly to refer that person to Channel? I think that is a good thing. It is not a step backwards; it is listening to some of those criticisms about Prevent.
My right hon. Friend the Member for South Holland and The Deepings (Mr Hayes) is right to talk about keeping people safe. This is about safeguarding. On whether we have too much legislation or legislation enough, there are two things to say. Britain is a world leader in counter-terrorism. All our legislation has got us to a point where most countries come to ask us how to do it. Most countries around the world are envious of what we have.
Also, unlike other countries, we have probably the most oversighted intelligence services, security services, police and law enforcement in the world. A number of the measures in the Bill were recommended by the independent reviewers. The hostile activity port stop power has been included because the independent reviewer identified two occasions on which our police were abusing the counter-terrorism power to stop people we thought were from hostile states and recommended a separate power. The Biometrics Commissioner was the one who recommended the changes to the biometrics. So the Government have listened to some of these independent reviewers and thought, “That is a good thing to do.”
May I say to the hon. Member for Paisley and Renfrewshire North (Gavin Newlands) that I welcome the Scottish National party’s support in principle for the Bill? Of course I will continue to work with him and the Scottish Government. I first entered the Scottish Parliament at the same time as his Justice Minister. I had a phone call with him last night. If he feels at any stage that they are not getting the engagement, he should not hesitate to get in touch and I will make sure that it is done. It is incredibly important that Contest and our counter-terrorism legislation reach all the fingertips of the United Kingdom. I note that when National Action was proscribed, something called Scottish Dawn popped up quickly—it is now proscribed, too. It is important that we do not muddy the waters where we all agree to agree.
On the issue about recklessness, part of this is about how we deal with those who are targeting people without caring whether they understand or not—I refer to the issue of vulnerability. In March, Umar Haque was convicted of trying to radicalise hundreds of children at school. He got them to swear allegiance to ISIL. He got them to re-enact the Westminster Bridge attack in their classroom and he showed them footage of people being beheaded. He said to those children, “If you tell your parents, you will go to prison.” Those people were vulnerable—they were children—and we have to find a way to make sure we close the gap in determining how much intent has to be involved and how much the receiver of that information has to know what they are getting.
My hon. Friend the Member for Cheltenham (Alex Chalk)—my learned friend—gave an excellent example about recklessness when he talked about a baseball bat. What we are dealing with here is not that different—I may disagree here with the right hon. Member for Kingston and Surbiton (Sir Edward Davey)—and the law has established on a number of occasions where recklessness comes in. My notes tell me to cite R v. G and another from 2003, and I think my hon. Friend is the only person who would understand what case that refers to. It was not an enlightening note, but it shows that this has been done.
Points have been made about hostile activity stops on the border. One way we temper the no suspicion issue is by the fact that whatever oral statements are made then cannot be used in court as evidence. That is an important way to try to balance this, but there is the issue about suspicion to address. If I were an agent of a foreign country, I would be trained. I would know the law of the country I am coming into, so I would give my electronic equipment to a family member. If we had to have reasonable suspicion, we would have to have reasonable suspicion about everyone else travelling with that person; it would be harder to adapt to something as it happens.
I hear what the hon. Member for Cardiff South and Penarth (Stephen Doughty) says, as he is right, about the impact the current schedule has had, including on my constituency, and the cost and what people perhaps lose when they are stopped under counter-terrorism powers. We have to look at whether we can make sure the information is provided in a timely way, so that people do not miss flights. Sometimes things are too last-minute, but this has been incredibly useful.
The hon. Member for Barrow and Furness (John Woodcock) talked about the challenges of dealing with foreign fighters. Some 150 people have been prevented from going to train, fight or engage in terrorism because of that schedule. We managed at the airport to stop them, and in examining their electronic devices, we saw that they were not really going on a family holiday to Turkey but were in fact, for example, taking their three young children to Raqqa. No one wants to go on such a holiday, and those three children had no say in that.
I hope and believe that the hon. Member for Bermondsey and Old Southwark (Neil Coyle) will be meeting the Economic Secretary to discuss the issue he raised further. I hear what he says, and I also want to pay tribute to his colleague the hon. Member for Manchester Central (Lucy Powell), as she has talked a lot about loss of business around the Manchester Arena. It is right to raise this. I am also glad he has called out Aviva. It is important for us to remember—this is the same for our constituents going on a summer holiday—that slowly but surely over the past 10 years travel insurance firms have dropped terrorism from their coverage, yet the odds of being a victim of terrorism are still absolutely tiny. So I have asked to see what we can do with insurance companies more widely to ensure that, although people are at only a tiny, tiny risk of being a victim, this is not just casually dropped out of people’s schedules.
My hon. Friend the Member for Henley (John Howell) referenced Hezbollah. Of course we always keep proscription under review. I hear what he says about it and I understand the hurt people feel here when they see others flying flags of Hezbollah on the streets—for example, on al-Quds day. He also talked about the Council of Europe. It is absolutely the case, on the border point, that we need to engage those partnerships post Brexit. We need to make sure that we continue with all the tools that we use at the moment. The United Kingdom Government’s position is unconditional on that. That is what we would like to engage with. The question is for the European Commission—whether it would like to have that.
Security is not a competition. Trade might be, but security is not. I think that is something they understand in Europe, going by my private conversations, and I hope that, by the time we get to Brexit, we will see it in place, because that partnership, both domestically and internationally, is why we are so successful in counter-terrorism.
I can already give the hon. Member for Belfast East (Gavin Robinson) some good news from the Dispatch Box: there is no 20-year bar on glorification of terrorism offences, nor will there be. In that sense, hopefully, he will be able to progress and go forward.
The hon. Member for Barrow and Furness is right that we have to find ways to explore the foreign fighter challenge. That is not just us—it is the French and the Germans, too—where we might have intelligence that someone is out there engaging, but it is hard to get the evidence. During the passage of the Bill, we are going to explore new measures or other measures on which I am happy to work together that I hope will do that for us.
We have also extended extraterritorial jurisdiction, because it is ridiculous that someone can sit in Syria and try to recruit people from the United Kingdom and somehow not be prosecuted correctly.
Mr Speaker
Order. Forgive me. Am I right in thinking that the Minister of State is approaching a peroration as eloquent as Demosthenes but markedly briefer?
Mr Wallace
The usual channels have taken over. I have lost the first battle.
In summing up, I apologise to the other Members who contributed so eloquently to the debate. I would, of course, be happy to meet them outside the usual channels. I should say very clearly that we owe a great duty to our intelligence services and police in thanking them for all the hard work that they do. We will progress with this legislation. I will work as much as possible in partnership with Members from all parts of the House to get a deal and a Bill that works to keep us safe.
Mr Speaker
The Chair was merely making an inquiry, and there was a question mark at the end of it, but I get the impression that the peroration was not altogether unwelcome to the House. We are very grateful to the Minister of State.
Question put and agreed to.
Bill accordingly read a Second time.
COUNTER-TERRORISM AND BORDER SECURITY BILL (PROGRAMME)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Counter-Terrorism and Border Security Bill:
Committal
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 17 July.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Proceedings on Consideration and up to and including Third Reading
(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.
Other proceedings
(7) Any other proceedings on the Bill may be programmed.—(Paul Maynard.)
Question agreed to.
Counter-Terrorism and Border Security Bill (Money)
Queen’s recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Counter-Terrorism and Border Security Bill, it is expedient to authorise the payment out of money provided by Parliament of any amounts payable by the Treasury in respect of obligations incurred, under any agreement of reinsurance or guarantee, as a result of the amendments made by the Act to the Reinsurance (Acts of Terrorism) Act 1993.—(Paul Maynard.)
Question agreed to.
Counter-Terrorism and Border Security Bill (Ways and Means)
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Counter-Terrorism and Border Security Bill, it is expedient to authorise the charging of fees, under amendments made by the Act to the Road Traffic Regulation Act 1984, in connection with traffic regulation orders or notices made or issued for the purpose of protecting events or sites from risks associated with terrorism.—(Paul Maynard.)
Question agreed to.
Women and Equalities Committee
Ordered,
That Teresa Pearce be discharged from the Women and Equalities Committee and Tulip Siddiq be added.—(Bill Wiggin, on behalf of the Selection Committee.)
Counter-Terrorism and Border Security Bill (First sitting)
Tuesday 26th June 2018
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 June 2018 - (26 Jun 2018)
The Chair
Before we begin, let me say that you are welcome to remove jackets or ties—I would call it a day at that—because it is very hot. I have just a few preliminary points. Please make sure that your electronic devices are switched off. Tea and coffee are not allowed during sittings—I have been asked to say that because people keep walking in with coffee cups and so on.
We will consider the programme motion on the amendment paper and then take the motion enabling the reporting of written evidence for publication, before taking a motion to enable us to deliberate in private. We will then talk about the order in which Members may wish to kick off and look at the questions provided—you can of course add in any of your own.
I call the Minister to move the programme motion, which was agreed by the Programming Sub-Committee yesterday.
The Minister for Security and Economic Crime (Mr Ben Wallace)
I beg to move, Date Time Witness Tuesday 26 June Until no later than 10.55 am Metropolitan Police; Crown Prosecution Service Tuesday 26 June Until no later than 11.25 am The Law Society Tuesday 26 June Until no later than 2.45 pm Max Hill QC, Independent Reviewer of Terrorism Legislation Tuesday 26 June Until no later than 3.15 pm The Law Society of Scotland Tuesday 26 June Until no later than 3.45 pm Liberty; Criminal Bar Association
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 26 June) meet—
(a) at 2.00 pm on Tuesday 26 June;
(b) at 11.30 am on Thursday 28 June;
(c) at 9.25 am and 2.00 pm on Tuesday 3 July;
(d) at 11.30 am and 2.00 pm on Thursday 5 July;
(e) at 9.25 am and 2.00 pm on Tuesday 10 July;
(f) at 11.30 am and 2.00 pm on Thursday 12 July;
(g) at 9.25 am and 2.00 pm on Tuesday 17 July;
(2) the Committee shall hear oral evidence in accordance with the following Table:
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 11; Schedule 1; Clauses 12 to 17; Schedule 2; Clauses 18 to 20; Schedule 3; Clause 21; Schedule 4; Clauses 22 to 26; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 17 July.
I welcome the consensus on Second Reading about the principles of the Bill. No doubt, we will all explore the details of what goes in it. At our meeting yesterday we came to an accommodation on timings and witnesses. For the record, we should recognise that a number of people we asked to be witnesses either chose not to, or were unable to, come. I do not think that is a reflection on the Bill, but it is why we do not have the full sheet of witnesses put forward by all parties to begin with. I am confident, however, that we have a spread of critics, supporters and objective commentators. Therefore, without holding up the Committee any more, I ask it to agree to the motion.
Question put and agreed to.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Mr Wallace.)
The Chair
Copies of the written evidence the Committee receives will be made available in the Committee Room.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Mr Wallace.)
The Chair
Q
Assistant Commissioner Basu: I was not, but I am very pleased to be able to make a statement. My current role as assistant commissioner counter-terrorism policing means that I co-ordinate the network in the UK of nine counter-terrorism units that deliver counter-terrorism policing on behalf of the 43 chief constables. This is quite a responsibility, not least because last year I was senior national co-ordinator for counter-terrorism, responsible for the investigations and for the delivery of Prevent on behalf of policing.
If you boiled my job description down into one simple fact, it is to stop terrorist acts on our soil, along with my big partner, MI5. On my watch, 36 people died and many hundreds were injured. I want the Committee to know that I think about that every day. The reason that I took this job, that I am sitting here giving evidence on, is because I also think about having to stop that every day. Part of that is something that we call the operational improvement review. I led a strategic board along with MI5 that has led to over 100 recommendations, which are all being implemented as we speak. Part of that was also our work with Government along the lines of what legislation might be required, and I see considerable value in the measures set out in the Bill to combat the change in threat that we have experienced post-2017.The nature and scale of the terrorist and hostile state actor threat to this country has evolved and changed. The simplicity and volatility of terrorism often requires us to intervene much earlier to protect the public. Offences previously considered periphery or minor are now seen as indicative of a volatile and unpredictable actor.
As we know, terrorism legislation is nearly two decades old. In the intervening years, there have been significant changes in technology. The reality of the modern world is that technological developments form part of people’s lives and interactions, so legislation should reflect how people live in the modern world. While counter-terrorism policing can describe the operational challenges we face—and they are great, not just from the change and threat of technology—the appropriateness and specifics of each power are obviously a matter for Parliament to decide.
I have just got back from Australia, where I spoke to all my counterparts who run counter-terrorism in the “Five Eyes” countries. I would say that the great strength of counter-terrorism in this country is that we have the most remarkable connection between the UK intelligence community, policing, Government and, I am pleased to say, the general public, because of the UK policing model, which is envied throughout the world.
We must remember that 2017 was horrific. We have seen a shift, not a spike, in the threat. We are probably about 30% up in terms of our investigation workload, but the strength of that model will see us through, along with some additional measures from the operational improvement review and the legislative changes that I believe are required.
The Chair
Thank you.
Gregor McGill: I do not intend to say too much more than my colleague, but I will reflect on something that Mr Basu said—that the legislation is now some two decades old. There have been significant changes in technology, society and the threat to the UK. In the CPS we feel that the legislation should reflect those changes.
I will put my cards on the table straightaway: we support this legislation. In the CPS we try to prosecute all terrorist activity where it meets the test in the code for Crown prosecutors. The Bill addresses both the evolving terrorist threat and the changes in technology, and it should provide the CPS with the ability to prosecute offences that previously we would not have been able to prosecute. In the CPS we are having to put more resources into our division that deals with this type of offending, to reflect the spike in activity last year.
Simon Hoare (North Dorset) (Con)
Q
“on three or more different occasions the person views by means of the internet a document or record containing information of that kind.”
Does that provide the necessary discretion to prosecutors? Is it clear enough, or would you need greater clarity? Could you comment on that, because the clause has been discussed here?
Gregor McGill: I am aware of the discussion that there has been. Prosecutors require clarity when looking at legislation, because they have to apply that legislation. Approaching this practically—we discussed this beforehand—three seems an appropriate number to us, because we would not want people to be criminalised for inadvertently going on to a website. I have to accept that that could happen. That could be a single occasion. It is a more difficult argument to accept if the person has gone on to it twice, and it is more difficult again if the person has gone on to it three times.
There is of course a statutory defence to the offence as set out, which gives some safeguards. The code for Crown prosecutors has a two-stage test, which is sufficiency of evidence and, if the evidence is satisfied, whether it would be in the public interest to prosecute. There are a number of safeguards in that for us to say that we think the legislation as drafted hits the right balance between protecting society and protecting the rights of a suspect.
Nick Thomas-Symonds (Torfaen) (Lab)
Q
“A person commits an offence…if he invites support for a proscribed organisation”.
The new clause in the Bill states:
“A person commits an offence if the person…expresses an opinion or belief that is supportive of a proscribed organisation”.
It then brings in the concept of recklessness. Could both of you give me an example of a type of situation that could not be prosecuted under the previous regime but could be prosecuted under this new regime?
Assistant Commissioner Basu: Yes, I can certainly give you an example of that. The biggest problem we have in counter-terrorism, without a doubt, which is making this a generational challenge, is radicalisation. I think that is a given, from my position, but I could find a great deal of current support in Government and in social media sentiment to say that the ability to radicalise is a significant issue. I will leave the fine legal point of “reckless” to Greg, but it is a well-established criminal tenet, so I do not see that necessarily as an issue.
I could relate a number of studies. One is of Mohammed Shamsuddin. Many of you will have seen commentary on the Channel 4 documentary “The Jihadis Next Door” last year. On 27 June 2015, Shamsuddin gave a speech. In the context of that speech, it was very clear that he supported Daesh and what they were doing. He did not invite others, which is obviously the current test, so he did not meet a section 12 charge. He shouted anti-kufr rhetoric and said, “Allahu Akbar” in relation to the Kuwait mosque bombing. He said that one should not feel sorry for the British who died in Tunisia or for the kufr killed in Kuwait. He criticised Gay Pride and said that gay people should be thrown from tall buildings. Having spoken on recent shootings in Tunisia, he said, “The spark was lit,” and that the listeners knew the rest.
A second example is Omar Brooks, again in 2015, on 4 July. He gave provocative talks and spoke of jihad and of how Islam was spread by the sword and was not a soft religion about peace. Brooks also mocked a sheikh who had spoken against the killing of Lee Rigby. Again, it was clear, when you look at the full tone of his speech, that he supported the concept and principle of Daesh, but he did not invite others, under the terms of the current legislation, and again it would not have met a section 12 charge.
Now, were either of those two people reckless in that they would have thought that their deeds would have encouraged terrorism? My contention is that they absolutely would. What we have seen in the rise of terrorism—particularly with the malleable, vulnerable people not well equipped to understand the nuances of religion or ideology—is that this kind of radicalisation speech has really worked to increase the threat to the UK.
Gregor McGill: I would adopt that. I think there is a gap in the law at the moment that means that we cannot always prosecute people in the circumstances that Mr Basu has set out. You raised the question of recklessness. Do you want me to deal with the question of recklessness?
Nick Thomas-Symonds
Please do.
Gregor McGill: As you are aware, recklessness is a concept that is well known to the criminal lawyer. It is currently in the terrorism legislation. It is something that investigative colleagues and prosecutors are aware of dealing with. It has been seen to be ECHR-compliant; that is correct.
The legal definition of recklessness is a subjective test now; the courts made that clear in the 2003 case of G. It is about a person who realises that there is an obvious risk in what they are doing and, realising that obvious risk, goes on to do something that brings about that obvious risk happening.
It is a concept that is well known in terrorism legislation and also well known in the wider criminal law. It is used in a number of offences—for instance, arson, child neglect and some assaults. It is not an unknown concept. It is not unknown to prosecutors and judges, who are used to dealing with these difficult situations.
Nick Thomas-Symonds
Q
Gregor McGill: I agree with you. Most of the decisions that are made in the criminal law are a balancing exercise. Prosecutors have to balance the rights of a suspect against the rights and protection of the public. The code enables us to do that. That is why we have a public interest test that enables us to ask. Even if the evidence in its purest form makes out the criminal offence, it has never been the case here that, just because you prove an offence, you necessarily should prosecute it. Prosecutors have the discretion not to prosecute, and they exercise that discretion very frequently.
Assistant Commissioner Basu: I do not want to be glib about this, but I have worked with Greg for a very long time and I would never get such a case past him anyway, even if I was prepared to put that case. We are far too busy on genuine acts of terrorism to be concerned with such a case. What it might point to is somebody who is in trouble and needs a bit of guidance: that is the Prevent tactic under the Government’s Contest strategy. There are some remarkable people on the front line capable of speaking to people and changing their minds about the path they might be following.
The other thing I would say about this clause is that this, again, is a modern technology phenomenon. The idea of dressing up in regalia that would be abhorrent to—hopefully—all of us here and the vast majority of the public has been well-established. The Public Order Act has established that. People just do not attend public assemblies, marches and demonstrations in the same way that they used to. Why would you need to? A tiny fraction of the population might see that for a fraction of a second, but now you can put it online and publicly display your message.
We would look at all the circumstances in relation to how that was being publicised and what you were trying to achieve by that before we looked at any form of executive action.
Nick Thomas-Symonds
Q
Gregor McGill: The answer to that, I think, is that we are dealing with specific offences under section 58, which is about viewing and streaming material. Prosecutors are adept at looking for other offences that would enable you to deal with the criminality, but the essence of prosecution is that you prosecute the most appropriate offence set out by the facts in front of you.
Prosecutors can sometimes shoehorn offending into other offences, but experience tells us that that can result in problems down the line because there can be technical defences to certain clauses that superficially make you think you can prosecute under those offences, although it is more difficult. Prosecutors will always try to prosecute under the most appropriate offence, and the most appropriate offence for this type of material is the section 58 offence under the 2000 Act.
Nick Thomas-Symonds
Q
Gregor McGill: Most cases are fact-specific, so it is difficult to talk in general terms. In these particular cases, so much turns on the particular circumstances of each case, the particular evidence in the case and the particular conduct of the person under investigation. It is difficult to speak in generalities. Prosecutors have, of course, tried a number of offences to deal with certain criminality, but generally it is difficult to shoehorn some conduct into offences that were not specifically set out to deal with that type of offending.
Nick Thomas-Symonds
Q
Gregor McGill: The CPS prosecutor, in looking at the case, would consider all aspects and look at the particular circumstances and timings of the access. If they were close together, that could tell a story; if they were apart, that could tell a story. We work closely with our investigative colleagues and find out from them exactly what the evidence shows and, if it has been put to the suspect in interview, precisely what they have said about that. But as a prosecutor, you have to look at the evidence in the round and consider all the evidence, including the circumstances in which the contact has happened. Depending on the circumstances of the case, the particular type of contact may tell a particular story.
Nic Dakin (Scunthorpe) (Lab)
Q
Assistant Commissioner Basu: I did not want to get off clause 3 without making some really important comments about it from the policing perspective, if that is possible, Chair. To answer your question directly, we are very fortunate in this country, with the support of the Government over many decades, to have pretty robust legislation in terms of counter-terrorism.
What we are looking to do—and most of these clauses do it—is close some loopholes, because of the changing nature of the threat and the change in technology. There is very little that was left in the first debates that took place in terms of what would be best to counteract terrorism. One of the major partners that I am looking to involve much more in the counter-terrorism fight is the business sector—and the public sector. We have a Prevent duty that has gone a long way towards getting statutory partners more engaged in the battle, but we do not currently have any licensing, regulation or regime for the business sector to improve its ability to protect its employees, customers and management of events. We do not have that; it is a conversation we are still having.
I think—and you may want to get on to this—that the Australians have a “designated area” offence for people who wish to travel to war zones and fight. Although that would not be retrospective, and therefore would not have great utility in respect of the Syrian conflict, I think it would have utility for the future. If we were dealing with a similar situation in the future, stopping people from going to fight or enabling the prosecution of people fighting in theatre when they return would have great utility to us. Those are probably the two things that I would consider at the moment.
Gregor McGill: The Australians have such a power and they consider it a useful addition to their armament. We do not have a power. As my colleague Mr Basu has said, it would not help us address some of the issues that have happened in the past, but it could help us address some of the issues in the future.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Q
“recklessness is normally applied to actions that are themselves within the realm of criminality…if you hit someone or deceive them then it is absolutely appropriate for a jury to be able to convict you of an offence even if you did not intend the consequences of your actions. The same nexus between action and consequence should not exist for speech offences. Speech does not naturally reside in the realm of criminality. This is why the element of intention should always be attached to speech offences.”
Could both of you comment on that quote from the JCHR report? Can you determine the difference between speech offences and physical acts?
Gregor McGill: I appreciate what you say. Recklessness is not an unknown principle in criminal law. It is right that I should say, as well, that it is a particular principle that has caused criminal law some issues over the years, particularly in the field of whether such recklessness should be subjective—that is, you understand its nature—or objective, in that it is more from an objective test. As the court, the prosecutors and the investigators are used to dealing with the question of recklessness, these issues can be properly managed through the proceedings. The difficulty as well is that that quote, I understand, was from 2006. The world in 2018 is very different from the world in 2006, and Mr Basu will no doubt tell you that the threat facing us now is very different. That is one matter.
This is often portrayed as a thought crime, but I would say it is not that. The clause is seeking to address someone who is actively supporting a proscribed organisation and doing it in circumstances where they are reckless—by saying what they are saying and by giving that support—as to the consequences of what is happening.
I endorse what Mr Basu said. The threat that we are trying to address here is the threat of radicalisation, which is one of the big threats facing us at the moment. That is the purpose of this and that is the purpose of the recklessness clause.
Assistant Commissioner Basu: I cannot stress strongly enough the effect that charismatic, radicalising speakers, who profess to support proscribed organisations and encourage violence, are having on a section of our society. Despite the defeat of the caliphate and despite the fact that we have an extreme right-wing threat that is growing, those speakers are still capable of galvanising, mobilising and energising individuals.
If I look at the evidence for that, I would say the proscribed group that is al-Muhajiroun. We had five successful attacks last year, including one extreme right-wing attack. We also had 12 disruptions of international counter-terrorism: Islamist, jihadist plots. If you track back across the past four or five years and look at the pernicious influence of a group such as ALM, it is dramatic. They have a footprint in almost every crime. So to say that radicalisation is the biggest scourge of our time in terms of terrorism is probably an understatement. It is making a significant difference. For me as a police officer, anything that helps me mitigate that threat has got to be a good thing.
Gavin Newlands
Q
Assistant Commissioner Basu: I do not actually have any concerns about that at all. We are very adept at looking at the full intelligence picture behind what somebody is doing.
Back to the comments I wanted to make around the section 58 and the streaming offence: that is the way people are living their lives now. It is not about operational security; it is just what they are doing. I am agnostic as to the number of times, but I appreciate prosecutors need some clear guidelines. That streaming is happening and it is happening en masse. At the moment, we are able to charge on one offence, because it was downloaded, but there might be a wealth of intelligence saying that a massive amount of streaming has been done. We then get a short-service sentence on the basis of one download, which does not say what the rounded threat of that individual is. That is very different from someone who has clicked three times on something over a huge length of time.
I would reiterate what Mr McGill said: these are not absolute offences. There are statutory defences and reasonable excuses built into this, all of which would be looked at very clearly before it went through the Crown Prosecution Service and before it went to trial. Then, an independent judge is overlooking that as well. So I am not concerned that it would be a diversion of police resource. I have examples that I can give to the Committee—or I can write to the Committee—that show that people are doing this as a precursor to much more violent offending in the future.
I do not want to be in the position I have been in many times in the last couple of years, looking at somebody who is committing what the courts might see as a minor crime and gets a very short sentence. That is not long-term public protection if they are out at three to six months. I am looking for them to go that next stage when I have got intelligence rather than evidence that they are preparing for that next stage. I want long-term sustained public protection, and that means that we need to be able to prosecute people who are streaming en masse.
Gregor McGill: Can I add two things to that? First, in such cases the police and Crown Prosecution Service work closely together. What often happens is the police will come to seek advice at an early stage and the Crown Prosecution Service will be able to give that advice in such a case. It is very difficult to say how a prosecutor would advise about a case in the abstract. What I could say is, three clicks over 25 years would be a harder case to prosecute than three clicks over a three or four-day period. One of the things a prosecutor has to do when reviewing a case is ask themselves whether they have sufficient evidence to prove a case.
Gavin Newlands
Q
Gregor McGill: The difficulty is, cases can turn so much on their own facts. I cannot say that you could not build a case with three clicks over 25 years; it would depend on what the nature of that was and what the reasons for that were. But ultimately whether there should be such a limitation is a matter for Parliament. Prosecutors would work within that limitation, if that was put in.
Assistant Commissioner Basu: I would be nervous about absolute time limits because of our close subjects of interest. Khalid Masood and Salman Abedi are two very good examples from last year. Khalid Masood would have been engaging in looking at some of this material many, many years ago. So where would you put the line?
Gavin Newlands
I have one more question, Chair, but I will pass to my colleague, who wants to ask a follow-up.
The Chair
As we are in an oral evidence session, I am taking people in the order in which they indicate, which I think is fair. Mr Chapman will have to wait.
Mr Wallace
Q
Assistant Commissioner Basu: It is the comment I made earlier: it is the greatest threat to this country that people such as Anjem Choudary have been able to speak very persuasively and charismatically for long periods of time. The difficulty in prosecuting him, as Mr McGill will know, was immense over many, many years. If my MI5 colleagues were sitting here today, they would be able to give exact numbers on how many terrorist atrocities al-Muhajiroun—he is a leader of ALM—have a footprint in, not just here in the UK but abroad, and on the number of disruptions we have had where people have been influenced by ALM rhetoric or material.
Mr Wallace
Q
Assistant Commissioner Basu: Yes.
Mr Wallace
Q
Assistant Commissioner Basu: Many years.
Mr Wallace
Dozens? I think it was 20 years.
Assistant Commissioner Basu: I would not be able to give you the exact number.
Gregor McGill: It was certainly a significant number of years, and I think it was into double figures. I think it was somewhere around 10 years, at least.
Mr Wallace
Q
Gregor McGill: Precisely so. He was a very charismatic and intelligent man who was very able to stay just the right side of the legislation as it was at the time. That provided a real difficulty for investigative colleagues to gather evidence and for prosecutors to bring a case.
Mr Wallace
Q
Assistant Commissioner Basu: Exactly.
Mr Wallace
Q
Gregor McGill: It is not the job of a prosecutor to stop people having odious thoughts and opinions. In a democracy, people are entitled to hold whatever opinions they want to. When the expressions of those opinions become criminal and go into what has been called “the radicalisation agenda”, that is where we think there is a lacuna in the law and where we think it needs addressing.
Mr Wallace
Q
Assistant Commissioner Basu: Yes
Gregor McGill: Yes.
Mr Wallace
Q
Assistant Commissioner Basu: Yes
Gregor McGill: Yes.
Mr Wallace
Q
Assistant Commissioner Basu: Yes.
Mr Wallace
So the principle is already embedded in law around inspiration when it comes to racial hatred, but not when it comes to terrorism?
Assistant Commissioner Basu: Yes, precisely so.
Mr Wallace
Q
Gregor McGill: Prosecution is fraught with problems, but none have come out. It is a perfectly workable piece of legislation and another tool in the prosecutor’s armour to be able to deal with this type of behaviour.
Mr Wallace
Q
Assistant Commissioner Basu: Yes, it is a challenge and it is quite common.
Mr Wallace
Q
Assistant Commissioner Basu: Yes.
Mr Wallace
Q
Assistant Commissioner Basu: That is exactly what it is. If you marched down the street with that flag, you would be in a different place.
Mr Wallace
Q
On clause 3, I am keen to be open to solutions on the three clicks issue. Would you both agree that streaming, again reflecting modernisation, is a major problem and that the law as it sits is not capable of defining the difference between streaming and downloading?
Assistant Commissioner Basu: Yes.
Mr Wallace
Q
Assistant Commissioner Basu: Yes.
Mr Wallace
Q
Gregor McGill: From a prosecutor’s point of view, although these probably would not be exercised, they would be more investigative powers, if you are using an evidence base or intelligence base, you would have to make that intelligence or evidence available.
There are some complications and difficulties with that. There are some legal difficulties with making some intelligence available. There are some operational difficulties in making such material available, which may impact investigative colleagues’ ability to run some of their operations. On that basis, if we had to disclose that, it may limit the powers significantly.
Mr Wallace
Q
Assistant Commissioner Basu: Yes, I think it would be too general; that is the problem. It would need to be a reasonable suspicion test. If you look at section 1 stop-and-search powers, it would have to be much more directive than that. Certainly, in counter-terrorism and the example you have given, that would not be uncommon. Intelligence is very fragmented; it is very incomplete. We might have very limited material, possibly just on the travel method or a particular flight, and nothing more than that.
To echo Mr McGill’s point about having a suspicion threshold undermining the utility of this particular investigative power, certainly very sensitive sources and methodology could be disclosed. Certainly, the people who were targeted could quickly work out how to bypass our methods. Certainly, it would be open to those people to displace their travel by passing on evidence to a travel companion, who would not be under suspicion. The lack of suspicion in terms of the power is critical to the utility of actually using it.
Mr Wallace
Q
Assistant Commissioner Basu: Yes.
Matt Warman (Boston and Skegness) (Con)
Q
Assistant Commissioner Basu: Do you mean the designated area offence that we discussed earlier?
Matt Warman
Yes.
Assistant Commissioner Basu: I think the Australian approach is the more sensible one from our point of view. If you start introducing any kind of rules and notification procedure, there is bureaucracy and difficulty that would go with that. We know how people react. If you put in any kind of way of stopping somebody travelling, if they succeed and travel that would be a huge propaganda coup. That is not something that we would like to see. There is obviously a huge reputational risk in that happening and then them going on to commit atrocities, because somehow they had passed a notification requirement and travelled under the guise of something else, which has happened in the past. They have arrived and then fought and committed an atrocity. It would look like we had effectively licensed them to do that. We would rather have very clear legislation in the first place that prohibits the travel, and that people were then responsible for doing whatever it is they do and they took that risk, and we were able to prosecute in the future.
Matt Warman
Q
Assistant Commissioner Basu: I do not have those figures off the top of my head, but I could get those for you and it is substantial. One figure I do have is that we prevented 100 minors from travelling to a theatre of war. The other fact I have is that despite the collapse of the caliphate, we still see people inspired to travel.
Matt Warman
Q
Gregor McGill: I adopt everything my colleague has said. I would say, in respect of the Australian experience, is that although it is on the statute book, it is not often used. It is something that, like most offences, has to be—in accordance with the law—it has to be necessary in democratic society but it also has to be proportionate. It is an offence that would be a useful addition to a prosecutor’s armoury, but we would have to be careful how we exercised it because there are ECHR implications, and prosecutors would be alert to that. The Australians are looking at their first case at the moment for dealing with such an individual.
Afzal Khan (Manchester, Gorton) (Lab)
Q
Gregor McGill: That would depend on the particular circumstances of the case and the particular evidence put before the prosecutor. If you went straight to a very criminal—if I can use that word—part of the streaming, that could constitute one. Just a very brief look could constitute one click.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
Q
Gregor McGill: That is a very difficult question to answer without seeing the precise evidence. The section 12 support offence is there to deal—sorry to come back to it—with the threat of radicalisation, and the charismatic speakers who stop just short of inviting people to become involved in terrorism but make it clear that they support that activity. That is what this clause is there to deal with.
Dr Huq
Q
Assistant Commissioner Basu: I do not remember that case, but in the circumstances as you describe them, it would be easy to see why that was a weak case. Mr McGill has said it already, but prosecutors look in the round at whether it passes an evidential threshold and whether it passes a public interest test, long before we get to the point where they advise us that we can charge somebody. So there is a significant period of time in which we would look at the full circumstances of the case. Just on what you have said there, I am not sure that is one that we would have been putting forward under today’s—
Douglas Chapman (Dunfermline and West Fife) (SNP)
Q
Gregor McGill: There is a statutory defence, so that would give some safeguards. As I suggested earlier, prosecutors have to apply the code for Crown prosecutors, which means that they have to ask themselves whether there is sufficient evidence to provide a realistic prospect of a conviction and, if they are satisfied that that test is met, whether it would be in the public interest to prosecute.
In certain circumstances, if a person was suffering from a mental health issue, that could be a reason for not prosecuting. In certain circumstances it could be a reason for prosecuting. A prosecutor has to look at the particular aspects of each case and make a decision based on what the evidence shows, but I think that there are sufficient safeguards in the legislation and the core process.
Of course, all court proceedings are overseen by independent judges. They are very independent and have an overriding duty to ensure that any court proceedings are fair. That is their overriding duty, and they are very active in ensuring, through the management of criminal cases, that criminal proceedings are fair at all stages. I would say that there are sufficient safeguards within the legislation, and in the wider way in which cases are investigated, prosecuted and tried, to ensure that the rights of everyone in the proceedings are protected.
Assistant Commissioner Basu: The spectrum for mental illness is huge. If people do not have the mens rea, they would not be charged. There would be alternative ways of dealing with that individual. If they do have the mens rea, it depends where they are; we have charged people who have got mental illness issues. Having low levels of mental illness does not mean that someone cannot consciously commit an atrocious act. The investigative process as it stands today, and always has, is that you have to be fit to be detained, fit to be interviewed, and fit to be charged. There is a lot of medical advice before it gets to a charging decision and a prosecutorial process in front of an independent judge. Again, there would be court measures around someone’s fitness to plead or stand trial. I think that there are sufficient safeguards.
Just to be clear about who is drawing vulnerable people in, it is not legislation or the investigative process or the Crown Prosecution Service; it is radicalisers, who rely on the fact that some people are vulnerable and need safeguarding. We have measures within the police to try to prevent those radicalisers getting to those people. That is called Prevent, and we do not talk about that great work enough. It is about trying to stop someone being criminalised in the first place. I and my statutory partners have a lot of people working on doing precisely that—stopping people getting drawn into this and becoming subject to any of the legislation in the first place.
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
Q
“on three or more different occasions the person views by means of the internet a document or record containing information of that kind.”
That is quite clear—three clicks and you’re out—but how do you define views? What is the definition of views? Is it a five-second YouTube advert or the like? Is it 10 minutes? Is it an hour? What is the definition of views when it comes to that?
Gregor McGill: I do not think it is defined in the legislation, is it?
Andrew Bowie
Q
Gregor McGill: That is the point I would make. The analogy I always draw is with things such as indecent images of children. When we are prosecuting cases like that, if someone clicks on a website with indecent images of children once, they might think, “I didn’t want that. I’ll click off.” I would say that no prosecutor would say that the code for Crown prosecutors was met in those circumstances. If you had one click and you were on there for a considerable period of time, that might be different. If you had one very short click, but then you went back and looked again, and then you went back and looked again, that is beginning to show a pattern of behaviour.
Andrew Bowie
Q
Gregor McGill: No, and those are the factors that a prosecutor would take into consideration in asking themselves whether the evidential test was met and, even if it was in those circumstances, whether it would be in the public interest to prosecute.
Julia Lopez (Hornchurch and Upminster) (Con)
Q
Assistant Commissioner Basu: I am on public record as saying that I think Prevent is the most important pillar in the Government’s strategy. What we are facing is a generational challenge. If I think about minors who are being influenced in all the kinds of ways that we have discussed here today, I talk about returning families, mothers and children who have been exposed to atrocities in war zones, who I have to treat as a potential threat as well as a potential safeguarding issue. I have talked about the fact that we see people still actively inspired and encouraged to travel to a war zone where the caliphate does not exist. There are still people being influenced by that.
I think of a case that I investigated less than 18 months ago, which has come to trial, of four young people who were trying to travel to Syria to fight. That links to the section 58 offence, because two of them downloaded material and therefore were chargeable with a section 58 offence. For two of them, there was no evidence under the current legislation to be allowed to interdict them at that time. They were not susceptible to Prevent, which is a voluntary scheme to help people who want to help themselves. That is the difficulty.
Where the Government have brought in desist and deradicalisation programmes that are mandatory for convicted offenders, at least that gives us a further opportunity to try to safeguard. That is another important aspect or evolution of where Prevent has been. But as I have just said, the number of people in policing and in our statutory partners, post the 2015 legislation, that made statutory partners aware of their responsibilities and gave them a legal duty to effectively deal with anyone they suspected was being drawn into terrorism, has made a significant difference. That is not least because the education sector, where you will be well aware that we had huge problems convincing people that safeguarding and not prosecution was our aim, is now the biggest referrer into Prevent—very recently, I think, it was 1% more than policing itself.
There has been a sea change. What we tried to talk to people about is that you do not need to teach teachers about safeguarding. It is absolutely engrained in their character as something that needs to happen. This was no different from a child being abused or neglected; it was exactly the same principle. We believe that is working effectively and will continue to work in the future. Probably the most important thing is that people are resourced and equipped to handle what is going to be an increasing case load, particularly if we see more people returning from theatres of war.
What we described here is a radicalisation process that is still ongoing. My colleagues in the Home Office will see social media and sentiment showing that there is still a growth of extremism in this country. You made the point about making people resilient and able to counter that narrative or to combat an ideology—a good academic we use talks about it being like fast-food ideology. Kids are being exposed to one or two lines of rhetoric from the Koran that mean nothing in isolation. The issue is in trying to teach people what that actually means, or trying to teach a young white lad in north-east England who has been told that white supremacy is the way and who understands nothing about the history of what that actually means. It is important to try to increase their resilience, and we do a lot of that type of work as well.
I do not think we talk enough about that kind of work. We do not hear from enough people doing that kind of work and some of the dramatic effects that they have had in changing people’s ideology, which has meant that those people do not become criminals—they become useful members of society, and are advocates for a better way of life.
I go back to the Peel principles: my job is to prevent crime, not just to detect it. Save life and prevent crime—those are my two primary duties, and the Prevent strategy is precisely about that. Stop criminalising people and be effective, but I cannot do that myself. Those with the skills to do that are in education, health and social services. One of our greatest challenges is probably to properly equip them to do the work that we signpost to them.
Julia Lopez
Q
Assistant Commissioner Basu: I do not think the legislation is the issue. I think the equipping, expertise and resourcing are different problems, probably for the next spending review. Unless you can point to a place in the legislation where you think that more law is required, I am not sure that it is about more laws. It is about dealing with the issue; it is more about capacity.
Julia Lopez
Q
Gregor McGill: As a prosecutor, I would say we are involved in Prevent but not to the same degree. We sit firmly within the pursuit base, if I can put it that way. The aim of any prosecutor is to keep people out of the criminal justice system as much as possible; if people enter the criminal justice system, we have all failed to a certain extent. Going back to what was said at the beginning, the threat is from radicalisation. Anything we can do to prevent that radicalisation is to be supported. I think this legislation will give us the tools to help us do that. Is there more we can do? Yes. But I agree with Mr Basu: is it this legislation? No, it is much wider than that but this legislation will help, in my view.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Q
Assistant Commissioner Basu: It has the potential to do that, yes. I think most social media providers have stepped up to their corporate social responsibility, particularly post-2017. They get it—they get that there is a serious issue with social media. I have described it publicly as the internet probably being humankind’s most important invention but also a great scourge of our time. It is not policeable as it currently exists; I certainly could not do it. The only way it can be done is if these companies take responsibility for what they are hosting on their platforms. We are seeing a real movement towards that, and the Government have helped dramatically in terms of being a convening power: getting the big chiefs round the table.
It has taken eight years for my counter-terrorism and internet referral unit to encourage social media providers to take down 300,000 pieces of extreme terrorist material: stuff that we think hits the threshold. During the first quarter of 2018, two of the major CSPs managed to take down just short of 4 million. When the impetus, drive and understanding are there and they know what they are looking for and what crosses the criminal threshold and undermines all their own policies, they can do this. That is incredibly important. That is over and above anything in this legislation.
Neil Coyle
Q
Gregor McGill: In legal terms, freedom of expression is not an absolute right, but a qualified one. It is important to remember that. It can be interfered with, if I can put it that way, if that is in accordance with the law—and this legislation would provide that; if that is necessary in a democratic society; and if it is proportionate. Like so much in the criminal justice system, we try to strike that right balance, between the rights of individuals to have that freedom of expression and the rights of other citizens to live in peace, security and safety.
Neil Coyle
Q
Gregor McGill: On the three clicks, how a prosecutor would have to approach it is to look at the case in the round and see what the nature of the clicks was—look at the issue in totality. How long someone looked and how close together—you have to build up an evidential picture and ask yourself, as a prosecutor, whether that provides you with a realistic prospect of a conviction.
In some cases, it may start off with a very short click, but the next click may be longer and the click after that may be longer. That enables a prosecutor to build up a story and a narrative and ask those questions. A prosecutor has to look at that and ask whether that evidence provides them with a realistic prospect of conviction. But they have to ask themselves a wider question: would the public interest require a prosecution in this case? That would depend very much on the circumstances of the case.
In respect of the French legislation, I am afraid I do not know much about that; I struggle enough with English law without trying to understand French law. However, I could find out about that and write to the Committee, if that would help.
Assistant Commissioner Basu: Every senior investigating officer has a responsibility to consider a Prevent line of inquiry while they are looking at the investigative lines of inquiry for their case. There are two very good examples of that. I mentioned the one about the four youngsters who wanted to travel. In that case, Prevent initiatives were put around certain of those vulnerable youngsters, because we did not want to criminalise them.
A very famous case that has just been convicted is that of Safaa Boular. Safaa Boular was a 16 year-old girl when she was groomed online by a 33 year-old from Syria. She was considered to be a very vulnerable youngster in need of some kind of Prevent intervention. That Prevent intervention failed: bear in mind that it is a voluntary programme; if you do not want to engage with it, that is a significant issue. We have people who go on to plan or even commit terrorist atrocities who have been subject to Prevent intervention. In terms of the efficacy, it is a very difficult thing to do, but we aim towards it.
I was taken by what Mr McGill said; it is a failure when we criminalise people and have to prosecute them. As I said, the primary duty of my job is to save lives and prevent crime—not detect it. I am a very experienced murder investigator, but I never wanted to be a murder investigator as a counter-terrorism officer.
Neil Coyle
Q
If someone is grooming, for want of a better word, someone vulnerable, and they send them an email link without any explanation, would the person being targeted be able to prove—as the onus is on them to do—that their excuse was reasonable, that the link was sent by someone they trusted and that it was a case of misplaced trust? How would that pan out in practice?
Gregor McGill: It is quite difficult, and it requires close liaison between prosecutors and investigators to work out exactly what the evidence is in the case. It is true that if someone is groomed and specifically targeted, that can be a powerful reason for not prosecuting, because we have to understand that people are targeted because they are vulnerable.
There comes a stage sometimes, however, when we have to focus on what people have done, rather than why they have done it—if I can put it that way. It is that balance, which goes back to what I said before and what Mr Basu just said. Wherever we can, we try to keep people out of the criminal justice system. Investigators and prosecutors will do everything they can, but in certain circumstances the code means that if the evidence is there, and it is a serious matter, the public expect a prosecution.
Neil Coyle
Q
Assistant Commissioner Basu: That is a matter for the Government and the way the Bill is drafted, but it would be a laudable aim.
Simon Hoare
Q
Gregor McGill: From a Crown Prosecution Service perspective, the Bill is a proportionate response to the threat we face.
Assistant Commissioner Basu: We have discussed the designated area offence and, briefly, the Protect duty. I caveat that by saying I understand how difficult a Protect duty would be. Some 80% of British businesses are small and medium-sized enterprises and I know it would be difficult. I do not want to impose a financial cost on people; I just want them to understand the seriousness with which we need their help. I am not sure that legislation is the right vehicle for that, but it is something we have debated.
The last point I have not mentioned is that we have a continual issue with people marching and waving flags—the whole display issue—and we do not have a power of seizure of flags, which is part of the evidential chain for a successful prosecution. That is a minor point. Otherwise, it is a well-balanced set of proposals.
Gavin Newlands
Q
Gregor McGill: That is quite a wide question. I do not have specific examples of that, although we could look for them. What we do know is that successful investigations and prosecutions use a number of investigative tools and evidence from different places. The more powers that investigators and prosecutors have to exercise those safeguards, the stronger the prosecutions and better the results. An example of where we have used biometric data for that? Off the top of my head, I do not know in these circumstances.
Assistant Commissioner Basu: The most famous example in recent years was Sardar, a cab driver from Wembley, in 2014. The US shared his biometrics with us. He had been overseas and become a terrorist. The reason we were able to match was that in 2007 he was subject to a schedule 7 stop and his biometrics were taken. So he was not convicted of anything. His biometrics were taken and retained for seven years. He was clearly suspected of travelling for a purpose, but not enough to cross the threshold. He travelled and was later convicted of murder.
Gavin Newlands
Q
Gregor McGill: We can certainly look for those examples and write to the Committee.
Nick Thomas-Symonds
Q
“to enter premises specified in the warrant for the purpose of assessing the risks posed by the person to whom the warrant relates;”
Could you expand on that? Mr Basu, what exactly do you think is meant by “assessing the risks”? What practically would be likely in a situation like that?
Assistant Commissioner Basu: This is based around lifetime offender management of terrorism. The parallel is obviously registered sex offenders, where this power exists. You are looking for anything that looks as though they have re-engaged or are breaching their notification requirements, if they are on notification. It is something that allows us to assess the ongoing risk of their re-engaging with terrorism. You might find material if you were to do such a warrant. You might find a flag being displayed. You might find material that is of use to a terrorist. That is the purpose of it.
Mr Wallace
Q
Assistant Commissioner Basu: Certainly. You can listen to me or you can listen to Andrew Parker from MI5, who has spent 35 years in terrorism and says he has never seen anything like it. If I wanted to describe the threat, that is where I would start. It is definitely a shift, not a spike. We saw the start of problems that were predictable when the military push went into Mosul and Raqqa at the beginning of 2017.
Before Khalid Masood hit Westminster Bridge on 22 March, the number of leads from international partners, covert means and here in the UK were starting to increase in January. What we reached, post Khalid Masood’s attack, was probably a lowering of the bar for terrorism in this country, where people thought that perhaps we were not as hostile to terrorism as we could be and, therefore, they were capable of committing attacks. The attacks that followed were not connected in any way, shape or form, but they say something about the inspiration and the radicalisation that we have discussed.
That has left us with a trebling of our leads; on a monthly basis we deal with three times the number of investigative leads that might later work themselves through into a priority investigation against terrorism. There is more attack planning here in the UK, which is why section 58 of the Terrorism Act 2000 is so important. Holding information is often a precursor for people seeking to do a much more serious offence down the line. We are seeing something in the region of about a 30% increase in case load.
We talk about somewhere between about 500 and 600 cases. Taking the cases that are not police and MI5-led and including the ones that are led by police alone, it is more like 650. We have talked openly about the fact that 3,000 subjects are of acute interest to us, which means 3,000 open cases of individuals who are considered a national security threat. We talk about the growing pool of those we have looked at and are no longer considered a national security threat, but who may re-engage in the future, as being 20,000.
We also have a number of issues, as we have discussed, of people who have been exposed to this in countries overseas. Now that the caliphate has collapsed, what will happen to those people? Will they return to their countries of origin? We still have a substantial number of people who could return against whom we do not have prosecutable case.
Within our communities, we continue to see a rise in extremism. Most disturbingly, along with the jihadist Islamist threat that we see in international counter-terrorism, we now see the extreme right wing growing as well. Those probably feed off of each other, which is why this becomes a whole-society problem, because we are seeing both sides of the coin. The previous Home Secretary proscribed National Action. We have done a great deal of work against National Action.
The most disturbing thing about the extreme right-wing threat, in terms of how it transfigured as National Action, is that it shows very similar signs to what was discussed about al-Muhajiroun—ALM—many years ago. It probably took years to get on top of ALM, and we did not want to make that same mistake with the extreme right-wing threat. Counting that together with the scale of the pace, our ability to counter that level of threat will be severely challenged over the next couple of years. This legislation provides me with some help on that.
The Chair
If there are no further questions from Members, I thank the assistant commissioner and Mr McGill for giving evidence this morning and for their time. It has been most helpful to the Committee. Thank you very much. We will now move on to our next panel.
Examination of Witness
Richard Atkinson gave evidence.
The Chair
Q
Richard Atkinson: Good morning. I am Richard Atkinson and I am co-chair of the Law Society’s criminal law committee. I am a defence practitioner specialising in criminal law.
Nick Thomas-Symonds
Q
“a detainee who wishes to exercise the right”
may in some circumstances do so
“only in the sight and hearing of a qualified officer.”
Is it a concern that there is no right under the Bill to consult a lawyer in private?
Richard Atkinson: Yes, a very great concern. It fundamentally undermines what I would consider to be a cornerstone of our justice system—legal professional privilege. As you may know, legal professional privilege is a right that belongs to the client, not to the lawyer, and it is a right to consult with their lawyer and have the contents of those discussions, where they are a matter of advice, privileged and not to be disclosed to anyone. Clearly, if someone is listening to that conversation who is not advising them, that conversation is no longer privileged. Therefore, that risks undermining the whole concept we have of privilege.
I understand that the motivation for this is the concern that there may be advisers—lawyers—who may be susceptible to being used, if I can put it that way, by manipulative suspects to achieve the goals being sought to be prohibited—communication with remaining suspects, interfering with evidence or furthering criminal activity. However, that is not unknown to our current justice provisions. Powers are already in place to deal with such situations that do not require the breach of legal professional privilege.
For example, in the Police and Criminal Evidence Act 1984 code H, which deals with counterterrorism cases, where there is concern about an individual lawyer there is provision for the suspect to have the consultation with that lawyer delayed but to be offered the services of another lawyer in the meantime. The suspect is therefore not devoid of legal advice. That advice is in private and maintains privilege but meets the concerns, if there are specific concerns, in relation to that particular legal adviser. So we have in place a situation where we can address the concern but maintain the fundamental principle of legal professional privilege. The Bill goes much further than that and is a step that I feel is very detrimental to our system, and of course to our reputation.
Nick Thomas-Symonds
Q
Richard Atkinson: Absolutely. Again, code H allows exactly for that. If there are specific concerns about a lawyer, the duty lawyer or solicitor can be called to come and advise. That maintains privilege and maintains the defendant’s access to advice at that point.
Mr Wallace
Q
Richard Atkinson: Not necessarily, because although there is a provision to limit its use, it is not absolute, is it? There are three exceptions where it can be used.
Mr Wallace
Q
Richard Atkinson: If I am right, the three are proceedings for an offence under schedule 7(18) of the Terrorism Act 2000; on a prosecution for perjury; and on a prosecution for another offence where, in giving evidence, the defendant makes a statement inconsistent with the answer or information provided by him or her in response to the schedule 7 examination.
Mr Wallace
Q
Richard Atkinson: They will.
Mr Wallace
Q
Richard Atkinson: No. I think, though, there are three almost categories of questioning recognised in the legislation. You have screening, examination and detention. What you are talking about is much more akin to screening, and no one is suggesting that those sorts of questions require someone to be offered legal advice. Having gone past the screening exercise and moving into the position of examination, where someone can be held for up to an hour, they are now someone of interest. Their status has moved on from simply that person who walks through passport control.
Mr Wallace
Q
Richard Atkinson: No.
Mr Wallace
Q
Richard Atkinson: I am afraid I do not know the answer to that.
Mr Wallace
Q
Richard Atkinson: Sorry, I think you are conflating things that I have said. The cornerstone is legal professional privilege. That is not access to a lawyer; it is the confidential nature of discussions between a lawyer and their client. That is the cornerstone that has been in existence for hundreds of years and that is held out internationally as a gold standard that we have in this country. That is what is being undermined by this Bill saying that a police officer can stand and listen to the consultation that is going on between the client and the lawyer. That is not the same as access to a lawyer, which is none the less important but is not of the same nature as I was describing in relation to legal professional privilege.
Mr Wallace
Q
Richard Atkinson: That is the most alarming part, yes. Access to a lawyer is important, but you were seeking to conflate the two. I am happy to discuss either, but not the two together.
Mr Wallace
Q
Richard Atkinson: Yes, I think they should, and under the code of practice that currently applies to schedule 7 to the 2000 Act, if a suspect requests legal advice, that is entitled to be considered and they may be given it, so this is not something new to terrorism legislation. It is already there in the code of practice that suspects are entitled to ask for legal advice at that point.
Mr Wallace
Q
Richard Atkinson: If they are questioning you, yes.
Mr Wallace
Q
Richard Atkinson: If it has gone beyond screening, then yes.
Mr Wallace
Q
Richard Atkinson: I would separate out some of those actions. If they are X-raying your bag, if they are looking for physical evidence to support a suspicion, then no, you do not have a lawyer at that point. If they have formed a suspicion and are now looking to ask you questions, then yes. However, more particularly under this legislation, the concern is that you have no right to remain silent, you have to answer these questions. So, devoid of legal advice and required to answer the questions is a significant act on the part of the state.
Mr Wallace
Q
Richard Atkinson: That is not something I can comment on. It may be correct. I do not know.
Mr Wallace
Q
Richard Atkinson: I do understand what is being sought. What I am saying is that there is a need for legal safeguards for those individuals. I do not see how those prevent evidence of the type you are talking about from being obtained. With a telephone, you are talking about the material being taken away and examined. It is not a matter of questioning at that point, and I have not sought to say that that should not be the case.
If you want to move on to the wider issue around seizure of legally privileged material, that is a different issue and I would have comments on that.
Mr Wallace
Q
Richard Atkinson: That is correct.
Mr Wallace
Q
Richard Atkinson: No.
Afzal Khan
Q
Richard Atkinson: I do not think the two prevent one another. Obtaining legal advice, bearing in mind that the individual has to answer questions, is not going to stop the objectives of the legislation or investigation. As I have already indicated, if there are specific concerns about the individual adviser, they can be met in the way that the codes of practice attached to the Police and Criminal Evidence Act currently address the matter. So, no, I do not think there is any problem in maintaining legal professional privilege and achieving the objectives that are sought.
Gavin Newlands
Q
Richard Atkinson: I will take a moment to gather my thoughts around that. As far as other matters go, specifically going back to—although we did not quite touch on it—legal professional privilege, there is the issue of seizure of material and its examination. Again, it concerns me that, where legally privileged material is seized, it can be both examined and seized, even though it is legally professionally privileged material. I understand that the concern is that there will be those who falsely make the claim that the material is privileged—either that they themselves are lawyers and are privileged, or that the documentation and material they are carrying is in some form privileged and therefore should not be viewed by investigators.
In order to maintain privilege, which I think is so important, there are safeguards that can be imposed, which would mean that privilege is maintained but that the objectives are met. It has to be borne in mind that legal professional privilege does not extend to agreements to carry out illegal acts. If someone comes to me and wants to plan some illegal activity, it is not a privileged conversation and material. If there is material that is claimed to be privileged at the time of the seizure—bearing in mind that when he gave evidence to the Joint Human Rights Committee, Max Hill said that he saw this being a handful of cases, so we are not talking of hundreds of cases here—it would be perfectly legitimate to seize that material, bag it immediately and then put it in front of an independent counsel—lawyer—who would then be able to assess whether or not that material is privileged. If it is privileged that is the end. If it is not privileged, that material goes to investigators to be dealt with. It can be dealt with in a very short time, because lawyers are very adept at making themselves available to deal with urgent situations. When we are talking about a small number of cases to protect the fundamental right of legal privilege, that would be, in my view, an adequate and proportionate safeguard for dealing with that situation.
To your wider question—whether there were any other concerns—I suppose I could say three clicks et al. We have some concerns that the three clicks provision could potentially be restrictive or undermining of those with legitimate cause, such as journalists or academics making research into areas where they may find themselves falling foul of the legislation. I understand the statutory defence of reasonable excuse, but that is none the less relatively vague. The timings—you spoke about this in the earlier session and about having no time limit on this—are also vague.
To leave the law in the hands of prosecutorial decision as to whether or not it meets the public interest is a step too far. I think there is a need for greater definition around what is being sought to be prohibited. I understand the rationale for it and the need to prevent radicalisation, but we also need to ensure that we do not inadvertently criminalise those who are undertaking legitimate tasks. Although I was unaware of the specific example that one of your colleagues raised, of the worker in WHSmith, that shows the risk of simply relying on prosecutorial discretion as to whether matters should be prosecuted. In that case, clearly, a discretion was exercised to prosecute, and from what you have said—I do not know the case, so I am relying on the information given here—that was later found to be wrong.
The Chair
Order. You need to speak through the Chair.
Richard Atkinson: That was an example where prosecutorial discretion was not aptly relied upon. When drafting legislation, where there are obvious potential concerns, it would be beneficial if that was better spelled out.
Dr Huq
Q
My question is about to what extent you think that clause 3 could risk criminalising thought without action—people may not have to do anything. That is what that case hinged on.
Richard Atkinson: If I am honest, I am not sure I have a view on that at the moment. I think that is the most honest answer I can give.
Nic Dakin
Q
Richard Atkinson: It is an area of concern for us because, clearly, it is right that individuals’ data is not routinely withheld, and we have looked at that in the past. I do not think I am qualified to answer on the need to extend the period, but your question very much enunciates our position, which is that any extension of time periods needs to be justified by objective evidence. I know the Committee were asking for examples of that from the two earlier witnesses. Before one could be satisfied of the need to extend periods of retention of biometric data, there would need to be a case made out. I certainly have not seen it. It was not something that could readily be articulated this morning, and great caution needs to be expressed before extending the periods of the retention of that data without an evidential base.
Mr Wallace
Q
Richard Atkinson: First, the conflation of journalistic material and legally privileged material is unfortunate. I understand the importance of journalistic material, but I would respectfully submit that it is not in the same category as legally privileged material. It is a different category of material and should be treated differently. I may have misunderstood the process, but as I understand it, the investigator views the material, seizes it and then seeks power to retain it, which means that the privileged material has already been viewed and the privilege breached.
Mr Wallace
Q
“there are reasonable grounds to believe”.
Richard Atkinson: So you have seized it, viewed it and seek permission to retain it.
Mr Wallace
Q
“an examining officer may retain the article…for the purpose…while the officer believes”.
Paragraph 12 states:
“This paragraph applies in relation to an article retained by virtue of paragraph 11(2)(d) or (e)…The Investigatory Powers Commissioner…must be informed of the article’s retention”.
Paragraph 12(4) states:
“The Commissioner may…direct that the article is destroyed, or…authorise the retention and use of the article”
subject to whatever.
Richard Atkinson: My understanding—I could be wrong—is that that material will have been viewed prior to the application to retain it, which is a breach of legal professional privilege. The breach occurs, and then in order to perpetuate the breach, if I may put it that way, an application is made. That is too late, so far as legal professional privilege is concerned. Whether that is the case with journalistic material, I leave for others to argue. For legal professional privilege, to breach it and then seek permission to retain it is too late. It should be that as soon as privilege is claimed, that material is then examined. Ordinarily, you cannot go behind privilege, and that is it, but I understand that, in the particular circumstances being addressed here, it is important that the veracity of the claim is properly checked. That is what I am saying the first stage is. It is someone saying, “I am taking your briefcase.” The person says, “Don’t look at that file. That is a privileged file.” The other person responds, “Right. I will put it in a bag, and we will see whether it is.”
Mr Wallace
Q
Richard Atkinson: If your proposition is correct and there is therefore judicial oversight of that material, I would not have concerns, but that is not how I read it operating. We differ on that.
Mr Wallace
Q
Richard Atkinson: Yes, but the issue is whether privilege is breached prior to that.
Nick Thomas-Symonds
Q
Richard Atkinson: Yes, I do.
Mr Wallace
The judicial commissioners will be the oversight for the use of the hostile port stops overall—the annual report or whatever it is.
The Chair
As there are no further questions from Members, I thank you, Mr Atkinson, for your time and evidence this morning. As the Committee is not due to meet again until 2 pm, I invite the Government Whip to move the adjournment.
Ordered, That further consideration be now adjourned. —(Paul Maynard.)
Counter-Terrorism and Border Security Bill (Second sitting)
Tuesday 26th June 2018
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 June 2018 - (26 Jun 2018)
The Chair
Q
The Committee will now hear oral evidence from Max Hill QC, the independent reviewer of terrorism legislation. For this session, we have until 2.45 pm. Mr Hill is aware that we might well have an interruption due to a vote. Mr Hill, would you please introduce yourself for the record?
Max Hill: Thank you very much for inviting me. I am the independent reviewer of terrorism legislation—as some people sometimes put it, I am the new David Anderson. I review four statutes, namely the Terrorism Acts 2000 and 2006, the Terrorism Prevention and Investigation Measures Act 2011 and the Terrorist Asset-Freezing (Temporary Provisions) Act 2010, part 1 of which is shortly to be repealed in favour of the Sanctions and Anti-Money Laundering Bill when that has statutory force.
Nick Thomas-Symonds (Torfaen) (Lab)
Q
Max Hill: By way of introduction, I have sought to look with care at the clauses alongside my senior special adviser, Professor Clive Walker, and he and I would agree in answering that question. The amendment—perhaps it is better to say the new variant of the section 58 offence—is likely to be difficult in practice. It is my duty to warn the Committee that it is very likely to attract arguments of principle based on a rights analysis, principally article 10 on the freedom of expression.
I commend the Government, who have scrutinised counter-terrorism strategy ever since the Prime Minister announced on 4 June 2017 that it would be done. My commendation is on the basis that we do not see brand new precursor offences appearing in the draft legislation. As an independent reviewer, I was worried that we might come across new offences of aspiration for terrorism—for want of a better expression—but I am pleased to see that we do not have them. The question that you pose on clause 3 is, first, whether this is a new offence. That is debatable, but it certainly is a new way of committing the existing offence under section 58.
I am concerned about the very low threshold that has been set, and about the lack of precision in some respects that at the moment is written into clause 3. Trying to move, though, from a position of giving credit to the Government, who have looked at it very carefully, what I believe they are attempting—the explanatory notes give force to this—is to identify a “pattern of behaviour”. That is a phrase from the explanatory notes for clause 3. If the clause as drafted is capable of identifying a pattern of behaviour, then although article 10 arguments do not go away, one can understand the logic behind the new variant of a section 58 offence, but I am concerned that it might not go that far—in other words, it is incapable of establishing a pattern. Why? Because the three clicks offence—forgive me for using the shorthand—may relate to different material rather than to repeated viewing of the same material, and there is no indication of the period of time over which an internet user may log on for different sessions. It is certainly no longer necessary for there to be any download or offline footprint of the material, whereas section 58 currently pretty much requires that, and of course the more general arguments are that there is no requirement that the individual either go on to prepare, or still less commit, an act of terrorism. That is a very low threshold.
The last part of my answer—forgive me for going on at a little length, but this is a headline example of the new variant offences—is that the French Parliament has attempted to legislate into exactly this space. On two occasions, the Cour de Cassation—the constitutional court in France—has struck down the French equivalent, yet the French equivalent attempts to define “reasonable excuse.” To put that another way, it exempts from prosecution—I am paraphrasing here—professional research, which may be journalistic or academic. This clause does not do that.
I have no doubt at all that the general reasonable excuse defence under section 58(3) remains, but—forgive me for repeating a phrase that I have used elsewhere—the mesh of the net that the proposed new clause would create is likely to be so fine that, although it would perhaps capture some who represent a pattern of behaviour, it would also capture others who probably do not. I hope that answers your question as to the concerns I have.
Nick Thomas-Symonds
Q
Max Hill: The short answers are yes and yes. All I would add as a criminal lawyer is that, as many members of the Committee will know, the appellate courts have been asked to consider reasonable excuse on at least two occasions—the cases of G and J in the House of Lords in 2010, and the case of AY in the Court of Appeal in 2011-12. At a judicial level, the courts have said that reasonable excuse means anything that is capable of being regarded by a jury as reasonable. That is perfectly understandable, because judges like me do not make law; it is Members of the Houses of Parliament who make law.
Perhaps one way of putting it is that if we are going to have a new offence, there is an imperative to define with greater precision the ways in which somebody is not guilty of that offence. That is just as important as defining and placing in statutory form the ways in which someone is, or may be, guilty.
Simon Hoare (North Dorset) (Con)
Q
I listened with great attention to what you said, Mr Hill. As a matter of principle, do you think that a clause that aims to track, monitor and quantify streaming, its effects on behaviours and so on, perhaps amended to reflect some of the issues that you have set out, merits inclusion in an Act of Parliament? You have suggested some improvements or embellishments to the clause, but if you were given a free hand, would you say, “If you are going to have it, you need to embellish it,” or, “Actually, it would be better not to have it at all”? Does that make sense? I am not a lawyer, so I am not very good at asking these lawyerly questions.
Max Hill: That does make sense. Given a choice—given a free hand—I would be more likely to argue that it is not necessary to legislate in this way at all. Let me explain that in two very short ways. First, I do not seek to undermine the existing section 58 offence of collecting information. It has its place on current indictments, many of which I have prosecuted over the years. I do not seek to undermine that, but this new variant sets a lower threshold than we have at the moment.
The second point is that there is at least an argument, or perhaps a discussion, which no doubt time forbids today, that there is a very considerable overlap between what one has in mind by clause 3 and the existing offence of encouragement of terrorism, which is separately enshrined in section 1 of the Terrorism Act 2006. If that argument has force, that is the second way in which I would say we do not need to replicate where we already have a precursor offence—one that has withstood scrutiny for more than a decade and that actually goes into considerable detail in its sub-clauses as to the definition of recklessness, for example. Where section 1 of the 2006 Act already covers territory, I would be tempted to argue that this is unnecessary.
Simon Hoare
Q
Max Hill: Yes. I agree, if I may put it this way, with the Home Secretary on relaunching Contest on 4 June, when he said in answer to questions that this Bill introduces a number of “digital fixes”—the Home Secretary’s words—to existing legislation. It is of course right that, even after one decade—sometimes even less, because of the way that communication technology moves on—Parliament is perfectly entitled to revisit existing offences. What that means is that a redefinition to include online activity within section 58 does not strike me as controversial.
What does strike me as difficult, though, is the suggestion that somebody who is thinking in a particular way without more—let us define that as a predisposition to extreme thinking—has crossed the line into terrorist offending, which is violent extremism. I am concerned that setting a lower threshold, which is a matter for Parliament, actually takes one across that line and ultimately we are doing nothing more by clause 3 than identifying people who may express an interest in certain types of material, but who up until now have not been at risk of prosecution for terrorist activity. They may be of interest to counter-terrorism policing and to the security and intelligence services—it is their function to take a very keen interest in even this sort of activity—but I am concerned about saying that that has crossed the threshold into criminality.
The Chair
Thank you. I am conscious that we could have a Division very soon and I am conscious that the Minister and the shadow Minister also wish to ask questions. I hope Mr Doughty is happy that we swap places and put Mr Dakin next, and afterwards I will call the Minister?
Nic Dakin (Scunthorpe) (Lab)
Q
Max Hill: I hope I have given appropriate credit for other matters that might have been brought forward in this Bill but have not been. What I would say, looking at the five offence-creating clauses in general, is that clause 4 is something against which there is no pushback—no adverse reaction from me. In other words, amending sections 1 and 2 of the 2006 Act to place the jury’s view at the heart of offence creation—the view of a reasonable person as to whether encouragement is actually what the defendant is about—strikes me as eminently sensible, so I agree with clause 4.
I agree with clause 5 as to the principle of extraterritorial jurisdiction and the extension of the remit of the Explosive Substances Act 1883 and sections 1 and 2 of the Terrorism Act 2006. There is no comment from me—I agree. However, I am worried about the extension of section 13 of the 2000 Act—the proscription offence—and affording extraterritorial jurisdiction to that, because of the dual criminality issue; forgive me for using lawyer’s shorthand. This country takes a robust and appropriate approach to proscription, which may be different from that taken by other countries. I suggest that clause 5, at the very least, needs reconsideration as to whether extraterritorial jurisdiction concerning section 13 should be limited to UK citizens, who are deemed to know how we deal with proscription here, as opposed to foreign nationals.
On clause 3, I have answered as far as can. Regarding clauses 1 and 2, recklessness as used in clause 1 is a term of art that I know caused discussion on Second Reading and may do so again. From a simple lawyer’s perspective, however, this is nothing new: subjective recklessness is a feature of the criminal law away from counter-terrorism legislation. It is defined with some precision in section 1(2)(b)(ii) of the 2006 Act, which defines recklessness for the purpose of encouragement of terrorism. Provided that the Government intend the same definition when they refer to recklessness under clause 1 of this Bill, I have nothing to add. My assumption is that that is the intention.
That only leaves clause 2, which amends section 13 of the 2006 Act—the flags and paraphernalia offence. As a legal historian, it is interesting to note that we are moving away from the public order origin of legislating in this space. The public order Acts of the 1930s were intended to deal with demonstrations on the streets; clause 2 now takes this out of a public space and into a private space, and, as the explanatory notes make clear, a particular flag on a bedroom wall is sufficient for the commission of the offence. I would suggest that evidence of what is on the bedroom wall of a perpetrator is already admissible and routinely referred to by prosecutors as supporting material for indictments for other offences; the only debate is whether it is the commission of an offence on its own.
Whatever the answer on that initial concern, the extra concern that I have about clause 2 is that, without more, it begs some serious questions about the display of historical images. There is no statute of limitations on clause 2. I wonder whether one is intended, whether there should be one, or what clause 2 unamended says about those who seek to display in private historical images of individuals working for organisations that were proscribed decades ago where it is a matter of historical interest and nothing more. It seems to me there is a vulnerability in clause 2. I understand where the Government are trying to get to, but some tighter definition might be of use.
The Minister for Security and Economic Crime (Mr Ben Wallace)
Q
Max Hill: Let me answer you this way. I am with you on the digital fix, because I think that is what you are referring to. It is undoubtedly a new variant that, instead of downloading, there are some circumstances—although technically they are quite few—in which one goes no further than streaming and there is no download imprint that has been caused. I add that prosecutors are already alive to the risk of using as prosecution evidence cached material, within an internet cache, from which it does not follow that the perpetrator has ever actually read that which appears in the cache. I know that the clause is not designed to capture information of that sort, but we need to be very clear that a cache on a laptop or phone is not evidence of personal interest by the owner of the device in the material in question.
Streaming is a modern phenomenon and to that extent I am with you, but section 58 in its origin might be looked at as an “anti-proliferation offence”—my phrase and nobody else’s. I would suggest that one of the reasons Parliament originally looked to section 58 is to stop the proliferation and perpetuation of material that we deem to be extreme terrorist propaganda, which should not go to other places. This does not deal in the same way with that. This is not anti-proliferation, because, by definition, somebody who streams and does not go any further is not bringing to the attention of third parties—still less is he or she storing for dissemination later on—material that is already online.
So there are some very strict limitations to what somebody is actually doing by streaming without more. They are not straying into the section 2 of the 2006 Act dissemination territory, which they might with section 58 in its current form. Download might be issue number one, and then issue number 2 might be later proliferation, perhaps with additions or amendments to whatever was originally downloaded. That is not what we are talking about here. We are talking about merely online streaming in—as I am afraid I have described it—rather imprecise circumstances as to time and circumstance, and that is why I am concerned.
Mr Wallace
Q
“A person commits an offence if (a) he collects or makes a record of information of a kind—”
so that in and of itself is an offence with a reasonable excuse defence in it.
Max Hill: Yes.
Mr Wallace
Are you happy with section 58 of the 2000 Act as it stands?
Max Hill: Yes. I hope I have made clear that I do not seek to undermine that. I have a practical question—it is nothing more than that—as to whether it forms an indictment pure and simple. I am very familiar with it and have prosecuted indictments myself where section 58 offences on their own, or in multiples, are used as supporting evidence for more serious preparatory or terrorist plotting activities, but it is very rarely used on its own.
Mr Wallace
Q
Max Hill: It can be, technically, yes.
Mr Wallace
Q
“A person commits an offence if…he collects or makes”—
and added “, or streams”, would you be satisfied with that? Would that address the issue we are getting at?
Max Hill: In one sense it would, but I am afraid it still begs the questions as to how much you are streaming, on how many occasions, and how much interest you are actually showing in material that you do not go on to download or store. Reasonable excuse, as you say, remains. The concern I have is that, whether the French example is a good one or a bad one, the legislators there have sought to provide exemptions and licences for obvious categories—professionals, academics, journalists—which we do not have in this draft clause. There must be a danger that individuals will be put to the trouble, and often considerable expense, of facing an indictment, raising reasonable excuse at trial, and it then being incumbent on the prosecution to disprove it where they should not have stood trial at all.
Mr Wallace
Q
Max Hill: It could.
Mr Wallace
Q
Max Hill: No, it has not been struck down. There is appellate judicial guidance on what reasonable excuse means. I suppose that my point is that if we are extending the ambit of activity that is likely to require that reasonable excuse defence, it becomes more important that we do more to define circumstances in which the offence is not committed, rather than leave a generic reasonable excuse defence currently undefined.
Mr Wallace
Q
Max Hill: There is judicial discretion and before that, of course, there is prosecutorial discretion. The Director of Public Prosecutions, or her designates, will have a discretion as to whether to prosecute. But I am afraid, from my position as an independent reviewer, I am bound to say that although that is a valuable safeguard, it would be better, given the opportunity, if we defined as matter of legislation more closely the circumstances in which an indictment should follow, rather than left it to prosecutorial discretion.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
Q
Max Hill: You are obviously referring to schedule 3, which introduces a border security equivalent to schedule 7 to the Terrorism Act 2000. They are separate mechanisms. The first point is that, although I understand that they are both to be deployed by counter-terrorism policing—the same officers at our borders—it is not a pick-and-mix choice between legal powers. In recent years, there has been some intense scrutiny of the use of schedule 7 —the best example is the case of the journalist Miranda, in relation to the Snowden material—so it is all the more important, if there is to be a new parallel power, that CT police at our ports are given training, that there are codes of practice, and that police operate from a base of certainty and training when they detain a traveller, whether under the border security provisions or under the existing schedule 7.
I have a remit to review in relation to schedule 7, but it is clear from schedule 3 that I do not have a remit in relation to border security. I would therefore defer to Sir Adrian Fulford, whose remit covers this area. No doubt, his views will be far more important than mine.
The comment I would make is that, like schedule 7, schedule 3 as drafted is absent any independently referable test for the application of the new powers. I am still awaiting the Government’s response to my recommendation in my annual report, published in January this year. I recommended a test of reasonable grounds to support the use of schedule 7 in accordance with codes of practice. I know from subsequent discussions with the Government and officials that very careful thought is being given to that, but I await the outcome. It is my hope that, if we do not have reasonable grounds for suspicion, which my predecessor recommended, we should at least have a threshold test.
There may be a clue, in the absence of a threshold test in the new schedule 3, as to how the Government will respond to my suggestion of a threshold test under schedule 7. Because thousands of travellers are being inconvenienced every year under schedule 7, this is an important feature. My thinking—although, again, I would defer to Sir Adrian—is that the border security power is likely to be exercised in far fewer numbers. We may be talking about 100 or even the low dozens of individuals. None the less, looking at it from the perspective of principle, this needs to be very carefully scrutinised. That is my reaction to schedule 7.
Stephen Doughty
Q
The Chair
Mr Doughty, that was too long a question. I am conscious that Mr Hill has got to go at 2.45 pm, and several of your colleagues wish to get in.
Max Hill: My line on this, which has been constant—rightly or wrongly—is that we should really hesitate before legislating against these very large internet companies, which have the tools at their disposal to look at the material that their platforms support. It would be a more desirable outcome to have ever-greater co-operation and collaboration—obviously, with supervision and access where possible for counter-terrorism policing. That would be preferable to legislating in this space.
My observation, for what it is worth, is that if the large internet companies were not aware of the need to scrutinise their own online spaces before the atrocities in this country last year, they are much more keenly aware of it now and are doing more. Alongside that, we have the Global Internet Forum to Counter Terrorism, which was, if I may so, very ably supported and encouraged by the former Home Secretary. It is doing good work in data-banking extreme content, providing it can be clearly identified.
We have to exercise care in this area. To take an example not relating to terrorism for just a moment, anybody can identify a pornographic image of a child—that is not difficult. Identifying terrorist propaganda is more difficult. That is where the global internet forum comes into play.
The second point is that, having data banked by the headline companies under the forum, it is important that those companies play their part to impress on their much smaller commercial partners or competitors that the smaller platforms need to take the same route. My line has been that that is better through coercion on a non-statutory footing. Of course, we wait to see how effective the new power will be in Germany, and I am aware of other countries that are considering it. So I suggest you are right to consider it; whether we are at the point of legislation yet, I beg to differ.
Finally, the Counter Terrorism Internet Referral Unit, which is a counter-terrorism policing vehicle—I have sat at the shoulder of dedicated officers who surf the web, day by day, with a view to issuing section 3 2006 Act take-down notices—is doing valuable work without the need for further legislation at this time. I understand that the report is that once a take-down notice is issued, that material is taken down in almost every case within 40 minutes of the request. So, if I may say so, we are in a better place than we were a year ago. I agree with the thrust of your question—that we must always do more—but I beg to question whether legislation is needed yet.
The Chair
Mr Khan will ask a quick, succinct question, and then, Mr Hill, you have three minutes or so to answer.
Afzal Khan (Manchester, Gorton) (Lab)
Q
Max Hill: The way I would look at it is there are tiers of terrorist offending. At the top tier, there is a clear need, on a discretionary basis, for the imposition of indeterminate sentences. The life imprisonment provision is important, and that is why, under section 5 of the 2006 Act—the preparatory offence—individuals can be sentenced to life imprisonment, and a number of recent cases have found that necessary.
What the Government are looking at here, it seems to me, is second tier—we might argue as to whether the sentencing provisions are second and third tier or just second tier. There is a legitimate argument that, at the second tier, the time may have come to increase the discretionary maximum—I emphasise discretionary only. I would not have supported mandatory minimum sentences, which we see in other general crime statutes here and there. I am glad that we do not see that in this area, where the most experienced and, frankly, hand-picked judges try these cases. They are in the best position to judge the criminality and the balance between offence and offender. We have the Sentencing Council’s guidelines for terrorism. There is no evidence of a call for higher discretionary maximums, so when debating the sentence provisions, I would encourage some thought as to how necessary that is.
So I give principled support to some increases for second-tier offences, but the one area in which I would definitely have supported an increase in a discretionary maximum sentence is the one area the Government have not included: section 38B of the Terrorism Act 2000, which is the knowledge or belief that an individual—a principal offender—is about to commit a terrorist offence or has committed one, in circumstances where there is no call to the authorities.
The Court of Appeal has looked at that offence—the case is Girma, some eight or nine years ago now—and the statutory maximum is five years. I can see an argument—if I may take an example from last year—where there was an individual who was aware of the planning for either the Manchester Arena attack or the London Bridge attack and did nothing about it, for that individual perhaps to be at risk of a discretionary sentence of five years or above. However, that is not a provision that has been included in the Bill.
It is a delicate area, and it should be evidence-led. I would say there is some evidence for extending the discretionary maximum for section 38. I am concerned, however, about extending the maximum under section 58 —particularly in the new variant, clause 3—as high as 15 years. I beg to ask whether somebody should be at risk of a sentence of that magnitude if and when convicted only of the clause 3 offence.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
Q
The Chair
Order. I am afraid that brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank Mr Hill for his evidence. Perhaps you might be my first port of call in the next session, Dr Huq.
Examination of Witness
Michael Clancy gave evidence.
The Chair
Could you please introduce yourself for the record, Mr Clancy?
Michael Clancy: Good afternoon. My name is Michael Clancy and I am the director of law reform at the Law Society of Scotland.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Q
Michael Clancy: Schedule 5 of the Scotland Act 1998 reserves to the United Kingdom issues of terrorism legislation. In that sense, terrorism legislation is not within the competence of the Scottish Parliament or of Scottish Ministers, so one might say no. But there is a “but”, which is of course that criminal law and criminal justice—the courts in Scotland, the police, the prison services and the legal profession—are all elements of devolved competence, so therefore there is a point at which these two tectonic plates meet. Due accord should be given to the fact that one is dealing with a different legal system with different traditions and a different structure.
We have always advocated the idea that the United Kingdom and Scottish Governments should get along on issues where these matters concern us all. An example of that is the memorandum of understanding between the Attorney General and the Lord Advocate, which was signed by Attorney General Patricia Scotland and Lord Advocate Elish Angiolini. I hope to see that sort of co-operation as we go forward.
Gavin Newlands
Q
Michael Clancy: That is an interesting question, and it allows me to get out my brief on clause 3. Prosecutorial discretion is an important issue. The position of the Lord Advocate in Scotland, as a Scottish Minister, is separate from his position as head of the prosecution service. Prosecutorial discretion is therefore key to how the prosecution service undertakes its work, and it has to be inherent in any prosecutorial legislation. It is quite difficult to dictate to the prosecutor what cases should be prosecuted, so I would prefer to stick with the arrangements for prosecutorial discretion in Scotland.
Nick Thomas-Symonds
Thank you for coming along, Mr Clancy. I appreciate your evidence about terrorism legislation being reserved to the UK and about the memorandum of understanding between the Attorney General and the Lord Advocate and so on. However, moving beyond that, do you have any concerns about clause 3 of the Bill that you have not already referred to?
Michael Clancy: I think we were generally in favour of the idea that this area should be updated to take account of the digital revolution. The fact that the review of terrorism legislation that the Government precipitated last year has resulted in no further offences, as Max Hill described, is a vindication of the extent to which the law captures most of the issues. However, there are always questions that can be asked—some of which you have already heard about—about the balance between the right of expression and the requirements under the Bill.
It is fair to say that the courts have been quite explicit about where they fall on that balance. The right to freedom of expression under ECHR article 10 is not an absolute right; it has to be balanced with the other rights that the rest of us enjoy, such as the right to life, and so on. Therefore, although others may not subscribe to this view, the case has to be made that the provisions in the Bill will upset those rights to the extent that we would be considerably concerned about them, given that they build on existing provisions that have already been tested in the courts.
In that context, we have to look at all the legislation we have got—several Acts relate to counter-terrorism—and construct some sort of codification or consolidation of it. I do not know about you, ladies and gentlemen, but flitting between three or four Acts of Parliament within the compass of one Bill is difficult enough. It is difficult to imagine that those who will be subject to the legislation will do that kind of thing. We should make the law as simple and easily understood as we can.
Mr Wallace
Q
Section 18 of the Public Order Act 1986 and the Racial and Religious Hatred Act 2006 effectively do the same thing: they set out that, for an offence to have been committed, you do not have to tell people to hate, or say, “You must attack Muslim people,” or, “You must attack Jewish people”. You can express in a private or public place sentiments or views that could have the consequence of inciting racial or religious hatred. Do you see a read-across from that position, which is accepted in established law, to clause 1, so it relates to encouragement towards a proscribed organisation?
Michael Clancy: I have not, I confess, made that read-across myself, Mr Wallace, but I will go back to Edinburgh and do so later on today. The general proposition about someone making a reckless statement and about whether the person to whom the expression is directed will be encouraged to support a proscribed organisation raises a couple of issues. What is reckless? It is taking a risk, in terms of the information you convey about the outcome of what you say. What is a proscribed organisation might, too, be a difficulty, because if I were to ask members of the Committee to list all the proscribed organisations they might not be able to do that. It might also pose a difficulty regarding whether some people making statements are supporting a proscribed organisation as we understand that to be the case.
There are some issues. There is a read-across to the analogous provisions in race and religion. Of course, if we have those models to follow, and those have been followed without any difficulty since they were enacted, the Government are probably on safe ground in extending the provisions to the kind of incitement envisaged in clause 1.
Gavin Newlands
It is okay, Chair, I forget my name quite often as well, and my Mum certainly does.
Gavin Newlands
Q
Michael Clancy: They can certainly be stated to be real concerns. The concept of legal professional privilege and the concept of confidentiality in Scotland are similar but not exactly the same. If we want people to be in a position where they can freely discuss matters with their legal representatives, we have to preserve this value. It is key to the rule of law that people can discuss matters openly with their legal representatives so that the solicitor, advocate or barrister is in a position to advise properly on what avenues are open to the person. Clearly one would want to ensure that that was adequately protected.
Gavin Newlands
Q
Michael Clancy: Well, there is an action: clicking three times is the action. It depends on what is clicked on and how that works in practice. It says in the existing provision for the collection of information in section 58 of the Terrorism Act 2000:
“A person commits an offence if…he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism…he possesses a document or record containing information of that kind”
or—this is the addition made by clause 3 of the Bill—
“on three or more different occasions the person views by means of the internet a document or record containing information of that kind.”
That fits in the analogous provision in the 2000 Act of possessing
“a document or record containing information of that kind.”
The fact that it is on the internet is simply an update.
I am not convinced that three strokes is the problem. We heard from Max Hill about the French cases. We have to be cautious about drawing analogies with another legal system—certainly one that has a written constitution and a codified arrangement for its law. Those are two significant differences from the system here, where something that contravenes article 10 or some other article of the European convention on human rights is subject simply—simply—to a declaration of incompatibility. That would require Mr Wallace to come to a decision about whether he would amend the legislation, were the courts to make such a declaration of incompatibility.
We must be careful about demonising this issue in that way, in so far as there has not already been trespass on the idea of freedom of expression and freedom of thought. That is that balance that has to be struck between making the counter-terrorism law work and at the same time preserving our rights. The courts have to be asked to make that balance day in, day out.
I wonder just how one would work around this provision. If I were so minded, would I, for example, click once and then take out my phone and take a film of what I was watching on the internet? Is that a reasonable proposition? Is that captured in this Bill? I do not think so. Those are the kinds of questions that one might return to later on in your deliberations.
Nick Thomas-Symonds
Q
Michael Clancy: Clearly, there is a legislative distinction between the two. It depends on what the abuse in terms of race or religion is intended to do. Is it simply to make someone feel uncomfortable, aggrieved or violated, because of their religion or race? Or is it in some kind of a way to encourage others to take up that same kind of attitude toward people based on their religion or race?
Legislation in this area, countering discrimination on the basis of religion or race, is something that we have had in this country since the 1960s. Therefore, the fact that we are continually having to look at this again means that the educative value of that legislation has not yet reached its optimum. We have to be aware of pushing that further, to make sure that those who would fall into that pattern of behaviour know that it is wrong, illegal and that they must desist from doing it.
Mr Wallace
Q
Michael Clancy: If you have an adequate definition of streaming, that might work, but for me it is just a word that people use when they are accessing information and videos on the internet. I suspect that the kinds of videos that are covered by this legislation will not have a pop-up window that says, “Do you want to play from the start or resume from where you left off?” The idea that these might be formal productions is not the case.
If we can do something that makes the legislation tighter and more usable, of course. But we may get into those difficulties about what is meant by streaming, how long does the stream have to be and what kind of document or record is being streamed.
Mr Wallace
Q
Michael Clancy: That is a good point. Perhaps we have to look at that and say whether it is covering everything we need to cover there.
I am also interested in the defence provisions about having a reasonable excuse. Reasonable excuse covers most of the instances, but under the Criminal Justice Act 1988 of course, someone can have lawful authority, justification or excuse. If we look at Section 57(2) in the Terrorism Act 2000, it says there is a defence if
“possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism.”
There may be a way in which one could look at that element of defence to make sure that those who are anxious about this provision have their concerns allayed.
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
Q
Michael Clancy: The distinction between reserved and devolved matters is that if it is listed in schedule 5 of the Scotland Act 1998, it is reserved. If it is not, it is devolved. That is why aspects such as the legal system, the courts and the legal professions are devolved, because they are not listed as being reserved. It means that the justice agencies in Scotland, including the courts, the police and the legal profession, have to exercise a law that is reserved, but they exercise it in a devolved context. That covers areas where advice is given and where the police have to act, except in provisions where they might be directed in the Bill, or the Act, to do so. I hope that that gives you enough on that.
I am afraid to say I have no experience of the ports provisions that I can offer, but I will ask the question back in Edinburgh and see if anybody can enlighten me. If so, I will write to you.
The Chair
If there are no further questions, thank you for giving your time to give evidence to the Committee. We will move on to our next set of witnesses.
Examination of Witnesses
Peter Carter, Abigail Bright and Corey Stoughton gave evidence.
The Chair
We will now hear oral evidence from our last panel of witnesses. They are Corey Stoughton, advocacy director of Liberty, Abigail Bright, executive member of the Criminal Bar Association, and Peter Carter QC, a member of the Criminal Bar Association. Both Abigail Bright and Peter Carter are also barristers at Doughty Street Chambers. We must end this session by 3.45 pm. Would the witnesses please introduce themselves for the record?
Corey Stoughton: I am Corey Stoughton, advocacy director at Liberty.
Abigail Bright: My name is Abigail Bright. I am a practising barrister at Doughty Street Chambers.
Peter Carter: I am Peter Carter. I am Queen’s Counsel at Doughty Street, and I am also a member of the Bar Council law reform committee.
Nick Thomas-Symonds
Q
Corey Stoughton: Thank you for raising this issue. Our concern with clause 14 is simple and straightforward. Read strictly, it would allow charges to be imposed on the promoters or organisers of events in connection with the cost of protecting those events from terrorism. To be consistent with the right to assemble and protest under article 10, there must be a legislative exemption for activity protected by those fundamental rights. That is an exemption that we have seen replicated in other, similar provisions in UK law. I assume it was just an oversight that that exemption was not put in here. A simple fix to this would be to recognise that putting such charges on activity protected by the right to protest and assemble is an undue burden on that activity, and the cost of protecting those events has to fall on the state in the course of its obligation to protect that right.
Nick Thomas-Symonds
Q
Corey Stoughton: Yes, I do. Viewed against the context we currently live in, where the Government have struggled to correct existing deficiencies in databases such as the police national database of custody images, it is deeply concerning that the Bill’s provision on biometric data retention extends the powers on retention of data, including fingerprint data and DNA data, of people who are arrested but not charged—that is to say, innocent people—and also removes the critical safeguard of requiring that retention to be proved by the Biometrics Commissioner.
Arguably, the current system has insufficient safeguards and, against the backdrop of the repeated pattern of an inability to correct databases that have already been ruled by courts not to be complying with human rights standards, there should be great caution and a pause before expanding the Government’s power to retain the data, particularly when that data belongs not to people convicted of any crime, but to people merely arrested, which would include those who have been falsely or wrongly arrested for terrorism-related crimes.
Matt Warman (Boston and Skegness) (Con)
Q
Corey Stoughton: It is not theoretical. I have to say that, although concern about wrongful prosecution is a legitimate concern, the real concern here is with the chilling effect that this has on journalistic activity. The question is not, do we believe that prosecutors will prosecute a Guardian journalist who clicks three times on extremist content. The real question is what journalist—what independent journalist, what citizen journalist—would be deterred from engaging in valuable journalistic activity? They will now, given the sentencing enhancements in this Bill, face a potential 15-year penalty for clicking on extremist content, which they may have done over the course of any unlimited period of time.
So we are concerned with that chilling effect and the fear of what that does to a journalist. It is a very brave journalist who would risk a 15-year sentence for anything, but you should not even require that level of bravery to be a journalist. Many journalists who are out there pursuing important critical activity are not protected by the legal teams that people at established journalistic institutions are, but that journalism deserves protection and respect, no less than other journalism.
Matt Warman
Q
Corey Stoughton: We have heard Index on Censorship reporters and press freedom groups that represent journalists say that they have serious concerns about that. That establishes quite well that the journalist community itself is concerned about it.
Matt Warman
Q
Corey Stoughton: I think they are both. It is one thing when you can say, “As long as I don’t download, I can engage in my journalistic or academic activity”—whatever mode of investigation a person is deploying in their life—but under the Bill the offence is merely clicking on something. That, I think, raises the bar a substantial degree over the current offence, which requires downloading. In point of fact, to date there has not been a stand-alone prosecution of the existing offence. It tends to be brought as a corollary charge when people are engaged in other acts that indicate they are participating in planning acts of terrorism.
To lower the bar further and to risk bringing legitimate activity under the criminal law compounds an error that, frankly, already exists under the UK’s current criminal regime. That error would be massively compounded by the Bill, which would make an offence of acts that are not themselves crimes or terrorism—there is no sense in which viewing or even downloading something is actually terrorism, according to the definition in the Terrorism Act 2000. They are acts that, in certain circumstances, can be associated with terrorism. We have already taken quite a few baby steps along the road of turning acts that might legitimately lead law enforcement to suspect that a person is preparing terrorism into criminal acts themselves. This takes another dramatic step in the wrong direction and, along the way, creates the risks we have discussed.
The Chair
Order. This is very engaging, but I have loads of Members who are trying to get in, so I am going to have to ask that answers be quite concise. I am also conscious that there are two other members of our panel who have given of their time today. The Minister and the shadow Minister now also want to come in, and I do not want to miss them out either.
Stephen Doughty
Q
Peter Carter: I agree with Max. I think there ought to be a reasonable grounds test. There are a large number of detailed preservations of rights and protections, which are entirely appropriate, but they are rather undermined by the non-existence of a reasonable grounds test, because it is very difficult to challenge it if there is no reasonable grounds test.
Stephen Doughty
Q
Abigail Bright: I agree. There might well be a case for identifying exceptions to liability under the Bill, but if we are to co-exist with reasonable grounds alone, I certainly agree with Peter’s and Max Hill’s approach.
Corey Stoughton: I agree with that. I would also point out that, to create a reasonable grounds standard, you would have to amend the Bill’s current definition of hostile activity, because hostile activity as currently defined is not linked to any particular crime. It is any action that could arguably negatively affect the interests of the nation. On the face of it, that could include a businessman engaged in a trade deal that is to the detriment of the UK economy, or a businessman striking a deal that would not help UK businesses. I do not think that is what the power was meant to get at, but that is the way it is drafted. It needs to be amended to link it to criminal activity, and there must also be a reasonable grounds standard.
Simon Hoare
Q
Corey Stoughton: I would stamp it out. I do not think there is a way to amend that provision in a way that would not end up simply reducing it to what is already covered by existing criminal offences. There is no ground between what is already criminal and would therefore be unnecessary, and what goes too far.
Simon Hoare
Q
Corey Stoughton: Let me affirm that Liberty takes very seriously the Government’s responsibility and obligation to protect all of us from terrorist attacks, which threaten the fundamental right to life. There are many provisions in the Bill that we have no objection to whatsoever. However, I also point out that our opposition to this is not radical or extreme—we are joined by the independent reviewer of terrorism legislation and the eminent counsel sitting next to me—so I do not think there is any cause to point out that our criticisms of the Bill are radical or not in keeping with what a, frankly, rational lawyer would think when looking at the provisions proposed.
Simon Hoare
I did not actually use the word “radical”. That is an interpretation.
Mr Wallace
Q
Corey Stoughton: Liberty opposed the introduction of that offence. We certainly understand that this is not the time or place to take that step.
Mr Wallace
It is either a principle or it is not. You either think it is wrong or it is not. Would you venture that section 58 is not needed?
Corey Stoughton: We would, yes.
Mr Wallace
Q
Corey Stoughton: Downloading terrorist manuals on how to make a bomb is already criminalised under the collection of material that would be useful for the purposes of terrorism, which is already an offence under terrorism legislation. Those things would be illegal.
Mr Wallace
That is training. What about downloading ISIS or al-Qaeda propaganda materials?
Corey Stoughton: Liberty’s position is that merely looking at that material should not be an offence. It may well be reasonable grounds to further investigate whether a person is planning to engage in terrorist activity.
Mr Wallace
Q
Corey Stoughton: I have to think about that a little bit more. It has been a while since we engaged with that provision of the Bill. At this stage, there are obviously occasions on which the retention of biometric data is appropriate, but I think it is clear enough to say that, for the purposes of the Bill, expanding that power, when there are already existing concerns over the way similar powers are being used, is not the right way forward. We need to clean up the system that currently exists and ensure that the important safeguards that currently exist in the system are maintained or, if not perfectly maintained, at least substituted with safeguards that continue to ensure that those powers are exercised wisely and consistent with human rights laws.
Peter Carter: Can I deal with clause 3 and the amendment to section 58? Section 58 of the 2000 Act deals with the collection of information that can then be used, or is likely to be used or of benefit, for an act of terrorism. Simply looking at something is not a predicate act to providing that information for a terrorist purpose. It would be better to make a distinction between the act of simply looking and the act of deliberately retaining something with the potential intention or purpose of it being used or passed on to somebody else.
I therefore think that clause 3 and its amendment of section 58 add a new and undesirable dimension to section 58. It is undesirable because it expands the ambit of the offence in an unnecessary way. By adding something extra, we are making the life of the counter-terrorism command, and the life of judges who have to direct juries, more difficult. In this area of law, simplicity is very desirable, and this is over-complex.
Mr Wallace
Q
Peter Carter: I think “collecting”—our making a record—is different from accessing. There is perfect justification for having an amendment that accepts the new changes in technology, and that is necessary. But if it is going to be purely accessing, you need a contingent intention: in other words, you are doing it for the purpose of an act preparatory to terrorism, or intending to use it for terrorism or to make it available for terrorism. Simply accessing is too remote.
Mr Wallace
Q
Peter Carter: But you are extending an offence which is at the periphery of what is certain—how it is connected, certainly, to a potential act of criminality. In order to protect the right of people, whether they be journalists, academics or those doing research, as Max Hill said, you should not have people facing a risk of needing to raise a defence, having been arrested, charged and had their life interrupted for however long it takes before they can put that before the jury.
Mr Wallace
Q
Peter Carter: That is because, as I say, section 58 as it exists has, as its apparent purpose, an element of an activity predicate to a potential terrorist offence. There is nothing to stop the security services from tracing and tracking people who simply access the material. The question is whether you transform that material, available to the security services to keep an eye on people, to make it a specific criminal offence. You should not transform one to the other.
Mr Wallace
Q
Peter Carter: It is elastic: it depends on the circumstances. It may be that, depending on the nature of the intelligence available to the officer—the person doing the stop-and-search—it needs to be specific if there is a person of a particular description, but it may be that the nature of the threat is so serious and the information about the individual so amorphous that it is perfectly justifiable to stop a large number of people in a specific area.
Mr Wallace
Q
Peter Carter: I am not going to say that it would not be satisfied in certain circumstances; I have prosecuted lots of drug trafficking cases where the customs officers have had intelligence of that nature. That has then been refined, which meant that they could focus on a finite number of planes or ships, but they have had to do covert surveillance on a potentially large number of persons and transits. If that transforms itself into focusing down on to, “Right, this is an individual on this flight or on this ship who satisfies what we think our refined intelligence is,” then yes, it can be quite a few people.
Mr Wallace
Q
Peter Carter: I would suggest that it is a question of proportionality. If the threat is extreme, I would not want to say that your hands are tied.
Mr Wallace
Q
Peter Carter: You would do, because if you were able to identify that it was coming from a particular place and was of a particular kind, in reality, you would not search everything and everyone. As I say, it is a question of proportionality. If there was a really major threat to the security of this nation, I would hope that appropriate powers would be available to ensure that it never came to pass. If that meant an extensive number of searches, that would be proportionate and reasonable.
Nic Dakin
Q
Abigail Bright: The first part certainly does—having no access to a lawyer, on the face of it for no good reason. If there is a good reason, of course that will present itself—it will be case-specific or fact-specific—but I do not see why the hands of law enforcement officers should be tied to one hour, or why the rights of a suspect, who is potentially an accused person, should be diminished with reference to that. That would be my observation about that first part.
Peter Carter: I agree.
Nic Dakin
Q
Abigail Bright: That is deeply concerning and wholly new. “Radical” is a well-chosen word here; it is a radical departure from anything known to English law. My view, and the view of the specialist Bar associations, is that it is unnecessary and undue, and that it would not in any way be a serious improvement on the powers available to law enforcement agents. It is makeweight, and I would submit that it is just a gloss.
Peter Carter: At the moment, existing laws allow a police officer, a superintendent, to require an interview to take place in the sight of an officer. That is appropriate. Sometimes it is a protection to lawyers, if there are reasonable grounds to suspect that the person being interviewed might try to pass something, damage the lawyer concerned, hold them hostage or something. Those are existing powers used in exceptional circumstances that are always diligently reviewed ex post facto.
Julia Lopez (Hornchurch and Upminster) (Con)
Q
Does Liberty believe that you should never be prosecuted simply for viewing material? Or are you arguing that, in the case of terror, viewing the material is not sufficiently serious, in comparison with something such as child pornography, that you should be able to convict somebody for it?
Corey Stoughton: Child pornography is a different case, because it is inherently criminal. The harm is done in the viewing and in the production of those—
Julia Lopez
Q
Corey Stoughton: Extremist content is what the current provision would cover. Extremist content is not inherently harmful in the same way as child pornography is. For example, there may be a range of legitimate reasons for a range of people to engage in viewing extremist content, whether because you knew that a student of yours in your secondary school had viewed it, or your child had viewed it, and you wanted to understand what they were looking at, or for journalistic and academic activity, which we have covered.
Child pornography really is in a class by itself, because the harm in the creation and the viewing of it is so unique and different that it is appropriate for it to be criminalised in that way. Extremist content, although quite serious—I do not mean to diminish the seriousness of the problem of the proliferation of extremist content and the challenges it legitimately poses to law enforcement —is of a different kind from child pornography for that reason.
Mr Wallace
Q
Corey Stoughton: I am not sure I know what the difference is.
Mr Wallace
Q
Corey Stoughton: Would I still distinguish that from child pornography? Yes.
Mr Wallace
Q
Corey Stoughton: I do not know. Part of the problem with these laws is that the terms are fluid and not very well defined. What one person might consider extremist content another person might not consider extremist.
Mr Wallace
Q
Corey Stoughton: Sure. I would agree with that, absolutely.
Mr Wallace
Q
Corey Stoughton: I still think there is quite an important distinction to be drawn from that, because no child is harmed in the creation. If a child was harmed and it was child pornography, obviously it would be different.
Mr Wallace
You should just watch them; you will see people being executed in the background. I would guess that is harm.
The Chair
If there is a moment left, I will come back, but I am conscious that Dr Huq would like to ask a question before we run out of time.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
Q
I wanted to ask you about, first, the issue of thought without action and secondly, the difference between lone wolves and proscribed organisations. The case I wanted to raise was the first ever person convicted under the Terrorism Act, in 2007, the 23-year-old “lyrical terrorist”—the person writing extremist poetry about beheading people. That resulted in an Old Bailey conviction that was later overturned by the Court of Appeal. What are your thoughts on that and this Bill? How would they apply? Have you heard of that case? Nobody this morning had, and I was surprised by that.
Peter Carter: No, I am afraid I have not. It was not one I acted in.
Dr Huq
It was all over the news at the time in 2007 and it was overturned in 2008.
Peter Carter: The difficulty with section 58 is that it is not about terrorist material; it is about
“information of a kind likely to be useful to a person committing or preparing an act of terrorism”.
If it was about terrorist material, as identified by the Minister, I think there would be very little problem with it.
The difficulty of extending the definition of “material” in section 58 of the 2000 Act, as this clause does, is to take it into thought. We are at risk of getting close to a heresy idea. It would be trying to stop what is genuine interest in political issues of extremism and people being able to inform themselves about extremism in order to engage with the debate and to defeat these views. Unless we engage in a debate with those views, we will not defeat them. There has to be a capacity for ordinary people to be able to understand what extremism is and why these views are so dangerous that we must engage with them and overcome them.
Dr Huq
Q
Peter Carter: I was involved in training the counter-terrorism command when the Prevent policy started. I was an enthusiastic supporter of it, because it was subtle and very effective. It has gone slightly off track and lost the support of some communities. That is a great shame, because it really needs to be supported.
I shared a panel recently at the Law Society with the Metropolitan Police Commissioner; I am glad to say that she and I agreed about just about everything. One of those things was the importance of the Prevent strategy and of getting back the confidence of the communities, because their engagement in it is vital. As a concept, it is a vital part of fighting terrorism.
Abigail Bright: A very specific part of the community is the family doctor—the general practitioners. One only needs to look at The BMJ to see the concern expressed by medical practitioners about the Prevent programme. In principle, there is no resistance to it among the medical fraternity, but how it is executed and how it risks trespassing on medical confidentiality and trust between doctor and patient is a very discrete part of how it is problematic in the community.
Mr Wallace
GPs are not covered by the Prevent duty.
Abigail Bright: On another view, much training of general practitioners goes into how to deal with Prevent.
Gavin Newlands
Q
Peter Carter: I am afraid I am going to disagree slightly with Liberty on this one. It is a bit like personal data: it needs to be constantly reviewed. There needs to be a finite term to begin with; then if necessary, continued retention needs to be justified. I do not think there should be an automatic prohibition on the retention of data by those who are not prosecuted, because it might well be that a person is diverted from prosecution even though there is very good reason and very strong evidence that they did actually have the material and were on the verge of getting involved with terrorist activity. In those kinds of cases, it is justified to retain the material. I think it is a question of proportionality—two years to begin with, with the possibility of extending it to five or further, if there is justification.
Abigail Bright: From the specialist Bar associations, I would add two things. First, the Bill incorporates a review by the Investigatory Powers Commissioner. That is very welcome and it is a good part of the Bill as drafted. As the Committee knows, the commissioner is to have two functions: to monitor and to keep under review the operation of provisions of the Act, and after that to report as a long backstop every calendar year. Within that, the commissioner has the power to report to the Secretary of State as and when the commissioner thinks appropriate much before a year.
The Chair
Order. I am afraid that brings us to the end of the allotted time for the Committee to ask questions. I thank Ms Stoughton, Ms Bright and Mr Carter for the evidence they have given the Committee.
Counter-Terrorism and Border Security Bill (Third sitting)
Thursday 28th June 2018
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 June 2018 - (28 Jun 2018)
The Chair
If Members wish, they may remove their jackets. Will they please ensure that any electronic devices are switched to silent?
This morning we begin the line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room and shows how the selected amendments have been grouped for debate. Grouped amendments are generally on the same or similar issues. Please note that decisions on amendments take place not in the order that they are debated but in the order that they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause that the amendment affects.
I will use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following debates on relevant amendments. I ask Members wishing to push to a separate Division an amendment that is not the lead amendment in a group to please let me know in advance, and I will use my discretion in deciding whether to allow such a vote.
Copies of written evidence that the Committee has received since our last meeting have been made available in the room.
Clause 1
Expressions of support for a proscribed organisation
Nick Thomas-Symonds (Torfaen) (Lab)
I beg to move amendment 2, in clause 1, page 1, line 5, at end insert—
“(A1) Section 12 of the Terrorism Act 2000 (support) is amended as follows.
(B1) In subsection (1), after paragraph (b), insert—
‘(c) in doing so is reckless as to whether another person will be encouraged to support a proscribed organisation.’”.
This amendment would amend the existing offence of inviting support for a proscribed organisation so that a person must be reckless as to whether another person is encouraged to support a proscribed organisation to commit the offence.
The Chair
With this it will be convenient to discuss the following:
Amendment 3, in clause 1, page 1, leave out line 6 and insert—
“(1) After subsection (1) insert–”.
This amendment is consequential on Amendment (2).
Amendment 1, in clause 1, page 1, line 10, leave out paragraph (b) and insert—
“(b) in doing so, intends to encourage support for a proscribed organisation”.
This amendment would mean that the offence is only committed where a person intends to encourage support for a proscribed organisation.
Clause stand part.
For the sake of clarity, this debate may range across all aspects of clause 1, in addition to those points covered by the amendments.
Nick Thomas-Symonds
It is a pleasure to serve under your chairmanship, Ms Ryan. I first want to make a few general remarks about clause 1.
I think we all accept that there is a need to update the law in this area, and that is for a number of reasons. The first is the evolving and changing nature of the terrorist threat over past decades. There have also been changes in technology, which I appreciate we will deal with in later clauses. However, there is also—this is vital for clause 1—the fact that we now have experience of the Terrorism Act 2000 in our criminal justice system and in the decisions taken by the Crown Prosecution Service.
The clause essentially updates section 12 of the Terrorism Act 2000. Just so that we are clear, section 12(1) of the Act indicates:
“A person commits an offence if—(a) he invites support for a proscribed organisation, and (b) the support is not, or is not restricted to, the provision of money or other property”.
The key part of that subsection is the inviting of support for a proscribed organisation.
When Assistant Commissioner Basu gave evidence to the Committee on Tuesday, I was careful to ask him whether there were examples of situations that are not covered under the 2000 Act but would be captured—or are intended to be captured—by this new offence, and he gave a couple examples. One was the case of Mohammed Shamsuddin and the Channel 4 documentary, “The Jihadis Next Door”. He referred to a speech that Shamsuddin gave on 27 June 2015, in which
“it was very clear that he supported Daesh and what they were doing…He criticised Gay Pride and said that gay people should be thrown from tall buildings. Having spoken on recent shootings in Tunisia, he said, “The spark was lit,” and that the listeners knew the rest.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 6, Q3.]
Of course, the problem with those remarks, which I will come back to, is that they are not captured by the 2000 Act as it stands, because there was no specific invitation to others to join the cause.
The other example given was of Omar Brooks, in relation to an incident on 4 July 2015. Again, there was clearly talk about religion being spread by the sword and about it not being a soft religion about peace, and there was the mocking of a Shi’ite who had spoken out against killing of Lee Rigby. The tone of the speech shows clear support for the concept and principles of Daesh, but, again, it does not take the additional step of inviting support from others.
Prior to this clause being proposed, the law as it stands was interpreted in the case of Choudary and Rahman, which the Minister referred to in his questions to the witnesses on Tuesday. About the offence as it stands, the Court of Appeal said:
“When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation.”
In essence, along with the two examples I have given on the basis of Assistant Commissioner Basu’s evidence, that captures where the law is and where it stops. There are others acting in a clearly unattractive way whom we wish to extend the law to.
The issue then becomes how, precisely, we want to draft the law to achieve that. Nobody says that freedom of expression is a wholly unqualified right—it is not, actually—but I am sure we all wish to strike a balance between people expressing views that we find distasteful and may not agree with, but that none the less come into our public debate and are defeated by others, and the clear nature of the offence, which is about recruiting people to the terrorist cause. How we draw that distinction is very important.
The amendments in my name seek to consider how we get that balance right. Nobody in the Committee would want to put something unworkable on the statute book, or something that was likely to attract a declaration of incompatibility with the Human Rights Act 1998. I tabled these amendments for the Minister’s consideration in that spirit and to assist in striking that balance appropriately. This is not a partisan issue, and I hope that we would all wish to strike that balance appropriately and to make the clause effective.
The two amendments—there are really two amendments, although there are three on the amendment paper—seek to look at the original offence under the Terrorism Act 2000 and at how the extension of that offence appears in clause 1. I have put forward two options: first, that the offence is committed only when the person intends to encourage support for a proscribed organisation—in other words, when the opinion is expressed, as set out in clause 1, together with intention; and, secondly, that recklessness is attached to the offence. Both options extend the existing offence, but not quite as widely as clause 1 as it stands.
Recklessness is not an unknown legal concept in our criminal law; on Tuesday, the Crown Prosecution Service gave evidence about it. There has been a change in the concept of recklessness in law. It is what we call subjective recklessness, so it is about what the individual person thinks about the risk. Recklessness would be far more difficult as a concept in this area if it was defined as it was prior to 2003, when it was about an objective view and about others assuming what that person might mean. With the restriction that is in our law on recklessness anyway, recklessness should perhaps be less of a concern for the Committee.
I offer the two amendments for consideration in a constructive spirit. Their purpose is to ensure that, when the Committee looks at extending the law, as we all agree we should be doing, to examples of what the Minister has referred to as the “charismatic preacher” and to the impact of a person who is recruiting people to the cause, but who is not quite using a form of words that is captured in the intention in the Terrorism Act 2000, we do that in a way that is workable and proportionate and does not draw a declaration of incompatibility under the Human Rights Act. I therefore hope the Minister will indicate that the amendments will be considered.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
I rise to support the amendments tabled by the hon. Member for Torfaen.
The Chair
Order. Sorry, we cannot debate the amendment until I have put it to the Committee—it is my error, not yours. The question is that amendment 2, to clause 1, is made.
Gavin Newlands
Practice makes perfect, Ms Ryan.
I rise in support of the amendments. Clause 1 will create a new offence for expressing an opinion or belief that is supportive of a proscribed organisation, in circumstances where the perpetrator
“is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation.”
That extends the existing offence of inviting support for a proscribed organisation to cover acts such as making supportive statements, approving of certain attitudes or behaviours, and providing intellectual support.
It has been argued by others that the term “invitation of support” is already a rather broad concept. The Court of Appeal’s decision in Choudary and Rahman, which has already been mentioned, held that a person need not be personally providing support for a banned organisation; rather, the criminality lies in inviting support from a third party. The support need not, therefore, be tangible or practical, but could include approval, endorsement or other intellectual support.
We are generally supportive of the Bill, and we offer amendments only to try to improve it. However, clause 1 removes the requirement of proving intent. In doing so, it could be claimed that it pushes the law further away from actual terrorism and well into the realm of free speech and opinion—values and freedoms that all four countries of the UK rightly cherish. The clause actively and intentionally reverses the Court of Appeal’s conclusion that the criminal law
“does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs”.
Although recklessness is a commonly used legal term in terms of acts against the person, I have misgivings about using it to criminalise speech. The Joint Committee on Human Rights made that point, as was mentioned during the evidence session on Tuesday, when it said:
“recklessness is normally applied to actions that are themselves within the realm of criminality…if you hit someone or deceive them then it is absolutely appropriate for a jury to be able to convict you of an offence even if you did not intend the consequences of your actions. The same nexus between action and consequence should not exist for speech offences. Speech does not naturally reside in the realm of criminality.”
Others far better versed than me in this area share those opinions. The former Director of Public Prosecutions, Ken Macdonald, wrote:
“The mere fact that someone holds an opinion can never be a reason to prosecute. You can think what you like.”
Without the right to express a thought or belief, freedom of expression would be meaningless. The right to express an opinion is fundamental. Clause 1 would prove that assertion wrong by creating a reason to prosecute someone simply for expressing an opinion.
In addition, the right hon. and learned Member for Beaconsfield (Mr Grieve) wrote:
“If the Irish Taoiseach made a speech about the Easter Rising as a glorious moment in Irish history, and if you have someone who happened to be a member of the Real IRA and it motivated them to go on with some unfinished business, could the Taoiseach be arrested?”
That would be absurd, but given how wide the clause is, that could be its effect. As such, we support amendment 1 and the other amendments tabled by those on the Opposition Front Bench. We are happy to do so, because changing the legal test for the offence of expressing an opinion or belief from recklessness to having to prove intent is something we should all support.
The Minister for Security and Economic Crime (Mr Ben Wallace)
I am delighted to serve under your chairmanship, Ms Ryan, on this hot Thursday morning. At the beginning, I want to refer to the importance of the Bill. As we sat listening to Liberty give evidence on Tuesday, the jury returned a verdict of guilty on Mr Khalid Ali. He was convicted for being about to mount an attack on Whitehall last year. What is interesting is that his conviction was based on biometrics collected in Afghanistan four years ago and a schedule 7 stop at a point of entry to the UK that allowed us to collect those biometrics. If there was ever an ironic or coincidental time to show the importance of biometrics and schedule 7 in combating such deliberate, planned crime, this is it. That individual has since admitted to making 300 improvised explosive devices in Afghanistan. He was en route, we think, to pose a threat to either this House or the Downing Street-Whitehall area. That is a pertinent example, and we should reflect on it as we progress through the Bill.
I am grateful to the hon. Member for Torfaen for raising his points. I fully recognise the spirit in which all Members have contributed to the Bill, which is to try to improve it. We want to deliver a Bill that will work and that does not impinge on freedom of speech or tackle the values we hold. It is about striking the balance between that necessity and keeping us safe and secure. The Bill is also about adapting to the moving threat, which is exactly what terrorists do. Good terrorists spot the flaws in our legislation and move to exploit them. Here I evoke Mr Choudary, who is currently at Her Majesty’s pleasure. For well over 10 years, he managed to skilfully exploit that bit about encouragement versus inspiration to send hundreds of people to their deaths—no doubt a number of them at their own hands. There were the young girls from north London—sometimes deluded, sometimes seduced or groomed—who I suspect did not really know what they were getting themselves into. That is why the Government think it important to try to address the gap.
Dealing effectively with the power of inspiration or incitement is not new. We have it in both the Public Order Act 1986 and the Racial and Religious Hatred Act 2006, which the last Labour Government brought in to try to deal with inspiration. Effectively, that meant that if someone incites the hatred of a race, they are guilty of an offence. They do not necessarily have to directly direct people to go out and attack Jewish or Muslim people; they can be found guilty of incitement. It is not a new concept in our law, and we are trying to reflect it in terms of those being inspired to join a proscribed terrorist organisation or take action. That at its heart is what clause 1 is trying to do.
A valid point was made about the issue of recklessness and that people must have regard to whether their comments are reckless. My hon. Friend the Member for Cheltenham (Alex Chalk), who is a practising criminal barrister, pointed out that recklessness is a well-established concept. He used an example, although in the physical assault space, of someone walking down a high street with a baseball bat and whanging it round someone’s head. It would not need to be proved that they went out to break someone’s jaw with a baseball bat. A direct motive or intent would not need to be proved; recklessness would be recognised and that person would probably be found guilty of assault, grievous bodily harm or actual bodily harm, depending on the severity of the hit with the baseball bat.
Recklessness is therefore well established, and I recognise what the hon. Member for Torfaen is trying to achieve. Amendment 1 would remove the recklessness element of the new subsection (1A) offence, which clause 1 inserts into section 12 of the Terrorism Act 2000, and replace that with a mens rea requirement to prove that a person expressing an opinion or belief in support of a proscribed activity intended to influence another person to support the organisation rather than that they had been reckless as to whether that would be the result.
Amendment 2 would add a recklessness limb to the existing offence of inviting support for a proscribed organisation at section 12(1) of the 2000 Act. I am alive to the concerns raised about the case and agree that it is a sensitive area in which we must tread carefully to ensure that the laws we pass are proportionate and go no further than necessary.
As the Security Minister, I am acutely aware of the need to ensure that those tasked with keeping us safe from a very real and serious terrorist threat have the powers they need. Those two imperatives are not mutually exclusive, and it is not an either/or question. However, measures such as this, which come closer than most laws to delicate issues such as the right to freedom of expression, can none the less bring the intersection between the two into sharp focus.
The Committee’s role is to consider whether the Bill strikes the right balance. I respect the contributions of the hon. Members for Torfaen and for Paisley and Renfrewshire North, which were made in the spirit of improving the Bill. However, I must respectfully disagree with the hon. Member for Torfaen. His amendments would not merely moderate the clause or tip its balance in one direction or another; rather, they would entirely negate its intended effect such that it would have little—if any—impact on the current operation of section 12. As a result, a gap that has been clearly highlighted by the police, MI5 and the CPS in their ability to act against individuals who mean us harm would not be closed.
While the hon. Gentleman’s amendments are well intentioned, they would continue to leave a gap in the law and therefore put the public at unnecessary risk. I hope that the Committee will be persuaded of that if I explain in more detail the background to this measure, why it is necessary and how it will operate. Since 2000, it has been illegal to invite another person to support a proscribed terrorist organisation such as Daesh or the neo-Nazi group National Action, whether an invitation is explicit or implicit. What matters is that there is an invitation, which is to say a deliberate encouragement to someone to support the group.
I will not refer to the cases that the hon. Gentleman mentioned in pointing out the necessity of trying to close that gap. It is not always possible to prosecute individuals who make public speeches or otherwise express views in support of proscribed organisations if it cannot be proved that those statements amounted to deliberate invitations to others to support an organisation. That is the case even if a speech or statement is clearly inflammatory, clear about the individual’s support for the terrorist organisation and, on any reasonable assessment, likely to cause the audience to be influenced to support the organisation such that it would be reckless for the person to make such a statement.
As I have said, the police, MI5 and the CPS have been very clear that that represents a gap in our ability to prosecute people who may be engaged in radicalisation. That was clear in Tuesday’s evidence from Assistant Commissioner Neil Basu and Greg McGill from the Crown Prosecution Service. The clause will close that gap by amending section 12 of the 2000 Act so that it will be an offence for an individual to express support for a proscribed organisation if, in doing so, they are reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation.
In recent years, the police and intelligence services have seen individuals progress—very quickly in some cases—from the initial stages of radicalisation to actual planning or carrying out of attacks. Such activities covered by this provision can have a powerful and a very harmful effect in initiating or moving along that process. It is therefore imperative that the police have the powers they need to intervene to stop such radicalisation from taking place. In that, they will not only protect potentially vulnerable individuals who are the target of the radicalisation from further harm, but possibly stop terrorist activity that stems from an individual who has been radicalised and indoctrinated, which could cause immense harm to the public.
We have discussed the case of Anjem Choudary. Numerous people who have appeared before the courts on trial for the most serious terrorism offences have been his associates or contacts and have been members of al-Muhajiroun. They have also attended meetings and lectures at which he has spoken or have otherwise been influenced by him. I could equally mention other preachers, such as Abu Qatada and Abu Hamza. I cannot give the Committee an absolute assurance that these individuals would have been prosecuted sooner had clause 1 been in force—that would be a matter for the independent CPS upon careful consideration of all the available evidence—but clause 1 would have given the police and the CPS a very important and potentially much more fruitful option to pursue.
I will mention the two more recent examples provided by Neil Basu in his evidence where this provision might have made a difference. First, Mohammed Shamsuddin, who appeared in Channel 4’s “The Jihadis Next Door”, had an extensive history of involvement in radicalisation and the spreading of extremist propaganda. In one instance, he gave an inflammatory public speech that was clearly supportive of Daesh. He mocked a sheikh who had spoken against the killing of Lee Rigby.
Secondly, Omar Brooks was convicted in 2008 of terrorist fundraising and inciting terrorism overseas, and again in 2016 of breaching travel restrictions imposed under notification requirements that clauses 11 and 12 of the Bill deal with. A prolific preacher of hate, in a public speech following the 2015 Kuwait mosque bombing and the Sousse attack in Tunisia, Brooks shouted anti-kufr rhetoric in relation to the attacks and said, “The spark was lit”. It was clear from the tone and content of the speech that he supported Daesh and what it was doing.
Of course, in a free society, we should not seek to criminalise individuals just because what they say is offensive or shocking, but there comes a point where such speeches cross a line, because in this instance they incite support for terrorist groups. I do not raise those examples simply to drag the names of the individuals through the mud. Rather, I want to illustrate to the Committee the type of case we are dealing with, which this clause is intended to capture.
Nic Dakin (Scunthorpe) (Lab)
It is a delight to serve under your chairship, Ms Ryan. For my sake—I may be being a bit slow—could the Minister be precise about why the amendments would prevent action being taken against the sort of individuals that he describes, who, rightly, we want action to be taken against? That would be very helpful.
Mr Wallace
I will get to it technically, but in summary, if recklessness is added to someone already inviting support, support is already being invited. The recklessness bit is secondary, because the person has invited the support. The problem with one of those amendments is that it tacks on recklessness to something that is already an offence, but it will not change that offence, because the person has already done the inviting.
Mr Wallace
I will get to that. These amendments would prevent clause 1 from having effect. If the reckless element were removed from the proposed new offence and replaced with a mens rea requirement, it would have to be proven that the person invited it. If that can be proven, it would be the existing offence. It is unnecessary and it would narrow back to the original, existing statute, rather than broaden to deal with recklessness where the person is using themselves to incite or inspire.
Nick Thomas-Symonds
I am not sure that is quite it, but let us use that second example. There is the original offence of invitation of support and the new offence, which talks about expression of opinion. At the moment, recklessness is attached to that, but intention could be attached to it. It would not be as broad, but it would be broader than the existing offence.
Mr Wallace
That is my point: it will narrow it from what we are proposing. It would pretty much mirror the existing offence. One of the alternatives in the amendments would add recklessness to the existing offence, if I am not mistaken, but the existing offence is that the person has invited support, so whether or not they are reckless does not really matter, because they are guilty of an offence.
Nick Thomas-Symonds
The overall point is correct: the two amendments taken as alternatives certainly would not broaden the first offence to the extent that the new clause does, but they would both broaden it. At the moment, the first offence is intentional, so you can add recklessness to it, or you can put intention on the first part of the new offence. In both cases you would broaden it, but you certainly would not have the impact of going back to the original one; you just would not broaden it to the extent that the full clause 1 does.
Mr Wallace
The point is that both your amendments would require us to prove intent. You are saying, “If you add it to the old offence, you have to prove intent, because the old offence as it stands includes intent.” If you add intent to the new offence, you are effectively mirroring the existing one. Clause 1 is about trying to deal with a gap where you find yourself unable to prove direct intent but—I go back to the idea of the baseball bat—know that someone is recklessly inspiring people to join or follow a proscribed organisation.
Nick Thomas-Symonds
I am grateful to the Minister for being so generous in giving way. If you add recklessness to the offence as it is, you broaden it. Similarly, if you broaden it out to expressions of opinion and you add intention, that also broadens it. What it does not do is broaden it to the extent that the new clause as a totality does. That is the point.
The Chair
Can I just remind hon. Members that if you refer to “you”, you are referring to me? The same rules apply as in the Chamber.
The Chair
On some occasions you are, and on other occasions you are referring to each other.
Mr Wallace
Madam Chair, I think the point is that both amendments require more proof of intent than we have currently decided we are trying to sort. The hon. Member for Torfaen is seeking with his amendments for us to have to prove intent. If it is to prove intent in the old existing statute—intent plus recklessness—we still have to prove intent. If we add intent to the new thing, it will still bring it in. My view and the Government’s view is that that is effectively starting to mirror the existing offence, and therefore this is about recognising that intent is already in existence in the statute book. This is where you use yourself—not yourself, Ms Ryan, but a person—
Nick Thomas-Symonds
Not that we are saying the Chair is not inspirational. [Interruption.]
Mr Wallace
I am backed up from nowhere by Lord Diplock. The hon. Member for Torfaen makes valid points, but the issue here is what Lord Diplock said in the case of Sweet v. Parsley—you could not make that name up, could you? He did not say it to me, but nevertheless it came to me. He said that it is
“difficult to see how an invitation could be inadvertent.”
The point is that, if the hon. Gentleman is saying that by adding “reckless” we inadvertently go to intent, we must get that challenge right. We are trying to plug the fact that at the moment, unless we can prove intent, we find it very hard to deal with that aspiration.
Nick Thomas-Symonds
With the greatest respect to Lord Diplock, subjective recklessness is not necessarily inadvertent. That is the whole point. However, it is not my intention to press the matter today and I would be very happy to enter into further discussions with the Minister on that point.
Mr Wallace
Lord Diplock has thrown me off my stride, or more likely it was Sweet v. Parsley that threw me off my stride, as it is lunchtime. Our contention is that, if we accept the amendment, there would be no point to clause 1, and that the new section 12(1A) offence would simply mirror the effect of the existing section.
Similarly, the addition of a recklessness test to the existing offence of inviting support at section 12(1) would not address the difficulty. The requirement to prove that an invitation—that is, a deliberate encouragement—had been made would not be removed, and would still need to be met in a case in order to make out the offence. Again, therefore, the current gap would remain. Recognising what the hon. Gentleman has said, I invite him to withdraw the amendment and support clause 1. However, in light of his comments I would be happy to meet him to discuss it.
Nick Thomas-Symonds
I am grateful for that final point, and on the basis that the Minister is happy to meet me to discuss the matter, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
We discussed clause 1 stand part as part of the group, so I shall put the question forthwith.
Clause 1 ordered to stand part of the Bill.
Clause 2
Publication of images
Nick Thomas-Symonds
I beg to move amendment 4, in clause 2, page 2, line 6, at end insert—
“(1C) It is a defence for a person charged with an offence under subsection (1A) to prove that he had a reasonable excuse for the publication of the image.”
This amendment explicitly sets out that a person charged with the new offence under subsection (3) has a defence if they can prove a reasonable excuse for the publication of the image.
Clause 2 fits into the category of offences I have mentioned that are being updated to take account of technology. Amendment 4 is not unreasonable and would simply set out the defence of reasonable excuse. Whether that is necessary may be subject to argument, and I am happy to listen to the Minister’s position, but I tabled the amendment to give a degree of comfort in relation to the scope of the offence.
We would all agree that the situation needs to be updated. It is set out in section 13 of the Terrorism Act 2000, on uniform. Under that provision, which was of course passed some 18 years ago, a
“person in a public place commits an offence if he—(a) wears an item of clothing, or (b) wears, carries or displays an article, in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation.”
A term of imprisonment not exceeding six months can be imposed.
The problem that arises is that people can now perfectly well wear such an item of clothing, or display an article, in a private place and take a photograph to be quickly disseminated on social media such as Facebook or Twitter, or by other means. It is right for the Government to look at that. Wearing something in a private place and putting a picture of it on social media could result in far more people seeing it than would have happened in the situation envisaged in the old offence, where the item was displayed in a public place.
My first reason for tabling the amendment is simply to add a note of caution. We are moving from criminalising behaviour in a public place to criminalising something that happens in a private place in the first instance, but which technology allows to be disseminated in the public sphere.
The second reason is that we should take care not to extend the criminal law to behaviour that we might all think unattractive—I hesitate to use the word “reckless” after the previous discussion—but that none the less would not give rise to terrorist intent. In a question during the evidence sitting on Tuesday, I gave the example of a 16 or 17-year-old going to a fancy dress party who wears something that we might all regard as offensive, in bad taste and showing poor judgment, but whom no one would seriously want to criminalise as the clause would do. The answer I received from Mr McGill on behalf of the Crown Prosecution Service and Assistant Commissioner Basu was simply that, in such cases, they would not be interested in pushing the matter into court. Assistant Commissioner Basu said, with respect to the CPS and Mr McGill:
“I would never get such a case past him anyway, even if I was prepared to put that case. We are far too busy on genuine acts of terrorism to be concerned with such a case. What it might point to is somebody who is in trouble and needs a bit of guidance”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c.7-8, Q4.]
He referred to Prevent.
Assistant Commissioner Basu is right. Such behaviour might suggest that someone had problems. It might just suggest in the situation I described that they were being offensive for the sake of it. I obviously appreciate, too, that the Crown Prosecution Service has to apply a public interest test, but at the same time, while that prosecutorial discretion is important, the legal framework we set out in the first place is also important.
I completely support the intention of the clause. It is right that we update the law in the social-media age. We want to deal with the dissemination of unpleasant images. However, it is not an unreasonable amendment to. We ask simply to put that reasonable excuse on the face of the Bill to cover the situations I have suggested may arise.
Gavin Newlands
I neglected to say earlier that it is a pleasure to serve under your chairmanship, Ms Ryan. As has been outlined by the Labour Front-Bench spokesman, clause 2 extends the offence that would result in criminalisation for the publication of an image, the wearing of an item of clothing or the display of an article such as a flag in such a way that would arouse reasonable suspicion that a person is a member or supporter of a proscribed organisation.
It should be noted that it is already an offence to wear certain clothing, or to carry, wear or display certain articles in public places. The behaviour of those who disseminate terrorist publications intending to encourage terrorism, or being reckless as to whether the behaviour encourages it, is already criminalised by section 2 of the Terrorism Act 2006 and will attract a 15-year maximum sentence under the provisions of the Bill.
The clause would criminalise those who might be highlighting their support for a proscribed organisation, which is akin to using a sledgehammer to crack a nut. It overcomplicates the response and risks targeting innocent individuals in the attempt to target people who would look to do us harm. In a briefing, which I am sure the hon. Member for North Dorset fully endorses, Liberty—his favourite campaigning group—[Interruption.] I was talking about Liberty.
Gavin Newlands
In that briefing, Liberty makes a fair point, when it says that
“further criminalisation of photographs of a costume only exacerbates the risk that law enforcement officials attempting to interpret the meaning of a photograph will mistake reference for endorsement, irony for sincerity, and childish misdirection for genuine threat.”
Simon Hoare
I suggest to the hon. Gentleman that I do not think my response to the oral evidence—if one can grace it with that word—provided by Liberty was unique to me.
Gavin Newlands
That may well be the case, but having served on previous Bill Committees with the hon. Gentleman, I am well aware of his high opinion of that organisation.
It must be noted that the clause risks putting additional strain on resources. It may lead to the investigation of innocent individuals when it would be more effective to target those about whom we should be worried. The new offence does not require an individual to be a member of a proscribed organisation or to have ever offered support to it. The only requirement is that the circumstances around publication arouse reasonable suspicion that a person is a member of or supports a proscribed organisation.
During the evidence session on Tuesday, we heard a number of everyday examples where someone could be in breach of clause 2. As we have heard, that could include someone dressing up in fancy dress for Halloween, a tourist having a picture with a Hezbollah flag, the display of a historical flag, or a journalist or academic researching a particular field of study. Greater clarity and safeguards are required to protect innocent parties from being in breach of this new offence.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
It is a pleasure to serve under your chairmanship, Ms Ryan. I will raise a separate imagery issue, particularly on flags, that I hope the Minister will address.
I am well aware that several organisations use slight variants of logos, wording and other insignia on flags and other material. I also know that that has been an issue on what most of us would look at and consider to be an ISIS flag in support of that organisation, but on which clever alterations have been made by individuals trying to evade prosecution for displaying that item. For imagery displayed on the internet or elsewhere, it may be that individuals will seek to avoid prosecution under the clause or other ways by making slight alterations to that imagery. Will the Minister explain his definition of “reasonable suspicion” that those individuals support such an organisation?
Mr Wallace
Clause 2 makes it an offence to publish an image of an item of clothing or other article associated with a proscribed organisation in such circumstances as to arouse reasonable suspicion that that person is a member or supporter of that organisation. As the hon. Member for Torfaen explained, the amendment would add a reasonable excuse defence to the new subsection (3)(1A) offence. The hon. Gentleman indicated that his intention is to ensure that the offence does not bite on those who may have a legitimate reason to publish such images, such as journalists or academics.
I am happy to assure the hon. Gentleman that the Government share that intention, and that that outcome is in fact already secured by the current drafting of clause 2. The words “in such a way” will hopefully answer both the fears of the hon. Member for Paisley and Renfrewshire North about his T-shirt and the general issue of having not only to display such an image but to do so
“in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation.”
It is important to recognise that the mere publication of an image associated with a proscribed organisation is not enough on its own to constitute an offence. The offence will only be made out if the image is published in such circumstances as to arouse reasonable suspicion that the individual is a member or supporter of the proscribed organisation. In cases of a journalist featuring an image of a flag in a news report or an academic publishing such an image in a book or research paper, it would be clear from the circumstances that they are not themselves a member or supporter of the organisation. This approach provides certainty to such individuals that they will not be caught by the offence. It also offers the advantage that the same formulation has been in force since 2000 with the existing section 13 offence in the 2000 Act of wearing or displaying such an article in a public place, and is therefore well understood by the courts.
For that reason, although I totally agree with the objectives behind the amendment, it is not necessary to add “reasonable excuse”. I therefore ask the hon. Member for Torfaen to withdraw the amendment.
On the point raised by the hon. Member for Cardiff South and Penarth, the existing offence of displaying a flag talks about doing so “in such a way” that inspires people. If there is evidence that someone is doing it in such a way as to commit that offence, they will be prosecuted.
As to the T-shirt, I will give the hon. Member for Paisley and Renfrewshire North an alternative. If I bought one with a statement on it such as “Scotland Forever”—the sentiment is shared by the vast majority of decent Scottish people and not just a few lunatics in the Scottish National Liberation Army or whatever they are called—I doubt that that would be as clearly synonymous with any terrorist organisation as a National Action one. Clearly, if someone had bought a National Action T-shirt—and they could fit into it, which would probably be a challenge for some of its supporters—and it then became proscribed, of course they should remove it, because I do not want people walking around with terrorist T-shirts once an organisation has been proscribed. However, I do not think that “Scotland Forever” would fall into the category of a symbol of a terrorist organisation. I hope that gives him some comfort that we will not arrest people who think that Scotland is forever.
Nic Dakin
The hon. Member for Paisley and Renfrewshire North pointed to Mr Hill’s evidence. He talked about the vulnerability in clause 2 and said:
“I understand where the Government are trying to get to, but some tighter definition might be of use.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 41, Q88.]
Has the Minister reflected on that? Can he deal with the point that Mr Hill, with all his experience, raised?
Mr Wallace
Yes, I can. The way I reflected on that was to seek to find out what happened with the existing offence, which has the same wording of “in such a way”, and how many failed prosecutions of people who are journalists or academics there had been under it. My understanding is that there have been no cases of prosecuting people who use the fair reason that they are a journalist or are researching something. The fact that it has been on the statute book for a long time already, and that it has not produced the failures that some people feared, suggests that the law has already accepted that wording in such offences. I do not fear that there will be a surge in wrong or failed prosecutions.
Stephen Doughty
I am sorry to press the Minister, but I would like clarification on variants. Material that glorifies the activities of the IRA, for example, has been published by organisations and is available on the internet. Individuals are removing the “I” from IRA and putting an asterisk or something like that into the imagery, but the rest clearly glorifies the activities of a proscribed organisation. In his view, would that be caught be the legislation? Would someone photo-editing an ISIS flag and leaving everything else such as guns in the picture—they are glorifying terrorist activities but making a slight alteration—be caught in the legislation?
Mr Wallace
Yes, because the key is “in such a way”. Someone does not have to fly a swastika. The hon. Gentleman may have seen that some of the far right used to fly a red flag with a white circle but no swastika in it. Someone on an al-Quds parade might think that they can alter the Hezbollah flag and somehow pretend it is not to do with the military side, but that will not save them if they are using it in such a way as to commit that offence. Someone does not have to use the full wording, but we, the prosecuting authorities, have to prove that they are doing it in such a way as to incite or commit that offence. I warn those clever terrorists out there who think they can get away with it by swapping a few letters around that that will not make a difference.
Nick Thomas-Symonds
I am grateful for the Minister’s response and the additional reassurance he has given about “in such a way” or “in such circumstances”. On this occasion, he is right to say that the Bill uses the same wording as the Terrorism Act 2000, which has a solid body of interpretation from the courts behind it. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Paul Maynard.)
Counter-Terrorism and Border Security Bill (Fourth sitting)
Tuesday 3rd July 2018
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 3 July 2018 - (3 Jul 2018)
The Chair
I remind hon. Members to switch off any electronic devices and to feel free to remove their jackets, although a reasonable breeze is blowing through the room. Will Members please note that I have made a change to the provisional selection and grouping on clause 3 with the agreement of the Minister, Mr Thomas-Symonds and the Scottish National party spokesperson, Mr Newlands?
Clause 3
Obtaining or viewing material over the internet
Nick Thomas-Symonds (Torfaen) (Lab)
I beg to move amendment 5, in clause 3, page 2, line 13, after “occasions” insert
“in a 12 month period”.
This amendment would mean that a person would have to view the relevant information three or more times in a 12 month period to commit the offence.
The Chair
With this it will be convenient to discuss the following:
Amendment 6, in clause 3, page 2, line 15, after “kind” insert
“, provided that on each occasion the person intends to provide practical assistance to a person who prepares or commits an act of terrorism.”.
This amendment would require a person viewing information likely to be useful to a person committing or preparing an act of terrorism to intend to provide practical assistance of that kind in order to commit the offence.
Amendment 7, in clause 3, page 2, line 26, at end insert—
“(4) In subsection (3), leave out from ‘section’ to the end of the subsection and insert ‘where—
(a) the person sets out a reasonable excuse for their action or possession; and
(b) the excuse in paragraph (a) is not disproved beyond reasonable doubt.’.”.
This amendment would mean that a person has a defence to the offences in section 58 of the Terrorism Act 2000 as amended if they raise a reasonable excuse and that excuse cannot be disproved beyond reasonable doubt.
Amendment 8, in clause 3, page 2, line 26, at end insert—
“(5) After subsection (3), insert—
“(3A) A reasonable excuse under subsection (3) may include, but is not limited to, that the material has been viewed, possessed or collected—
(a) for the purposes of journalism;
(b) for the purposes of research;
(c) by an elected official, or an individual acting on behalf of an elected official, in the course of their duties; or
(d) by a public servant in the course of their duties.
(6) At the end of subsection (5) insert—
“(c) “elected official” has the same meaning as section 23 of the Data Protection Act 2018; and
(d) “public servant” means an officer or servant of the Crown or of any public authority.”.”.
This amendment would explicitly set out non-exhaustive grounds on which a reasonable excuse defence might be made out.
Amendment 9, in clause 3, page 2, line 26, at end insert—
“(7) The Secretary of State must within 12 months of the passing of this Act make arrangement for an independent review and report on the operation of section 58 of the Terrorism Act 2000 as amended by subsection (2).
(8) The review under subsection (7) must be laid before both Houses of Parliament within 18 months of the passing of this Act.”.
This amendment would require the Secretary of State to conduct a review and report to Parliament on the operation of the new offence inserted by this clause.
Nick Thomas-Symonds
I am grateful for the opportunity to speak to all the amendments together, Ms Ryan, which I think will assist the speed of business in Committee this morning. The Opposition support the aims of clause 3, as I made clear on Second Reading. A clear problem with the law is that the Terrorism Act 2000 covers downloading but not streaming. As I remarked on clause 1, updates to the law need to be made to take into account technological changes. The reality is that people now live-stream many things, rather than formally downloading them. It is not right that we criminalise the downloading but not the live-streaming. That clearly has to change.
However, two major points arise on the updated offence. The first is that it has to be workable from a practical perspective. If it is not, that will clearly be a problem. The second is that the clause should not bring into our criminal law those who carry out perfectly legitimate activities, so how the offence is drawn is extremely important. It was with those two factors in mind that I tabled my five amendments. They all aim, first, to make the clause workable, and secondly, to ensure that the way the clause is drawn targets the activity that we all wish to target and to criminalise but not that which I am sure every Committee member would want to encourage.
Amendment 5 relates to the period of time in the Bill over which the three clicks would be considered to give rise to a criminal offence. I proposed it as a safeguard on the three clicks, although I have severe reservations about the three clicks provision. It is vague, as it stands—we do not know whether it will be three clicks on the same stream or on different streams. By its very nature, it is also arbitrary. I have tabled amendment 5 to draw a period of time to the attention of prosecutors in making decisions on this new offence. I do it on the basis that I have reservations about the underlying three clicks approach in any event.
Amendment 6, on the intention to provide practical assistance, is based on something the Home Secretary said on Second Reading. The chair of the Home Affairs Select Committee, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) intervened on him and made the sensible point that, as clause 3 stood, she was concerned that the Select Committee itself could be in trouble under that clause. He replied:
“The objective is clearly to find and punish those with terrorist intent.”—[Official Report, 11 June 2018; Vol. 642, c. 633.]
That may be right at a common-sense level, but is not quite what the three clicks approach does, because there is no intention requirement alongside it. Amendment 6 would simply introduce the intention requirement to which the Home Secretary referred on Second Reading.
Amendments 7 and 8 are about the reasonable excuse defence, which I would like to see added to the Bill. It would be an important safeguard and reassurance to academics, researchers, members of the Home Affairs Committee or anyone else who might be viewing this type of content, not—to use the Home Secretary’s words—with any kind of terrorist intent, but for perfectly legitimate reasons in studying this kind of activity and helping the rest of society to understand and defeat it. That is very important and something that we should all encourage.
Amendment 7 would also reverse the burden of proof. It should not be for the person raising the reasonable excuse defence to have to prove it. Once raised as a defence, it should then be for the prosecution to disprove it beyond reasonable doubt. I am sure the Minister will also pick up that that reverse burden is in the Terrorism Act 2000 and, in my view, it is reasonable to expect that it should also be in this Bill.
Amendment 9 would provide for a review of the operation of the clause and a report to Parliament on it. If we were to persist with the three clicks approach, Parliament would need to look at its operation carefully in terms of how it is drawn and its workability.
To conclude, I am greatly concerned by the three clicks approach. I have tabled five amendments aimed at workability and safeguards, and I hope they will be considered carefully by the Minister.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
It is a pleasure to see you in the chair again, Ms Ryan. I support amendments 5 to 8 in the name of the hon. Member for Torfaen. As has been outlined at various stages, clause 3—and the Government’s three clicks policy—has received the most attention and probably the most public criticism of any part of the Bill. Furthermore, I think the Minister knows that it is imperfect in its current guise. He has been open about the fact that the Government are not fully aligned to the three clicks policy, as the Home Secretary commented on Second Reading.
The Minister and the Government have my sympathy on this. The first job of any Government is to keep their citizens safe in these difficult times of high terrorist threat combined with the constant march of technology and online communication. It is very hard to keep legislation up to date and answer the calls of police and security services for further powers, while maintaining the balance of freedom and civil liberties that we expect and enjoy.
The SNP has serious concerns about how the policy will work in practice, and the impact that it may have on innocent individuals who have no interest in, intent to engage in, or no wish to encourage terrorist acts. It is self-explanatory that anyone who downloads or streams content for the purpose of planning or encouraging terrorist activity should face a criminal charge and, if convicted, a long sentence. Nobody would disagree with that, but this is about finding the most effective approach that targets the right individuals.
I accept the Government’s point that more people now stream material online than download it to a computer or other device, and as such it is vital that we continue to review our counter-terrorism approaches and ensure they meet the current threat level, but the Government’s approach to tackling streaming content through the three click policy is riddled with difficulty. Amendment 5 deals primarily with timing and does not take into account when a prosecution may be made.
The Government suggest that the three clicks policy is designed as a protection for those who accidentally access certain content online, but we must consider how easy it is for someone to click on a relevant source that could put them into conflict with the provision. It could catch someone who had clicked on three articles or videos of a kind likely to be of use to a terrorist, even if they were entirely different and unrelated and the clicks occurred years apart. Timing is crucial, because it would be difficult to accuse someone of being involved in terrorist activity if they had clicked on a certain source three times over a 10, 15 or 25-year period. Those concerns were echoed in the evidence session, and the independent reviewer of terrorism legislation, Max Hill—who we should all listen to—expressed his concern about the variable threshold proposed. We should act on that independent and expert advice by introducing a safeguard that could effectively help to identify a pattern of behaviour.
Richard Atkinson, the chair of the Law Society, also voiced his concerns about the Government’s three clicks policy, stating that it could undermine or restrict those with legitimate cases, and that the lack of any consideration of timing makes the measure very vague. He said:
“To leave the law in the hands of prosecutorial decision as to whether or not it meets the public interest is a step too far. I think there is a need for greater definition around what is being sought to be prohibited.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 31, Q74.]
Amendment 5 would add the safeguard that an individual would have to view the information three times or more in a 12-month period to have committed an offence, and that position was supported by Max Hill during the evidence session.
On Second Reading many Members made clear their concerns about the lack of other safeguards in clause 3, particularly regarding intent—for example, the clause does not take into account the length of time that anybody watches a video or views a website. That point was raised by the hon. Member for West Aberdeenshire and Kincardine on Tuesday in a question to Gregor McGill, who confirmed that the length of time that someone watches a video is not defined in the Bill, so watching a video or viewing a website for one second by mistake could be counted under the Government’s three strikes policy.
I accept the point made by Mr McGill that such breaches would be harder to prosecute, and that discretion would be applied, but as I have said, I am not comfortable with leaving such a wide area open to prosecutorial discretion. More importantly, as Max Hill said, such an offence without a test of intent is too broad and would capture too many innocent individuals. It is important that the Home Secretary accepts that a balance can be struck between liberty and security. Hoda Hashem, a law student at Durham University and one of many individuals and groups who sent helpful briefings to the Committee—I thank them all on behalf of the SNP—summed it up well by saying,
“the certainty and precision of laws are essential principles of our legal system. It allows ordinary people to know when their behaviour might veer into the realm of criminality, and it also means that the government and police cannot arbitrarily choose who to prosecute. In effect, it is wrong for the Home Secretary to argue that it would be down to the Police and CPS to fix a bad law. As a matter of principle, it is for Parliament to ensure that the laws it passes are clear enough to be applied consistently and, more importantly, predictably…If the government is serious about striking the right balance between liberty and security, the offence must include a criminal intent, or it must be withdrawn altogether.”
The Government may claim that adequate safeguards are in place to protect innocent individuals, but as we have heard, few agree with that position. That is why we support amendments 7 and 8, which have been tabled by the Labour party. The Government are asking for wide and vague powers, and we need safeguards in place to protect innocent individuals by ensuring that they are not prosecuted in the first place, and to provide for an adequate defence in the event that non-terrorists are taken to court. The stress placed on someone who was being investigated in that scenario would be extreme. Unless the safeguards are strengthened, and notwithstanding the Minister’s commitment regarding journalists and academics, it would be a brave journalist or researcher who would not be deterred or at least have second thoughts before viewing such material. Max Hill warned that thought without action must not be criminalised. We all agree that real terrorists should have nowhere to hide. We should also agree that legislating in the name of terrorism when the targeted activity is not actually terrorism would be wrong.
As we have heard, the French courts struck down a similar attempt by the French Government. In addition, a UN special rapporteur, Professor Joe Cannataci, expressed concerns about this provision, saying:
“It seems to be pushing a bit too much towards thought crime…the difference between forming the intention to do something and then actually carrying out the act is still fundamental to criminal law. Whereas here you’re saying: ‘You’ve read it three times so you must be doing something wrong’.”
In our view, amendments 5 to 8 are eminently sensible and, indeed, vital if the Government are to have any chance of surviving a legal challenge to elements of clause 3 and—almost as importantly—if they want to make good on the Home Secretary’s commitment that a balance can be struck between liberty and security.
The Minister for Security and Economic Crime (Mr Ben Wallace)
It is a pleasure to serve under your chairmanship, Ms Ryan. I thought that instead of embarking on a long prosecution of clause 3, it would be best to meet the hon. Member for Torfaen to discuss his amendments. I have said from the outset of proceedings on the Bill that my intention was to seek advice and suggestions from all parts of the political spectrum, and I felt early on that the three clicks provision presented a challenge. It opens up a whole debate about whether there were three clicks or four clicks, how far apart the clicks were, whether a time limit should apply to the clicks and so on. We were getting away from what we all agree on, which is the need to amend the legislation to reflect modern use of the internet—the streaming of online content. Partly because of technological advancements and the speed of the internet, people no longer download podcasts in the way they used to; they just click on their 4G device and stream the content. That is, of course, a problem for our intelligence services and law enforcement agencies, which often have to deal with people streaming content rather than downloading and holding it.
As I said, I have spoken to the Opposition Front-Bench spokesman on this issue and the Government will go away and examine a better solution to the three clicks issue. I hear the strong views about a reasonable excuse, and a debate can be had about judicial discretion. Campaigners for judicial discretion are sometimes also those who want much more prescriptive legislation that can contradict their earlier motives. If we included a list of reasonable excuses, rather than leaving it up to a judge to decide, would we end up with a list of 150? That is a matter for further debate, but I have asked officials to see whether reasonable excuses are listed in full anywhere else in statute. I understand that it may be possible to give examples rather than a full list.
I can assuage some of the fears expressed by the hon. Member for Paisley and Renfrewshire North about section 58. First, I cannot find a record of a journalist being prosecuted under the existing section 58, which has been in existence since 2000. Over 18 years, journalists and academics have downloaded some of this content, and they have not, I understand, been prosecuted even if they have failed to provide a reasonable excuse. That relates to section 58(3) of the original Act. We have heard claims of armageddon and the fear that suddenly everyone will be arrested, but that will not materialise—it certainly has not done in 18 years. I hope that that assuages the fear expressed by the hon. Gentleman.
I do not think that simply updating the provision should be cause for concern. It is an attempt to tackle the difficult issue that modern terrorism unfortunately uses incredibly slick recruiting videos—they are grooming videos—to pull people away from the society they are in, to radicalise them and to get them to do awful things. Recently, a young man was found on the way into Cardiff—not far from the constituency of the hon. Member for Torfaen—with knives and an ISIS flag. We found no evidence that that young man had ever met a Muslim, was from a Muslim family or had been to a mosque. He had simply been radicalised by watching streamed videos online. That is the power of such persuasion, and we also see it reflected in cyber-bullying and sexualisation. It is a real issue that we have to face.
Afzal Khan (Manchester, Gorton) (Lab)
Will the Minister look at not only the question of the clicks, but what possible safeguards could be incorporated? For example, we talked about journalists and academics.
Mr Wallace
Section 58(3), as it stands, says:
“It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession.”
If we can build on that—whether that means expanding reasonable excuse or accepting that reasonable excuse is already in there—and couple it with new wording that does not sound like three clicks or three attempts, I think we can come to a position that is satisfactory. We will definitely try to do that on Report. If the Committee would like, I can deal with the individual amendments that have been put forward, but I am in contact with the hon. Member for Torfaen to ensure we progress this.
Simon Hoare (North Dorset) (Con)
Would it be fair to characterise the challenge my right hon. Friend has admitted the Bill faces as one of providing flexibility for law enforcement and uncertainty for perpetrators, while recognising the fact that, as he has alluded to, the down- loading and streaming culture has changed and there is a lacuna in the existing legislation that needs to be filled?
Mr Wallace
Yes. That is the challenge for all policy makers: where legislation is too tied to the technology of the day, they end up becoming a prisoner of that legislation. Obviously, when the Act was written in 2000, or probably in 1999, it talked about a person who was guilty of an offence if he collected or made a record of information. No one thought in 2000 that, with 4G, and with 5G around the corner, people would not be downloading everything and that things would be done much more in a live stream.
That is the challenge for not only law enforcement, but other policy, whatever regulations we are doing. If someone is sitting in the Treasury, I should think that they are perplexed—I am not going to wander off my brief, because I will get into trouble—at how certain companies exploit old tax regulation to make huge profits, simply based on the fact that that regulation was written for an analogue and not a digital day. That is the same challenge we face in law enforcement.
In the spirit of what I have said from the very start of the Bill, and as I said when the Criminal Finances Act 2017 went through the House previously, I am determined that we collectively try to get to a place that will help our law enforcement and intelligence services and meet their need, but also reflect the very real concerns that have been raised.
Nick Thomas-Symonds
I am grateful to the Minister for that answer and for the constructive discussions he facilitated with me yesterday. It is important that we work constructively to get this clause absolutely right. I welcome the Minister’s approach in terms of not sticking to the three clicks approach—in fairness, he himself expressed reservations about it at an earlier stage—and in terms of the reasonable excuse defence, and I say that in respect of both the reverse burden, which is in the original Terrorism Act 2000 anyway, and of looking at whether we can put a non-exhaustive list of examples on the face of the Bill. All those things would be helpful in getting this clause into the right place. On that basis, I am happy not to press any of the amendments to a vote at this stage, and I look forward to what the Minister will bring forward on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 ordered to stand part of the Bill.
Clause 4
Encouragement of terrorism and dissemination of terrorist publications
Question proposed, That the clause stand part of the Bill.
Mr Wallace
Clause 4 updates the law on the encouragement of terrorism, to ensure that it properly protects children and other vulnerable people. It amends sections 1 and 2 of the Terrorism Act 2006, which provide for the offences of encouragement of terrorism and dissemination of terrorist publications respectively. A statement containing an encouragement of terrorism for the purpose of section 1 and a terrorist publication for the purpose of section 2 are defined as a statement or publication that is likely either to be understood by members of the public to whom the statement or publication is published or made available as a direct or indirect encouragement to acts of terrorism or to be useful in the commission or preparation of acts of terrorism.
Those who radicalise others and who incite violence and hatred often target the most vulnerable in our society, seeking to spread their poison as wide as possible and to cause the maximum harm. Reflecting that, the focus of the section 1 and 2 offences is on the actions of the radicaliser, rather than of the person being radicalised. Specifically, it is on the nature of the encouragement to terrorism and on the intention, or recklessness, of the person doing the encouraging or disseminating the terrorist publication—that their actions should directly or indirectly result in another person preparing or committing an act of terrorism.
Other offences will of course apply if a person being encouraged goes on to prepare or commit an act of terrorism as a result, but those sections are specifically targeted at the harm intended, risked or actually caused by the radicaliser. That was Parliament’s intention when it created those offences in 2006, and clause 4 closes a gap so as to give full effect to that intention.
At present, the wording of sections 1 and 2 means that those offences are committed only if a person being encouraged or being shown a terrorist publication is objectively likely to understand what they are being encouraged to do. That produces Parliament’s intended result in cases in which encouragements are published or terrorist publications are disseminated to the general public and, in most cases, to a particular individual who has been targeted for radicalisation.
However, it also produces an unintended gap in cases in which a child or vulnerable adult is targeted for radicalisation and may lack the maturity or the mental capacity to fully understand what they are being encouraged to do, even when, to an objective bystander, it would be clear what the radicaliser was seeking to achieve. In such cases, the radicaliser may be purposefully seeking to indoctrinate and groom a child or vulnerable adult to become involved in terrorism but could potentially evade liability for doing so, despite their best efforts and their worst intentions to cause serious harm, if they could establish that the current tests in sections 1 and 2 were not met, because their target did not fully understand what they were being encouraged to do.
We do not believe that any case has so far arisen in which this issue has prevented a prosecution, and thankfully we do not anticipate it being relevant in large numbers of cases in the future. However, we consider it important to take this opportunity to close that gap, which is well highlighted by the recent and horrifying case of Umar Haque, who was jailed for life after pleading guilty to disseminating terrorist publications to large numbers of children, whom he encouraged to carry out Daesh-inspired attacks, as well as being found guilty of a number of other serious offences, including plotting terror attacks.
I am not sure whether hon. Members are aware of the case, but Haque taught at unregulated schools in north London, exposing his views to, we think, hundreds of children, getting them to swear allegiance to ISIS, to re-enact attacks and to watch beheading videos, and then threatening that they would go to hell if they told their parents or other people. That is an example of the campaigns deliberately targeting the vulnerable and the young that some Daesh members get involved in.
We have seen in a number of lone wolf attacks—individual attackers, rather than complex plots—people with significant conditions who have been groomed or encouraged to do things. That is a very real example of why we have to be alert to the desperate measures that Isis involve themselves in. They are totally indiscriminate about who they encourage or who they wish to use to spread their hate.
I do not think that that is entirely on one side of the spectrum, and we could look at some examples of neo-Nazis and the far right: they, too, are casting their net wider and wider. Lonely, often damaged, young individuals sitting in their bedrooms are attracted to being part of some white, superior ideology. Again, that is why we are trying to close this gap.
This measure will help to ensure that the most vulnerable people are protected from radicalisation and prevented from engaging in terrorist activity. By extension, it will help to protect the wider public from acts of terror perpetrated by those who are vulnerable and who, as we have seen, may be exploited and manipulated by others for terrorist ends. I beg to move that clause 4 stands part of the Bill.
Nick Thomas-Symonds
I can deal with the clause relatively briefly, because the Opposition support it. The way in which sections 1 and 2 of the Terrorism Act 2006 are drafted means that they do not capture some of the activity that we wish to criminalise. The drafting of the 2006 Act looks at the victim and at whether, objectively, they are likely to have understood. As the Minister set out, section 1(1) states:
“This section applies to a statement that is likely to be understood by some or all of the members of the public to whom it is published”.
That means that anyone who is a vulnerable adult or a child, or anyone who may, on that objective test, be unlikely to understand it, is not covered by the law as it stands. Clearly, that needs to be tightened up.
The second part of the clause, which refers to section 1(2) of the 2006 Act, substitutes the test of “a reasonable person” for the test that exists. That is an entirely sensible change. Taken together, the changes mean that when we look at dissemination of this material, we can consider vulnerable victims, whether they are adults or children, and not be stuck with the objective test, which means that they cannot be covered. On that basis, the Opposition support clause 4.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
It is a pleasure to serve under your chairmanship again today, Mrs Ryan.
I listened with interest to what the Minister and my hon. Friend the Member for Torfaen said. I agree that there is a gap that needs to be addressed. In a number of the cases of which I am aware, both locally and elsewhere, this process of grooming is insidious and often involves what at first appear to be harmless activities, such as taking young people away for an adventure or a sporting occasion—perhaps football. Food is often a common factor: something as innocuous as going for chicken and chips in Cardiff bay may lead to a situation in which material or ideas are put in the minds of vulnerable or unaware young people in particular.
There was the case of Reyaad Khan, who, unfortunately, came from my constituency, although he was living in the constituency of my hon. Friend the Member for Cardiff West (Kevin Brennan) at the time. He had been to fight in Syria, and he was regularly meeting with other people in the local area, having what would probably be innocuous conversations to most people. However, at some point, things get put into people’s minds and suggestions are made. When those are vulnerable individuals, such as those who have become disaffected with friends or traditional sources of authority or guidance—whether that is their local mosque or their family—they can become vulnerable to more alarming suggestions and perhaps to specific suggestions that they commit particular acts or engage in particular activity. In the case of some individuals, the process of grooming is often long, and it is often hazy, grey territory.
Will the Minister say a little more about where he believes the new clauses would take us in terms of the point at which an offence is committed? Obviously, we would not want a whole series of processes to be accidentally caught up in this—legitimate contact between individuals, and discussion and friendship groups. Whether or not we agree with certain individuals and what they might be suggesting, it would not cross the line of being a terrorist offence. Clearly, however, at some point material may be provided, or ideas or suggestions made, that may lead someone to go on to commit heinous activities. Where on the spectrum does the Minister believe that offences will start to be committed, and how will the provisions apply?
Mr Wallace
I thank the hon. Member for Cardiff South and Penarth, who is right about that method. The tragedy is that we now see that in county lines and crime. Loaded 15-year-olds go off into the valleys—or the dales, in my part of the world—ensconce themselves there and are told, “We will treat you like a grown-up. Here are some free drugs, and here is something of value.” That grooming over a period allows some pretty nasty people to inflict county lines on our communities. The hon. Gentleman is right when he says that is a phenomenon of grooming.
It is important to note what clause 4 is really doing. Sections 1 and 2 on the encouragement of terrorism are already in the Terrorism Act 2006. At the moment, you have to prove both sides: that the people you are delivering the message to are willing and able to accept it, and that the message you are giving is encouraging terrorism. The offence is the encouragement of terrorism. As I said, this offence is often complemented, or a training-type offence is used instead. That is, effectively, where we see encouragement. Clearly, we have to prove that, and that is where the criminality starts and stops. For example, I am encouraging someone if I say, “This is great. Look at what ISIL is doing. Look at these beheadings. This is something we should get involved in.” That offence remains unchanged, and that, effectively, is the boundary of passive into active support.
At the moment, there is the double couple of that action plus the people having to be receptive. Our challenge is what to do when that is targeted at vulnerable people. That is why we have sought to close that gap. We do not expect this to be used in a major way. We have not seen much evidence yet of people using it as an excuse. We were worried about the offence that I quoted of the teacher being used, and we see a growth in unregulated space. I think my hon. Friend the Member for North Dorset was talking about this earlier. Unfortunately, we are seeing more and more people being diverted into home schooling or unregulated space, where I am afraid people can get their hands on people to effectively brainwash them.
Nic Dakin (Scunthorpe) (Lab)
I am concerned about the issues the Minister is raising in terms of unregulated schools and about whether this measure on its own can tackle that problem. What else is being done to address this? I recognise that this may well involve working with other agencies. As the Minister has highlighted this as a major area of concern, it is important that we check that nothing else needs to be done to address it.
Mr Wallace
The hon. Gentleman is right. All terrorist legislation always bumps into freedoms and liberties. Religious freedom is something we hold very dear to our hearts. In my constituency, most unregulated schooling space is perfectly fine and perfectly adequate. People receive their religious schooling there. There is a long tradition in this country of home schooling. From time to time, all of us will hear in our mailbags from the champions of home schooling.
The hon. Gentleman is right that, from my point of view as Security Minister, there is a genuine concern that safe spaces—which the next clause deals with—are where the modern terrorist operates. Whether that safe space is on the internet—streaming—or in unregulated or home schooling, it allows messages to be targeted at young people, and we have to be alert and explore what we can do.
On the hon. Gentleman’s specific point on unregulated schools, and in the light of the importance that we in this country attach to religious freedom, there are more than just straightforward primary legislation methods to address the problem. Those include working with regulators, other Departments and local authorities to make sure that they are alert to the issue. Working with religious leaders to make sure that they are alert to the quality of teaching in those settings is another way of dealing with it.
Nic Dakin
I am concerned about the rise in exclusions in some parts of the country, which is related to the rise in home schooling. This is creating a space in which, because of the greater fragmentation of the education service, intelligence is perhaps more likely to be lost. It is important that the work being done in this area tries to cohere things back together.
Mr Wallace
Before I get dragged off and told I am speaking out of order—I got a look from the Chair—let me say that the vulnerability that the clause tries to deal with reflects the vulnerability being exploited in our communities. We need to be alert to safe spaces, whether they are in an educational setting, an internet setting or a social setting, such as sports clubs. We have historically seen paedophiles target football clubs and everything else, as happened in my constituency, but now, unfortunately, we see extremists targeting them as well. We all have to do what we can to make sure that such safe spaces, containing vulnerable people, are closed off.
Julia Lopez (Hornchurch and Upminster) (Con)
I also share the concerns on home education—as the Minister will know, because I have expressed them to him personally. I wonder whether, at the very least, an amendment could be tabled that would exclude from home educating any household of which a member has been convicted of a terrorist offence. I know how passionately a lot of home educators feel about their freedoms, and I respect those freedoms, but I wonder whether we could put such an amendment forward at the very least. I know that my hon. Friend the Member for North Dorset is also looking into this area and that a home education consultation is under way.
The Chair
Before the Minister answers, I think we are wandering a little far from the purpose of the clause. Maybe we should come back and focus on that.
Mr Wallace
On the subject of clauses, my hon. Friend makes a valid point. I will ask officials to explore the concept of how we ensure the protection of the home-schooled. I will revert to her with all those details, probably in writing.
The point is that vulnerable people are being exploited and groomed, and unfortunately they are being encouraged into extremism. As the law stands, there is potentially a defence for people whom we would like to prosecute, because the vulnerable people they exploit are viewed as not being aware of what they may be doing. We are trying to plug that gap, which will hopefully go some way to making sure that these environments are not exploited.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Extra-territorial jurisdiction
Question proposed, That the clause stand part of the Bill.
Mr Wallace
We talked about safe spaces when considering clause 4. One of our biggest challenges, as it is for many of our European allies, is the number of foreign fighters and people who have gone abroad to fight. Some have been encouraged to do so and some of them have been conned into doing so. It breaks my heart to see 15-year-old girls effectively seduced to go off to throw their lives away in dangerous parts of the world. It might sound fun to run away from home, but I assure the Committee that when those girls see the horrors of Raqqa or Aleppo, it is no laughing matter —indeed, some of them have even lost their lives in doing so.
We have to do more to deal with offences that happen overseas, and with those who set themselves up in safe spaces, and reach back into the United Kingdom, destroy lives and encourage terrorism. We are not alone in that challenge. I met the German and French interior Ministers at a G7 event, and it is also a challenge for them. These things often happen a long way away, but can have a horrific impact on our streets and on families in this country. Some of the offences committed in this country have included killing people in places such as London Bridge and Borough market, and they were inspired by people who have sought sanctuary abroad, as they would see it. We must do more about that.
Clause 5 extends the jurisdiction of UK courts to cover further offences, so that we can bring to justice persons who commit acts of terrorism abroad. Section 17 of the Terrorism Act 2006 already provides extra- territorial jurisdiction for a number of terrorist offences. Extraterritorial jurisdiction means that a person may be prosecuted in the UK for conduct that took place outside the United Kingdom, but would have been unlawful had it taken place here. For the offences listed in section 17, it is not necessary for the individual to be a UK national or resident, and the offending need not be directly linked to the UK.
Through section 17 of the 2006 Act, and similar provisions in the Terrorism Act 2000, the UK already takes extraterritorial jurisdiction for most terrorism offences where that might be relevant. It means, for example, that the British courts are able to prosecute people who return to the UK having been involved in fighting with a terrorist organisation overseas, or been involved in a terrorist plot with a significant international dimension. That is an essential power for dealing with the threat posed by foreign fighters and to ensure that such people can be brought to justice. As I made clear on Second Reading, about 40 individuals who have returned from conflict in Syrian and Iraq have been convicted so far, many through the use of extraterritorial powers.
Clause 5 extends extraterritorial jurisdiction to three further offences, and widens the coverage of a fourth, with the result that all relevant terrorism offences will now be subject to extraterritorial jurisdiction. That will ensure that there are no gaps in our ability to prosecute individuals who engage in terrorist activities overseas that would be unlawful in this country if they returned to the UK.
Specifically we are extending extraterritorial jurisdiction to the following offences: section 13 of the Terrorism Act 2000, under which it is an offence to display a flag or other article associated with a proscribed organisation; section 2 of the Terrorism Act 2006, under which it is an offence to disseminate terrorist publications; and section 4 of the Explosive Substances Act 1883, under which it is an offence to make or possess explosives under suspicious circumstances.
We are also extending the coverage of extraterritorial jurisdiction to section 1 of the Terrorism Act 2006, under which it is an offence to encourage terrorism. That offence already has extraterritorial jurisdiction for where an act of terrorism is encouraged that would constitute a “convention offence”, meaning an offence listed in certain international agreements. Clause 5 would remove that limitation so that it would be unlawful to encourage any act of terrorism while overseas. That is a particularly relevant and timely change to our terrorism legislation.
International travel for purposes such as training, receiving direction from or fighting with a terrorist organisation has long been a feature of the terrorist threat faced by this country. In response, we have taken an incremental and proportionate approach to extending the territorial reach of our criminal law in those areas where there is a persuasive operational case for doing so. We recognise that extraterritorial jurisdiction is an exceptional power, but it is also essential to ensure that modern terrorists can be brought to justice.
Most recently we added to section 17 of the Terrorism Act 2006 the offences of preparing terrorist acts and training for terrorism—that was in 2015 in response to the then still developing threat from those who travelled to Iraq and Syria, in particular to join Daesh. Experience since then has shown a strong operational case for further extension of the extraterritorial jurisdiction provided by the clause. Some individuals located in Syria and Iraq have reached back to others in the UK and elsewhere, through social media and other online platforms. They have done so to spread propaganda, to disseminate terrorist publications, to promote Daesh and its aims, including through publishing flags and logos associated with organisations, and to encourage others to carry out terrorist attacks in the UK and other countries.
Nick Thomas-Symonds
I rise to support the clause. The Minister has already set out that extraterritorial jurisdiction is nothing new under our law. It most certainly is not, and the effect of this clause is to extend that extraterritorial jurisdiction to new offences, including under section 13 of the Terrorism Act 2006, which is about uniforms and flags associated with proscribed organisations; section 4 of the Explosive Substances Act 1883, which is the making or possessing of explosives in suspicious circumstances; the dissemination offence under section 2 of the 2006 Act, which we referred to in our debate on clause 4; and finally to section 1 of the 2006 Act on encouraging terrorism.
I would press the Minister to elaborate a little more on the point made by the independent reviewer of terrorism legislation in his evidence to the Committee, expressing concern about the way in which extraterritorial jurisdiction is applied to UK citizens on the one hand and non-UK citizens on the other. The Minister referred to the Attorney General’s permission being given in certain circumstances, where we have British nationals on the one hand and on the other we do not. While the Opposition wholly support the clause, it would assist if the Minister at least addressed the concern that the independent reviewer raised about the clause in that regard.
Stephen Doughty
I agree with the comments the Minister and my hon. Friend have made on this clause 5, but I would be interested in the Minister’s remarks on this point: if an individual has committed these offences or any of the existing offences abroad, it is crucial to detain them at the border when they attempt to re-enter the UK. There have been some worrying reports in the last few weeks about stolen passports or identity documents being available, and being used by criminals and those who have potentially committed terrorist offences overseas. It is crucial that we co-operate with Europol and Interpol, through the databases on stolen documents, to stop individuals who are attempting to sneak back in, perhaps because they have committed the offences outlined in the clause—indeed, they are the most likely to be trying to avoid detection on entering the UK. Can the Minister say a little about what steps are being taken to enforce not only the existing measures, but the measures as outlined in clause 5?
Mr Wallace
First, on the point made by the hon. Member for Torfaen, I heard what was said by the reviewer of terrorism legislation, Max Hill, about this issue, but the United Kingdom needs to protect itself in respect of certain offences that are being committed abroad and having an impact on us here. My memory is that the reviewer of terrorism legislation said that he was worried that we would be criminalising people here for things that might not be criminal in the country in which they are doing them.
Let me just reflect on the offences that we are bringing into scope. Under section 4 of the Explosive Substances Act 1883, it is an offence to make or possess explosives “under suspicious circumstances”. I think back to the Manchester Arena bomber and the training videos that were used to show how to make that bomb. The training video was prepared and filmed potentially anywhere in the world. I see training videos that show people with immaculate English from the backstreets of Raqqa or wherever. It seems bizarre that in the safe space that they have been operating in, they can handle, possess or make explosives and use that as a way to bring back knowledge to train people here. Sometimes the only evidence we have is over there rather than over here, and it is important that we find the ability to prosecute these people.
Similarly, if someone is filmed in Syria dressed head to foot in a Daesh outfit, with a flag and sword and beheading-type posturing, and then they use the footage over here, that is a challenge at the moment. It may be easy in that environment, because Syria is a failed state. We are looking at a state that does not really have the rule of law: it has a dictator who does not really believe in the rule of law. It is clear, in relation to some examples, that we need to find some offences to deal with the problem; we need to bring them into scope. I think and hope that we will be able to raise more prosecutions against people who we know have been there, although we do not at the moment have the offences on the statute book to prosecute them.
I met with the hon. Member for Cardiff South and Penarth on the issue of the border. There is a balance to be struck. How do we stop and examine data at the border? How do we verify people’s identity if they come in with an emergency passport or a passport that does not quite fit? Obviously, we will debate that again when we talk about the hostile state powers. Schedule 7 to the Terrorism Act 2000 is often used with some success, but I am aware—the hon. Gentleman has discussed this with me—that we have to be mindful of its impact on the wider public. The cost to them of a schedule 7 stop may be missing a flight if they are on their way out of the country and so on. I have asked for us to look at what more we can do around that space to mitigate that.
The hon. Gentleman is right to point out that at the moment returnees from the areas where we are seeking extraterritorial jurisdiction are trying to take advantage of stolen identities. There is a country in Europe whose identity cards are pretty weak and are often exploited by organised criminals; it is very easy for them to get into the system and be used. We are alert to that. It is why we are trying to do more with things such as e-gates. I know that there is some negative reporting about them, but they can be quite positive in spotting fake passports. We have a range of methods, and I would be happy to brief the hon. Gentleman privately on how we try to keep our border safe, but yes, we have to be alert to that. Even when people get in, the hope is that through accessing digital media we can bring some of these new offences to bear on them for what they did abroad. That is where we are trying to get to. It is a challenge as we have tended to expect our terrorists to be here rather than abroad. That is another example of how the Bill is really about trying to reflect the modern internet space.
Stephen Doughty
I thank the Minister for his comments. One country that has been highlighted as a place where illegal documents can easily be obtained is Turkey. Given the proximity of Turkey to the conflicts in Syria and Iraq, could the Minister say a bit about what work has been done with the Turkish authorities to try to deal with people who can easily sell stolen identity documents there, which may be used by people who have committed such offences and are trying to re-enter the UK?
Mr Wallace
I met the Turkish authorities when I visited Turkey not so long ago, and we discussed those issues. In their defence, the Turkish are actually pretty good at knowing who is in their country. One of our worries is the Italian identity card, because once people are in the EU, it is much easier. The ambition of a lot of those people is to get an EU identity card or an EU passport, and to move around freely.
We certainly find weaknesses in the system. The Italian identity card has caused our crime and terrorist fighters a challenge, because it is the one that is most used by illegal entrants to Europe, whether for immigration or any other purpose. I am more worried about some of the European issues than about Turkey at the moment. Generally, the Turkish detain people and then those people are managed back through temporary restraining orders. Usually, the Turks know who they are and they hand them over.
Stephen Doughty
Just to clarify, I am talking about stolen British documents and perhaps other EU documents, including the ones he suggests, being sold in Turkey to individuals. It is not just about whether the Turkish know who has come in and out, but about people gaining access to stolen Italian or British documents on sale in Turkey.
Mr Wallace
I will be quick, because this is definitely wandering off the clause. We wash millions of passenger name records at the National Border Targeting Centre, and if there are cancelled or stolen passports, they match. We are quite quick on that compared with our European allies, and we have a high detection rate, although it is not 100%. We have invested in that capability over the decades and I am confident that although we do not get them all, we do detect them. Obviously, we have to ensure that we continue to review that, and we are doing that as we speak.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Increase in maximum sentences
Nick Thomas-Symonds
I beg to move amendment 10, in clause 6, page 3, line 36, at end insert—
“(7) Sentencing guidelines for offences for which the maximum sentence has been increased under this section must be published within six months of the passing of this Act by the following bodies—
(a) in relation to England and Wales, the Sentencing Council for England and Wales;
(b) in relation to Scotland, the Scottish Sentencing Council; and
(c) in relation to Northern Ireland, the Lord Chief Justice’s Sentencing Group.”
This amendment would require the bodies responsible for sentencing guidelines to produce new guidelines in relation to offences for which the maximum sentence would be increased under Clause 6.
Clause 6 is the first of five clauses that facilitate the extended maximum sentencing periods with respect to the earlier clauses. I was uneasy about additional sentencing, given the state that clause 3 was in, but because of the Minister’s reassurances about the changes to that clause, I am less uneasy about it. Amendment 10 looks at the continuing role of the Sentencing Council. The council published its guidelines on this area in March, but they have not been updated to take into account the changes that are happening to offences as a result of clauses 1, 2 and 3, as I will set out.
In one of our earlier debates, the Minister said that it is of course always at the discretion of the judge to apply the law to the sentencing of an offender in an individual case and to take into account the circumstances, the background of the offender, the nature of the offence and so on. No parliamentarian would seek to interfere with that judicial discretion in particular cases, but the Sentencing Council’s guidelines fulfil a vital role when parliamentarians set maximum sentencing penalties, as the Bill does—it does not set minimum sentences.
All I wish to say to the Minister on this amendment is that, although we would not wish to stray into that judicial discretion, it might be sensible for the Sentencing Council to look at these offences in updated form, to see whether they wish to publish new guidelines. That would be sensible for everybody.
Mr Wallace
Let me start on a positive note: I fully endorse the sentiment behind the amendment of the hon. Member for Torfaen. It is right that the bodies responsible for providing sentencing guidelines in England, Wales, Scotland and Northern Ireland can review and update any relevant guidelines in relation to terrorist offences to take account of the provisions in the Bill. As the Committee will be aware, the Sentencing Council for England and Wales published new guidelines for terrorism offences in March. Those came into force on 27 April. The new guidelines reflect the developing nature of the terrorist threat and the increasing concern about the availability of extremist material online, which can lead to people becoming self-radicalised.
The Sentencing Council has indicated that, in terms of the impact on sentencing levels,
“it is likely that in relation to some offences, such as the offences of preparing terrorist acts and building explosive devices, there will be increases in sentence for lower level offences. These are the kinds of situations where preparations might not be as well developed or an offender may be offering a small amount of assistance to others. The Council decided that, when considering these actions in the current climate, where a terrorist act could be planned in a very short time period, using readily available items such as vehicles as weapons, combined with online extremist material providing encouragement and inspiration, these lower-level offences are more serious than they have previously been perceived.”
That approach is very much to be welcomed, and I commend the Sentencing Council for its work on these guidelines.
I should also stress that the Sentencing Council, and its Scottish and Northern Ireland equivalents, are independent bodies. The Sentencing Council for England and Wales is governed by the statutory provisions of the Coroners and Justice Act 2009. The council has particular statutory duties, including a duty to consult on guidelines or amendments to guidelines. That consultation duty includes, for example, a requirement to consult with the Justice Committee. There are practical implications, therefore, with requiring the council to issue guidelines six months after Royal Assent, especially when the council cannot begin to consider guidelines until the Bill receives Royal Assent. However, the guidelines need to be kept up to date to reflect changes to the law, including those made by the Bill. I can assure the Committee that the council is alive to that; indeed, in its consultation on the draft terrorism offences guidelines, it was to some extent able to anticipate the increases to sentences contained in the Bill.
Clause 6 changes the maximum penalty for four offences. We are not rewriting the sentencing provisions for the entirety of terrorism offences, but seeking to update a specific set of offences to make sure that the maximum penalty reflects the severity of the offence. Consequently, we believe that the council will be able to modify the existing guidelines once the provisions to increase penalties in this Bill are enacted. We do not envisage that being a protracted process. As the Committee would expect, we have kept the Sentencing Council apprised of the provisions in the Bill, and the chairman has indicated that the council plans to revisit the guidelines once the Bill has completed its parliamentary passage.
The position in Scotland and Northern Ireland is different. In Scotland, I understand that the Scottish Sentencing Council has not issued any specific guidelines relating to terrorist or terrorism-related offences. There is a similar situation in Northern Ireland. Instead, the judiciary is guided by guideline judgments from the Court of Appeal. I would be happy to alert the Scottish Government and the Northern Ireland Department of Justice to this debate, but we should otherwise leave it to the Scottish Sentencing Council and the Lord Chief Justice’s sentencing group to determine how best to proceed. I am sure that is a sentiment that the hon. Member for Paisley and Renfrewshire North would endorse.
I thank the hon. Member for Torfaen for tabling this amendment, and I fully understand his reasons for doing so. However, I hope I have been able to persuade him that the mechanisms are already in place for the relevant sentencing guidelines to be updated to reflect the provisions in the Bill. On that basis, I ask that he withdraw his amendment.
Nick Thomas-Symonds
I am very grateful for those assurances. I welcome the assurance in respect of England and Wales, and the fact that the Sentencing Council is very much alive to this debate and prepared to make further recommendations. I also welcome what the Minister said with regard to Scotland and Northern Ireland. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 ordered to stand part of the Bill.
Clauses 7 to 10 ordered to stand part of the Bill.
Clause 11
Additional requirements
Question proposed, That the clause stand part of the Bill.
Mr Wallace
Clause 11 strengthens the notification requirements that apply to individuals convicted of terrorism offences or offences with a terrorist connection to enable the police to better manage the risk posed by such individuals. The notification requirements apply to an individual over the age of 16 who has been sentenced to a term of imprisonment of 12 months or more. Such terrorist offenders are required to notify the police of certain information, such as their name, address, date of birth and national insurance number, on release from custody, and to keep such information up to date. The notification requirements apply for up to 30 years, depending on the length of sentence imposed and the age of the offender. Those requirements provide the police and other operational partners with the necessary but proportionate means to monitor the whereabouts of convicted terrorists. They allow the police to assess the risk posed by a registered terrorist offender and, where appropriate, to take action to mitigate any risk posed by an individual.
The notification regime in the Counter-Terrorism Act 2008 operates in much the same way as a similar notification regime for convicted sex offenders. However, the range of information that registered sex offenders must provide to the police was updated in 2012 and is now far more extensive than the information that terrorist offenders must provide. This clause seeks to bring the notification scheme in the 2008 Act more closely into line with that in the Sexual Offences Act 2003. The changes in respect of registered terrorist offenders will strengthen the requirements and ensure that they provide the police with an even more effective risk-management tool.
The changes provided for in this clause are as follows. First, we are adding to the information that RTOs are required to notify to the police to include details of bank accounts and credit, debit or other payment cards; details of passports and other identification documents; phone numbers and email addresses used by the RTO; and details of vehicles that are owned by the offender or that they are able to use. The provision of information about vehicles does not apply to registered sex offenders, but it is considered necessary for intelligence purposes to help build a picture of the RTO’s activities and movements.
Secondly, we will require offenders with no fixed address to re-notify their information to the police on a weekly basis. That is to ensure that the risk posed by offenders can be monitored appropriately. Finally, although the point is dealt with in schedule 4 rather than the clause, the Bill requires RTOs to give the police seven days’ notice of any overseas travel, rather than, as now, only travel that lasts for more than three days. As now, RTOs will be required to keep that information up to date, so the existing duty to notify the police of any changes will apply. Failure to comply with the notification requirements is a criminal offence, punishable by up to five years in prison.
As I have indicated, the changes to the notification regime will enable the police to better manage the risk of re-offending by convicted terrorist offenders. Much of the additional information that RTOs will be required to notify to the police is already reflected in the sex offender notification regime, and it is high time to bring the 2008 Act scheme into line.
Nick Thomas-Symonds
I rise to support the clause. The registered terrorist offender regime is nothing new and is already set out in the Counter-Terrorism Act 2008. As the Minister set out, the Bill makes a number of extensions to it, so as to include details of bank accounts, credit cards, passports, phone numbers, email addresses and vehicles.
The Minister was right to draw parallels with the convicted sex offender regime, which was updated in 2012. There is the distinction that vehicle details do not apply to registered sex offenders, but given that vehicles have been used as weapons in terrorist atrocities that we have seen, I do not think it unreasonable to include vehicle details in the clause. In addition, it is welcome that we have the seven days’ notice for overseas travel, rather than simply looking at the duration of overseas travel, which was the previous requirement. For all those reasons, the Opposition support the clause.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 12
Power to enter and search home
Nick Thomas-Symonds
I beg to move amendment 28, in clause 12, page 13, line 18, at end insert—
“(ba) that there are reasonable grounds for believing that the person to whom the warrant relates has committed an offence;”.
This amendment would require a police officer applying for a power to enter and search the home address of a person subject to notification requirements to demonstrate reasonable grounds for believing that the person has committed an offence.
I make it clear at the outset that I hope that the amendment will simply draw an explanation from the Minister as to a particular meaning within the clause. The amendment again refers to the regime in place to deal with registered terrorist offenders. As we discussed, clause 11 will extend the detailed information available regarding an offender’s home, vehicle and finances. Clause 12 brings a power to enter and search the home address of a registered terrorist offender. There are already safeguards in the clause, including that there has to be authorisation from a magistrate and that the police have to have twice failed to gain access, and both of those are reasonable.
I do not oppose the idea that there will be circumstances in which the police will need to enter property in that way. I tabled the amendment simply to draw from the Minister a bit more explanation of what is meant in new section 56A(1)(a), which the clause will insert into the Counter-Terrorism Act 2008, by the words
“to enter premises specified in the warrant for the purpose of assessing the risks posed by the person to whom the warrant relates”.
I raised this issue with Assistant Commissioner Basu, who—in a very common-sense and perfectly acceptable way—talked about the risk of the person falling back into terrorist activity. Will the Minister be a bit more precise about what the police will look for, including whether this will relate to digital material, flags or other materials? I would appreciate his elucidating on that, because concern has been expressed that, as drafted, “assessing the risks” is rather vague.
The Chair
For Members’ information, I am going to—[Interruption.] Actually, I will come back to that. I do not want to confuse the Committee; given that I am confused, that will not be very difficult. I call Stephen Doughty.
Stephen Doughty
Thank you, Mrs Ryan. I want to speak about the clause and, with your permission, about my amendment 46, which is starred and would not normally be selectable for today. I wonder whether I might prevail on you to use your discretion; we have made swift progress with the Bill today, and I was obviously followed guidance about when to table these things.
The Chair
If I may interrupt the hon. Gentleman, that is what I was going to say. I will allow you to address your amendment, on the understanding that you will not press it to a vote, as it is a starred amendment. However, we have made considerable progress.
Stephen Doughty
Thank you, Mrs Ryan. I appreciate your using your discretion in allowing me to speak to the amendment. I do not intend to push it to a vote, but I wanted to probe the Minister on this particular issue.
The power to enter and search home addresses is obviously a significant one, and one that needs to be used with great care and caution. While we all recognise the important need for the security services, police and others to undertake operations—often without notice, and with the appropriate guidance on the necessity for doing so—to keep the public safe and to apprehend individuals who may be plotting terrorist activities or other activities that would pose a risk to the public or others, it is also important to balance those powers with necessary caution and care.
Mr Wallace
Clause 12 confers on police the power to enter and search the home address of a registered terrorist offender. The police consider home visits an important tool to properly manage and risk-assess registered terrorist offenders while they are subject to the notification regime. The clause therefore gives police officers the power to enter under warrant—they have to go to a magistrate to get it—which will allow them to ascertain that an RTO does in fact reside at the address they have notified to the police, and allow them to check compliance with other aspects of the notification regime.
In response to the question from the hon. Member for Torfaen, some of the purposes would be home schooling. If someone was concerned about the welfare of the children of a serious terrorist offender who was back at home, the police would have the power to look at that after applying for a warrant. More importantly, the purpose is compliance with the regime and the conditions on the offender’s release. As has been rightly said, I suspect it would be about things such as flags and digital material, whether they have complied, and whether they are doing the sorts of things that they have undertaken not to do.
The sadness about a lot of terrorism is the re-engagement of terrorists. I still remember, 30 years later, a bizarre statistic from my days in Northern Ireland. If a man was convicted of a terrorist offence in Northern Ireland, after serving a sentence of about 10 years he usually stopped being proactive or a leading light in terrorism. He would perhaps engage in the political wing of an organisation, but he would not go back to his previous activity. Bizarrely, women would almost always re-engage. I do not know what that says about women’s determination and loyalty to the cause, but I have never forgotten that bizarre pattern. In today’s environment, in which some terrorism has a strong ideological bent, we are worried that some individuals re-engage, or try to re-engage, pretty quickly. Unfortunately, therefore, these measures are necessary for us to put certain restrictions on people.
As I said, these measures will allow officers to observe someone’s living conditions and identify any indications of a decline in their mental health, drug or alcohol use, family problems or other issues that may indicate an increase in the risk that that individual poses to the public. I will address the point made by the hon. Member for Cardiff South and Penarth later.
In providing for such a power of entry, we are not breaking new ground. The clause mirrors existing provisions in the Sexual Offences Act 2003 in respect of registered sex offenders. Our experience has been that subjects are aware of their requirements and of the police’s power of entry, so they tend to co-operate with visits by officers and give them their consent. I am confident that extending that power to enable the management of RTOs will increase the extent to which they co-operate with visits by officers.
We have been careful to place a safeguard on the operation of the power. The clause provides that a warrant can be applied for only if a constable has tried on at least two occasions to gain consent from the RTO to enter their home to carry out a search for the purposes I outlined, and has failed to gain entry. I should also stress that the power is exercisable only on the authority of a warrant issued by a justice of the peace or equivalent, and that any application for such a warrant must be made by an officer of at least the rank of superintendent.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
The Minister suggests that the new power will be effective, but the Met has its lowest officer complement for more than 15 years. In the past eight years, my borough has lost more than 400 police officers and police community support officers. How will the Government keep the new power under review to ensure that it can be used by officers and, in the light of the comments by my hon. Friend the Member for Cardiff South and Penarth, to ensure its efficacy?
Mr Wallace
The hon. Gentleman makes the fair point that it is all very well having lots of powers, but we must have the officers to deal with such matters. We have increased funding for counter-terrorism policing to ensure that we have as many such officers as possible. I am confident that the management of terrorist offenders is predominantly down to counter-terrorism officers. It would not be left up to a PCSO or a general beat constable. We have sufficient police officers to deal with this issue.
The power is as much an offender management tool as a criminal justice pursuit tool. It is about how we manage offenders effectively. That is why it is voluntary at first: we ask twice whether we can come and check up on someone, and only then do we resort to the law, which I think will happen rarely. There will probably be a reason when it happens, and that is when we will see a borough commander. People in the constabulary would move resources to address this.
I share the sentiment expressed by the hon. Member for Cardiff South and Penarth that the police and other law enforcement authorities should exercise their powers sensitively. Many members of the Muslim community in my constituency live together as large families. It may be that one person is a terrorist offender but no one else is. We all have good and bad neighbours and family members, and we have to respect that.
I reassure the hon. Gentleman that the power to enter and search will be exercised under the powers of entry code of practice, which is issued under section 48 of the Protection of Freedoms Act 2012. The code states that officers entering properties where people are subject to the notification regime in part 4 of the Counter-Terrorism Act 2008 must act reasonably and courteously to persons present and the property, and use reasonable force only where it is assessed to be necessary and proportionate to do so. We all know that that requirement is not always met, and we have to intercede with local police to ensure that our constituents’ concerns are addressed.
The amendment would therefore create a provision analogous to the code of practice by which the police already operate, in the context of their seeking twice to be granted entry voluntarily. One hopes that a good police officer would manage to get there without having to resort to the law.
I believe that the safeguards built into the clause are sufficient to ensure that the power will be used proportionately and only when it is absolutely needed by police officers. Introducing a requirement for police officers to have reasonable grounds for believing that an offence has been committed would restrict the use of the power to an unnecessary degree and undermine its primary purpose, which is to ensure that officers can assess the risk posed by a convicted registered terrorist offender at the address they have provided.
It is important to mention that we are dealing with people who have been convicted of an offence rather than those who are suspected of having committed one, so restricting the power of law enforcement forces would get the balance slightly wrong. These people are already offenders, so I believe that our police should have slightly wider powers in this respect.
I remind the Committee that Assistant Commissioner Neil Basu said last week that the power of entry
“is something that allows us to assess the ongoing risk of their re-engaging with terrorism…You might find a flag being displayed. You might find material that is of use to a terrorist. That is the purpose of it.”—[Official Report, Counter-Terrorism and Border Security Bill Committee, 26 June 2018; c. 25, Q52.]
Given the clear operational need for the provision, I ask the hon. Member for Torfaen to withdraw his amendment.
Nick Thomas-Symonds
I am grateful for that further elucidation from the Minister. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 ordered to stand part of the Bill.
Clause 13
Serious crime prevention orders
Question proposed, That the clause stand part of the Bill.
Mr Wallace
Clause 13 will make it clear in the Serious Crime Act 2007 that a serious crime prevention order may be made in respect of terrorism offences. SCPOs, which were introduced by the 2007 Act, are court orders that are used to protect the public by preventing, restricting or disrupting a person’s involvement in serious crime. They may impose various measures on an individual, proportionate to the risk of that person re-engaging in serious criminal activity.
Such an order may be made by a Crown court—or, in Scotland, by the High Court of Justiciary or a sheriff—in respect of an individual who is convicted of a serious crime, in which case the order would come into effect once its subject was released from custody. Additionally, such orders may be made by the High Court—or, in Scotland, by the Court of Session or a sheriff—where the Court is satisfied that a person has been involved in a serious crime, and where it has reasonable grounds to believe that the order would protect the public by preventing or disrupting the person’s involvement in serious crime.
Nick Thomas-Symonds
I rise to support clause 13. It is self-evident that terrorism is a serious offence, and the SCPO regime, which has been in place since the 2007 Act, can be an important tool in dealing with terror offences.
As the Minister has set out, the SCPO will come into effect when an offender is released from custody with the purpose of preventing or disrupting their involvement in serious crime. Restrictions on travel and access to property or telephones can be part of that. The regime has worked in relation to other serious offences, and it is sensible to extend to it to terrorism.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14
Traffic regulation
Gavin Newlands
I beg to move amendment 13, in clause 14, page 15, line 20, at end insert—
“(2A) The authority may not impose any charge where the relevant event is a public procession or assembly as defined by section 16 of the Public Order Act 1986 taking place for the purposes set out at section 11(1) of the same Act.”
This amendment would ensure that a new power to impose charges in connection with anti-terror measures at events or particular sites would not restrict protest rights through the imposition of costs that organisers are unable to pay.
The Chair
With this it will be convenient to discuss amendment 29, in clause 14, page 15, line 20, at end insert—
“(2A) The authority may not impose a charge where—
(a) the order or notice is made in relation to an event which is a public procession or public assembly; and
(b) the event is taking place for one or more of the purposes set out in section 11(1) of the Public Order Act 1986.
(2B) In subsection (2A), ‘public procession’ and ‘public assembly’ have the same meaning as in the Public Order Act 1986.”
Gavin Newlands
Amendment 13 is straightforward, so I will not detain the Committee too long. Anti-terrorism traffic regulation orders—ATTROs—allow vehicle or pedestrian traffic to be restricted for counter-terrorism reasons. We have all seen the bollards and barriers that are set up during events to protect the organisers, spectators and those taking part. ATTROs can be temporary or permanent fixtures—as is the case at the moment outside Parliament. The amendment is not about restricting the importance of ATTROs, but ensuring that any new measures that are introduced are proportionate and do not restrict people’s ability to protest and demonstrate.
Clause 14 proposes a range of changes to the Road Traffic Regulation Act 1984, including removing the requirement to publicise an ATTRO in advance and allowing the discretion of a constable in managing and enforcing an ATTRO to be delegated to third parties, such as local authority staff or private security personnel.
In addition, the clause would allow the cost of an ATTRO to be recharged to the organisers of an event. It states:
“The authority may impose a charge of such amount as it thinks reasonable in respect of anything done in connection with or in consequence of the order or notice (or proposed order or notice).”
The new charge would be payable by an event promoter or organiser, or the occupier of a site, and relevant events include those taking place for charitable and not-for-profit purposes. Although I see a lot of merit in clause 14, I am concerned that it will stop people gathering for demonstrations.
Amendment 13, which I hope is a common sense amendment, was tabled to address those specific concerns. It would allow an exemption to be made, so that any new power introduced through clause 14 would not restrict an individual’s right to protest on a cause that is important to them. Clause 14 certainly will not save a huge amount of money; the Library briefing on the Bill states that it could be as little as £66,000. The amendment is designed to ensure that the right of freedom of assembly and association, as protected by articles 10 and 11 of the European convention on human rights, is not violated due to the organiser of a protest being unable to meet the costs levelled against them.
Last week, Corey Stoughton of Liberty expanded on that in her evidence to the Committee. She said:
“To be consistent with the right to assemble and protest under article 10, there must be a legislative exemption for activity protected by those fundamental rights. That is an exemption that we have seen replicated in other, similar provisions in UK law…A simple fix to this would be to recognise that putting such charges on activity protected by the right to protest and assemble is an undue burden on that activity, and the cost of protecting those events has to fall on the state in the course of its obligation to protect that right.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 52, Q109.]
I agree. We have created exemptions in the past to protect our right to protest. The state must protect that right and I think most people, even Government Members, believe that a citizen’s right to protest is worth a lot more than £66,000.
Nick Thomas-Symonds
I rise to support amendment 13, and amendment 29 in my name. Although the amendments appear to differ, they are essentially meant to achieve the same thing. I would not dream of entering into a competition with the hon. Member for Paisley and Renfrewshire North about who has the better drafted version.
Nick Thomas-Symonds
Indeed. None the less, they are meant to achieve exactly the same thing.
I have little to add to what has already been set out. At the evidence session I asked Corey Stoughton of Liberty the question about this issue. It is, of course, an article 10 right, and I would not have thought that anybody on the Committee would wish to curtail the right to peaceful protest.
I support the underlying purpose of the clause. Anti-terror measures at events are extremely important, and I see no issue with that, but we have to strike a balance so that they do not restrict legitimate rights of protest. The right of assembly is rightly protected in the European convention on human rights and incorporated into our domestic law under the Human Rights Act 1998. We should protect it, and protect article 10. On that basis, I commend both amendments to the Committee.
Stephen Doughty
I rise to support the amendments, but I wish to raise a separate point about obstructions. First, I want to understand fully from the Minister why all the new powers are necessary. I represent a constituency where we host many major events. We have the National Assembly for Wales, we hosted part of the NATO summit, and we hosted the UEFA champions league final, including the fan zone. I regularly see such measures—bollards, traffic restrictions and blockages—being put in place anyway, so why are all the additional powers necessary? Substantial powers seem to be available to the police and other authorities already to restrict traffic or make areas safe.
Secondly, what steps will the Government take to ensure that appropriate notice of likely disruption is given to residents, or indeed to businesses, in areas that will be affected by the measures? Also, what compensation might be available to those who face significant disruption to, for example, business activity? Obviously, I appreciate that in very short-notice situations, when a specific threat arises, it may be impossible to give appropriate notice, and sometimes things need to be done to protect the public. That should be at the forefront of all our minds. However, we are talking about major events that are planned many months in advance. Unfortunately, I have seen many examples of businesses, in particular, and residents experiencing disruption that could quite easily have been avoided if better information had been made available about safe travel routes, or likely disruption of business opening hours and so on. That can be quite significant.
For the UEFA champions league final there were, rightly, extensive bollards and access gates, and all sorts of other road traffic measures, for several weeks in advance, as well as during and after the event. However, despite the availability of information about the fact that the event was happening, it was not always clear to Cardiff Bay residents—of whom I am one—or businesses what routes would be available, when they would be open, and what disruption was likely. I know of some businesses that lost substantial amounts because the placing of barriers and bollards obstructed the business and impeded access. Such things are side effects of necessary measures, but we must recognise that they are a consequence of holding major events, and of the provisions needed to keep them safe.
I would like, first, to understand why all the new powers are necessary and, secondly, what steps the Minister believes security authorities, police and local authorities should take to mitigate the effect on residents and businesses.
Mr Wallace
I should say at the outset that although ATTROs have been available for a long time they are not a substitute for the existing public order powers to put traffic management systems in place, and for the protection of large crowds. I would not want the measures to be used as a new opportunity for imposing charges when events are held, or for concocting a spurious terrorist link to try to regain money. They are designed for occasions when there is a specific terrorist threat to an event, or when an event is likely to attract a terrorist attack. That might be said of the recent Commonwealth summit, or similar events, as opposed to a champions league football match that is in the diary, a major sporting event that everyone knows is about to happen. For such events the local authority has always had the power under the Road Traffic Regulation Act 1984 to charge the organisers. I would not want a situation in which everything—the galas or village fetes we attend—suddenly becomes a terrorist threat, to some over-eager person.
Gavin Newlands
I appreciate what the Minister is saying. Will he commit, on that basis, to giving further consideration to whether we can tighten the provisions and ensure that what he has said is in the Bill?
Mr Wallace
I was hoping that we would get to this moment, because I have good news: I shall now have to arbitrate on whether Scotland’s or Wales’s drafting is better.
Mr Wallace
As a former Member of the Scottish Parliament, I may have a different view.
I was going to try to speak to the hon. Member for Paisley and Renfrewshire North, but did not think we would reach the amendment this morning. I am keen to tell him that I agree with his point and—my hon. Friend the Member for North Dorset should brace himself—the point raised by Liberty. [Interruption.] The Ministry of Wallace’s security portfolio is a broad church.
I am a great believer in the provisions not being used to curtail freedom of expression. I cannot give a 100% guarantee, because we shall have to go through the usual processes, but I have asked to be allowed to run the drafting of the amendments past our lawyers. No doubt they will have another view. Three lawyers in three rooms will produce three versions of the same thing, I suspect—and bill us three times. I am keen to see whether we can accommodate the points that have been made and make it clear that the measure is not a restriction on freedom of expression, and should not be used to restrict it in the future. As I said at the outset, I am keen to get contributions from all, and I look at each one on its merits. The hon. Member for Paisley and Renfrewshire North has a strong point, as does the hon. Member for Cardiff South and Penarth.
Stephen Doughty
I entirely understand the Minister’s point. He mentioned events that have been in the diary for a long time, and I am concerned that more work should be done to ensure that those access routes are properly handled. Does he agree that wherever possible, particularly for locations that regularly host major events and that may be subject to a general or specific terrorism threat, permanent measures should be put in place in a sensitive way? People can get used to such things and understand why they are there, and there is then no need for sudden changes to road patterns or access points.
The Chair
Order. We are drifting very much into a stand part debate, so I may take the view that we will not need a stand part debate after debating these amendments.
Mr Wallace
You will get no objection from me on that, Mrs Main, and we will certainly try to address these issues comprehensively. I take the hon. Gentleman’s point, and part of this is about how good local authorities are at engaging with major events. It depends on whether the unitary, local or district authority is capable of planning for major events.
The police and intelligence services give huge assistance to buildings at the outset—we learned way back in the days of the IRA and the big lorry bombs that if we engage with the built space when buildings are designed and made, a lot of these measures are not necessary. They become part of the aesthetics of the building, and the public are none the wiser that actually they are in a much safer place. I have seen that first hand in the design of some of the newer parts of this building, and in football stadiums. In the long term, that is the best way to ensure that we do not end up with big metal barriers outside buildings and so on. I assure the Committee that parts of the Government engage with these issues on a daily basis—that is their day job. This is not just about protecting critical infrastructure; it is about protective security measures. Every local police force has a number of officers who specifically advise on protective counter-terrorism measures, and they will also engage with hon. Members about how they can make their offices secure, and so on.
The clause confers an express power on a local authority to charge the beneficiary of an ATTRO for the costs associated with the order. In this context, a beneficiary means a person promoting or organising a relevant event, such as a sporting event or street entertainment. Such costs might include the costs of publicising proposals to make an order—including by placing a notice in the local press—the cost of installing the protective security measures and the administrative costs of the local authority in making the order.
It is a long-established principle, under the Road Traffic Regulation Act 1984 and elsewhere, that the beneficiary of traffic regulation orders or similar authorisations should bear the cost. We are simply expressly extending this principle to ATTROs. If a critical national infrastructure site needs additional protective security measures that require an ATTRO, the reasonable costs of the order should be met by the operator of that facility. The same principle applies in the case of a temporary ATTRO used to protect, for example, a road race or, more importantly, a Christmas market, which we have seen targeted in the past. I stress that we are conferring a power, rather than a duty, on local authorities, so they will have discretion to determine when and where to levy a charge.
Kevin Foster (Torbay) (Con)
There are a large number of regular events in Torbay, such as the Bikers Make a Difference festival and others. Will the Minister work with the Local Government Association to make sure that clear guidance is issued to councils on the points he makes—that this should not be seen as something that they must do, and that this is not an excuse to levy further charges.
Mr Wallace
I totally agree with my hon. Friend. I will make it clear to police chiefs and to the LGA on the conclusion of the Bill’s passing that this should not become a wheeze to either not do something or to impose fines. That is important.
On reducing costs and maximising policing at events, we are also keen to enable the better use of personnel charged with protecting sites subject to ATTROs. To put this in context, the 1984 Act provides that an ATTRO may include a provision that enables a constable to direct that a provision of the order shall be commenced, suspended or revived, or that confers discretion on a constable. We want the police to be able to make more effective use of officers’ time and also of the other available resources in providing security for a site protected by an ATTRO.
To that end, subsection (9)(c) will provide that an ATTRO may
“enable a constable to authorise a person of a description specified in the order or notice to do anything that the constable could do by virtue of”
the 1984 Act. Under such delegated authority, it might be left to a security guard or steward to determine when a provision of an ATTRO is to commence or cease operating on a given day. The ATTRO might, for example, provide for a road to be closed off from 10 am to 10 pm, but a security guard could determine that, on a particular day, the road could be reopened an hour earlier.
An ATTRO’s ability to confer discretion on a constable may be utilised, in particular, to enable a police officer manning a barrier or gate that has closed off a road to exercise his or her discretion to allow accredited vehicles or persons through that barrier or gate. Subsection (9)(c) would enable another authorised person to exercise such discretion. I suppose that that is where I differ from the hon. Member for Torfaen. I want our police officers to be in a lead position at events. Freeing up constables from checking passes at barriers and handing that responsibility to a security guard enables them to better use their powers at an event. That is why we are keen to give that discretion to constables.
The clause will place on a statutory footing the power of the police to deploy obstructions to enforce compliance with temporary traffic restrictions imposed under section 67 of the 1984 Act. That section empowers the police to deploy temporary traffic restrictions in exceptional circumstances linked to the prospect of terrorism, and to deploy signs on the road indicating what those restrictions are. Those powers currently only relate to vehicular traffic, so the clause will apply them to pedestrian traffic.
Gavin Newlands
I am grateful to the Minister for his comments; indeed, I am heartened. If it makes any difference to his consideration, I am not concerned in the slightest whether he picks the Scottish or Welsh drafting—or the third way he will no doubt find—to amend the clause. With that in mind, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Counter-Terrorism and Border Security Bill (Fifth sitting)
Tuesday 3rd July 2018
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 3 July 2018 - (3 Jul 2018)
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Chair
Before we begin, in the light of the swift progress made so far, I am minded, should we reach this point, to select the two new amendments in the name of Stephen Doughty on the amendment paper, which are amendment 47 to schedule 3 and new clause 8. A revised selection list for this afternoon’s sitting is available in the Committee Room. Copies of written evidence received by the Committee are also here.
I remind Members that debates on amendments should focus on the content of the amendment rather than the generality of the clause they seek to amend. If Members have general points to make about the clause, they should wait until the clause stand part debate. If discussion covers the generality of the clause, owing to the nature of the amendment, I will be minded not to propose a separate clause stand part debate but to put the Question on the clause stand part formally.
I understand that the Minister wishes to move a motion to vary the resolution of the Programming Sub-Committee.
Simon Hoare (North Dorset) (Con)
On a point of order, Mrs Main. My apologies for interrupting proceedings. I understood that Committee Rooms are usually locked during the lunch adjournment. I left a great wadge of papers here, all of which have now gone. I wondered whether the Clerk had put them somewhere or something.
The Chair
Apparently the room was locked. We shall try to track things down for you, Mr Hoare.
The Minister for Security and Economic Crime (Mr Ben Wallace)
I beg to move a manuscript amendment, in paragraph (1), sub-paragraph (d) of the order of the Committee of 26 June, leave out “and 2.00 pm”.
It is a delight to serve under your chairmanship this afternoon, Mrs Main. Following discussions through the usual channels, it was proposed not to sit on Thursday afternoon. Accordingly, I have moved a motion to amend the programme resolution.
Amendment agreed to.
Clause 14
Traffic regulation
Nick Thomas-Symonds (Torfaen) (Lab)
I beg to move amendment 30, in clause 14, page 16, line 33, leave out from “authorise” to “to” in line 34, and insert “another constable”.
It is a pleasure to serve under you as Chair this afternoon, Mrs Main. I rise in unusual circumstances, because the Minister responded to parts of the amendment this morning, so I can anticipate some of the response. The amendment relates to proposed new subsection (5)(d) in the Road Traffic Regulation Act 1984, in subsection (9)(c), which is the part of the clause that will empower a constable in connection with anti-terrorism regulation orders, or ATTROs. I am moving the amendment simply to draw some clarity from the Minister.
The explanatory note states that
“it might be left to a security guard or steward to determine when a provision of an ATTRO is to commence or cease operating on a given day”.
I can see the common sense in that. For example, where a particular restriction has a set number of hours and everyone has gone, it would be in everyone’s interest to have somebody on the ground who can say, perhaps an hour before the specified time, that the restriction is being brought to an end. What might be more problematic, however, is situations arising all over the country—for example, where a security firm or otherwise has taken on responsibility for particular things—where broad, strategic decisions are taken out of the police’s hands and put into the hands of different bodies that may be applying them inconsistently.
Will the Minister set out the balance? There is nothing wrong with making common-sense decisions on the ground in a limited way, and if that is what is envisaged, as it seems to be from the explanatory notes, I would be satisfied by that explanation. What I would be less in favour of is a lot of inconsistency around the country or for common-sense decisions on the ground to perhaps interfere with the overall strategy for these events, which I would expect to be in the hands of the police.
Mr Wallace
I hear the hon. Gentleman’s concerns. The key part of this provision, reflecting my earlier answers, is that it hands the constable the right to exercise his or her discretion about when to effectively delegate or allow the power to be used. I would trust the judgment of the police commanders I know—for example, Neil Basu, the counter-terrorism lead—to make that call in those situations. It is important to recognise that we do not want highly trained police officers with powers to be inappropriately used for something that a security guard, a steward or somebody else could do, which would be a better use of their time. I trust their discretion and think that the constable will get it right.
Most such events are properly planned. Where there has been an ATTRO, it will predominantly be because of a specific threat, or certainly enough threat to warrant it, which will clearly indicate a significant amount of deliberate planning, such that the local authority and, for example, the sporting event will be fully played into. I am therefore happy that that is where we are and we can allow those police officers to be used better.
I assure the hon. Gentleman that, all the way through, this is as much about the discretion of chief officers and local authorities in being able to police events properly, with the health warning that this is not to be used as a charging mechanism. It is thought that on average an ATTRO will cost between about £3,500 and £10,000, with approximately 90% of the cost usually going on ATTRO advertising. I do not think that is a significant impact. In fact, where an ATTRO is needed, the cost will sometimes fall on the Crown. I suspect that, for the Commonwealth summit at Lancaster House for example, the required costs will effectively mean Government paying Government.
I do not think we should remove the ability of a constable to delegate where they need to. That is the best way to get the correct policing and the right resources to the right event and also, perhaps, to limit the cost impact on some of these events. I would not want them to be unduly restricted. That is the thinking behind this part of the legislation, and I urge the hon. Gentleman to withdraw his amendment.
Nick Thomas-Symonds
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 ordered to stand part of the Bill.
Clause 15 ordered to stand part of the Bill.
Clause 16
Detention of terrorist suspects: hospital treatment
Question proposed, That the clause stand part of the Bill.
Mr Wallace
I want to speak to clause 16 because I am conscious that, even if no amendments are tabled, some parts of the Bill are important and the concerns that we heard in evidence should be reflected. Even if hon. Members on both sides of the Committee agree with the provision, it is important that those on the outside can hear some of our justification.
The clause amends the Terrorism Act 2000 to exclude time spent in, and travelling to and from, hospital from the calculation of the time a suspect spends in pre-charge detention. General criminal law has long recognised that it is appropriate to pause the detention clock so that the time an individual spends in pre-charge detention does not include any time they are receiving hospital treatment or travelling to or from hospital, in the relatively rare cases where a detainee needs hospital treatment.
At present, the calculation of the maximum period of pre-charge detention for an individual arrested under the 2000 Act makes no allowance for any time spent by the suspect receiving hospital treatment. Consequently, if a suspect were to be injured or fall ill in custody, the amount of time available to the police to interview the suspect would be reduced. That could impair the police investigation and prevent a proper decision from being reached on whether to charge the individual before they must be released. They could therefore evade justice and the public could be put at risk.
The change will ensure that the police can use the full amount of time permitted to them under the law to question a suspect, investigate the suspected offence, and work with the Crown Prosecution Service to reach a charging decision. Terrorist investigations are often exceedingly complex and can involve a high level of risk to the public. As such, it is important that the police are able to investigate fully and get such decisions right.
The change will also apply to the calculation of the maximum time for which an individual may be detained for the purpose of examination under schedule 7 to the 2000 Act, which stands at six hours including the initial hour during which a person may be examined without being detained. That will give effect to a recommendation made by the former independent reviewer of terrorism legislation, David Anderson, QC, and will bring the provisions of the 2000 Act in line with the Police and Criminal Evidence Act 1984.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clause 17 ordered to stand part of the Bill.
Schedule 2
Retention of biometric data for counter-terrorism purposes etc
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
I beg to move amendment 14, in schedule 2, page 26, line 5, leave out paragraph 2.
The Chair
With this it will be convenient to discuss the following:
Amendment 34, in schedule 2, page 26, line 16, at end insert—
“(c) the Commissioner for the Retention and Use of Biometric Material has consented under section 63G to the retention of the material.”
Amendment 15, in schedule 2, page 26, line 29, leave out sub-paragraph 3(4).
These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 16, 17, 18, 19 and 20 would mean that the time period remains at two years.
Amendment 16, in schedule 2, page 29, line 3, leave out sub-paragraph 7(4).
These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 17, 18, 19 and 20 would mean that the time period remains at two years.
Amendment 17, in schedule 2, page 30, line 3, leave out sub-paragraph 10(4).
These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 16, 18, 19 and 20 would mean that the time period remains at two years.
Amendment 18, in schedule 2, page 31, line 32, leave out sub-paragraph 13(4).
These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 16, 17, 19 and 20 would mean that the time period remains at two years.
Amendment 19, in schedule 2, page 33, line 4, leave out sub-paragraph 16(4).
These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 16, 17, 18 and 20 would mean that the time period remains at two years.
Amendment 20, in schedule 2, page 34, line 28, leave out paragraph 19.
These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 16, 17, 18 and 19 would mean that the time period remains at two years.
Gavin Newlands
It is a pleasure to see you in the Chair this afternoon, Mrs Main. I rise to speak on amendments 14 to 20, which have been tabled in my name. Clause 17 is obviously a significant provision and relates to the governance and retention of fingerprints, DNA samples and profiles, otherwise known as biometrics, by the police for counter-terrorism purposes. It would affect, among other powers, the retention of biometric data, in particular increasing the maximum duration of a national security determination, or NSD, from two years—or two plus one—to five years.
In addition, paragraph 2 of schedule 2 amends the Police and Criminal Evidence Act 1984, so that fingerprints and DNA evidence relating to a person arrested but not charged with a terrorism-related qualifying offence may be retained for three years. The fact that the power could affect an innocent individual who has not been found guilty of any offence is concerning. That concern was shared by Richard Atkinson of the Law Society, who provided evidence to us. He said:
“It is an area of concern for us because, clearly, it is right that individuals’ data is not routinely withheld”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 32, Q76.]
He suggested that the case for the provision has yet to be made by the Government.
The Police and Criminal Evidence Act 1984 provides the authority to a chief officer of the police to determine whether it is necessary and important to retain biometric data for an additional period of up to two years for the purpose of national security. Although NSDs are reviewed independently by the Biometrics Commissioner, the Bill proposes extending the duration of an NSD from the maximum of two years to a maximum of five years. Amendment 14, in deleting paragraph 2, would retain the Biometrics Commissioner oversight and keep the status quo in terms of the length of time data can be kept.
These provisions have attracted controversy due to the belief of many that they are a direct attack on individuals’ right to privacy. Throughout the Bill’s passage, I have spoken about the need to adopt appropriate counter-terrorism methods that can deal with the current threat. However, that goal does not mean that we should eliminate all appropriate checks and balances that safeguard potential abuses of power, which can affect individual civil liberties.
The commissioner also performs a vital, independent role, reviewing every NSD. In doing so, he will assess the nature, circumstances and seriousness of the alleged offence, the grounds for suspicion, the reasons why the arrestee has not been charged, the strength of any reasons for believing that retention may assist in the prevention or detection of crime, the nature and seriousness of the crime or crimes that that retention may assist in preventing or detecting, the age and other characteristics of the arrestee and any representations by the arrestee about those or any other matters. In addition, the commissioner has the power and authority to order that retained material be destroyed where retaining it is no longer necessary.
Nick Thomas-Symonds
The amendment goes to the very heart of the framework of counter-terrorism—the balance that is to be struck between liberty and security. I respect the arguments on both sides. Assistant Commissioner Basu referred to how data obtained from a port stop had been useful in identifying someone who would go on to engage in an act of terrorism. He was absolutely clear that that kind of data could be useful in the fight against terror. However, that has to be balanced against the concerns.
There are concerns, first, about whether the data that is held can be kept secure and, secondly, about two particular classes of people, if I can put it that way. The first class is the person who is arrested because of a mistake, whether that be mistaken identity or a mistake in place or in any other material fact. The second class is the person who has been arrested and never charged. How we strike that balance and protect those people is vital.
Although I have sympathy with the means by which the hon. Gentleman has sought to achieve that balance—essentially by keeping the period of retention at two years rather than extending it to five—the amendment is something of a blunt instrument. You would quite rightly stop me, Mrs Main, if I started to refer to the next amendment that is tabled in my name, but none the less I think that that amendment is a better means of achieving and striking the balance. It would protect the two types of people I have referred to and give them a right to appeal. This amendment is a blunt instrument for achieving the same aim.
Mr Wallace
The hon. Member for Paisley and Renfrewshire North referred to an example. I said at the time of hearing the evidence that it was remarkable that, as the witness was speaking, a verdict was returned in a trial of an individual who was arrested on Whitehall with three knives on him. It is our strong belief that he had been planning to carry out an attack and was en route to do so. The evidence that was used to help to convict that individual was based on biometrics taken from a number of improvised explosive devices in Afghanistan four or five years ago. In fact, he subsequently admitted that he had taken part in the manufacture of 300 IEDs in Afghanistan.
Those biometrics were taken from a schedule 7 stop and retained, and the consequence was that he was convicted. If we had not been able to hold some of those biometric data for longer than two or maybe three years, I am not sure that that individual would have been convicted last week. We should reflect on the fact that not only was that individual seriously dangerous, he was probably on his way to attack people around this building, Downing Street and Whitehall, right in the heart of our democracy and what we hold so dear.
Like it or not, DNA is a successful part of the process. It is often what we need to convict people. Terrorist offences are often highly complex—there are huge amounts of encryption. The ability for us to use communications alone to prosecute people is getting harder and harder. Forensics are very often the key, and DNA forensics are incredibly important.
Nic Dakin (Scunthorpe) (Lab)
If that individual was convicted and arrested under the current legislative framework, why do we need this further change?
Mr Wallace
First, if his DNA had been taken under a schedule 7 stop longer than three years ago, it would not have been available. Secondly, we were fortunate that the United States had taken the DNA swabs in Afghanistan because it had a longer retention policy and was therefore available for us to exchange.
Nic Dakin
Going back to the evidence from Richard Atkinson, he said,
“any extension of time periods needs to be justified by objective evidence.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 32, Q76.]
Is the Minister saying that there is further objective evidence to support his argument?
Mr Wallace
The point is that if it is okay to hold it for three years—I did not get an answer from Liberty about whether it believed in holding any data—I do not see the justification for why it cannot be five years. If in principle retention of data is acceptable to people when someone is arrested for a terrorist offence but not charged or convicted, surely if three years are okay, why not four, and if four, why not five? Five years give us that extra time and some of these investigations take a lot of time.
I also refer the hon. Gentleman to the key quote by Paul Wiles, the Biometrics Commissioner. As I said on Second Reading, we have included lots of recommendations from the independent reviewers. The hon. Member for Paisley and Renfrewshire North himself says we should listen to the commissioner and the independent reviewers. The Biometrics Commissioner said in his annual report 2017: “NSDs”—that is when a police chief decides under the national security determination that biometric data of an individual is required—
“are being reviewed at two yearly intervals as Parliament intended. For some NSD cases…my judgment”—
not ours—
“is that the evidence/intelligence against the relevant individuals is such that they could be granted for longer than two years.”
The Biometrics Commissioner is recommending extending the two or three years, not shutting it down to one year or whatever. We have listened to that and we have looked at our intelligence case load. We know there are people in Syria right now and we do not know when they are coming back. We would like to have the provision of potentially being able to match them to a crime. The first main flush of people going to fight for Daesh was in 2014. We do not know how long they may be out there. They do not come back in bus loads, they come back in trickles, and this mechanism is an important tool for us. I am afraid that the amendments would prevent us from doing that and the Government cannot support them. For that reason, I ask the hon. Gentleman to withdraw his amendment.
Nic Dakin
The Minister is making a strong case for extending the period. It is not clear why it is five years, rather than, as he says, six years, four years or three years. He also recognises that it should be a limited period and that the time should run out at some point, which is welcome. Will he deal with the issue of retaining biometrics from people who have not been charged or found guilty of committing any offence?
Mr Wallace
TACT—Terrorism Act 2000—offenders’ data can be retained if a national security determination is made by a police chief irrespective of whether or not they have been convicted. If someone is convicted of any offence—certainly a serious offence or terrorist offence; I will seek guidance as to whether this applies to a minor offence—their DNA data can be detained for a much longer period, if not indefinitely. This mainly concerns people who have been arrested but not convicted. That is why this measure is important. It is specifically aimed at the more serious offences of terrorism. One of the other challenges in the law is that if someone is arrested under PACE, it may be for terrorism, but it might not be for a terrorist offence. What someone is arrested for defines the subsequent powers that we have. We would like to match that to allow a PACE arrest to lead into us retaining that data.
To give the hon. Member for Scunthorpe some reassurance, the Biometrics Commissioner will review this. If he feels next year or the year after that we are holding data for too long or for too little time, no doubt the Government of the day, as the hon. Member for Paisley and Renfrewshire North says, would be wise to listen to those recommendations, return to the House and do something about it. That is why we have these independent reviewers, tribunals or whatever they are making a judgment on us. Any responsible Government will listen to their advice.
Afzal Khan (Manchester, Gorton) (Lab)
Clearly there is an issue of trying to balance liberty and security. One of the points that the written evidence from Liberty pushes is that
“the retention of innocent people’s DNA has a disproportionate impact on people from BAME backgrounds. Estimates vary, but it has been projected that between a half and three-quarters of young black men have had their DNA stored on the DNA Database.”
What is the Minister’s view on this?
Mr Wallace
I would need to see whether Liberty means people convicted or people arrested but not convicted. If people are convicted of offences, it does not matter what their background is. They are convicted of an offence and their data is stored.
Mr Wallace
In the terrorist space, it would reflect the threat of the day. Undoubtedly, at the moment the single biggest threat to us going about our lives in the United Kingdom is from Daesh/al-Qaeda. There is our proscription of National Action and a growth in the number of people from the neo-Nazi far right. If we had had a DNA database in the ’80s, the vast amount of the DNA would probably have been from those of Irish descent linked to Irish nationalist and loyalist terrorism. I am afraid the database reflects the threat of the moment. Nearly all the terrorist operations I have ever seen are intelligence-led—they are not rustled up. It is a thoughtful, deliberate process. I do not think the database is indiscriminate or that it targets people based on their black and minority ethnic background. It is just a reflection of the threat we face at the moment, and I suspect that it will shift. In 10 years’ time, the hon. Gentleman and I might be standing here talking about another section of society. In the north-east of England, far-right referrals to Channel outstrip Islamist referrals. If that were to feed into the terrorist threat, in a few years’ time we may see a greater amount of DNA retained from white British people in the north-east.
Gavin Newlands
Despite the Minister praying in aid the Biometrics Commissioner, I still do not buy the Minister’s comments or the strength of his argument about these provisions. However, despite the outrageous description by the hon. Member for Torfaen of my amendment as a blunt instrument, I am conscious that the Labour Front Bench has tabled an amendment in the next group that retains the Biometric Commissioner’s oversight, although it also retains the five years. I will throw my support behind that amendment and for that reason I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Nick Thomas-Symonds
I beg to move amendment 33, in schedule 2, page 35, line 17, at end insert—
“21 (1) A person whose biometric data is retained under the provisions of this schedule may apply to the Commissioner for the Retention and Use of Biometric Material (‘the Commissioner’) for the destruction of that data when the conditions in sub-paragraph (2) are met.
(2) The conditions referred to in sub-paragraph (1) are—
(a) that the retention of the biometric data has not been previously authorised by the Commissioner or a court of law; and
(b) that the biometric data was taken from the person—
(i) in circumstances where the arrest or charging of the person was substantially due to a mistake, whether of identity, place or other material fact; or
(ii) the person was arrested but never charged for the relevant offence.
(3) On receiving an appeal under sub-paragraph (1), the Commissioner must seek representations from the chief officer of police in the area in which the biometric data was taken as to whether the data should be destroyed or not.
(4) The Commissioner must determine an appeal under sub-paragraph (1) within three months of receiving the appeal.”
Although I described the previous amendment as a blunt instrument, it was proposed in an effective way and was eloquently argued.
Nick Thomas-Symonds
I will try not to.
I will put the case for amendment 33, as I started to do in the last series of amendments. The amendment squarely aims at striking an appropriate balance between liberty and security. Two circumstances are highlighted. The first is when there has been a mistake, which can happen, such as a mistake involving identity, place or any material fact—or in the intelligence, which can also happen, as the security Minister would accept. The second circumstance is when a person has been arrested but not charged for the offence. My hon. Friend the Member for Manchester, Gorton referred to the impact on the BAME community, which fits precisely into that category—people who do not end up being charged with an offence.
The amendment states that an application can be made to the commissioner for the destruction of data when the conditions are met. On receiving the appeal, the commissioner must seek representations from the chief officer of police in the area from which the biometrics data was taken as to whether it should be destroyed or not. Even if there is an appeal by an individual to the commissioner, that additional sub-paragraph means that the chief officer of police can make representations, which seems to strike a balance between the two. The individual person has the right, but if there are background concerns, the chief officer of police can make those representations.
There would also be a period of three months in which to determine the appeal, which is a reasonable period for collecting the necessary data from the chief officer of police and for consideration. Of course, there will be circumstances in which appeals will be turned down on that basis, but none the less it provides a framework. If people’s data is being retained in circumstances where a mistake has been made or when they have not ultimately been convicted of an offence, they can appeal to have it taken away, but that safeguard of representations from the chief officer of police remains. In those circumstances, I commend the amendment as a reasonable way through what I accept is a difficult problem.
Mr Wallace
The amendment provides for a person whose fingerprints and DNA profiles are retained under a power amended by schedule 2 to apply to the Biometrics Commissioner for the data to be deleted, if the commissioner has not previously authorised its retention. The grounds on which data might be deleted are if the individual was arrested or charged as a result of a mistake, for example mistaken identity, or if they were arrested but not subsequently charged.
In so far as the amendment relates to cases of mistaken identity, I am happy to inform the hon. Member for Torfaen that existing legislation already directly addresses this issue, and in fact provides a stronger safeguard than he is proposing. Section 63D(2) of PACE states that biometric data must be deleted by the police without the individual needing to appeal if it was taken where
“the arrest was unlawful or based on mistaken identity.”
This aspect of his amendment is therefore unnecessary, although I wholly support the principle behind it.
In so far as the amendment relates to cases where the individual was arrested lawfully and no mistakes were made but they were not subsequently charged, similar ground was covered by previous amendments. One of these amendments would have removed from the Bill—in its entirety—measures providing for an automatic retention period following arrest under PACE on suspicion of terrorist offences. I have already set out why those measures are appropriate and necessary, and I am pleased that the Committee did not pursue those earlier amendments. For a similar reason, I cannot support this amendment.
I have already said that the Bill does not depart from the principle established by the Protection of Freedoms Act 2012 in that the biometric data of a person who has been arrested but not charged should no longer be retained indefinitely in most cases, as it used to be. In passing that legislation in 2012, Parliament rightly recognised that it is appropriate and in the public interest for biometric data to be retained for limited periods in certain circumstances in the absence of conviction. One such circumstance is where a person is arrested under the Terrorism Act 2000 on suspicion of being a terrorist but is not subsequently charged. Under current law, there is an automatic three-year retention period. Anything beyond this requires a national security determination to be made by the chief officer of police and approved by the Biometrics Commissioner. Schedule 2 makes equivalent provision for a case where the same person is arrested on suspicion of the same terrorist activity but under the general power of arrest in PACE. The flexibility to use either power of arrest—TACT or PACE—is open to the police and is a decision that will be taken based on operational considerations. It is a current gap that the same biometrics retention rules do not follow the two powers of arrest in terrorism cases despite the fact that there may otherwise be no material difference between the two cases. Schedule 2 attempts to close that gap.
I fully support the well-established principle that biometric data should be automatically deleted following a mistaken or unlawful arrest, but I cannot agree that we should overturn the equally well-established principle that there should be a limited period of automatic retention following a lawful and correct arrest on suspicion of terrorism. There are many reasons why a charge may ultimately not be brought in such circumstances. The individual might have been quite reasonably suspected and there might be extensive intelligence to indicate that they pose a very real threat, but if it is not possible to produce that intelligence in an open court, for example, or if it comes from intercept or from sensitive sources which we cannot put at risk then it cannot be used to support a prosecution.
Although the person will therefore be quite rightly treated as innocent as a matter of law, that does not mean that the police can simply wash their hands of them and take no further action to protect the public. It is right that there should be a limited, automatic period during which their fingerprints and DNA profile can be retained so that the police can identify their involvement in any further suspected terrorist activity. If there is no information to suggest that they pose a threat at the end of this limited period, then it will be neither necessary nor proportionate to seek a national security determination to authorise its ongoing retention, and the data will have to be deleted. This approach strikes the right balance. Although I appreciate the spirit of the hon. Gentleman’s amendment, it would shift that balance and raise a number of difficulties.
Given the limited automatic retention period in question and the need for both a chief officer of police and the Biometrics Commissioner to approve any further retention, it is not necessary to introduce an additional review of the case in advance of the one that would occur at three years. Existing safeguards ensure the proportionality. The Biometrics Commissioner has not raised a concern about them in the case of TACT arrests and they have not been found to infringe disproportionately on the rights of suspects. To add an additional review would place an unnecessary and disproportionate burden on both the police and the Biometrics Commissioner. A more fundamental issue is that it would be difficult to have a meaningful and transparent application process in which the reasons for decisions could be provided to applicants. The hon. Gentleman’s amendment does not specify the criteria by which the Biometrics Commissioner might consider an application from a terror suspect, but presumably it would be the same as the test for retaining the data under a national security determination: that it is necessary and proportionate to do so. The Biometrics Commissioner and his staff have the necessary security clearance to make such a consideration on the basis of all relevant information, including sensitive intelligence.
In cases of the kind I have alluded to, where intelligence clearly suggests that a person poses a risk but it cannot be adduced in open court to support a prosecution, that would prevent the individual from being informed of the reasons for any decision to reject their application. It would also prevent any judicial review of the rejection of their application from being heard in open court. To do so could compromise sensitive sources of information and could reveal the extent of intelligence coverage of the individual. The simple fact of a decision to retain or delete the data could reveal the existence or absence of a hitherto covert investigation into them, and could indicate the level of the police’s interest in their activities. Such information could clearly be valuable to an active terrorist, as it could allow them to disguise their activities and avoid intelligence coverage, or it could provide assurance that the authorities are not aware of their activities. That would simply not be in the public interest and would strike the wrong balance. It would make such an application scheme very difficult to operate in practice. For those reasons, I hope the hon. Gentleman will withdraw his amendment.
Nick Thomas-Symonds
I have three points to make in response. First, although I take on board the point about section 63 of the Police and Criminal Evidence Act 1984, having a personal right to appeal in the Bill is an important principle.
Secondly, on the balance between keeping intelligence confidential and revealing enough for there to be a meaningful process, that is covered by the chief officer of police being consulted and making representations. The balance between what can be said on paper and what cannot occurs right across the spectrum of terrorism offences.
Thirdly, the test that the commissioner would apply would obviously be the necessary and proportionate retention of data, which is very common. On that basis, I wish to press the amendment to a vote.
Question put, That the amendment be made.
Nick Thomas-Symonds
I beg to move amendment 31, in clause 18, page 19, line 14, at end insert—
“(8) After section 39 (Power to amend Chapter 2), insert—
‘39A Review of support for people vulnerable to being drawn into terrorism
(1) The Secretary of State must within 6 months of the passing of the Counter-Terrorism and Border Security Act 2018 make arrangements for an independent review and report on the Government strategy for supporting people vulnerable to being drawn into terrorism.
(2) The report and any recommendations of the review under subsection (1) must be laid before the House of Commons within 18 months of the passing of the Counter-Terrorism and Border Security Act 2018.
(3) The laying of the report and recommendations under subsection (2) must be accompanied by a statement by the Secretary of State responding to each recommendation made as part of the independent review.’”
This amendment presses for a statutory review of the Prevent programme. Let me make it clear that I have visited the Prevent programme. I am very grateful to the Minister for the way he facilitated my visit, and to the Home Office civil servants who accompanied me on that visit, where I saw some excellent work going on. I would not for a moment denigrate the work that is being done to divert people from a life of terrorism to a far more constructive life. That is absolutely to be praised.
However, it is part of good governance to regularly review whether policies are working as well as they should be. If improvements can be made on the basis of those reviews, they should be made. I would highlight two concerns around Prevent, both of which could be considered within the scope of that review.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
It is a pleasure to serve under your chairmanship. I speak to clause 18, in support of my hon. Friend the Member for Torfaen’s plea for an independent review of the programme. As he said so persuasively, it is doing some good work out there, and nobody is arguing against safeguarding. However, we have to accept that in its current guise and its earlier incarnation of preventing violent extremism, Prevent has been dogged by accusations of feeding mistrust and harbouring suspicion against certain communities, who feel disproportionately targeted by its impact. I am speaking mainly about Muslims, who may already be feeling jumpy in this post-Brexit climate of the rises we have seen in hate crime. We do not want to be unwittingly pushing them into the wrong arms.
Simon Hoare (North Dorset) (Con)
What would the hon. Lady say to the counter-accusation, if we can call it that, that some within a variety of communities sought to undermine the robustness and work of the programme, by making such allegations? They did so not because they had any particular axe to grind against Prevent; they were just trying to divert attention away from their activities to create distrust in the agenda. What does she say about that, given that a canon of evidence seems to be building, which demonstrates that as a fact?
Dr Huq
What I would say is that the hon. Gentleman needed to bear with me and hear what I was going to say as I developed my argument. I had barely finished my first sentence. If he bears with me, I will give examples of other communities, too—not just Muslims, of course. We do not want this to be a cover for people to do their illicit deeds. If he will bear with me, I would like to continue.
I would like to give two observations from the coalface to the Minister. Both the Minister and the shadow Minister go and see these projects all the time, I am sure. In the last week and a half, without my trying, I have come across two examples in our Prevent team at Ealing Council—the London borough of Ealing gets quite a lot of funding for this. The first example was the week before last. I had convened an interfaith meeting at our town hall. I go to a lot of civic services, because we have two synagogues, two mosques, loads of churches, Baha’is and all sorts of faith groups, and they all talk to me, but they do not talk to each other. My idea, therefore, was to bring them together in a room to see what sort of things they are doing—food banks and other services—but it is not a theological group. I had the Prevent officer there, but she was rounded on by some Muslims from one of our mosques, who said that Ealing council is getting a reputation for being Islamophobic. One group, MEND—it stands for Muslim Engagement and Development, and I have met some of its members in Parliament—had wanted to hold a meeting at the town hall, but had been banned by the Prevent team because red flags had been raised about it after a Channel 4 “Dispatches” documentary. I think the programme was called “Who Speaks for British Muslims?”
Banning the group was seen as an overreaction, because the programme was just a bit of shoddy and sensationalist journalism. There are always bad apples in any group—as in any political party, because we can be umbrellas for different interests—but people felt that it was a bit much to ban the group MEND, whose aim is to combat Islamophobia. People from MEND have been in this building, Portcullis House, to see me. They gave me a whole dossier, and were anticipating the attack, saying, “We’ve got a point-by-point rebuttal of the programme, which is coming out next week.” Again, that gave Prevent a bad name.
Sometimes these groups form an alphabet soup of acronyms, and some of them are a bit voguish and flavour of the month. The poor Prevent officer at my meeting had all these people saying, “Ealing council is Islamophobic”, and, although Channel and all the other bits deal with the far right and so on, perhaps Prevent falls disproportionately on Muslims. That is why a review is a good idea, and that is all my hon. Friend the Member for Torfaen is asking for—a sensible review to take stock and to see whether the strategy is working.
My second example is from this weekend when I was at the Somali Advice and Development Centre which was celebrating receiving a Queen’s award. This SADC group in my constituency, which actually operates borough-wide, channels people away not only from extremism but from criminal activities generally—at the weekend the group was talking about knife crime a lot. Again, the Prevent officer was at the celebration. A young Somali girl said to me, in hushed tones, that Prevent did not trust them at all, not as far as it could throw them. She even works for the local authority in another guise, so she is a public servant, but she mentioned another group, Cage—the one that deals with prisoners—and said that she would rather deal with it than Prevent any day. Cage dealt with Moazzam Begg. Again, the Prevent officer’s face dropped, saying, “No, that’s on our banned list.”
Mr Wallace
I have listened to and understand the hon. Lady’s case. Much of what she says is genuine, but before she goes down the Cage line, she is right that there are groups and groups. I do not want her to wander inadvertently into thinking that Cage is some small representative of prisoner groups. The leadership of Cage praised Jihadi John as an individual before a Committee of this House. If there is one group that seeks to undermine Prevent for the wrong reasons—there are people who oppose Prevent for perfectly valid reasons—it is Cage, which would take the view that it is anti-state. Cage wants nothing from the state, including Prevent. It is one of the groups, similar to some of the far-right groups, that would like us to have a less integrated society and less of a common-values platform. She is perfectly right to express other concerns, but she should be cautious about Cage. I would never say that I would rather deal with Cage than Prevent. It would be a slippery slope.
The Chair
Before I call the hon. Lady to resume her remarks, I remind the Committee that at the beginning of the sitting I said that if comments were wide ranging, we would not have a clause stand-part debate. Given that she is ranging quite widely from the wording of the amendment, I shall probably not have a separate clause stand part, so she should be mindful of that as she carries on with her remarks.
Dr Huq
I am grateful to the Minister for flagging up that one should be cagey about Cage. I have never encountered Cage directly, but am reporting verbatim what someone said to me. That is my point: if people feel they are being alienated, we do not want to radicalise them and drive them into the arms of the wrong people.
The Somali girl said she had undertaken training at the London borough of Hillingdon. She had been shown a video that said that the tell-tale signs for spotting that someone is becoming radicalised include going to a mosque and having a beard. She said that that covers most of the people she knows. Again, it may be that some of the training materials are a bit defective. She said that after her niece’s schoolteacher had been on training in Feltham in the London borough of Hounslow, the kid—a primary school child who sometimes wears a hijab and sometimes does not—was called in with her parents. Again, perhaps we should have a review of the materials that are being put out there. Her point was that the video would make anyone feel a bit mistrustful of Muslims, but would not have done the same for far-right activists. Although the video gave an example of far-right activism, it was not on a par.
The vast majority of referrals come through schools, and there are figures on that. Academic papers from the law department at Oxford—I went to Cambridge, so I intrinsically mistrust anything from Oxford—
Dr Huq
Sorry. The law department at Oxford said that referrals come through schools. Getting flagged by some over-enthusiastic teacher who has watched the shoddy training video can be a black mark against a schoolkid’s name forever.
The Somali girl said that everything was on condition of anonymity. She said, “I’ll talk to you, but I don’t want to be named.” She said, “It makes you scared to say anything ever.” People might have legitimate concerns, but what does it stretch to? If a kid has a Koran in the corner of their bedroom, or if there is a campus meeting to discuss Israel’s policies, could that be among the things to look out for in the Prevent video?
It is not just me saying that having a review of Prevent would be a good idea. David Anderson, the former independent reviewer, who has been mentioned by the Minister and the shadow Minister, called for a review and said that Muslims are being made to feel “under siege”. There is a sense that the net is being cast too wide. Salman Abedi, the Manchester bomber, was not caught, although people at Didsbury mosque reported that he was saying some dodgy things. Sometimes it is not catching people, and sometimes it is too wide.
Julia Lopez (Hornchurch and Upminster) (Con)
It is extremely dangerous in debates like this to talk about the Muslim community as if it has a single viewpoint.
Julia Lopez
I am sorry that I addressed the Chair. I apologise.
Prevent deals with extremely delicate issues, and it is about building trust in the community, so we cannot talk about the community as though it is singular. For instance, groups of mothers who are extremely worried about their children leaving for places such as Syria want to engage with Prevent. Saying that Prevent is divisive and breeding mistrust is misplaced and dangerous in the circumstances.
Dr Huq
I completely accept the hon. Lady’s point about the differences within Islam. There are many denominations; I would be the first to agree with that. I am sorry if I was giving that impression. That is what a review would bring out. She makes a good point and illustrates why we need a review. Our Prevent officer in Ealing pointed out that Rafał Ziemkiewicz—a Polish holocaust denier and anti-Semite, who wanted to come and speak in Ealing—was banned. I had a hand in having him banned from coming to speak in Acton.
I am not saying that this affects only one community, but the polling shows that there is mistrust, and some of the teaching materials are not good. The groups wax and wane. One minute the Muslim Council of Britain was Tony Blair’s favourite Muslim group, and the next minute it was cast into darkness, so sometimes these groups can feel a bit voguish. A review would be an eminently sensible idea.
Only this week, a review into bouncy castles was called for after the tragic death of a young child at the weekend, so reviews are never a bad thing. The Prevent strategy has been going for some time now, so it is time to take stock. Freedom of information requests from the Association of Chief Police Officers show that a disproportionally large number of referrals by teachers are for things that kids have done, which turn out to be nothing.
Thehon. Member for Belfast East (Gavin Robinson) flagged that Northern Ireland has not been dealt with. The Minister said that different groups have different threats, but we never know what is going on and it is good to remain vigilant. The Home Office’s wording is about hearts and minds. That should not mean kneejerk reactions, which this programme can be susceptible to. I agree with my hon. Friend that we need a review, because in some aspects of this programme we could do better.
Gavin Newlands
In supporting the intention of the amendment, I shall briefly set out the differences in the devolved Administrations’ implementation of the Prevent strategy.
The Prevent strategy is implemented in Scotland through Scottish public bodies. The delivery and implementation of Prevent in Scotland is overseen through Consent. There has always been a distinction between preventing terrorism, and community cohesion and integration. In Scotland, Prevent has been more closely aligned to the areas of policy that promote community safety, tackling crime and reducing violence.
Agencies in Scotland have defined terrorism on the basis of the rule of Scottish law. The delivery of Prevent in Scotland benefits from the positive relationships that the community has built through years of regular engagement. That is perhaps missing from its implementation in England and Wales. The Prevent strategy is not universally popular. The Educational Institute of Scotland, a teaching union, opposes it. However, it noted the difference in implementation, stating:
“Scottish councils have, by and large, not bought into the anti-Islam narrative that pervades Prevent in England.”
Given that, will the Minister, in acquiescing to the amendment of the hon. Member for Torfaen, as I feel sure he will, look at the implementation of Prevent in Scotland in any overall review of the Prevent strategy?
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
It is a pleasure to serve under your chairmanship, Mrs Main. I, too, support a review, but perhaps for slightly different reasons.
I have had a close working relationship with South Wales police for many years, and my experience of Prevent locally has been largely positive. Indeed, my interactions with South Wales police overall have been positive. I know that they take great care to engage with the relevant parts of communities, build the necessary personal relationships and focus on what they can do to prevent young people from being drawn into any form of terrorism or extremism—not just Islamist-related extremism, which is regularly referred to, but far-right and other types of extremism.
I am clear from speaking to colleagues in this place that experiences of Prevent vary widely up and down the country. I have no truck whatever with those who suggest that we should prevent Prevent—scrap the whole programme—or those who demonise it, because that does not reflect how it operates in many parts of the country, and scrapping it would be wholly counterproductive in dealing with the issues that we want to deal with.
Many members of my community—Muslims, Hindus, those of other religions and those of no religious faith—have concerns about extremism and terrorism, and want to deal with them. In fact, when I was first elected to this place just under six years ago, a local imam came to me to express serious concerns about what young Muslims in the community were viewing online—the sort of grooming that we discussed in previous sittings.
I take a slightly different approach from my hon. Friend the Member for Ealing Central and Acton. We should have nothing to do with organisations such as Cage—she did not suggest we should. I also have deep concerns about the organisation Muslim Engagement and Development, which I have raised directly with MEND representatives in my community. I have seen some of its positive work to tackle Islamophobia and raise awareness of issues affecting the Muslim community. However, like any other organisation, it does not speak for “the” Muslim community or any other sector of society. It is one organisation that puts forward a set of views and concerns. Sometimes those are positive, but sometimes I have significant concerns.
I have discussed those with my local police force and directly with the organisation. I believe in having a dialogue and understanding where the organisation is coming from, but I am not afraid to raise concerns about things that have been said. Cardiff featured in the Channel 4 documentary to which my hon. Friend referred. I was somewhat alarmed by its findings, although some parts of it may have been alarmist and created undue fear. We have to be cautious, frank and robust with such organisations.
I support a review, but because of a different set of reasons and concerns about the way Prevent is working. My major concern, which I have expressed to the Minister and his predecessors, is that at times Prevent is too focused on elites and community leaders, who are often self-appointed, and does not do enough to deal with grassroots organisations and individuals, particularly young people. That is my experience locally. At times there has been too much silo working. People meet under local authority structures and ways of working when we actually need complex, nuanced and deep relationships across the community to understand what is going on and the concerns that people have about Islamist extremism or far-right extremism, and to build the trust that can help prevent people from being drawn into such activity.
I do not think Prevent’s role in relation to far-right extremism is understood fully enough. I know about the work that is going on locally and the extent to which work is done with individuals who are drawn into far-right organisations, but there is a great deal of concern in some of the most diverse religious communities in my area, such as Grangetown, Butetown and the docks areas of Cardiff, where we have one of the oldest Muslim communities in the UK. We have six mosques and three Hindu temples—there are many different faiths and backgrounds—but unfortunately we have recently seen concerning examples of far-right extremism.
A few months ago, just before I was due to speak at an anti-racism march in Cardiff, neo-Nazi swastikas and slogans were posted all over the community on the route that many children take to school. The fantastic response by South Wales police and the council re-established trust and assurance in the community, but there is understandably concern about what the individuals who are drawn into such groups may do.
We have only to look at the individual who drove from Cardiff to attempt to kill many people in Finsbury Park, or of course at the tragic murder of our former colleague, Jo Cox, by a neo-Nazi who was inspired by far-right ideology, to understand why that is so crucial. However, the issue is not widely understood. Dealing with extremism and terrorism, whatever community or ideological background it comes from, is key to bringing confidence to all communities.
I note what the hon. Member for Paisley and Renfrewshire North, who represents the Scottish National party, said about the devolved Administrations. The Welsh Government play a crucial role as a partner, but that can create clunkiness in the system. I am sure the Minister accepts that UK Departments do not always deal as consistently with the devolved Administrations as we may want. I have had conversations about things that it was assumed were being done by the Ministry of Housing, Communities and Local Government with civil servants and officials who did not understand that those matters were dealt with on a practical level by the devolved Administrations in Scotland, Wales and Northern Ireland. I would therefore like assurances from the Minister about how the UK Government will work with the Welsh Government to ensure that these programmes work.
I support a review, so I support the amendment tabled by my hon. Friend the Member for Torfaen, but I do so for the reasons I have outlined rather than because I think we should not have such a programme or we should not attempt to stop people being drawn into extremism and terrorism.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
I wish to echo some of what my hon. Friend the Member for Cardiff South and Penarth said. I share some of the concerns of my hon. Friend the Member for Ealing Central and Acton about the materials, although I suspect some of them have been updated. If simply having a beard made one a suspect, Father Christmas would be in trouble—were he to exist.
As co-chair of the all-party group on counter-extremism and someone who represents a constituency that has been attacked, I recognise the benefits of Prevent. After last year’s attack at London Bridge and Borough market, I spoke to the five mosques in my constituency, which frankly wanted to open their doors. They wanted to know that their sons and daughters—in particular their sons—would not be targeted by those who seek to groom the innocent and turn them into people who seek to attack and undermine our way of life. They also wanted engagement, to counter the Islamophobia that grows when attacks occur. There is a role for Prevent in such situations. We should not forget that the attackers at London Bridge and Borough market chose to commit their atrocity at the very time when real Muslims were breaking fast. They were not Muslims, and it is not Islamophobic to try to prevent such men from committing atrocities.
There was community concern about the nature of the people targeted by groomers, for want of a better word—people with learning disabilities and mental health problems. Given the circumstances they live in, there is nervousness about providing information about such people. That is where communities need reassurance about the support that is available outwith the influence of those who seek to corrupt. That would be welcome, and that is what amendment 31 gets to. A review could help to build trust and demonstrate what the Government do to support those who are genuinely vulnerable in such circumstances. I therefore hope the Government welcome the amendment.
Afzal Khan
I will try to be brief. I echo much of what colleagues have said. I was involved with the 7/7 taskforce and served in the European Parliament as a vice-president of security and defence, so I know there are many aspects involved, but I urge the Minister seriously to consider a review.
People have different perspectives on Prevent, from feeling picked on to feeling under siege. Some talk about preventing Prevent. Others say it is toxic. At the heart of it, the trust of communities is key. Some mainstream groups have taken issue with Prevent—the Muslim Women’s Network UK is the largest to have done so. The Muslim Council of Britain, another large organisation with more than 500 affiliates, also thinks there needs to be a review.
The journey we have been on in the past 12 years or so has clearly had positive elements, and elements that we need to learn from to improve. A review would help us all. The emphasis on the far right, which has clearly become an aspect of Prevent in the past few years, is welcome.
If the Minister wants expansion, it is vital that there is sufficient funding both for training, so that we do not end up with prejudices pushing the agenda, and for local authorities. We have seen the cuts to local authorities in the past eight years—they will need sufficient resources to take the strategy forward.
Nic Dakin
It is a pleasure to serve under your chairmanship, Mrs Main. I appreciate the comments by my hon. Friends, who drew on rich experience. As my hon. Friend the Member for Bermondsey and Old Southwark said, there is a clear role for Prevent, which has done a lot of good work. However, as my hon. Friends the Members for Manchester, Gorton and for Ealing Central and Acton pointed out, there are areas where it does not command the trust of communities. It is therefore important that we have a proper review. As my hon. Friend the Member for Manchester, Gorton said, that would rebuild trust and strength, which would benefit everyone.
I go back to what Assistant Commissioner Basu said at our evidence session. The strongest piece of evidence I heard was when he said:
“The biggest problem we have in counter-terrorism, without a doubt, which is making this a generational challenge, is radicalisation.”—[Official Report, Counter-Terrorism and Border Security Bill Committee, 26 June 2018; c. 6, Q3.]
Mr Wallace
These Committees can be quite dry. We talk about, for example, “subsection (5), paragraphs (d) and (e)”. I am grateful to the Chair for her flexibility in merging the amendments with the stand part debate so that we can have a proper discussion about Prevent. Members of Bill Committees are often encouraged by the usual channels not to engage so much, and it is welcome that that has not been the case with the Bill. I am very keen that the Committee is about airing people’s policy initiatives, challenging the Government, helping to bring forward legislation that we all agree with and, I hope, doing the best job we can. That is what I have done in clause 3 and matters of public order.
I will let the Committee into a secret. The secret of Prevent is that we are always reviewing Prevent. It is a dynamic, evolving policy. It started under the former Labour Government, it has evolved and, as the hon. Member for Manchester, Gorton said, it has moved a long way. It has adapted to the threat. In many parts of the country, it has become about tackling far right extremism. It is a maturing but evolving policy that is always reviewed. That is what I see as a Minister working with all the stakeholders. Prevent has to adapt and move, but I do not believe that there is a requirement for an independent reviewer effectively to take a snapshot in time of it.
I say that because of a number of measures that have been taken in the last two years since I have been the Minister to try to build that confidence in Prevent. First, we published the figures. When I started as a Minister, no one published Prevent figures or discussed it. I have been very keen to do that in order to demonstrate that Prevent is—
The Chair
Order. I am sorry, but it is rather discourteous to the Minister to be passing round wine gums. [Interruption.] Order. I will call the Minister again and I hope those wine gums will have disappeared.
Mr Wallace
We need a Prevent strategy on wine gums. The importance of publishing the data is to indicate how Prevent fits into broader safeguarding, putting it into perspective and challenging a number of the myths. How it fits into broader safeguarding is in the simple numbers: 7,000 Prevent referrals a year, of which just over half are youths under the age of about 25, I think, compared with 621,000 safeguarding referrals every year from teachers, social workers and health clinicians when dealing with everything from sexual and domestic abuse to a wider range of other types of safeguarding. So it is not the mass spying exercise that some critics allege it is.
Dr Huq
Taking on board the point made by my hon. Friend the Member for Bermondsey and Old Southwark that those categories were stratified, taking account of some mental health issues, the Exeter Giraffe would-be nail bomber Nicky Reilly had quite serious Asperger’s syndrome. The inquest has not been done, but he has since died in Manchester prison. He was a convert, and that is something else that concerns me. The point has been made to me that a lot of these famous cases involve converts, including Richard Reid the shoe bomber; and Khalid Masood, who attacked us here in Westminster, was born Adrian. Converts and mental illness are an issue.
Mr Wallace
I would be happy to talk to the hon. Member for Ealing Central and Acton afterwards about the details of terrorists’ profiles rather than the Prevent element, but I would be ruled out of order if I wandered into that. The main issue about the Prevent duty was that within the numbers, we obviously see a significant number of young people. We see more people who are vulnerable, depending on the type of attack in which they are involved. To answer part of the point that the hon. Member for Ealing Central and Acton made, there is a higher number of significant mental health issues in lone wolves than there is in complex attack planners. Going back to the point about being vulnerable and radicalised and groomed in streaming: they may be loners, they may be on their own, and they may not have a wide friends network. We certainly see that.
The other reason I wanted to publish the data was to counter some of the myths, including the myth of there being a widespread spying operation. Clearly, Prevent is not that, if you compare it with the wider safeguarding of hundreds of thousands. Another part of the Prevent programme was to show that some of the myths peddled are the enemies of the myths themselves. They get repeated time and again, and people say, “Well there is a perception problem and we have to have a review” or, “There’s something wrong with it.”
Two of the big current myths doing the rounds are: “I live in a terraced house”, about a referral in Lancashire. It was not a Prevent referral; the statement was in fact, “I live in a terraced house and my uncle beats me”. It was a domestic abuse referral and it never went near a Prevent officer or a police officer, but you will hear the likes of CAGE peddle that every single week and month, as well as some people who do not want to check their facts. Another myth refers to a child in Bedford caught playing with a toy gun, the mother arrived and apparently there was a great Prevent operation. That was not a Prevent referral at all. One of the strongest myths—I am afraid the hon. Member for Ealing Central and Acton repeated it—is that the Prevent guidance issued by the Home Office includes things like someone going to a mosque and someone with a beard. That is categorically not part of the training package, and not part of the Home Office information at all. It is however part of the propaganda spouted by CAGE in reference to what Prevent is about.
The Chair
Order. This is way beyond the scope of the amendment, and even ranges way beyond the debate we said we would have. I will bring the Minister back to his comments and maybe he can respond to the hon. Member later.
Mr Wallace
It is important to talk about whether we need a review. I say that we do not need a review because a lot of the perception issues out there are peddled by myths rather than facts. When you start to examine the facts, you realise that there is an element of Chinese whispers. People go round and round in circles and everyone else is now in a space in which people are confirming facts that are not facts, and the myth is undermining the policy in itself. If you look at the core of where some of these myths come from, it is from the enemies of Prevent, not people with a genuine worry about Prevent.
Afzal Khan
The point I am trying to get across is that there are major organisations that are not buying it. I gave two examples to the Minister: the Muslim Council of Britain and 500-plus affiliate organisations across the country, and the Muslim Women’s Network, which is the largest organisation of its kind. What steps are you taking to make sure that they buy into this? We need that.
Mr Wallace
The first step was to publish the information, discuss it with whomever we liked and ensure the Prevent statistics are all out there. They show that a large number of referrals into the Channel programme came from the far right and that this is a safeguarding policy for the benefit of us all, whether Muslim, middle class, in a community or diaspora. We know that the way people are being radicalised and the groomers doing it have no worries about following traditional routes. They will go wherever they can to groom victims.
The important thing about publishing that is to show those communities, to ask the hon. Gentleman to say to the MCB or others, “Look, here are the statistics. Here is what Prevent is doing in the north-east of England to prevent the extreme right wing dividing our community. Here are the actual numbers.”
That is the first step. The second step is broader engagement. I met the hon. Member for Manchester, Gorton last week when he raised the issue of the MCB and others. I am open to examining some of the suggestions about how much we engage with many of those groups. I represent north Preston but, in a sense, I am not fussed where people come from; I am interested in where people are going.
There are some groups I am aware of—I have named CAGE—to which I do not want to give the credibility of a meeting, so that they can spout what they do. I know their agenda and it does not benefit the communities they say they represent. That is the way it is. There are other groups I would be happy to meet; I know some of them are taking strong steps. Going back to the Prevent review requirement, it is interesting that when many of those groups espouse their “Prevent”—what they would do—it is the same. It might not be called Prevent but it is the same; it is safeguarding.
I said the reason we do not review is because Prevent is always evolving; we are always reviewing it in a sense. There are measures in the Bill to broaden Prevent to include more input from local authorities. It is not just a police-led initiative. It would allow local authorities to be part of the process. We have to start the process by saying communities are often and strongly represented by their local authorities and the local authorities should be able to shape that.
That goes to the observation of several Opposition Members that Prevent is working in some parts though not so well in others. That is all about the characteristics of the community, how it has approached Prevent and its background. I find more settled Muslim communities much more engaged in Prevent than very new communities, which are worried about any kind of state because they have probably come from a state that oppressed them.
In Kirklees, Lancashire, where I was not long ago, they are very happy to be engaged. In Scotland, they have done some amazing stuff around broadening delivery of community safety. We should all learn from the knife crime work they have done in Glasgow. Budgets have been just as restricted and tough but they have managed to deliver successes. We want that to evolve.
I spoke to Andy Burnham not long ago. He is doing a review that is out soon on effective community cohesion and that impact. Appointing a reviewer of something that is moving and evolving, on a subject that is working the vast majority of the time, is not what is required at this moment. Yes, we should all do more work in separating the myth from the reality, for example, the myth I have heard that if someone has a beard they will be referred to Prevent. I believe if we do that we demonstrate the success: 500 people have come through Channel. People go into Channel when there are serious concerns about them and, out the other end of Channel, in two years, they are no longer of concern. That is 500 people who were a real threat to our safety and security on the streets. Those were not peripheral people but ones we had real concern about. It took one person to attack Westminster bridge; think of the impact that had.
I understand the position about having a review. I am delighted we no longer hear much, “Let’s get rid of the Prevent duty.” Some 12 months ago, that was the call from a lot of people; now we are talking about review.
Dr Huq
I am listening to what the Minister is saying about the statistical evidence to counter the myths and all that stuff. If he is dead set against an independent review, does he accept the point that if some of these Muslim groups felt they had a hand in the design, they would feel less that they were being picked on? The ones I have spoken to feel that there are a lot of converts who are all being tarred with the same brush, and it is not them.
Mr Wallace
I am open to the hon. Lady’s suggestion. In fact, where Prevent works best already, those communities do help. In parts of Birmingham there are some good examples where those communities have helped to shape Prevent with the local Prevent co-ordinator, and it has a really good impact. I am completely pragmatic about how we design Prevent below the national level of the Government and about how it is delivered. On the point made by other colleagues about funding, I understand the pressure on funding. That is why the pilots we are looking at have a multi-agency approach, which again will broaden it out. The Home Office will fund those three pilots centrally, so it is not a pressure on the local authority.
A review of Prevent is not necessary. There are a lot of other things to do with Prevent, to improve it and evolve it, but I do not think that reviewing it is right. There are a lot of statutory bodies already out there. The lead Commissioner for Countering Extremism could, I am sure, do a review if she wants to: she is the lead Commissioner for Countering Extremism. There are independent commissioners out there who can look at these things from outside. Andy Burnham is undertaking a strong review.
Afzal Khan
First, the Minister uses the figure of 500, which we welcome, if we have been able to achieve that, but that figure of 500 is from over 9,000. If we look at the ratio, it is 1:18. Does he not want to see more improvement than that? Secondly, what is the loss if we have a proper review?
Mr Wallace
My rebuttal to that would be: what is the gain? What would the reviewer do? Yes, we can be more accurate; we can reduce from 7,000 referrals to fewer, but what is interesting is that in the two years of the published figures we see exactly that. Prevent is evolving; we are seeing better reporting and we are seeing the sections of society that are and are not reporting. We see exactly the same proportions that we see in wider safeguarding referrals. In Prevent, 30% of the 7,000 need other safeguarding. They do not need to go to Prevent for terrorism purposes, but they go into other safeguarding for domestic abuse or something else. That is exactly the same percentage as we see in the wider safeguarding. If Prevent is the entrance to getting my children better safeguarding, I am happy with that. If somebody is taking an interest in behaviour or actions being inflicted on a child or vulnerable person, I do not mind whether the person who spots it is a Prevent officer or a safeguarding officer; we just want it to be dealt with.
The hon. Gentleman is right that these figures allude to Prevent’s accuracy, but they also allude to its success, in my book. That is the first start point. A review that is frozen in time is not necessary when Prevent is starting to have real success. The Government think that people realise that it is for all of us and not just for the Muslim community. It is for all of us.
I will finish the point about the review by saying that I spoke recently to the headmaster of a pupil referral unit in one of the toughest parts of Lancashire. He had a 15-year-old boy who was referred for neo-Nazi, far-right extremism. The Prevent team came in and the boy is now in mainstream further education college, with a multi-ethnic group of friends, doing his higher-level qualifications. If hon. Members know anything about pupil referral units, they will know that very rarely do 15-year-olds move out of them. The headmaster said to me, “Give me Prevent every time; I wish I had it for the broader spectrum of troubled people.”
I am afraid I cannot agree with the Opposition that we need a review. I am happy to engage, to sell the policy more and to correct the perceptions, but I think a statutory review in the primary legislation is unnecessary.
Nick Thomas-Symonds
I have three brief points. First, the Minister talked about myths. An independent review would assist in debunking those myths. Secondly, that a policy is evolving is not an argument against a review—otherwise, hardly any Government policies could actually be reviewed. Thirdly, the Minister said that the policy is being internally reviewed in any event. Why not give those reviews independent status and the weight that would come from that? I will press my amendment to a vote.
Nick Thomas-Symonds
I beg to move amendment 32, in clause 18, page 19, line 14, at end insert—
“(8) Within 6 months of the passing of this Act, the Secretary of State must conduct a review to establish whether local authorities have sufficient resources and expertise to effectively carry out their duties in supporting people vulnerable to being drawn into terrorism.
(9) Within 12 months of the passing of this Act, the Secretary of State must lay the results of the review under subsection (8) before the House of Commons.”.
The Chair
We have had extremely wide-ranging debates, so I shall be quite firm in keeping this debate close to the wording of the amendment.
Nick Thomas-Symonds
You will be pleased to hear that this relates to a very narrow point, Mrs Main. The change made by the Bill to how the current programme relates to local authorities is very narrow: it will give them the ability to refer directly to the Channel programme without the necessity of going through the police. That is one of a number of measures simultaneously going on regarding local councils.
Without going off-point, I should briefly mention that data will be shared with local authorities, which is something that was separately announced by the Government. It is in that context that I put the amendment forward. I just want to raise a number of concerns, and I hope the Minister will be able to offer some reassurance.
The first regards the whole idea of data security for local authorities. I appreciate that, through safeguarding, local authorities already possess sensitive data—on childcare cases and matters like that, for example— but this is clearly data of a different category, and keeping it secure will be important on a number of levels. Secondly, will local authorities be appropriately trained to deal with this data when it is passed on to them?
My third point, which goes to the heart of my amendment, regards resources. I appreciate that the Minister does not yet run the Treasury and so is not in a position to simply hand out money, as it were—it is only a matter of time, I am sure. However, related to the whole debate on Prevent and the wider aspect of community cohesion is that there is no doubt that cuts to local councils have meant that childcare services and youth services have been substantially reduced. If we are to expect local authorities to do more on our counter-terror agenda, I suggest that they should have the resources to do so. It is on those points that I seek reassurance from the Minister.
Mr Wallace
The amendment would require the Home Secretary to review whether local authorities have sufficient resource and expertise to carry out their duties relating to Prevent. In responding, I will say a little about the work of the Channel programme, on which the Home Office works closely with local authorities to support individuals vulnerable to terrorism, before turning to local authorities’ wider work in carrying out the Prevent duty.
A Channel panel is chaired by the local authority and works with multi-agency partners collectively to assess the risk of an individual being drawn into terrorism and to decide whether an intervention is necessary. The police are a key partner in this process and currently provide dedicated resources to administer and manage it.
If a Channel intervention is required, the panel works with local partners to develop an appropriate, tailored support package. Any specialist ideological interventions are directly funded by the Home Office and have no resource implications for the local authority. The support package is monitored closely and reviewed regularly by the Channel panel. The current arrangements are that the work of Channel panels is resourced from existing local authority budgets, which is in line with other safeguarding programmes.
Project Dovetail is a pilot currently under way through which the Home Office directly funds posts that support the Channel panel process within local authorities and removes some of the case management functions from the police. This frees the police to concentrate on issues where their unique skills, powers and expertise are best used and brings Channel into greater alignment with other safeguarding processes in local authorities. As the Home Office is directly funding the additional posts, that should come at no additional cost to local authorities. The resource requirements will be carefully monitored to ensure they are adequate before rolling out the project any further.
This pilot has been key to identifying the need to make the change provided for in clause 18 and enable local authorities, as well as the police, to make the formal referral of an individual to a Channel panel once the initial assessment phase has concluded that there are genuine vulnerabilities the panel needs to discuss.
Prevent is implemented in a proportionate manner that takes into account the level of risk in any given area or institution. We recognise the fundamental importance of working in partnership with a range of partners, including local authorities, to reduce the risk of radicalisation in communities and to support vulnerable individuals. That is why we supported 181 community-based projects in 2017-18, reaching over 88,000 participants.
We have supported the roll-out of the Prevent duty—set out in section 29 of the Counter-Terrorism and Security Act 2015—with guidance for each sector and a dedicated package of training for frontline staff in the NHS, universities and schools, and local authorities. Since 2011, Prevent training has been completed more than 1.1 million times. The delivery of Prevent is led locally and driven by analysis of the threat in communities. Local authorities are among the most vital partners in our network. The Prevent duty requires local authorities to establish or make use of existing multi-agency groups to assess the local picture, co-ordinate activity and put in place arrangements to monitor the impact of safeguarding work.
In priority areas, where the risk of radicalisation is assessed as being the highest, Prevent co-ordinators employed by local authorities—again, funded by the Home Office—build partnerships in communities, oversee the delivery of local action plans to respond to the risk of radicalisation, and work with partners to embed safeguarding activity in statutory services, including social care, health and education.
The threat from terrorism is shifting, and there are increasing concerns about the far right. We have seen local authorities rise to the challenge in order to tackle this threat. As I set out in response to the previous amendment, over 500 individuals have received Channel support since April 2015—that is 500 fewer potential people of danger on our streets. To my mind, that demonstrates the success local authorities have had in delivering Prevent and Channel—we should remember that local authorities chair the Channel panel, not the police—and shows they have the resources and training to deliver this effectively.
I thank the hon. Member for Torfaen for his amendment. I share his concern for protecting people who are vulnerable to terrorism and at risk of being drawn into violent and divisive ideology. I trust that I have been able to show that, as it stands, local authorities are able to fulfil this vital safeguarding role effectively with funding provided by the Home Office and that we keep the provision of that funding under close scrutiny to ensure that it is adequate to the task. Given that, I ask him to withdraw his amendment.
Nick Thomas-Symonds
While I appreciate the Minister’s reassurances, we will continue to hold the Government to account in other arenas on resourcing local authorities. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 ordered to stand part of the Bill.
The Chair
We now come to clause 19. Four amendments were deemed to be sufficiently varied to be addressed separately. I ask hon. Members to speak to each amendment in turn, and each amendment in turn will then be voted on.
Neil Coyle
I beg to move amendment 45, in clause 19, page 19, line 20, leave out paragraph (b) and insert—
“(c) the use of a motor vehicle during acts of terrorism; and
(d) any loss which falls within subsection (1A).””
This amendment would ensure that personal injury sustained as a result of the use of a motor vehicle during acts of terrorism would be covered by terrorism reinsurance arrangements.
It is a pleasure to serve with you in the Chair, Mrs Main. The explanatory notes speak for themselves: the amendment would cover vehicles used in acts of terrorism. I will speak to several amendments to the clause, and I should explain at the outset that this is almost wholly driven by the experience of all those people and businesses affected by the London Bridge and Borough market terror attack in my constituency on 3 June last year, which saw eight innocent civilians murdered in a brief but brutal assault on a vibrant, positive and dynamic part of our capital and my community.
The cowards who chose this area knew that it would be full of people of all ages enjoying an evening out. They knew it played host to tourists from all over the world celebrating everything that London has to offer in terms of food and drink. Its impact was universal, and I will say more about the outcome, because despite their vile intentions, we have seen a new togetherness and a new sense of community. I will speak about that later as I bring forward further amendments.
I would, of course, like to say much more about the attack and its aftermath, but for now I will make just two additional points linked to the amendment. First, I would like to thank the police and emergency services again for their truly heroic efforts that evening. The swift action of paramedics meant that many lives were saved, including those of the people who were hit by the vehicle on the bridge and those who were attacked with knives in and around the market. Those who ran trauma centres deserve huge praise in particular.
The swift and even more heroic action of police officers deserves mention too. They ended the attack before more innocent lives could be taken, with officers taking huge risks, and some interventions resulting in life-changing injuries for those involved. I mention just one: PC Wayne Marques was very badly affected, and I thank Southwark cathedral for acknowledging his efforts in a very novel way. He is believed to be the first living model for a corbel for the cathedral, which was unveiled at the commemorative service last month. If anyone would like to know what a corbel is, they are more than welcome to visit. I am no architect; a real amateur would call it something akin to a gargoyle, but that is very much not what it is—it is a supporting structure.
When I was first elected in 2015, I was warned by security officers that my constituency was more likely to be attacked by terrorists because of its location, attractions such as the Shard, the Globe theatre and the Tate, and the six million tourists who visit, and because of the potential global impact. Sadly, there is also the potential to grow an attacker—to have someone living or brought up in our area who attacks or tries to attack others. Sadly, both those things have to come to pass in just three years.
Thankfully, a potential attacker was thwarted by his own ineptness in attempting to target commuters on the Jubilee line, and he is now in prison thanks to the police and security services. The horrific events of June 2017 were an even greater shock, but they also revealed weaknesses about how we respond as a country and how we try to protect people and businesses in the event of attacks involving vehicles and knives.
I will outline some of those weaknesses as we scrutinise clause 19, starting with motor vehicle use in attacks. This is a probing amendment, as I have made clear from the outset. I am aware of cross-party interest and conversations on this matter, and I understand that the hon. Member for North Dorset had a meeting on this issue this morning.
It may surprise some Members to note that the Government-backed pool reinsurance system has existed since 1993, and is designed specifically to cover acts of terror—those incidents causing significant damage to our country, people and physical infrastructure. Since 3 June 2017, I have been amazed at how its presence and potential to support those affected by terrorism has been somewhat muted by the Government and the Treasury in particular. Instead of adapting it and ensuring swift access to help in the event of an act of terror, the Treasury has squirreled it away and designed new and more complex systems to compensate individual victims or groups of businesses affected by terrorism.
There are so many different pools of support, depending on whether someone is hit by a vehicle, stabbed or targeted with explosive devices, and each has different levels of support and ease of access. Nobody can or should be expected to know all of them in advance of an attack affecting them. That is the case with motor insurance.
I should thank all those involved in the sector for their advice and briefings since last June for the various meetings and events I have held or participated in—the British Vehicle Rental & Leasing Association and Thrifty are just the latest two.
Sadly, rental vehicles have become a choice of weapon, and the sector is very worried about what is happening as a result. Twenty-three thousand businesses are involved in renting vehicles, with 5 million vehicles on UK roads covering 3 million jobs and providing an estimated £150 billion to our economy. It is a significant sector and one that we should ensure is not harmed by terrorist aims or actions. The amendment and the Bill offer that chance.
The sector is taking action, including better screening of people seeking to hire vehicles. Members of the sector are making strides, but they were very disappointed not to receive replies to correspondence with the Treasury in April that outlined their concerns. I hope the Minister will nudge his colleagues in the Treasury for a reply, albeit a delayed one. No nod is forthcoming, but I hope that will happen.
We cannot pretend that the sector can resolve this alone. With the best will and policies in the world, it would not be able to deter the most hard-minded terrorists. Even if the private rental sector could stop all hiring of vehicles for this purpose, the second-hand sector might become the sector of choice for those seeking vehicles, so it is important to ensure that the market works for the private rental sector and that the terrorists do not win by changing how we work or the availability or cost of rental vehicles.
Signs of failure are already emerging. On opening for bids to reinsure its fleet, one major car rental company, which wishes to remain anonymous, found that two insurers immediately withdrew from offering cover specifically because of
“concerns regarding potential terrorism exclusions on reinsurance treaties”.
A further insurer offered only part-cover with a significantly raised self-funded retention figure. Those risks are there.
There are several reasons for the withdrawal of former help and for the changes. Rental operators are required to have motor insurance and cannot trade without it. When a vehicle is used for terror, the company that rented it out has unlimited risk liability. That is new—it has been the case only since a judicial review in 2017. Before that, the criminal injuries board paid compensation, although it was not unlimited. The CIB still covers attacks not using vehicles, and the limit is £500,000. Those changes—the rise in the threat and the forms of attack that have taken place on Westminster bridge, at Finsbury Park and in my constituency—are causing great fears. This is a global phenomenon. When a truck was used in Nice in July 2016, the collective damages were more than £500 million. The sector is very anxious. There are threats to withdraw cover from 2019 without urgent action. Small and medium-sized enterprises in the sector will be affected to an even greater and swifter degree from as early as next year, but the amendment potentially offers a solution.
A more agile Treasury might think to use Pool Re as a permanent rule, as supported by Zurich in its letter to the Committee, in which it flagged up
“building a new model to fund a uniform compensation mechanism; and devising a holistic approach for compensating and rehabilitating victims of terrorism.”
Pool Re exists for that very purpose and since 1993 has paid out about £630 million in relation to, I believe, 13 incidents. Instead of taking that approach, the Government appear to be inventing new and different compensation schemes to cover different kinds of losses. It is an out-of-date system and should be overhauled. Pool Re is the obvious model to offer more universal protection. In Australia and Austria, it is the norm. In France, Spain and Italy, insurers are also mandated to pay into a Government-backed scheme, akin to Pool Re.
Given the points I have made, hon. Members may wonder why this is a probing amendment. That is because there is another means of addressing some of the concerns. The Motor Insurers’ Bureau is the sector overseer, for want of a better term. Every insurer underwriting compulsory motor insurance is obliged by virtue of the Road Traffic Act 1988 to be a member of the MIB and to contribute to its funding. The MIB consulted its members on their views about mutualising risk from injuries resulting from acts of terror, and a vote is under way on adopting proposed changes. If the MIB vote fails to address insurers’ concerns, market failure beckons and a Government-backed approach may be the only option. An indication from the Minister of the Government’s thinking and plans for action in the event of that failure would be very welcome and could reassure many of the businesses affected.
The Minister’s views would also be welcome. Even in the event of that vote passing, the Treasury will be asked to convene the sector—the British Vehicle Rental and Leasing Association, Road Haulage Association and Freight Transport Association—to work on a new system that does not overload businesses and industry. Whatever the outcome of the vote, the Government will have a role in shaping what comes next.
Timing is crucial. By the time the Bill reaches its next stages and the House of Lords, we will have the outcome of the vote, and preliminary discussions involving the Treasury and the sector will have occurred. The amendment may not be needed a few months down the line, hence its probing nature. However, in the event of vote loss or discussions calling for greater Government involvement, the Pool Re model is on the table through this amendment and discussions now. I look forward to hearing the Minister’s reply.
Simon Hoare
I do not wish to detain the Committee for long, not least because all the copious notes I took from the meeting that the hon. Gentleman alluded to seemed to go missing in the lunch recess. Perhaps we should be more concerned about our security and counter-terrorism than anything else.
I want to support the probing nature of what the hon. Gentleman just said. The licensed vehicle fleet is very large and represents a significant percentage of new car sales in the UK. We know full well the huge importance that the automotive sector has for our UK economy.
It is also an important part of our UK tourism sector. Lots of people live in our big towns and cities because there is good transport and they do not require to run a motorcar. However, they want to go on holiday in the United Kingdom with their kit, their kids and everything else, so they hire a car. We also want to ensure that foreign tourists who are here on a UK-only destination or as part of a wider European tour have access to a vehicle.
As we know, insurance is a pivotal measure that vehicle rental companies must have. The hon. Member for Bermondsey and Old Southwark alluded to the huge problems that that can create when trying to find insurance. That seems to be a difficulty not just for the larger players in the sector but smaller business. Businesses large and small create a significant number of jobs.
The hon. Gentleman referred to the ongoing consultation on the vote. One hopes that that will address the issue. As the Bill progresses towards Report and processes in the other place, I urge my right hon. Friend the Minister that it is a timely trigger for a more intragovernmental conversation about how our mature and well respected insurance sector considers altering its products and remit, and how it looks at requests for insurance in sectors that are prone to claims, which are themselves hard to define. Vehicles would obviously be one of those. There seems to be a time lag between the mindset of the insurance sector and what today’s modern business requires.
A constituent is having to claim on his domestic insurance for loss of possessions as an indirect result of terrorist activity. His insurer has told him, “Terribly sorry; you are not covered.” Lots of other sections, be it Government, police, security and so on, have had to recalibrate a lot of what they do in order to face these new challenges. That is what we are trying to do in the Bill. There is a time lag in some elements of the insurance sector, so I support the hon. Gentleman.
The Chair
Order. Before I call the hon. Lady, I was about to make the hon. Gentleman come back to motor vehicle acts of terrorism. I would rather that did not involve wider discussions of insurance. If it is not on a wider discussion of insurance, I call Rupa Huq.
Simon Hoare
I was drawing my remarks to a close. I am not going to speak to all of the amendments, conscious of your injunction, Mrs Main.
Neil Coyle
It is not just a time lag, although that is part of the problem. The insurance sector takes the same approach as the one that led to Pool Re, being conscious of the fact that the cost they could incur are much higher as a result of the judicial review last year.
Simon Hoare
The hon. Gentleman makes an apposite and valid point. My right hon. Friend the Minister will have heard it. I concur with it. I will not rise to speak in support of the probing nature of the hon. Gentleman’s other amendments, but I hope my right hon. Friend the Minister has taken the point about the need to talk to the Treasury and others responsible for City and insurance matters to ensure that we have a sector fit for purpose to both meet the security challenges and also—I see Clerks waving their hands as if I am saying something completely outrageous; I am not sure why. The Minister has heard what we have had to say.
Mr Wallace
I am very sympathetic to the aims of the amendment, and the clear issue that people who are going about their business not thinking about terrorism become victims. They run small businesses, and then without much ado they go through the terrible attack that we saw on London Bridge. Visiting people was amazing, and I pay tribute to the courage and bravery of the constituents of the hon. Member for Bermondsey and Old Southwark. When individuals cut across the bridge and ran into people, the first thing the public did was run to help. The best of humanity came out that night, and also some of the worst. Not content with murdering people who came to help, the terrorists then embarked on an attack in Borough market, and we saw unarmed people challenging them and doing their best to make sure that they were not allowed to go any further. Then the police came and took very strong action.
I understand what the amendment tabled by the hon. Member for Bermondsey and Old Southwark seeks to do, but I have to point out the difference between Pool Re and other insurance companies. Pool Re effectively insures insurers. It is not a customer-facing organisation where we make a claim against it. Individuals make a claim to an insurance company and that company goes to Pool Re, and under certain conditions the claim is paid out. The hon. Gentleman’s amendment would slightly change that relationship.
The amendment also does something that has been alluded to by Opposition Members. Our difference of opinion is about timing. The MIB, the Motor Insurance Bureau, is having a vote as we speak—a postal vote. Can we, as a Government, say to them, “Don’t worry, we’ll step in. Don’t worry about mutualising your risk”? That is ultimately where most countries solve that problem. It is where many other issues around niche insurance—it is pretty niche—is dealt with. The insurance industry mutually insures the risk out of its profits. I am often slightly frustrated by the insurance companies, but we should not forget that the risk of being involved in terrorism is tiny. I have raised this before. One by one, travel insurance companies have dropped covering counter-terrorism. The risk of it is very small and therefore the impact of standard cover for terrorism on profits will be minimal.
Neil Coyle
I appreciate that the risk to the individual of being involved in an attack is minimal, but we have been here before. The reason for Pool’s existence is the astronomical costs to insurers, as we saw in the case of the Provisional IRA attacks in the early ‘90s targeting physical infrastructure and not individuals. There were huge costs that the insurance market said it could not be expected to cover. That is why Pool exists. We are seeing a similar position emerge in motor insurance potentially, and the Minster is taking a slightly complacent attitude to that. If we saw—I very much hope we do not—a Nice-style large vehicle attack on civilians, those costs would be there and the insurance market would collapse.
Mr Wallace
That is why our preference is for those companies to mutualise their risk through their profits. As I said earlier, our challenge is perhaps a difference of opinion on timing. The MIB is having this vote, and if the Government were right now to indicate, “Don’t worry, we will take it out of Pool Re,” those insurance companies would feel less compelled to vote to mutualise that risk, not more. The Government will, for now, maintain the view that we step in when something is uninsurable and at the extreme of market failure. I do not think that now is the moment to indicate that somehow the MIB can pass it on to the system.
The hon. Gentleman refers to catastrophic losses and scale. Pool Re already covers that large pool of loss, to some extent. I would be interested to see the insurers’ calculations of the actuarial risk, if we extended it to personal injury through motor vehicle. Whether we like it or not, the catastrophic costs of the big IRA bombs, for example, were because of the scale of the truck bombs, which led to the sealing off of large parts of city centres of high retail value and high-expense property. That cost is extreme. He talks about Nice, but the current indication is that that scale of threat to people and personal injury is still very rare. The Government’s position is, therefore, that we would like the industry to mutualise that risk.
At the same time—this is good news—we are moving in the Bill to ensure that loss of business is covered by Pool Re. When areas are shut down, we think Pool Re has a role to play in that, and not enough has been done by the insurance companies. Perhaps it is a matter of timing that divides us, rather than what we both want to achieve. I will get on to timing at a later amendment. I am slightly thrown, because I think the timings have changed for the Committee.
Paul Maynard (Blackpool North and Cleveleys) (Con)
If the Minister wishes to move to adjourn, he is more than welcome to.
Mr Wallace
I hear hon. Members’ concerns, but for that reason, and to see where we get to with the MIB and its vote, I ask that the hon. Member for Bermondsey and Old Southwark does not press his amendment. We will explore what more can be done. I understand the concerns, especially about vehicles being used as weapons. I believe that our insurance companies, which are on the frontline in their relationship with customers, should deal with this risk. The Government should step in only if those companies fundamentally fail to do so.
Neil Coyle
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Neil Coyle
I beg to move amendment 11, in clause 19, page 19, line 27, at end insert—
“(c) the acts of terrorism referred to in paragraph (b) occurred on or after 1 January 2017”.
This amendment would mean that the extension of terrorism reinsurance arrangements to losses that cannot be directly linked to physical damage would apply to those businesses that had financial losses due to terrorist acts occurring on or after 1 January 2017.
Key to this amendment is the backdating of extended coverage, which the Minister has just referred to, to 1 January last year, to cover business interruption rather than just physical damage. Speaking to each amendment separately gives me the chance to thank everyone involved, and I thank the Clerks for their advice and support. We should at least ensure that this amendment is watertight. I also thank the Borough Market Trust for its information and advice and the way it has held the community together with the support of United St Saviour’s in the past year, including by distributing donations to those most in need locally, in the absence of the coverage that this amendment is designed to achieve.
As I have mentioned, I never expected to be involved in terror insurance issues when I stood for election in 2015. Most of us assume we will never be affected by a terror attack. The Minister has just said there is a tiny chance of our being involved. Most of us also assume that the Government have systems in place to ensure that people and UK businesses are protected as far as possible from such events happening, and that if terrorists do get past, the efforts of our excellent security services and dedicated police support will be available.
We also assume that, whoever is in charge, the Government will act in our best interest and ensure there is adequate preparation for future attacks. Sadly that is untrue, given the nature of the attacks we now face, warnings about the types of attacks being witnessed, and inaction by the Government on having protection in place despite two and a half years of alerts about the changing nature of terror in the UK—the targeting of civilians with vehicles and knives. The attack at London Bridge and Borough market exposed the gap that has emerged, despite the Government’s awareness of the matter.
The example given on page 30 of the explanatory notes is Borough market:
“The extension of the terror threat to cover not only bomb attacks causing physical damage to commercial property but also the use of vehicles and knives targeting individuals has led to a gap developing in the cover that Pool Re offers. In the case of the June 2017 terrorist attack on Borough Market, there was limited physical damage…but traders lost business as a result of the week long closure of the market to enable the police to investigate the crime scene. As the losses incurred by Borough Market businesses were not consequential on physical damage to commercial property, any terrorism-related insurance backed by Pool Re and held by those businesses may not have covered such losses.”
So the Bill would extend coverage to provide better help to employers affected by future attacks, but it offers nothing to the 150 businesses in my constituency that were hit last year, despite the fact that the market is used as an example and justification for extending the new coverage. The amendment would helpfully backdate coverage so that the example given would also be covered by the Bill.
The 150 affected firms assumed they would have protection, because of that tiny chance. They also assumed that the language the Prime Minister used, saying that the terrorists would not win, meant that assistance would come to stop terrorists costing firms, jobs and our way of life in the area—and well beyond it, given the nature of Borough market’s suppliers across the country and internationally. We have had 13 months of ministerial visits and meetings, but nothing has been offered. My amendment is designed to change that and offer some of the affected firms extra help in the absence of Government direction or action.
The attack last year was over very quickly, thanks to police attendance, but eight minutes of attack led to a closure affecting the market and the area for 10 days. It affected 150 businesses and it cost £2 million. The consequences were colossal. In some cases there was physical damage. I have been through the accounts of some of the affected businesses. In that limited pool, which is a range of tourist attractions, traders and restaurants, physical damage was the smallest part of the damages. It included damage to doors, and the vehicle damage on the bridge. I have seen about £26,000 of damage in the accounts.
A second category was produce. The market is not just somewhere for people to pick up bits and bobs. There is tonnes of produce there, supplying the restaurant and hotel sector for miles around. Stock loss accounted for about £84,000 in the handful of accounts that I have seen. Staffing was another business interruption loss that could not have been predicted. People who witnessed the attack, or knew it had happened in their workplace, chose to leave. The recruitment costs for the employers accounted for about £86,000 in that limited sample. There were also income losses. Contracts to supply other firms and restaurants were lost, and so were bookings, including at the Golden Hinde. That amounted to about £400,000.
I read out some specific examples on Second Reading and will not go through them all, but a case in point is Turnips fruit and vegetable distributor, which lost almost £100,000. Aviva has not paid out despite repeated requests to reconsider. There are good and bad guys in the insurance world. The NFU came across well in its response to local businesses, although it did not cover all costs involved. I should add that some firms are still battling with insurers more than a year later. One small trader said “We keep trying” to secure payments; some had parts of claims paid. One tourist venue has a £40,000 shortfall, and is still seeking more. Some felt under pressure—both from insurers and because of business need and the impact of the attack—to accept what they were offered. One specialist alcohol producer and supplier stated that insurers had made an offer it was “obliged to accept”. The amendment could help to change that, ease the pressure and resolve outstanding issues.
I should add that others had extended terror insurance cover, including one tourist attraction and one restaurant with £200,000 of damages, which is now in dispute with its insurer over the full costs. The amendment would backdate coverage and act as an extra urge on both Pool and individual insurers to provide more flexibility and direct support.
Mr Wallace
I listened to the passion that the hon. Member for Bermondsey and Old Southwark has about his constituency. I have heard similar passion from my colleague the hon. Member for Manchester Central (Lucy Powell), who also argued for such things after the arena attack.
I understand the challenges that businesses—especially small businesses—have faced, but this is one of those moments where the Government have to say difficult things. Retrospectively changing the terms of insurance would go far wider than the hon. Gentleman’s constituents. If we put in law a retrospective date, the unfortunate consequence would be that we would all pay—not for the particular issue that he has raised, but by adding risk to the insurance market, which is obviously what insurance products are based on. Insurance would never know whether at any moment the Government of the day might change the risk and table an amendment to set the date back in time. If it was not 1 January 2017, it could be the bomb damage we have seen over decades. Where would we draw the line?
Neil Coyle
As the Minister suggests, we draw the line at 1 January 2017 to acknowledge the unique circumstances faced by people who experienced terror attacks in our country last year, and the unique failure of the Government to address a gap that they knew about in advance.
Mr Wallace
I dispute the hon. Gentleman’s view of our failure to address the gap. If someone is a victim of another terrorist attack—even one that happened five years ago—they would quite rightly see it as completely unjust that their event, their damage, their loss of business or their injury was not deemed important enough to make it into the deadline of 1 January 2017. I spent my early life in places that were bombed and blown up, and I spent my early career with victims of terrorism. When I meet them, even to this day, they hold that loss to them personally. To say to them, “Yours isn’t valid, but others are,” would be deeply unfair.
Neil Coyle
But with respect, the Bill specifically deals with Pool Reinsurance and the Government’s extension to cover business interruption. That is all we are dealing with and that is why 1 January 2017 makes sense, as the amendment proposes.
Mr Wallace
The Government’s proposal in the Bill is about the future. It is about recognising, because of the lessons learned from attacks such as Borough market and the Manchester Arena, that the type of attack we are seeing now is having a major impact on business continuity and that the terrorism insurance market does not cover that enough in some areas. That is why we are taking action.
I wish I could do something about the past, and about people who did not have insurance or whose insurance companies were unreasonable, but the principle of the Government retrospectively putting that type of legislation in place would, I am afraid, have a significant impact on the insurance markets. I do not mean on their profits; I mean on us, as customers, who would understandably feel the change in risk profile. There are lots of other examples of losses, which are perhaps not as tragic as terrorism, but for which the constituents of many hon. Members would seek to claim for retrospective loss. It is not that I disagree with trying to help the victims of terrorism. It is just a simple fact about how our insurance market and the private sector work.
The principle of retrospective legislation means that it will not be possible for us to accept the amendment, not least because it raises the question of who would go and talk to all who were victims of terrorism in 2015, 2010, 1998 or 1992, when I lost 30% of my sight—would I get retrospective insurance? I am afraid that that is just the way we try to frame our legislation. The Government do not seek to denigrate people’s experiences in Borough market by saying no, but we must accept the way the insurance market and risk work. We seek to deal with that by trying to head off the problem in the future, but we cannot do it retrospectively for the last year.
Where we can, and where there are requests for financial assistance, I am happy to listen to the hon. Gentleman and help him to champion that cause, if he feels that he has not got any money for Borough market from the Government. I did the same for the hon. Member for Manchester Central and for Andy Burnham to ensure that we got the money for Manchester in that bigger pot and that No. 10 understood the importance of it. I am happy to take that on board.
Neil Coyle
Again, that comes back to the point and purpose of Pool Reinsurance. We have the system and funding in Pool Reinsurance to cover that event and others like it. Why would the Minister suggest a new compensation, a new tax, a new use of public money, a new job for the Government and new civil servants when there is an existing system that the amendment would allow to help to cover?
Mr Wallace
Pool Re insures insurers. Because of the way in which Pool Re works, the amendment would effectively intervene in existing contracts made between insurers liable for additional risk, and customers. It is not customer-facing insurance; it is not a state version of Aviva or anyone else. That is one of our biggest challenges.
There are cases in which the Government seek to use grant money to help business rate relief. We gave money to Manchester, as I think we will to Salisbury, to help tourism, to help it get back on its feet and a whole load of other things. I think we gave Manchester £23 million to deal with that.
As the hon. Gentleman alluded to, some insurance companies have been quite helpful, but not all of them; some have paid out outside their remit. I agreed with him on Second Reading in hoping that Aviva would respond with flexibility. It has since written to me to say that, contrary to my comments, it had been flexible and paid out, even for people who did not have that part of terrorism insurance—although I do not think that affects people who did not have terrorism insurance. However, I should certainly put on the record that Aviva says it has been flexible.
The Government cannot retrospectively interfere in contracts between insurers and customers, which would be the amendment’s effect. I am afraid that is why we can only try to deal with this for the future. By doing so, we will hopefully make sure that future events like that at Borough market have a minimal impact on people and that the terrorists do not win. While I do not think it is likely, I urge the hon. Gentleman to withdraw his amendment. I hope he understands that this is not about motives, but simply about the structure of the insurance market and the Government’s relationship to retrospective legislation.
Neil Coyle
In the debate on the last amendment, the Minister seemed to say that insurers need to up their game. On this amendment, he says that insurers must resolve again, despite there being outstanding claims. My constituents will note the Government’s muteness about their ability to help and to step in, even through this very limited amendment.
I cannot say that I am happy to withdraw my amendment at this stage, but I am hopeful that the Government will reconsider it as the Bill progresses. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ordered, That further consideration be now adjourned. —(Paul Maynard.)
Counter-Terrorism and Border Security Bill (Sixth sitting)
Thursday 5th July 2018
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 5 July 2018 - (5 Jul 2018)
The Chair
Good morning, everyone. The selection list for today’s sitting is available in the Committee Room. The amendment paper printed for today’s sitting contains, in error, some amendments that we have already considered. Please turn to page 7, where we shall begin with amendment 26 to clause 19. Copies of the written evidence received by the Committee are also here.
Clause 19
Terrorism reinsurance
Neil Coyle (Bermondsey and Old Southwark) (Lab)
I beg to move amendment 26, in clause 19, page 19, line 27, at end insert—
“(4) Where an event occurs which the Secretary of State has grounds to believe may be an act of terrorism for the purposes of terrorism reinsurance, the Secretary of State must within three days of the event make a statement that—
(a) the event is or is not an act of terrorism for the purposes of terrorism reinsurance; or
(b) there is not yet enough evidence to make a statement under paragraph (a) and set a timeframe for when it is expected that such a statement is likely to be made.”
This amendment would require the Secretary of State to make a statement in relation to whether an event is an act of terrorism within three days of the event occurring, or else provide a statement of when such a statement is likely to be made.
It is a great pleasure to serve with you in the Chair, Ms Ryan. I hope the amendment is self-explanatory, so I shall keep my comments to a minimum. Under the Reinsurance (Acts of Terrorism) Act 1993, the Treasury holds responsibility for providing certificates of classification for acts of terror. Members might think that that duty would more sensibly sit under the Home Office, given its wider responsibilities for policing and security. The Bill is the chance to update that obvious discrepancy and to speed up classification to better help those affected when terror attacks occur. The Government and the security services tell us that the threat remains severe so, sadly, further attacks will come.
Under existing arrangements, the Treasury is supposed to classify within 21 days, but in practice that varies widely. There is also a contrast with individual Ministers, who often state on the day or the next day after an attack occurs that it was terrorism, but official certification takes longer. Ministerial comment should act as a guide to insurers and others involved, but the practical experience at London Bridge and Borough market in my constituency has taught me that that does not always happen, leaving those distraught after an attack with further problems just knowing how and when those with insurance can claim back losses.
I believe that the Westminster attack took 11 days to classify, and the London Bridge and Borough market one took far too long to declare: that happened 21 days after the attack, and only following pressure as a result of an Evening Standard intervention on behalf of classification. Those delays have consequences. The amendment aims to tackle situations in which businesses hit by terrorists are then held up by a convoluted process in moving on with their lives and their business.
As mentioned on Tuesday, claiming on insurance after attacks is tough enough. One insurer told a business affected by the Borough market attack that it was not covered for terror attacks, and the same insurer told another firm—one with terror insurance—that the Borough market attack had not been classified and that no payment could be made. That is simply not good enough, and the amendment would end that bad practice.
The amendment would allow for swifter declaration, in line with ministerial statements, and would protect businesses further and better. The uncertainty and delay over London Bridge and Borough market caused more anxiety for those affected at an already difficult time. It is unnecessary and unhelpful to experience delays in accessing the support that is supposed to be there in very tough circumstances, with businesses already badly damaged.
Ministers have claimed previously that London Bridge and Borough market took longer to classify due to the involvement of three police forces: the British Transport police, the Met and the City of London police. Blaming police forces that did so much to end the attack so swiftly and to help all those affected is simply distasteful. The amendment could provide a swifter process, to prevent police officers from being blamed for delays to classification.
Members may have concerns that a three-day limit is too short a timeframe in more complex incidents, but the amendment is designed not to be overly prescriptive—I thank the Clerks for helping me draft it. Cyber-attacks, by their very nature, can take more time to identify—months, in some cases—and any return to planting bombs around buildings or infrastructure without the involvement of suicidal attackers might also take more time to investigate to confirm motives. The amendment would allow for that.
The three-day process is designed for the more obvious attacks, such as that in my constituency last year. Ministers and the Prime Minister stated on the day that it was a terror attack—weeks before formal classification. However, the amendment includes a means of deferring formal declaration for more complex attacks. It would make a helpful, practical difference to employers affected by terror in the immediate aftermath. For attacks that take longer to classify, the amendment allows a statement to be made indicating what that time might be. At the time of any event, and in the face of all the facts, which may or may not be in the public domain, it would be entirely up to Ministers to make that statement and give direction, without that being burdensome.
The proposal would allow insurers and Pool Reinsurance to step in more swiftly to support those affected by any future attack. I hope that the amendment is welcomed by the Government, and I look forward to the Minister’s reply.
The Minister for Security and Economic Crime (Mr Ben Wallace)
It is nice to serve under your chairmanship, Ms Ryan.
As the hon. Member for Bermondsey and Old Southwark (Neil Coyle) explained, the intention behind the amendment is to ensure that the Government make a public statement three days after an incident about whether it is an act of terrorism as defined by the Reinsurance (Acts of Terrorism) Act 1993. If that is not possible within three days, the amendment would require the Government to provide an estimate of when they will be able to make such a statement.
The amendment would significantly alter the current process, and would introduce uncertainty for businesses and insurers during what is already a stressful and challenging time, following a terrorist attack. The 1993 Act requires that reinsurance and guarantee arrangements can be extended only for losses related to acts of terrorism, as defined by the Act. There is an established contractual process, under which an incident is certified as an act of terror in accordance with the 1993 Act. That important process is designed to give the insurance industry certainty about whether an incident is within those reinsurance or guarantee arrangements.
In the case of the Government-backed terrorism insurer, Pool Re, Her Majesty’s Treasury has an agreed deadline to certify whether an incident is an act of terrorism. It must do so within 21 days of receiving a certification request from Pool Re. It is worth clarifying that Pool Re’s formal certification request may not necessarily arrive on the day of the terror event, as it is driven by whether any of its members have received a claim.
The Treasury treats certification as a priority, to ensure that Pool Re and its members can proceed with the claim process. That means that businesses can get the financial protection they have paid for through insurance contracts. The Westminster, Manchester and London Bridge attacks in 2017 were all certified within 21 days. For example, the Manchester Arena attack was certified within five business days of the certification request being received from Pool Re.
Once such a request has been received, Treasury officials consult the police and the Home Office before giving advice to the Chancellor of the Exchequer, who makes a final decision about whether an event should be certified as an attack. That certification process properly sits with the Treasury, as the Chancellor’s approval is ultimately required to authorise any financial support required for Pool Re.
Pool Re is not the only underwriter of terrorism risk in the country. Many businesses across the UK are insured via contracts with different terms, conditions and certification processes. That means that if the Government were to make a public statement about the status of the certification process, as it related to Pool Re, it would risk confusing those businesses about the status of their own claims.
I know that the hon. Member for Bermondsey and Old Southwark is particularly concerned about the length of time it took for the horrific terrorist attack in his constituency in June last year to be certified, and I am very conscious of the impact that any delays can have on businesses. I have therefore asked that our officials look at why the process is not quicker after a Pool Re certification request comes to the Treasury, given that, as Security Minister, I sometimes know within minutes or hours whether an attack is a terrorist offence. Indeed, the head of counter-terrorism often makes a public statement to that effect within hours, not days.
I have taken the essence of the hon. Gentleman’s amendment and his constituents’ concerns and sought to follow up to see why it takes so long when a request enters the Government system—I cannot do much about how long it takes for claimants to submit a claim. The clock starts not once the event happens but once a claimant makes a claim to an insurer, and then the insurer triggers the Pool Re request. That could take time, depending on loss adjustment and that end of the process.
I assure the hon. Gentleman that I will seek to improve the performance of the process and to find out why it takes so long once the Government formally receive a request. His point is well meant, and I do not disagree with it. I cannot see why the process takes so long in some cases. I assure him that I will follow that up. I hope my assurances, which I will keep the hon. Gentleman updated on, are enough to persuade him to withdraw his amendment.
Neil Coyle
I thank the Minister for his response. The difficulty is that he wants a reactive system, whereby insurers wait for someone to get in touch with them, but I think we should have a more proactive approach. Insurers should step in as soon as a Minister makes it clear that a terror incident has occurred. However, on the basis that the Minister is seeking further advice before the Bill progresses any further, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Neil Coyle
I beg to move amendment 27, in clause 19, page 19, line 27, at end insert—
“(4) After section 2 of the Reinsurance (Acts of Terrorism) Act 1993 (Reinsurance arrangements to which this Act applies) insert—
‘2A Duty to advise on terrorism insurance
(1) Where the conditions in subsection (2) are met, an insurance provider has a duty to advise on the available insurance related to losses sustained as a result of acts of terrorism.
(2) The conditions referred to in subsection (1) are—
(a) that a person asks the insurance provider for advice in relation to insurance (whether related to terrorism or not); and
(b) that it seems to the insurance provider that the person may benefit from insurance in relation to a loss which is covered by terrorism reinsurance arrangements under this Act.
(3) In this section, “insurance provider” means—
(a) a person regulated by the Financial Conduct Authority or the Prudential Regulation Authority who sells insurance, or underwrites the risk of such insurance, or
(b) the agent of such a person.’”
This amendment would require insurance providers to advise on the insurance available in relation to losses sustained as a result of acts of terrorism.
I thank insurers and brokers for all their help since last June, including the Association of British Insurers and the British Insurance Brokers’ Association. The amendment would require insurance providers to advise on the insurance available in relation to losses sustained as a result of acts of terrorism.
The Government have been commended for belatedly acting to better extend the Pool Reinsurance model to cover contemporary forms of terrorism. Having seen my constituency attacked without the adequate protection that could have been available, I am slightly more reticent to congratulate them. However, covering non-physical damage and allowing employers to be covered for all business interruption issues arising from a terror attack is a significant step forward for people and firms who might be affected by future attacks.
There were firms at London Bridge and Borough market that were affected by physical damage from the vehicle that was used initially in the attack on the bridge. The vehicle ended its journey on the edge of the bridge, damaging the Barrowboy and Banker and the London Bridge Experience. Some buildings incurred other damage during the attack, including bullet holes from the swift police response to end the brutal rampage. However, most of the damage was non-physical, as we discussed on Tuesday. The closure of premises; the lack of access to stock; the loss of stock; the inability to contact customers; lost bookings; lost contracts; and employees leaving, with the associated recruitment costs, are all forms of business interruption, as highlighted on Tuesday. Extending coverage for those matters as standard in future attacks is welcome.
The Government tell us the threat remains severe, so it is likely we will witness more atrocities, sadly. The Government are taking one step towards better cover, but they need to recognise the broader issue of coverage. Even when the Bill is enacted and implemented, coverage will have another limitation: terror insurance will still need to be held. “Market penetration” is the term the sector uses. The Minister spoke on Tuesday about insurers and brokers upping their game. In effect, the amendment would help to ensure that they do and that more firms take out protection through better awareness of the offer when advised by insurers and brokers.
The British Insurance Brokers’ Association estimates that less than 2.5% of 5 million UK businesses have terror insurance. That leaves vast swathes of employers and jobs at risk under the severe threat that the Government tell us exists of another attack. The amendment is designed to help tackle that issue and increase take-up.
There are options. The Government could compel Pool Reinsurance to advertise, but have never done so. Pool Re has been left alone, with the consequence that coverage has been inadequate in terms of what is protected and who has bought into the system. My personal preference would be to compel larger employers and firms with higher turnover to hold terror insurance. That could be done alongside compelling some form of direct marketing of terror insurance and Pool Reinsurance to businesses, especially in areas known to be at greater risk. I appreciate that that is not the Government’s approach, so my amendment is designed to find a means of promoting coverage that is not onerous, that facilitates choice for all firms, that reflects the level of risk in different areas and that has a means of delivery that is not burdensome on those involved.
The amendment would compel insurance providers and brokers of insurance to offer terror insurance and to advise on the merits of terror insurance and the risks of not having it. Individual businesses would still be able to make their choice based on circumstances, including location, but the offer must be made, and advice must be given on the pros and cons and risks involved.
I am aware that Pool Reinsurance has adapted its package and support, and now offers a £30 arrangement to cover up to £500,000 in damages. The costs of taking up support are not massive for most firms. The amendment facilitates better awareness of the package and helps build resilience in the pool through greater coverage and protection for more businesses. The amendment would obviously work most easily in terms of direct sales with firms and drawing up new contracts, but it goes further.
In discussions with insurers and brokers’ representatives, I am aware that a lot of insurance is bought online in standard packages. The amendment would not alter that. Firms offering those deals would simply need to consider adding terror insurance to those them, or to add an automated trigger system to ensure follow-up correspondence advising on terror insurance and its benefits. That’s it—it’s simple.
Under existing packages and arrangements, insurers and brokers could also go back to customers to flag up their new requirement to offer terror insurance—a responsibility that is on them and not on customers, who have only to consider their advice. I acknowledge that there are costs to put that in place, and those are costs for the insurers, who have overseen the very low record of take-up, which puts more firms, jobs and revenue for the Treasury at risk in the event of further terror atrocities. Ignoring the massive gap should not be an option. It is not in UK plc’s interest to perpetuate the current lack of take-up.
Borough market is an example of where, even when terror insurance was offered, it was so basic that some firms declined to take it up because it was limited to physical damage only. Traders felt they were unlikely to have their stalls blown up. However, they have lost considerably because of the attack last June—£2 million, as discussed on Tuesday. They needed to have better coverage in place and to have been made better aware of what coverage was possible. If terror insurance had—the Bill addresses this—covered business interruption, and they had been advised on it, more take-up would have occurred. It should not be an either/or scenario. The Government are making the business interruption changes, but they are not focusing enough on how to drive up the coverage, which is also essential.
This amendment comes from the practical experience of Borough market and a desire to ensure that other areas are not so badly affected in the event of future attacks. I hope that it will receive Government support as our consideration of the Bill progresses. I would welcome discussion of it now and an indication of the Minister’s position.
Mr Wallace
I am very conscious of the wider impacts of terrorist attacks on surrounding communities and businesses. However, I am afraid that there are several issues with the proposed amendment and its objective. Most prominent among those is the increased regulatory burden that would arise from the amendment. That would be likely to lead to an increase in the cost of insurance for people across the UK, as the hon. Gentleman has said, as well as for businesses being sold terrorism insurance instead of other insurance products that might better suit their needs.
The amendment would also impinge on the existing regulatory protection provided by the Financial Conduct Authority. The FCA’s “Insurance: Conduct of Business” sourcebook sets out the regulatory framework for the conduct of insurers and brokers in the United Kingdom. It aims to ensure that customers are treated fairly and given clear and fair information when they are sold insurance. These rules already include an obligation on firms involved in selling or providing advice on insurance to make sure their customers have sufficient information to make an informed purchase. In practice, that would mean that if terrorism is excluded from a business interruption product that is being purchased by a business, the broker should tell them, so that different businesses can consider whether a different product might better suit their needs.
If a customer feels that they were not provided with advice that met that requirement, they can ask for a review by the Financial Ombudsman Service. That service is open to individuals as well as to small and medium-sized enterprises with less than 10 staff and an annual turnover of up to €2 million. Larger businesses can take their insurer to court.
The amendment would also reduce the flexibility of the existing regulatory framework and potentially stifle innovation. That is because further primary legislation would be required to adjust the statutory duty in the future if necessary, unlike with the rest of the FCA’s rules, which can be updated quickly in line with trends in the insurance sector.
By imposing a specific statutory duty outside the FCA’s regulatory framework, the amendment would also risk significant additional consumer detriment. It would require any firm involved in providing advice on insurance products or selling insurance products to consider whether terrorism insurance was relevant to every one of their customers. In practice, that would mean that such firms would have to consider whether individuals and businesses would benefit from terrorism insurance when they are looking to purchase other insurance products, such as home insurance, mobile phone insurance, travel insurance and motor insurance.
This prescriptive approach would likely result in cases of mis-selling and an increase in the cost of insurance. That would be driven by firms that are more concerned about avoiding penalties for breaching a new requirement cost than the interests of their customers, as well as by firms introducing new processes to ensure they are compliant with the amendment.
The amendment might also result in those firms over-prioritising the sale of terrorism insurance relative to other risks, which might be a greater threat to an individual business. There are over 5.7 million SMEs in the UK. It is not generally the Government’s role to prescribe to those businesses the risks against which they should be insured.
Officials at the Home Office, the Treasury and the Department for Business, Energy and Industrial Strategy are working on options to improve take-up of insurance by businesses and by SMEs in particular. This is part of an holistic approach, looking at insurance as one of the many steps that an SME can take to improve its resilience to financial shocks.
Given the steps that are already under way to improve take-up, the existing protections already available through the UK’s regulatory framework, and the potential for significant additional costs to consumers—
Neil Coyle
On that specific point about increasing take-up, will the Minister explain how take-up is being encouraged and what level he expects it to be at within, say, three years of implementation of the Bill?
Mr Wallace
The Association of British Insurers and the insurance broker trade industry do great amounts of marketing and promotion to get people to buy insurance and be protected and covered. The biggest threat to us all in the insurance space is inappropriately covered people, whether that is in terms of terrorism or anything else. That is a constant challenge to the industry, often because a number of its risks are mutually pooled, as we were talking about when considering a previous amendment on motor insurance. Therefore, it would be in the interests of the insurers to ensure that people have appropriate insurance for their risk; that is quite important.
The Government can play a role in highlighting awareness of the threat of terrorism. Everyone here will be very aware of the shift in terrorism over the last 18 months; it has been top of the news most weeks. Probably like everyone else, I will look at whether my travel insurance for my summer holiday covers terrorism—well, I am going to Wales, but if I was not, I would check that. The difference between me and the hon. Member for Bermondsey and Old Southwark is that he wants the Government to direct the insurance industry to tell people about that insurance. The position of the Government is that the FCA should use its regulations and advice to be more responsive, and we should not use primary legislation.
Members on the Government side of the House would also say that there is some onus on the customer to seek the most appropriate cover from their insurers to match the threat that they face. That is where we differ, and it is why I urge the hon. Gentleman to help us seek a way to improve take-up through the building up of marketing and promotional material on getting the right insurance, and indeed through regulations, rather than primary legislation. A project is under way to improve take-up, and I will write to him with further details if he would like me to. I urge him to withdraw his amendment.
Neil Coyle
I think the Minister has slightly misinterpreted my suggestion. I did not suggest placing an obligation on customers to purchase insurance—merely that insurers advise on its availability. On Tuesday the Minister talked about insurance market failure in some areas, and this will be a missed opportunity to correct that failure. However, on the basis that the Minister will outline the awareness-raising activities that the Government will undertake, and in the hope that doing so will allow a discussion before the Bill goes to the Lords, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will convenient to consider New Clause 4—Review of the changing nature of terrorism reinsurance requirements—
“(1) The Pool Reinsurance Company Limited must provide an annual report to the Secretary of State setting out—
(a) an assessment of the nature of terrorism reinsurance requirements; and
(b) any recommendations on how terrorism reinsurance arrangements should be amended to address terrorism reinsurance requirements.
(2) The Secretary of State must lay the report and any recommendations made under subsection (1) before the House of Commons within three months of receipt.
(3) The laying of the report and recommendations under subsection (2) must be accompanied by a statement by the Secretary of State responding to each recommendation made under subsection (1)(b).”.
This new clause would ensure that terrorism reinsurance arrangements are kept under annual review by Pool Re and would require the Secretary of State to respond to Pool Re’s recommendations in relation to terrorism reinsurance.
Nick Thomas-Symonds (Torfaen) (Lab)
I raised this issue on Second Reading. I generally welcome the clause. The original provision in section 2 of the Reinsurance (Acts of Terrorism) Act 1993 restricted the loss that could be claimed for loss of, or damage to, property and for consequential loss, which I am afraid therefore excluded business interruption in situations in which there was no direct damage to property. The clause solves that problem and will explicitly insert business interruption as a form of loss in that section of the 1993 Act. That is welcome, because it recognises that the terrible acts of terrorism that we see have an impact on the wider community and have a financial impact on businesses in terms of lost trade.
However, I want to set out the concern about businesses that have suffered losses in the past. I pay tribute to the work of my hon. Friend the Member for Bermondsey and Old Southwark, who has campaigned tirelessly for his constituents on this issue after the terrible atrocity that occurred at London Bridge and Borough market in his constituency. He eloquently put the case today and last week for dealing with these iniquities in the system.
I hear what the Minister says about looking into the past. Wherever a line is drawn, it will, of course, lead to further unfairness because of the events that would fall on the wrong side of it. However, will the Minister at least undertake to look at whether anything can be done with respect to some of the losses occurring through business interruption in Borough market and elsewhere, so that no stone is left unturned as to whether any form of help can be provided? I would be very grateful for that reassurance from him.
Neil Coyle
I rise to speak to new clause 4. I have nicknamed this “the resilience clause”, and I hope it will be adopted to protect UK firms. I will speak as briefly as possible, but I will touch more generally on clause 19, for which I have been campaigning for the last year, and I am grateful to see it emerge now. Had it been in place before last year, it would have made a huge difference to those affected by the terror attacks at Borough market and London Bridge last June. I have been seeking this through Westminster Hall debates, so I am pleased to see it. I am disappointed that, as my hon. Friend the Member for Torfaen just said, the Government are yet to offer any form of compensation—a single penny—for the damage felt and caused at Borough market and London Bridge last year. I will keep campaigning for that.
New clause 4 would ensure that terrorism reinsurance arrangements are kept under annual review by Pool Reinsurance, and would require the Secretary of State to respond to Pool Reinsurance recommendations in relation to terrorism reinsurance. The clause is designed to prevent the Government-backed system from falling behind terrorist methods and their future impact. It would help to build resilience in our anti-terror structures overall. The clause would require Pool Reinsurance to provide an annual report on the nature of terrorism and any need to improve the systems designed to protect UK citizens and businesses from the form of terrorism we currently face, and to advise on how it is changing and what we might expect in future.
If that system had been in place from the introduction of Pool Reinsurance in the 1990s, it could have ensured that as the Provisional IRA threat of physical damage to economic infrastructure diminished and as terrorism morphed into the deliberate targeting of innocent civilians with knives and vehicles, the pool would have adapted accordingly over time, or at least have had the potential to do so. The Provisional IRA targeted buildings—physical economic infrastructure—not civilians. The pool was designed for that early 1990s threat, after the devastating Canary Wharf and Manchester Arndale attacks. Sadly, the system has not been updated properly over time as the nature of the threat has changed and, with it, the impact on businesses and employers’ insurance needs.
As discussed on Tuesday, Pool Reinsurance, despite warnings dating back to at least February 2016, has not been updated swiftly enough by the Government to cover the brutal attacks against innocent people, such as those enjoying Borough market on Saturday 3 June last year. That should have been possible, and the new clause will ensure that it will be going forward. The pool should never be left to slip behind again. The duty would ensure an annual appraisal of the nature of terror threats and their potential impact on businesses in particular, and would ensure that advice and recommendations are provided on how to adapt to better protect under-insurance systems from contemporary systems, and who or what terrorists target.
The duty would be on Pool Reinsurance, but the clause is not prescriptive regarding how it would work in practice. The pool could involve a range of stakeholders, including Government Departments, ABI, BIBA and business representatives. The wording is kept simple enough to prevent too onerous a system, or too rigid a structure, from developing. The duty is on Pool, because Pool is obviously in a strong position to provide overview from a tactically strategic position, and at no new cost. Pool already provides a quarterly terrorism frequency report, which could form the basis of any future annual reporting of risks and the UK’s ability both to prevent companies from losing out and to protect employers and employees from job losses as a result of insufficient coverage.
I believe that Pool would welcome the role. It has already sought to improve its insurance coverage in terms of packaged costs, awareness of cover and extending the support offered after different forms of attack, including both cyber and business interruption. However, Pool’s work has not always been swiftly acted on by Ministers, creating the gap that so badly affected London Bridge and Borough market in my constituency last year, and that the Bill is aimed at addressing.
Pool Reinsurance would report, and make recommendations, to the Secretary of State, who would be obliged to reply. That obligation is not massively onerous, especially given the huge range of responsibilities, and the clause suggests an ample three-month timeframe. I hope that the proposed new clause will have the backing of the Minister, and I would welcome an indication of whether the Government will pursue it in the Bill’s later stages.
Mr Wallace
I understand what the hon. Gentleman is trying to do, which is, in order to ensure that we do not miss the impact—in terms of how victims of terrorism are dealt with—of the changing threat, to have a review of that to ensure that all the holes in cover are plugged in future. The only point on which I differ from him is in understanding what Pool Re is.
Neil Coyle
Is the Minister suggesting that Pool Re is seeking to extend its role beyond where it should? Is he suggesting that the Government and Ministers are in a better position to judge the impact—bearing in mind that the overall clause is about terror insurance—and to advise on what should be covered than Pool Re, which is already there doing the job and has sought to have cyber-attacks, and the kind of non-physical damage we have seen mentioned in this clause, brought into coverage? I would slightly disagree.
Mr Wallace
We have to be careful. Pool Re is, first of all, not the only organisation in the marketplace. The Government have a duty to all the insurers, including Pool Re, to indicate where risk, certainly in the security space, is developing or currently stands. We must be minded that it is not a stand-alone organisation. It should be the Government who indicate risk in security. It is our JTAC, the joint terrorism analysis centre, that indicates, independently of Ministers, what the latest analysis shows about where a security threat is developing. We raise severe threat levels and so on.
It is not the Government’s job to tell people how to do the insurance, and we would not seek to tell Pool Re how to carry out or issue insurance policies, but it is the role of Government—because the Government are independent of that vested interest—to be the owners of understanding where the threat is going and being able to pull together all those experiences. It is from the hon. Gentleman’s experience as a constituency MP that he has learned about his businesses in Borough Market. The police will have their experiences, as will the ambulance service and so on.
If we are to really get to grips with understanding the vulnerabilities, it requires someone who is set aside from the insurance industry. I do not think it would involve the Government producing a report saying, “You must insure this, and this is how you do it.” I think it would be the Government saying, periodically, “Let’s have a look at what has happened, what has been missed out, what the public need to be aware of and what action they need to take.” That is where I would sit; that is the issue I have with the start point of the hon. Gentleman’s new clause. Again, his meaning is not misplaced and nobody in the Committee disagrees with his determination to improve his constituents’ opportunities to get insurance, but I see it as a question of how we will get there.
Neil Coyle
My concern is that an expert body already exists specifically with this focus of terrorism reinsurance—a body that could do this job and in part does it already through the advice it offers. The new clause would formalise that role. Instead of taking that approach, the Minister seems to want to take on an even bigger Government, a bigger state and more civil servants. I thought we were meant to be the party of big Government, not the Conservatives, so I am confused.
Mr Wallace
The hon. Gentleman’s question would basically mean asking an insurer “Whom should we insure?”. As to the role of Government, they have secret intelligence at their fingertips, and have numerous reviews. After the Manchester attack, dozens of reviews took place over the past year; we have all of that. Some of it is secret, and some is not. That can help us understand and be better informed. We have no interest in the outcome of that.
Neil Coyle
Has Pool Reinsurance ever asked the Government to cover something that is not now covered—be it business interruption or cyber? Has that ever happened? That is what the Minister seems to be suggesting. Under the new clause the Minister would respond to recommendations. That is where the points that he makes would come in.
Mr Wallace
We have lots of discussions with Pool Re and many other insurers, and it has asked about cyber, as the hon. Gentleman has suggested. I have met its representatives several times, being the Security Minister. It has asked to do cyber, and we then take that into the process and go to the Treasury.
Mr Wallace
We are not going to agree: I view the role of the Government in this space as being able to review an incident, take input from communities, police, ambulance services and everyone else who has dealt with damage, add that to the secret intelligence they have on emerging threat, and come up with a position.
When we do such reviews they are significant. In the case of Manchester attack, the operational improvement review alone was 1,300 pages. Every detail was examined. That is where that type of advice to the market, including Pool Re, should come from. Clearly we are not going to agree on that. It is not that Pool Re is not a great organisation; but it is owned by its members and is a reinsurance company. Call it big state, if you like, but I think that the role of the Government of the day is to be able to direct it. That is the right place for it to sit, so I urge the hon. Gentleman to withdraw the new clause.
The Chair
Order. May I make it clear that we are on the clause stand part debate? Although we are discussing new clause 4 within the debate, it will not be formally moved or voted on until we reach new clauses at the end.
Nick Thomas-Symonds
I asked for reassurance from the Minister about leaving no stone unturned in the matter of past compensation. I do not think he responded to that when he was responding to the new clause, and I wonder if he would do so.
Mr Wallace
We want Pool Re to be dynamic and we want it to stimulate other insurers to meet the growing threat. The issue relates to a point I have made on numerous occasions—the number of travel insurances that have slowly, over the years, dropped terrorist insurance. It is not just about increasing insurance cover; it is important to keep an eye out for areas that are losing it. One of the lessons of last year is that we must be very much in touch with the affected communities—and it is about not only the human beings, but other aspects—to understand what has not been covered, and what more we can do.
Nick Thomas-Symonds
I am grateful to the Minister for covering those issues. Last week he argued against compensation for past events—because a line would have to be drawn somewhere. He said there could be additional unfairness because if the past period was set at 12 months, as my hon. Friend the Member for Bermondsey and Old Southwark suggested, something that happened two years ago would not attract the benefit, but something that happened six months ago would. The Minister said that that would create a new unfairness. I seek assurances that he will leave no stone unturned to find out whether anything can be done in relation to some of those past events, including the one at Borough market.
Mr Wallace
The hon. Gentleman makes an important point. I spoke to the hon. Member for Bermondsey and Old Southwark after the Committee sitting last week. After last year’s attacks, mayors and local authorities got together and produced requests of Government, which we met, with £23 million or £24 million in Manchester. We also met a request from Salisbury.
I said to the hon. Gentleman, “Let’s meet and speak with the local authority that covers Borough market and put together an ask.” I did not receive a reply from the Mayor of London on that, but we did receive replies from the Mayor of Manchester and the Salisbury council leader. I am happy to sit down and see what we can do. We gave an extra £1 million to the NHS to deal with some of it, but in comparison, for the Manchester package—the hon. Member for Manchester Central (Lucy Powell) was involved in that—we gave in response to a big long list of everything, from a marketing budget—to help that great city attract people back—to help with infrastructure and so on.
I am happy to meet the hon. Gentleman and his local authority and say, “Okay, come on—what is it you seek?” whether it be business rate relief or whatever. The Treasury will go mad at me for suggesting that. The point is, I have not received such a request, but I am happy to help stimulate it and will also work with the Mayor of London to do so.
Neil Coyle
I will certainly take the Minister up on that offer. Those who have been affected and are trying to rebuild their businesses—some are still in combat with insurance companies—have put further effort, while their businesses have suffered, into a request. That was put to a BEIS Minister, who came to the Borough Market Trust and met those directly affected. It was also put to a Treasury Minister here in Westminster when traders came to talk about their experience and ask for help. Those requests for support have been made, but to date they have not been acknowledged.
The Prime Minister visited the site and came back for the commemorative service. She was obviously welcome to do so, but she was aware of what had happened, its direct impact, the lack of insurance cover and costs involved for some, including microbusinesses, who could have gone under without public support. It is a little unfair to suggest that a request has not been made, but I will look to draw up something more comprehensive with the leader of the council, Peter John, and the Mayor of London and come back to the Minister with that. I thank him for the offer.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Border security
Question proposed, That the clause stand part of the Bill.
Mr Wallace
The clause simply introduces schedule 3, which confers powers exercisable at ports and borders in connection with the questioning and detention of persons for the purpose of determining whether they are or have been engaged in hostile activity. It fulfils a mechanistic function; the new powers will be best discussed when we debate schedule 3.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Schedule 3
Border security
Nick Thomas-Symonds
I beg to move amendment 44, in schedule 3, page 35, line 37, leave out “whether or not there are” and insert “where there are reasonable”.
The Chair
With this it will be convenient to discuss new clause 2—Threshold for port and border control powers—
“(1) Schedule 7 to the Terrorism Act 2000 is amended as follows.
(2) In paragraph 5 before ‘A person who is questioned’ insert ‘Subject to paragraph 9A,’.
(3) After paragraph 6A(2) insert—
‘(2A) A person questioned under paragraph 2 or 3 may not be detained under paragraph 6 unless the examining officer has reasonable grounds to suspect that he is a person falling within section 40(1)(b).’
(4) In paragraph 8(1) before ‘An examining officer’ insert ‘Subject to paragraph 9A below,’.
(5) In paragraph 9(1) before ‘An examining officer’ insert ‘Subject to paragraph 9A below,’.
(6) After paragraph 9 insert—
‘Data stored on electronic devices
9A (1) For the purposes of this Schedule—
(a) the information or documents which a person can be required to give the examining officer under paragraph 5,
(b) the things which may be searched under paragraph 8, and
(c) the property which may be examined under paragraph 9 do not include data stored on personal electronic devices unless the person is detained under paragraph 6.
(2) “Personal electronic device” includes a mobile phone, a personal computer and any other portable electronic device on which personal information is stored.’”
This new clause would implement the recommendations of Parliament’s Joint Committee on Human Rights and would require an officer to have reasonable grounds for suspecting an individual is or has been concerned in the commission, preparation or instigation of acts of terrorism before she could detain an individual for up to 6 hours under Schedule 7.
Nick Thomas-Symonds
I tabled the amendment in the hope of further exposition and assurances from the Minister. The shadow Home Secretary and I set out on Second Reading that, in the light of the events of recent months—with nerve agents on the streets of Britain—it is right that the Government should look at our border security. Therefore, while I will not stray out of order and discuss our other amendments, in generality they are designed to introduce further safeguards into the various powers available.
Amendment 44 would deal specifically with the non-suspicion power, if I may put it that way, in schedule 3, part 1, paragraph 1(4) on page 35. In regard to the power to stop, question and detain at the border, it states:
“An examining officer may exercise the powers under this paragraph whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity.”
I am pressing the Minister specifically on whether or not there are grounds for suspecting. Clearly, in our criminal law there would usually be a reasonable suspicion of an individual. This power clearly goes beyond that, to suspicion that is not linked to the individual who can be stopped.
In previous debates and exchanges with the Minister on this matter, he has given me two explanations. The first was with regard to the nature of the intelligence provided; an example would be a flight where perhaps there is a suspicion about someone or people travelling on that flight, but the intelligence does not necessarily narrow down who that is. Therefore, anyone coming off that flight may be stopped. Secondly, with regard to the nature of the intelligence, when there are reasonable grounds for suspicion, those grounds may come about because of intelligence that, in itself, cannot be declassified or go into the public realm.
I am well aware of the arguments for the non-suspicion power; however, I would be grateful if the Minister could set out some of the situations in which this power would be used. Secondly, will the Minister indicate how frequently he would expect them to be used? I know it is not an exact science—we cannot predict the future—but I hope the Minister would at least have some sense of how he might expect it to be used and how frequently. Thirdly, there is concern because this power is different from so many other aspects of our criminal law where there has to be reasonable suspicion. Why does he think it is so vital for our national security that this be in schedule 3?
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
It is a pleasure to see you in the Chair again, Ms Ryan. I shall speak in support of new clause 2 and amendment 44.
The new clause would largely do similar things, with an addition in our case. It would implement the recommendations of the Joint Committee on Human Rights and would require an officer to have reasonable grounds for suspecting that an individual is or has been concerned in the commission, preparation or instigation of acts of terrorism before they could detain an individual for up to six hours under Schedule 7. In addition, it would institute safeguards with regard to electronic devices.
The issues concerning this schedule are topical, given that some of it has been drawn in response to the Skripal incident in Salisbury in March. Obviously, in recent days there has been another incident, which is under investigation. The Bill was introduced with the intention of
“giving the police new powers to investigate hostile state activity at the border.”
The press release that accompanied the Bill stated:
“Using the new power, the police or designated immigration or customs officer will be able to stop, question, search and detail an individual at a port, airport or border area to determine whether he or she is, or has been engaged in hostile activity.”
On the face of it, there is little to disagree with in terms of the sentiment. Obviously, it is right and proper that we are able to take action on those who look to enter our country to do our country or its citizens harm. The authorities that do that do an incredibly important job and we should be grateful to them and ensure they have the necessary powers, but as drafted, these powers are concerning due to the lack of a reasonable grounds test for suspecting that an individual may be entering the UK to cause harm. They are therefore open to abuse and there is not enough assurance for officers working at our borders.
In addition, the Bill fails to protect any individual who has been designated a suspect. The arguments against these search and detail powers have been rehearsed over the years, but we should not dismiss the concerns that have been raised about racial profiling and how these powers allow for an element of discrimination in our society.
New clause 2 would implement the sensible recommendation of the Joint Committee on Human Rights and would require an officer to have reasonable grounds for suspecting an individual. It would provide greater clarity on when someone should be detained and would eliminate the chances of an individual’s personal belongings being searched and retained. It would therefore protect any individuals suspected of carrying out such an offence and also offers protection to the relevant officer on the border by providing greater clarity as to when they should detain a potential suspect. I urge the Minister to give new clause 2 and amendment 44 due consideration.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
The Minister and I discussed some of these powers privately, and I welcome the chance to discuss them again. He is aware of a number of cases that I am concerned about regarding detention or stopping and searching at borders. I make it absolutely clear that, when needed to protect public safety—whether from hostile state activity or from those travelling abroad or entering this country to commit acts of terrorism—the powers must absolutely be there to enable searching, detention and other necessary processes to deal with that and to keep the public safe.
However, there are two crucial points. The first is that, wherever possible, action should be taken before we have to detain or search or interdict somebody at a border, particularly if that person is leaving the UK. We should, if possible, detain them at their home or interview them elsewhere—voluntarily or otherwise—because if we get to the stage at which somebody attempts to board a plane or a ship or a Eurostar or whatever, there will be a risk both to public safety and of unnecessarily detaining or disrupting the travel of individuals who are not guilty of any offence.
The second point, which the Minister is aware of, is that we need to be aware that individuals may travel with family members or other individuals who are in no way connected and should not be under the reasonable suspicion that may be directed at that individual. What steps are being taken to ensure that information and processes are being shared to ensure that such detentions, searches and interdictions take place at the earliest possible opportunity? What arrangements are there to ensure that relevant information is shared, wherever possible, between airlines or other forms of transport, the Border Force, the Passport Office, the security services, the police and others to ensure that those things I mentioned are done at the earliest stage? I will move amendments on that issue later.
Afzal Khan (Manchester, Gorton) (Lab)
I shall be brief. I would like the Minister to take a couple of my questions into account when answering those raised by other Members. It is clear that this whole area gives a lot of power to officers, and that the term “hostile activity” risks casting an extremely wide net; in essence, anyone could be subject to the Bill’s invasive powers. Will the Minister explain how any confidential material obtained at the border will be protected? How do the Government intend to ensure that these powers will not lead to ethnic and religious profiling? In view of these broad powers, will the Minister also clarify whether any training will be given to officers?
Mr Wallace
First, the use of, effectively, no-suspicion stops on our border is not new. In fact, as we heard from those giving evidence to the Committee last week, lots of stops happen on our border, because borders are particularly vulnerable spaces. There are screening stops, in which people are asked questions about where they are coming from or going. There are also customs and excise stops, which go beyond that, and in which people are stopped and their bags and luggage are properly searched, perhaps in a side room. That is detaining, in a sense. It is not for a long period of time; it is certainly not as long as some of the scheduled stops that we will talk about.
Until someone is arrested, their access to legal advice and so on is different, because our vulnerability at a border, and our need to establish who, what and when, is really important for our national security. That is why many of those stops, in different guises—whether customs or identity screening—have been in place, sometimes, for hundreds of years. This is a development of that. In the Terrorism Act 2000, passed by the last Labour Government, the feeling was that, given our vulnerability at the border in a fast-moving world of millions of passengers, it was important to give our Border Force and our law enforcement community the ability to establish that information.
Some 89% of all stops at the border are done in under an hour. The vast majority are inward not outward, but to the point made by the hon. Member for Cardiff South and Penarth, I also have a constituent who was stopped when outward bound. My constituent was held up, and a family holiday and lots of money were effectively lost. Having met the hon. Gentleman, we have started a piece of work to look at exactly what we can do to minimise that. A good example would be asking whether it is really necessary to stop someone on the way out; they could perhaps be stopped only on the way back in. If we do not think they are going to travel to fight in Syria, but we think they might be going to do something else, we could just wait until they come back, and people are much less likely to suffer financial risk if they are done.
In answer to the question by the hon. Member for Manchester, Gorton, only officers who are specially trained are allowed to conduct a stop, search and detail. I think it would be illegal, and it would certainly be against the powers, to do it for arbitrary or discriminatory reasons. That would cover doing it on the basis of race or anything else. The no-suspicion power has been incredibly useful and has caught a significant number of terrorists, predominantly due to the fact that they have been stopped and data or biometrics has been seized. We have seen a number of cases. There was a guy from Wembley, I think, who was convicted of murder based on material recovered from a stop.
There will be safeguards in this new power. Our terrorism stops are reviewed by the Independent Reviewer of Terrorism Legislation. I have asked the Judicial Commissioner, Lord Justice Fulford, to review the use of the hostile state power on an annual basis. One of the reasons why we have introduced this is that the Independent Reviewer of Terrorism Legislation had serious concerns that in the past we were using a counter-terrorism power to stop people on a national security or hostile state concern. This is our response to what I think was David Anderson’s recommendation to take that forward.
The hon. Member for Torfaen and the Scottish National party have spoken about no-suspicion and the fact that we should have reasonable grounds. The biggest challenge is that the way our intelligence is presented to us can often be very broad. It can be based on a method, on a threat on a date, or on a plane, rather than on a person. The Government’s reading of the law is that if we had to have reasonable grounds, it would be too narrow for us to be able to respond to some of that intelligence threat.
It may even be that we have gone to a state of “critical”, where an attack is imminent but we do not know from which direction. I have personal experience, doing this job, of where we had some “reliable” intelligence about an attack in one part of the country, but in fact an attack happened in an entirely different place at another end of the country. The information was enough to consider raising the threat level, but not enough to know exactly where it was happening. I remember having rather an uncomfortable night, going out and having in the back of my head what I had been told might happen; while I was pleased that it did not happen, something else then happened elsewhere. It is a challenge; it is a difficulty. It is the way our intelligence is often presented to us, and that is why we need a no-suspicion stop.
There are protections for journalistic material and legal privilege. Because the seizing at this stop would not be under suspicion, the examining officer would have to apply to the Judicial Commissioner for that to be further examined, and the Judicial Commissioner could say no. We have included protections for journalists, lawyers and so on, to ensure that that happens, because we do not want the power abused, especially when we are talking about a hostile state rather than terrorism. Of course, hostile states are pretty clever at how they try to penetrate or come into the country.
Stephen Doughty
Obviously I do not expect the Minister to share any information here if it would be inappropriate to do so, but he mentioned the clever way in which hostile states may attempt to penetrate this country and undertake acts, whether that is the Skripal poisoning or other activities. Could he reassure us about measures in place at, for example, general aviation airports, smaller seaports and so on? Obviously, a lot of our focus is understandably on major locations such as Heathrow or Eurostar terminals and so on, but hostile states are well known for using alternative routes or, indeed, diplomatic channels to bring in individuals who conduct serious offences.
Mr Wallace
The hon. Gentleman makes an interesting point. Again, it goes to the reason we have the no-suspicion stop. They are most likely to be trained, capable agents of a country, not amateurs, or they may be disguised using amateurs. Look at the history of the cold war. That is why we sometimes have to respond to more general intelligence specifics. Let us say we had intelligence that a hostile state was seeking to use a minor port, a west coast port or a private air strip. That is all we would have, but if the threat was significant enough we would then have to—and we do—deploy individual police and Border Force officers from each region to cover that. However, that is quite wide. It is not, “Ben Wallace is coming in on flight X, Y or Z”; perhaps it is our responding to a flight plan. It is sometimes that simple.
I have come from a Cobra meeting this morning where we have seen the consequences of some really hostile state activity, which has put two innocent British citizens, who are very seriously ill, in hospital. We are being taken advantage of as an open country. I am afraid that there is far too much intelligence officer activity, not always under diplomatic cover in this country, from some of our adversaries, and we have to make our border a bit harder for them. Diplomats will not be covered by that—we will still be obliged under the diplomatic conventions—but their families may be. It goes back to the question on suspicion. I might have a suspicion that X is doing it, and they are a diplomat, but they may say, “Well, I’m not carrying that in; I’m not risking myself, but I’ll get someone else in the wider party who doesn’t have diplomatic cover to do it.”
I am afraid that is why it is really important for us. It is why the last Labour Government thought it was important on the terrorism issue. The Law Society of England and Wales witness said in his evidence that he had no concern about the suspicion part of the powers. He had some concerns about legal privilege, and I listened with interest to that part of his submission. That is why I think it would set us back in our national security and counter-terrorism work if we lost the power to do that. I am afraid the Government will therefore resist the amendment, and I ask colleagues on both sides of the Committee to reflect on that, and hopefully the hon. Gentleman will withdraw the amendment.
Nick Thomas-Symonds
I am grateful to the Minister for that explanation and exposition, and for the promise of the annual review under Lord Justice Fulford, which I think will be extremely useful. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Nick Thomas-Symonds
I beg to move amendment 37, in schedule 3, page 36, line 7, at end insert—
“(6A) The Investigatory Powers Commissioner (‘the Commissioner’) must be informed when a person is stopped under the provisions of this paragraph.
(6B) The Commissioner must make an annual report on the use of powers under this paragraph.”
The Chair
With this it will be convenient to discuss amendment 36, in schedule 3, page 40, line 31, at end insert—
“(2A) The person who owns or was carrying or transporting an article which is retained under paragraph 11(2)(d) or (e) must be notified by the examining officer when the Commissioner is informed that the article has been retained.”
Nick Thomas-Symonds
I will be quite brief, because these amendments simply insert some further safeguards. They do not detract from the central aims of what the Government are seeking to do, but provide additional protections.
Amendment 37 relates to the power to stop, question and detain, which obviously we have been discussing in relation to my previous amendment. The amendment would simply allow the Investigatory Powers Commissioner to be informed when a person is stopped, and to make an annual report on the use of the power, which seems a perfectly reasonable request in the circumstances.
I will deal with amendment 35 in due course. Amendment 36 is simply about the commissioner being informed about the retention of property. The person who owned the article, or who was carrying or transporting it, will be notified by the examining officer when the commissioner is informed that it has been retained. These two amendments are not major interferences with the power, or with the aims of the Bill, but I suggest to the Minister that they are sensible safeguards.
Mr Wallace
As the hon. Gentleman has explained, the two amendments seek to enhance the oversight of the powers in schedule 3 by the Investigatory Powers Commissioner. I entirely agree that we need effective oversight, but I hope to persuade him that the Bill already provides for that.
Amendment 37 would require that when a person is stopped and examined under schedule 3, the commissioner must be informed. It would also require the commissioner to make an annual report on the use of those powers. As to the duty to prepare an annual report, I refer the hon. Gentleman to part 6 of schedule 3, which already sets out the duty on the commissioner to keep under review the operation of the provisions in the schedule and to make an annual report to the Secretary of State about the outcome of that review.
The mechanism outlined in part 6 mirrors the well-established reporting apparatus of the independent reviewer of terrorism legislation in relation to counter-terrorism powers. In his annual report, the independent reviewer reviews the operation of the equivalent port and border power in schedule 7 to the Terrorism Act 2000, and in doing so highlights any issues that have arisen through the exercise of those powers, provides a statistical breakdown of how they are used and makes recommendations for their future operation.
Amendment 36 would require that the examining officer informs the owner of an article that has been retained under paragraph 11(2)(d) or (e) of schedule 3 once the Investigatory Powers Commissioner has been notified of its retention. An examining officer may retain an article under paragraph 11 (2)(d) when
“the officer believes that it could be used in connection with the carrying out of a hostile act”,
or under paragraph 11(2)(e)
“for the purpose of preventing death or significant injury.”
Although I appreciate the amendment’s intent, it would place an unnecessary burden on the examining officer.
My officials are working with the Investigatory Powers Commissioner’s Office to determine the precise mechanism for keeping the individual informed of the fate of their property, including the appeal process and notice of any decision made. That will be set out in greater detail in the schedule 3 code of practice that we aim to publish in draft this autumn. Let me reassure the Committee that no individual will be left guessing as to what has happened. I agree wholeheartedly that the process should be governed appropriately and transparently. Given that the issues are already addressed in the Bill, or will be in the code of practice, I invite the hon. Gentleman to withdraw his amendment.
Nick Thomas-Symonds
I am grateful for those reassurances. I ask the Minister to comment on a further issue that relates to what I said previously. When the commissioner is carrying out the review process and producing the report that the Minister has referred to, will they be aware of every stop that has taken place?
Mr Wallace
Yes. As for the counter-terrorism stops that exist, the total numbers will be in the annual transparency report. Although the commissioner will not be informed every time someone is stopped, the numbers will all be recorded, and he will have the power, in the same way as the reviewer of terrorism legislation does, to investigate those stops while doing the review. It will not just be, “Are these the numbers? Have they complied?”
The reviewer of terrorism legislation can investigate intelligence agencies issues, police issues and the things that lay behind the stops, and that is what we expect them to do. That is why I want a judicial commissioner to do that for hostile states, so if we see it being abused or not being right, he will spot it—not us. He will spot where police officers are not being properly trained or are not doing it correctly, or if it is being overused with no results. I assure the hon. Gentleman that in that scenario the independent commissioners will not take it at face value.
Nick Thomas-Symonds
I am grateful for those reassurances. In those circumstances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Nick Thomas-Symonds
I beg to move amendment 35, in schedule 3, page 40, line 27, at end insert—
“11A(1) This paragraph applies where—
(a) an examining officer intends to retain an article under paragraph (2); and
(b) the person who owns or was carrying or transporting the article alleges that the article contains confidential material.
(2) Where sub-paragraph (1) applies, the examining officer—
(a) may not examine the article; and
(b) must immediately provide the article to the Investigatory Powers Commissioner (the ‘Commissioner’).
(3) On receiving an article under sub-paragraph (2), the Commissioner must determine whether or not the article contains confidential material.
(4) Where the Commissioner determines the article contains confidential material, the Commissioner may authorise the examination and retention of material in accordance with the provisions of paragraph 12(5).
(5) Where the Commissioner determines the article does not contain confidential material, the Commissioner must return the article to the examining officer to determine whether the material should be retained under paragraph 11(2).”
The amendment relates purely to the protection of confidential material. I have based it squarely on what was said by the Master of the Rolls, one of our most senior judges, in the Miranda judgment, with which I am sure the Minister is familiar. The Court of Appeal judgment is dated 19 January 2016. The Master of the Rolls, who gave the leading judgment—this is from paragraph 119 of the judgment—said:
“But in disagreement with the Divisional Court, I would declare that the stop power conferred by para 2(1) of Schedule 7”—
to the Terrorism Act 2000—
“is incompatible with article 10 of the Convention”—
the European convention—
“in relation to journalistic material in that it is not subject to adequate safeguards against its arbitrary exercise and I would, therefore, allow the appeal in relation to that issue. It will be for Parliament to provide such protection. The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material.”
It is important to protect the confidential material, as the Minister is aware. I have simply taken what one of our country’s most senior judges has said and tried to construct a protection that is in line with what he has asked Parliament to do. It would work through the oversight of the Investigatory Powers Commissioner.
The commissioner could determine whether an article contains confidential material and could then give powers in those circumstances where it can still be examined and retained, but there has to be that protection and that distinction given by the commissioner. Where there is a determination that the article does not contain confidential material, it could be returned to the examining officer. That is a sensible suggestion to deal with the lack of a safeguard that has been highlighted by one of our most senior judges.
Mr Wallace
I am grateful to the hon. Gentleman for explaining his amendment. I want to start by reaffirming the Government’s strong conviction that confidential material should always be handled with the utmost care and consideration. We have sought to provide for that in schedule 3. The Bill provides that the Investigatory Powers Commissioner must be the one who authorises the retention and use of an article that consists of or includes confidential material, subject to meeting the requirements of paragraph 12(5). Beyond the point at which the examining officer comes to hold a reasonable belief that an article contains confidential material, the officer will not be able to examine that article until further authorisation has been granted by the commissioner.
However, it would be improper to impose a restriction on the examining officer such that they were unable to establish their own belief that the article does in fact consist of confidential material. The police have a statutory obligation to protect our citizens and prevent crime. They cannot be expected always to take at face value the word of someone they are examining, who in some cases will be motivated to lie. If an individual being examined claims that an article consists of confidential material, the examining officer should be within their rights to verify that if they feel that is appropriate. Having verified that the article does indeed consist of confidential material, the examining officer should stop the examination and, if they wish to retain the article, seek the commissioner’s authorisation to examine it.
The point about face value is important. Bona fide people will usually be able to identify themselves as bona fide lawyers or journalists pretty quickly. If someone turned up with no law degree or legal background and said, “I’m a lawyer, so you cannot look at my devices,” it would be fair for the officer not to be able to examine the whole documentation or device, but to seek to establish the fact before they then take the next step and go to the judicial commissioner with a request to examine the material. Until the request is granted, the judicial commissioner can say, “No, you can’t. You have to destroy it.” They can direct them.
The difference between me and the hon. Gentleman is the extent to which we want face value to be established before it goes to the judicial commissioner. I stress that under this schedule the examining officer can seek to retain that material only if they believe that the article could be used
“in connection with the carrying out of a hostile act”,
or if they believe that retaining the article could prevent “death or significant injury”. Although it is not in the Bill, I assure the hon. Gentleman that it will be in the code of practice that is provided for in part 4 of schedule 3. If the commissioner concludes that the article could not be used in connection with the carrying out of a hostile act, or could not cause death or significant injury, they will direct the article to be returned to the person from whom it was taken.
I assure the hon. Gentleman that we are working with the police and the Investigatory Powers Commissioner on how those provisions will be implemented in practice. The mechanics will be set out in the schedule 3 code of practice that we aim to publish in draft in the autumn. I hope that I have persuaded him that that is the right approach and he will accordingly be content to withdraw his amendment.
Nick Thomas-Symonds
I am grateful that the Minister has set out the position regarding the proposed code of practice. If he would undertake to keep me updated on how discussions go leading up to that publication in the autumn, I would be very grateful and willing to withdraw the amendment.
Mr Wallace
To reassure the hon. Gentleman, it will be a statutory code, so it will go through the full process.
Nick Thomas-Symonds
In that case, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Gavin Newlands
I beg to move amendment 21, in schedule 3, page 46, line 17, leave out “and 26”.
The Chair
With this it will be convenient to discuss the following:
Amendment 22, in schedule 3, page 46, line 26, leave out sub-paragraph (3).
Amendment 38, in schedule 3, page 46, line 27, leave out from “would” to the end of line 28 and insert
“create an immediate risk of physical injury to any person or persons.”
Amendment 40, in schedule 3, page 46, line 28, at end insert—
“(3A) Where the examining officer believes that there is an immediate risk of physical injury to any person or persons under subparagraph (3), they must allow the detainee to consult a solicitor by telephone.”
Amendment 23, in schedule 3, page 46, line 33, leave out sub-paragraph (6) and insert—
“(6) Sub-paragraph (5) does not apply if the examining officer reasonably believes that the time it would take to consult a solicitor in person would create an immediate risk of physical injury to any person.”
Amendment 39, in schedule 3, page 46, line 34, leave out from “would” to the end of line 35 and insert
“create an immediate risk of physical injury to any person or persons.”
Amendment 41, in schedule 3, page 46, line 35, at end insert—
“(6A) Where the examining officer believes that there is an immediate risk of physical injury to any person or persons under subparagraph (6), they must allow the detainee to consult a solicitor by telephone.”
New clause 3—Access to a solicitor—
“(1) Schedule 8 of the Terrorism Act 2000 is amended as follows.
(2) In paragraph 7 leave out ‘Subject to paragraphs 8 and 9’.
(3) In paragraph 7A—
(a) leave out sub-paragraph (3),
(b) leave out sub-paragraph (6) and insert—
‘(6) Sub-paragraph (5) does not apply if the examining officer reasonably believes that the time it would take to consult a solicitor in person would create an immediate risk of physical injury to any person.’
(c) in sub-paragraph (7) at end insert ‘provided that the person is at all times able to consult with a solicitor in private.’
(d) leave out subparagraph (8).
(4) Leave out paragraph 9.”
This amendment would delete provisions in the Terrorism Act 2000 which restrict access to a lawyer for those detained under Schedule 7.
Gavin Newlands
The amendments would delete the provisions that restrict access to a lawyer for those detained under schedule 3 for the purpose of assessing whether they have engaged in hostile activity. However, in doing so, the amendments would add an important safeguard that would ensure that that would not apply if the examining officer reasonably believed that the time it would take to consult a solicitor in person would create an immediate risk of physical injury to any person.
In addition, new clause 3 would amend schedule 8 of the Terrorism Act 2000 with regards to access to a lawyer. It acts on the concerns that have been expressed to us by many different organisations and respected individuals. As we have heard, this section of the Bill would allow an individual to be detained for a significant period of time without reasonable grounds.
Notwithstanding the Minister’s points about the varied forms of intelligence that are received, the amendments are not about constraining the powers of the men and women who work at our borders, but acting on the concerns that have been expressed to ensure that correct and proper due process is followed. During the evidence session, we heard from Richard Atkinson that the schedule was of “great concern” to him as
“It fundamentally undermines what I would consider to be a cornerstone of our justice system—legal professional privilege.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 26, Q55.]
We will come on to that in more detail in the next set of amendments.
In addition, during the oral evidence, Abigail Bright of the Criminal Bar Association also had concerns about
“having no access to a lawyer, on the face of it for no good reason”
and
“why the rights of a suspect, who is potentially an accused person, should be diminished”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 58, Q128.]
I suspect that the schedule has been drafted as a result of concerns that lawyers and legal advisers could be exploited and manipulated in some way, as has been outlined. However, as was pointed out, that is not unknown to our criminal justice system and we already have powers in place to deal with such occasions. For example, in code H of the Police and Criminal Evidence Act 1984, which deals with counter-terrorism cases, if there is a concern about an individual lawyer, there is provision for the suspect to have the consultation with that lawyer delayed but to be offered the services of another lawyer in the meantime, so the suspect is not devoid of legal advice.
Access to legal advice is a cornerstone of the British justice system—as a Scottish National politician, I should say the English and Welsh justice system and the Scottish justice system, before I get chided—and one that we should protect at all costs. I accept the Government propose the changes with the best of intentions to keep us safe but, as we have pointed out, there are ways that that can be done without eliminating or infringing on the basic principle of the rule of law.
The amendments provide a degree of flexibility to the authorities while ensuring that individuals can still access and make use of proper legal representation. Specifically, amendment 23 would, as I have outlined, provide that an individual can be prevented from consulting a lawyer in person only where the officer reasonably believes that the time it would take to secure a solicitor’s presence would create an immediate risk of physical injury to an individual or group of people. Those are important safeguards when there is valid suspicion about waiting for a lawyer to meet a client. Public harm can be caused by the wait, but at the same time there is an issue in the majority of circumstances of protecting someone’s basic right of access to a lawyer.
New clause 3 would amend schedule 8 to the Terrorism Act 2000. It would delete provisions restricting the access to a lawyer of people detained under schedule 7 to the same Act. I respect the concerns that the Minister has outlined, but I think that they were alleviated in the oral evidence given by Max Hill a couple of weeks ago. By tabling the amendments and new clause I am trying simply to maintain access to justice.
Nick Thomas-Symonds
I support the amendments tabled by the hon. Member for Paisley and Renfrewshire North; I also want to speak to amendments 38 to 41, which I tabled. They follow the same general tenor as the hon. Gentleman’s amendments, in that they are practical suggestions for maintaining the right to access to a lawyer. Amendment 41 is about consultation via telephone.
I will not discuss the amendments in the next group now. They have far more to do with the right to consult a solicitor in private. None the less, that issue is also at the heart of the amendments in the group we are now considering. The hon. Member for Paisley and Renfrewshire North has already referred to the evidence given by Max Hill, and I commend the evidence of Richard Atkinson, too. He chairs the criminal law committee of the Law Society, and I am sure that the Minister recalls a conversation with him on this very issue.
The Minister put the practical point to Mr Atkinson about whether access to a lawyer would be requested on every stop at the border. However, that is not what is at the heart of the amendments. The Minister asked Mr Atkinson whether he thought
“that when a Border Force person, a customs person, seeks to detain you for an hour or however long to examine and question you further, they, too, should have access to a lawyer”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 29, Q66.]
That was about when the stage of being questioned was reached. The Minister mentioned a series of stages—whether it was a screening stop or another type of stop; but what I am talking about applies when questioning starts, when legal advice would be a necessity. We are not talking about the thousands of stops that are made. We are talking about particular circumstances that would be analogous to the position in the Police and Criminal Evidence Act 1984.
I also commend Mr Atkinson’s evidence in terms of seeking practical solutions to deal with the Government’s concerns and still maintain our cherished right of legal professional privilege. As I have said, Ms Ryan, I will not talk about that in principle now, as I will do so on the next group of amendments. However, Mr Atkinson suggested several ways in which the balance could be maintained. He said the consultation could be delayed; if there were concerns about a particular lawyer, the services of a different one could be offered; and advice could still be given within the sight of examining officers without necessarily being given within their hearing.
I recognise the issue of immediate physical threat, as well. However, I urge the Minister to look at the matter practically, and not to sacrifice legal professional privilege but to take note of the practical solutions by which we could deal with concerns about individuals abusing the right to consult a lawyer by, for example, consulting someone who is not a lawyer or passing on information. I accept that there is a risk and I accept what the Government say, but we should turn our minds to finding a practical solution that maintains legal professional privilege.
Mr Wallace
I commend the spirit of the amendments tabled by the hon. Members for Paisley and Renfrewshire North and for Torfaen. It is important that as we strengthen our powers to tackle hostile state activity, we ensure that appropriate safeguards are in place to govern the exercise of those powers. The amendments seek to ensure that if an individual has been detained under schedule 3 to the Bill, and schedules 7 and 8 to the Terrorism Act 2000, the examining officer must postpone questioning until the examinee has consulted a solicitor in private. The amendments, and those in the next group, would remove almost all restrictions on that right, which allow police officers to impose conditions on its exercise. The Government’s case against the amendments applies equally to those in the next group, so I ask for your indulgence, Ms Ryan, if I touch on the issues raised by amendments 24, 25 and 42. It may be that when we come to the next group, we will find that we have already covered much of the ground.
The powers under schedule 3 to this Bill and schedule 8 to the 2000 Act would afford any person who is formally detained the right to consult a solicitor privately, if they request to do so, subject to exceptional powers of delay, which I will explain further. I agree with Opposition Members that where an individual has been detained under those schedules and has requested to consult a solicitor, they should have the right to do so privately. In the vast majority of cases, there will be no reason to question that right. On rare occasions, there might be a need for the examining officer or a more senior police officer to impose certain restrictions.
I want to be clear that the restrictions in schedule 3 are not new or novel. Indeed, they are modelled on existing restrictions and conditions that are available now to police officers in schedule 8 to the 2000 Act and in the PACE codes governing the detention rights of those arrested under non-terrorist arrest powers. They are designed to be available only in specific and serious circumstances, namely where those detained seek to frustrate an examination, cause evidence to be interfered with or alert others who are in some way involved in an indictable offence.
Nick Thomas-Symonds
If there were, just as there would be in a police station, a list of duty solicitors—or a list of approved lawyers where, if there were concerns, those lawyers could be removed from the list—why would there be a concern about an individual speaking to one of those lawyers in private, if that control were in place?
Mr Wallace
In the PACE codes, we already have that small ability to reflect that concern, if there is a concern. It can be done already in such a situation.
Nick Thomas-Symonds
There can certainly be restrictions. There could be a restriction that an individual can consult a lawyer within sight of an examining officer—no issue with that. The issue is where the Bill goes further and provides that it must also be within the officer’s hearing. The justification given for that, as I understand it, is a worry that the individual will abuse that right and pass on information to someone, saying they have been picked up or whatever it might be. Why would that be a problem if there was an approved list of lawyers, which we were monitoring all the time, where we know that they are bona fide lawyers and there is not a concern?
Mr Wallace
I will address that issue later in my speech. I can inform the hon. Member for Torfaen that at the moment, if an individual is detained on a customs stop for an hour, they only have a right to a lawyer in that environment once they have been arrested, not while they are being detained. That is currently the practice.
In the vast majority of cases there will be no reason to question the right, but on rare occasions, there may be a need for the examining officer or a more senior police officer to impose certain restrictions. As I have already stated, these conditions are available now to police officers in schedule 8 to the 2000 Act and in the PACE codes. It is mainly about a situation where those detained seek to frustrate an examination or in some way alert others who might be themselves subject to an indictable offence. That might be where prior intelligence indicates that the individual might seek to obstruct an examination, either because they have a history of doing so or they have been trained to bypass, frustrate or subvert police examinations. The officer might also witness interactions between the individual and their solicitor, which alerts the officer to the possibility that they are conspiring to obstruct an examination or interfere with evidence.
Nick Thomas-Symonds
Clearly, the professional code of conduct that lawyers have would prevent them in engaging in any illegal activity, so that would be covered in any event. If there were, say, four or five approved lawyers who were completely regulated and we knew who they were, why would there be a risk of them passing information on to other people?
Mr Wallace
Let me proceed. When it comes to a person’s right to have access to a lawyer, no one currently prescribes in law that they may have only certain lawyers, except in Special Immigration Appeals Commission hearings. I would be interested in what the Law Society in Wales would say if we tried to set out that they could see only vetted lawyers.
Nick Thomas-Symonds
Police stations have duty solicitor rotas, and that has been in existence for decades.
Mr Wallace
I understand that, but that does not restrict arrested people in a police station to choosing only from those lawyers. They can say, “I don’t want any of those five. I want the one I want.” I understand the hon. Gentleman’s point about a lawyer being trustworthy or effectively selected not specifically by the person detained but from an approved list. However, it would be difficult to go down the path of trying to approve people.
Nick Thomas-Symonds
But that is already the case in Police and Criminal Evidence Act 1984 code H. Richard Atkinson said that
“where there is concern about an individual lawyer”—
let us take the example of a person who asks to ring someone we are not entirely sure about—
“there is provision for the suspect to have the consultation with that lawyer delayed but to be offered the services of another lawyer in the meantime.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 27, Q55.]
Why do we not take the equivalent of that to the border? We could offer the services of those on our duty list—problem solved.
Mr Wallace
I understand the hon. Gentleman’s point. All such schemes, including his, restrict people’s right to a lawyer, one way or another. They either say, “I don’t trust your lawyer, so you can have my lawyer,” or—this is how the Government are doing it—“We have exceptional grounds, authorised by a chief officer, because we are suspicious of something”.
The hon. Gentleman makes a point about police stations, but many of these examinations are about establishing who, what, where and when. We should remember that in the port stops power, to balance the removal of some rights, these verbal discussions are not admissible in court as evidence, unlike in a police station, where everything said can be taken down in evidence and used. We give that protection, as my hon. Friend the Member for Cheltenham (Alex Chalk) pointed out.
Afzal Khan
I accept what the Minister says about trying to balance rights by not allowing such conversations to be used as evidence, but would it not be better and in the wider interest to allow the use of solicitors from a pool and be able to use those conversations as evidence?
Mr Wallace
If I were to propose such a restriction on which lawyers could be consulted, I would find difficulty in the House of Lords. Let me proceed.
Accepting the amendments would in effect offer an opportunity to those engaged in activity of such severity to frustrate and obstruct an examination. Let me address the key point raised—the evidence we heard last week on restriction of the right to consult a solicitor in private. We must be clear that schedule 3 would allow use of the power only when an officer at least of the rank of commander or assistant chief constable has reasonable grounds for believing that allowing the examinee to exercise his or her right to consult a solicitor privately will have certain serious consequences.
The provisions are largely modelled on similar provisions in PACE: namely, where there are reasonable grounds to believe that private consultation will result in interference, injury to another person or hindering the recovery of property. Due to the potential severity of an act of terrorism, schedule 8 to the 2000 Act outlines additional consequences that might justify allowing the legal consultation to take place only within the sight and hearing of a qualified officer. Those include interference with information-gathering relating to an act of terrorism, alerting a person and making it more difficult to prevent an act of terrorism.
Schedule 3 to the Bill contains a similar consequence as a ground for allowing non-private legal consultations, namely the consequence of interference with information gathering about
“a person’s engagement in hostile activity.”
The need for the restriction is clear. It is there to disrupt and deter a detainee who seeks to use their right to a solicitor to pass on instructions to a third party. It already exists in legislation in schedule 8 to the 2000 Act, which the Bill seeks to replicate. In giving evidence to the Committee, the chair of the Law Society’s criminal law committee questioned why this restriction went beyond the equivalent provisions in PACE code H, which relate to a situation where an individual has been arrested on suspicion of a terrorism offence. PACE code H provides that:
“Authority to delay a detainee’s right to consult privately with a solicitor may be given only if the authorising officer has reasonable grounds to believe the solicitor the detainee wants to consult will, inadvertently or otherwise, pass on a message from the detainee or act in some other way which will have any of the consequences specified under paragraph 8 of Schedule 8 to the Terrorism Act 2000.”
Those consequences include harming others or tipping off terrorism suspects. In such circumstances,
“the detainee must be allowed to choose another solicitor.”
We have considered that carefully, but there are two main reasons why it is not feasible from an operational standpoint. First, in the circumstances described, where the police are concerned that an individual will use their solicitor to pass on instructions, allowing them access to a different solicitor in private will not prevent that possibility. The solicitor might be completely oblivious to the fact that their client is using them to pass on instructions to a third party. For instance, a detainee might ask the solicitor to contact someone and pass on a specific message, such as the fact that they are being detained and their location, with the solicitor unaware that the message will trigger some prearranged activity.
Secondly, inviting the detainee to choose another solicitor is not as straightforward at a UK port as it is at a police station. Unlike a detention under PACE, where there is time and access to a duty solicitor, it might take a substantial amount of time for an alternative solicitor to arrive at a UK port. To offer that option up front to the detainee, who is already presenting reasons to believe they are up to no good, provides another means for them to obstruct and frustrate the examination against a ticking detention clock.
Despite those reservations, I draw the Committee’s attention to two important safeguards that govern the exercise of such a direction. The first will ensure that a direction may be given only by an officer of the rank of assistant chief constable. The second will ensure that the officer present during the detainee’s legal consultation must not be connected with the detainee’s case. I reassure the Committee that the safeguards to the schedules have been carefully considered, following lessons learned through the exercise of the equivalent police powers, the work of the independent reviewers of terrorism legislation and our engagement with the public in respect of the existing powers for counter-terrorism purposes.
In relation to the amendments before us today, I stress that we should not hinder the ability of our law enforcement professionals to disrupt and deter those who present a threat to this country due to their involvement in terrorism or hostile state activity. Accordingly, I invite the hon. Member for Paisley and Renfrewshire North to withdraw his amendment.
Nick Thomas-Symonds
I do not propose to take this particular group of amendments to a vote at this stage, but I say to the Security Minister that the first of the two explanations given—that somehow solicitors bound by a code of conduct would be unwilling and unaware stooges passing on information to third parties—is not particularly credible. I do not think the distinction between a police station and a border security stop is particularly strong either, and I urge the Minister to look again at the practical steps around this. However, it is not my intention to push the amendments to a vote at this stage.
Gavin Newlands
I have to say that I remain somewhat unconvinced by the Minister’s arguments, and we may choose to revisit some of these amendments on Report, but at this stage I will keep my powder dry until the next group of amendments. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ordered, That further consideration be now adjourned. —(Paul Maynard.)
Counter-Terrorism and Border Security Bill
Tuesday 11th September 2018
(5 years, 7 months ago)
Commons ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 11 September 2018 - (11 Sep 2018)
17:38 - The House having divided: - Ayes: 292 / Noes: 47 - Question accordingly agreed to.
17:57 - The House having divided: - Ayes: 265 / Noes: 296 - Question accordingly negatived.
19:09 - The House divided: - Ayes: 255 / Noes: 293 - Question accordingly negatived.
19:44 - The House divided: - Ayes: 376 / Noes: 10 - Question accordingly agreed to.
The Minister for Security and Economic Crime (Mr Ben Wallace)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
Government amendments 1 to 5 and 15 to 18.
Amendment 13, in clause 18, page 19, line 14, at end insert—
“(8) After section 39 (Power to amend Chapter 2), insert—
‘39AA Review of support for people vulnerable to being drawn into terrorism
(1) The Secretary of State must within 6 months of the passing of the Counter-Terrorism and Border Security Act 2018 make arrangements for an independent review and report on the Government strategy for supporting people vulnerable to being drawn into terrorism.
(2) The report and any recommendations of the review under subsection (1) must be laid before the House of Commons within 18 months of the passing of the Counter-Terrorism and Border Security Act 2018.
(3) The laying of the report and recommendations under subsection (2) must be accompanied by a statement by the Secretary of State responding to each recommendation made as part of the independent review.’”
Mr Wallace
Today is obviously the anniversary of 9/11, a devastating terrorist attack that happened on the soil of our ally the United States and ended in the deaths of 77 United Kingdom citizens who were working in New York at the time. Today is also one of the first days of the inquest into the Westminster Bridge attack, when we lost PC Keith Palmer and four other people.
Let me deal as succinctly as I can with the Government amendment in this group, beginning with new clause 2. Since the phenomenon of UK-linked individuals travelling to join terrorist organisations in Syria and Iraq began in earnest in 2014, the Government have kept under review various options for banning or requiring notification of travel to conflict zones overseas, underpinned by criminal sanctions. The essential feature of new clause 2 is to make it an offence for a UK national or resident to enter or remain in an area overseas that has been designated by the Home Secretary. The designation of an area will be given effect by regulations, and any such regulation would necessarily need to come into force quickly, but we recognise the need for full parliamentary scrutiny of any designation. Accordingly, such regulations will be subject to the affirmative procedure.
Once an area has been designated, there will be a grace period of one month, enabling persons already in the designated area to leave before the offence takes effect. Of course, there will be individuals who have a valid reason to enter and remain in a designated area, such as to provide humanitarian aid, to work as a journalist, or to attend a funeral of a close relative. To cover such cases, we have provided for a reasonable excuse defence. Once such a defence has been raised, the burden of proof, to the criminal standard, will rest with the prosecution to disprove the defence. The new offence carries a maximum penalty of 10 years’ imprisonment, and it will be open to the court to impose an extended sentence.
The new offence is necessary for two primary reasons. First, to strengthen the Government’s consistent travel advice to British nationals, which has advised against all travel to areas of conflict where there is a risk of terrorism. And secondly, breaching a travel ban and triggering the offence will provide the police and the Crown Prosecution Service with a further tool to investigate and prosecute those who return to the United Kingdom from designated areas, thereby protecting the public from wider harm.
Sir Edward Davey (Kingston and Surbiton) (LD)
The Minister said a few moments ago that it will be for the prosecution to show that a person does not have a reasonable defence, but that is not what new clause 2 says:
“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area.”
Mr Wallace
I disagree with the right hon. Gentleman. If a person produces a reasonable defence, as it would play in court, we would have to say, “That is not a valid defence,” and therefore we would have to prove why it is not. In addition, the public interest consideration will be involved when the CPS seeks to bring charges.
It is also important to inform the House that, obviously, reasonable excuses will include those in line with the European convention on human rights, such as access to family, the right to visit and all those things that give people their rights, but we are trying to introduce an important tool to make sure we deal with the scourge of the foreign fighter threat we now face here.
Mr Jim Cunningham (Coventry South) (Lab)
I do not want to digress too much, but in those circumstances, at which point could a person lose their British citizenship? Will that come into play at all?
Mr Wallace
The decision to deprive a person of their British citizenship would not be affected by this at all, one way or the other. The factors involved in making that decision range from intelligence to criminal behaviour and whether that person poses a threat to the United Kingdom. The decision would not be linked. Obviously, some people who have been deprived of their citizenship have been foreign fighters overseas engaged in fighting for ISIS or al-Qaeda, and this measure is aimed at stopping exactly that type of offence.
Everyone recognises the challenge we have in Europe. I was at the G7, and every member state has a cadre of foreign fighters who are a challenge when they come back. It is important to get a statute book that can deal with that. We often have evidence that foreign fighters have travelled to, say, Raqqa, and we may have evidence to some extent that they have supported or been engaged in areas of terrorism, but it has been very hard to prosecute. That is what this Bill is trying to do. The Danish Government have similar legislation, as do the Australian Government.
Keith Vaz (Leicester East) (Lab)
The Minister is obviously right. We have to deal with foreign fighters, and the best way to do that is to prevent them from going in the first place. Will he confirm that no aspect of new clause 2 or the Bill will specifically address the issue of citizenship, and that even if a British citizen travels to a designated area, they will not have their British citizenship taken from them?
Mr Wallace
What I can say is that if a British citizen goes to a designated area and commits an offence, it will depend on what they were doing. If a British citizen who is a dual national goes to one of these areas to fight for ISIS or al-Qaeda, and if we cannot prosecute them, deprivation becomes more of an option. I would prefer to see these people put on trial in a British court, convicted and sent to prison. That is my preference, and all these other measures have been introduced to try to deal with these very difficult issues.
The Bill also extends the jurisdictional reach of some offences, such as under the Explosive Substances Act 1883, to try to ensure that people committing offences over there can be tried.
Joanna Cherry (Edinburgh South West) (SNP)
As the Minister says, we already have quite a lot of offences with extraterritorial jurisdiction, and clause 5 would add to them. What can he do to convince us that the new clause is necessary and proportionate, given the plethora of extraterritorial offences that already exist?
Mr Wallace
We have 400 people in this country who have returned from activity in hotspots, many of whom we believe, from intelligence, have been active, but whom we have been unable to prosecute. That is a serious number of people. A number of them continue to pose a threat, and we have not been able, despite quite a lot of effort and looking, to find evidence to bring to court to prosecute them for the terrorist activity they may have been involved in.
If I was talking about one or two people, it might be a different issue. The French and the Germans have the same problem. It is a growing phenomenon that people are travelling in this world to commit offences. They are tech-savvy; they are capable of sometimes masking some of their behaviour. The grooming that has gone on to seduce people into these locations is a big challenge, and I fear that if we do not legislate, we will not be able to prosecute those people coming back. Do I think the legislation will prosecute hundreds of people? No, I do not, but I think there will be a few people that we can prosecute if they did this. As I said to the shadow Home Secretary yesterday, I recognise that we have introduced this measure into the Bill late, and I apologise for that. However, we are in the Commons, and the Bill will no doubt go to the other place, and I am happy to discuss further how we can clarify it and safeguard it and make sure that it is not abused as a system, and that the reasonable excuse issue is further explored. I think that is appropriate.
Sir Edward Davey
Can the Minister say where else in British law it is an offence to be located somewhere, rather than to act in a certain way in that place?
Mr Wallace
I would have to speculate; I am not a barrister or lawyer, so I dare not venture down that road. A court may grant an injunction on an area. A stalker often faces injunctions—they are not allowed within 100 metres of a house, and if they go within 100 metres of it, they have committed an offence.
Mr Wallace
The question was, is there anywhere else in law where going somewhere becomes the offence? There clearly is if someone breaks an injunction. I think there are injunctions not just against someone who has done something wrong, but I shall not pilot off down that course.
As I said earlier, obviously there is the further safeguard that breaching a travel ban and triggering the offence will provide the CPS with a further tool to investigate and prosecute those who return, thereby providing protection. Government amendments 15 to 25 are consequential on new clause 2.
John Woodcock (Barrow and Furness) (Ind)
I congratulate the Minister and the Government for—although belatedly—bringing in this power, for which I and many others have long been calling. It was patently obvious that many of the Brits who we knew were travelling to Iraq and Syria had no other reason to be there than to support terror, but there was not sufficient evidence to prosecute, hence 400 of them, by the Government’s own estimate, are coming back largely without prosecution. Do the Government have an estimate of how many of those 800 Brits who we know went over to Raqqa during the recent conflict could have been prosecuted under this legislation, had it been on the statute book at the time?
Mr Wallace
I am happy to write to the hon. Gentleman with a specific number, if we trawl through the whole lot. I certainly see cases where we have footage of people in certain locations. They may not necessarily be carrying a black flag, but they are dressed in combats and they are standing in front of an iconic building somewhere. I cannot express how frustrating it is to see what I see, with some very dangerous people coming back to our communities, and I long to be able to prosecute them. Very often the “You done nothing” critics do not provide an alternative suggestion. This is an alternative suggestion. I have not heard other suggestions.
I have taken my time on this. When I was in Singapore last year, I met my Australian counterpart, who talked about such legislation. I spoke to the people who use it on the ground—the Australian police force and security services—and we have explored other ideas. It is incredibly frustrating to know that in our communities are people who pose a real risk and who we have struggled to be able to prosecute. That is not because of resource, but because of statute, and that is what we are trying to fix.
I place on record that the hon. Member for Barrow and Furness (John Woodcock) has done a lot on this issue. Unlike many people who speak on these things, he has met detainees in Turkey and other places. He will know the challenges that the Turkish Government and our Government face. He has been supportive and made suggestions on this type of measure, which will make a difference. While Syria is tragically coming to a place where there are endless horrors on the horizon in terms of Idlib that we must all unite to try to stop, the groomers are encouraging people to go to new places and new safe spaces. We have seen aspirant travellers into parts of Africa. We have seen aspirant travellers to the conflict in parts of the Philippines. They are out there now encouraging our young people to go into a safe space, so they can indoctrinate them to become terrorists. That is why I passionately feel and the Government feel that we need to put this measure on our statue book.
Sir William Cash (Stone) (Con)
My right hon. Friend and I have had quite a lot of discussions on this issue. I have also had discussions with the former Home Secretary, now Prime Minister, on the subject as long ago as 2015. The Minister knows what I am going to say, because I gave a speech during the proceedings of the Counter-Terrorism and Security Act 2015 on 6 January 2015—more than three years ago—on whether we could stop these terrorists coming back to kill people. Since the events I referred to in that speech, many have been killed. The issue is about making people stateless. I know my right hon. Friend will have considered that; will he please comment on it?
Mr Wallace
My hon. Friend knows that making people stateless is a hefty measure. From our legal advice, we cannot make someone stateless. If they are a dual citizen, we can deprive them of citizenship. I understand the point that my hon. Friend makes, but in an international community, we cannot entirely pass our problems around. Part of the offence with designated areas is that other countries do not like us unilaterally saying, “It is not our problem anymore. We do not have any offences to charge them with, so we are going to deprive them of citizenship and off they go to you. It is your problem now.” Our preference is to bring them back, charge them and put them in prison. We think very hard about the international consequence of deprivation.
Sir William Cash
Will the Minister allow me one further point? I had referred to the international convention, article 8 of which clearly states that if a person who is effectively in a designated area under the new clause has sworn allegiance to, or acted in a manner such that he is giving his allegiance to, another state and is also saying by implication that he no longer regards himself as a British citizen, it is possible to make them stateless. For that reason, I wish I could get a more emphatic answer to my question.
Mr Wallace
As ever, my hon. Friend makes an articulate and knowledgeable point. My disagreement is that, no matter how it may take allegiance, I do not recognise ISIS to be a state. It is a non-state. It is a fabrication of pretty awful people. We should not give it credibility: just because some poor, weak, often exploited people, but also some pretty nasty people, have sworn allegiance to it, it does not make them part of a state. It is one thing for someone to renounce citizenship and say, “I am now going to be a citizen of country X,” but Islamic State is a fiction of many people’s imagination, as we have seen. It is in rapid decline.
I would like to push on to amendment 1, the flag seizure power, which would confer on the police a power to seize flags or other articles associated with a proscribed organisation. Under section 13 of the Terrorism Act 2000, it is an offence for a person to wear, carry or display an item of clothing or other article in such a way as to arouse reasonable suspicion that they are a member or supporter of a proscribed organisation. By conferring on the police the power to seize such articles, we will ensure that they and the Crown Prosecution Service have the best evidence to pursue a prosecution under section 13.
Of course, the police already have the powers to seize evidence following an arrest, but in the context of policing a march or demonstration, arresting an individual may not always be an option if the tests for making an arrests are not satisfied. Even if arrest is an option, it may not be an appropriate policing response at that time. Obviously, the decision would be at the discretion of the police. In such cases, if the police wish to take action against a person displaying such a flag, then instead of arresting the individual, the officer may choose to report the person for summons on suspicion of committing an offence under section 13 of the Terrorism Act. This new power would enable the officer in these circumstances to seize items such as flags that are reasonably in evidence under the section 13 offence without there having been an arrest, provided that the officer is satisfied that it is necessary to seize such items to prevent the evidence being concealed, lost, altered or destroyed. By preventing the loss and destruction of such items and articles, this approach will better support investigations and prosecutions by providing more evidence to help take forward prosecutions.
Gavin Robinson (Belfast East) (DUP)
The Minister will know that there are particular issues around flags and their association with proscribed organisations in Northern Ireland. Will he outline for our benefit what engagement he has had with the Police Service of Northern Ireland, or indeed with the Public Prosecution Service in Northern Ireland, around this clause, the associated difficulties in pursuing such prosecutions and the ancillary arguments that are made that a modern-day flag associated with a proscribed organisation actually has roots in the legitimate historical associate group?
Mr Wallace
I know that throughout the passage of the Bill we spent days with the PSNI. On the point about the DPP, I will make sure that the hon. Gentleman gets an exact answer on that from officials. As he will know, I have first-hand experience of what can go wrong and of the consequences of trying to take a flag or something from a proscribed organisation. Certainly, taking away a flag in certain parts of Northern Ireland has, in the past, acted as an instant lightning rod for a riot or a breakdown in civil order, and there were definitely better methods that could be used to police a parade. There is also an obligation on the police to make sure that policing is done in a way that allows a legitimate march to go ahead, but that does not provoke a public order disaster. That is why police discretion is important.
I understand the point that the hon. Gentleman is trying to get at, which is that, in Northern Ireland, the matter is not straightforward. A flag does not have pure terrorist content. Different parts of the community will interpret other people’s flags. There is also a historical basis in organisations having a flag which links to the first world war. Things are not as straightforward as people think. I have been very cautious in introducing this amendment to make sure that my experience—and, obviously, the hon. Gentleman has greater experience—of Northern Ireland is not forgotten. I do not want to see flag protests becoming more and more polarised than they were in the past. I will happily get back to the hon. Gentleman in relation to the DPP in Northern Ireland.
I turn now to Government amendments 2 to 4 to clause 3, which close a widely recognised gap in the law with regard to the viewing of terrorist material online. Following the helpful debate in Committee and considerable discussions with the Labour party and its Front-Bench Members, I took the decision that it was best to drop the concept of the three clicks. Throughout the passage of this Bill, I have been open to suggestions from all parts of the House. I agreed completely that, first, the three clicks would not survive the test of time and that, secondly, we would not end up with good law or achieve our aim. I undertook to see how we could improve on this, and I listened to the hon. Member for Torfaen (Nick Thomas-Symonds). I am 48—just about a kid of the ’80s—so I remember the Spectrum and the ZX81, but I think it is best that legislation in the digital age looks like us, sounds like us and is not written by people who probably switch on a computer once a year.
Instead of splitting hairs about clicks and everything else, we came to the view that it was right in principle for the Government to update legislation for the digital age with provisions on the collection or recording of information that is likely to be useful to terrorists. The provision applies consistently to information that is accessed online, rather than as under the current measure, which only covers information that is downloaded. When the previous legislation was written regarding downloading content or taking copies, broadband was very slow—if it existed at all—so the only way people could watch content was by downloading it first. Now with superfast or fast broadband, people are streaming everything. This creates a loophole that can be exploited and that we have to close.
Joanna Cherry
I am a little puzzled. The Government have conceded that clause 3, as originally drafted, was imperfect and lacked sufficient clarity, but do they not make the problem worse by removing the requirement for three clicks, so that only one click will suffice, and broadening the offence to include not just viewing but accessing material in any way? I do not understand how these amendments address the imperfection and lack of clarity.
Mr Wallace
The intention behind the three clicks provision was an ambition to ensure proportionality and provide a safeguard for those who might inadvertently access such material, but we recognise the underlying difficulties of this approach and the uncertainty regarding how it will be implemented. That is why we tabled amendment 2.
Amendment 4 complements amendment 2. It is intended to provide a similar safeguard, but in a clearer and more certain way, without relying on a blunt instrument. These amendments will make it clear on the face of the legislation that the reasonable excuse defence would apply if the person does not know, and has no reason to believe, that the information they are accessing is likely to be useful to terrorism. This means that a person would be able to defend themselves on that basis in court. As a result of section 118 of the Terrorism Act 2000, if such a defence is raised, the court and jury must assume it to be satisfactory, unless the prosecution is able to disprove it beyond reasonable doubt.
Joanna Cherry
I am not satisfied with that explanation, because the reasonable excuse defence is only there for somebody who does not know what they are doing. What if somebody legitimately accesses the material, knowing its content, but without any intent to commit harm—for example, an academic or a researcher? They would not be protected by that defence, would they? [Interruption.]
Mr Wallace
The hon. Member for Torfaen is absolutely right; it is set out quite clearly in the 2000 Act. The reasonable excuse defence is a good defence. It will cover journalists and academics, which is important. It would also mean that the prosecution is unlikely to commence in those circumstances, because it would not pass the Crown Prosecution Service threshold test of being in the public interest and of there being a realistic prospect of conviction. The police and the CPS are rightly focused on those who pose a genuine threat, and they have no interest in wasting their valuable time investigating and prosecuting people who pose no threat, where there is no public interest and no prospect of conviction.
Amendment 3 expands the offence of viewing information likely to be useful to a terrorist, so that it also includes otherwise accessing such material through the internet. This is simply intended to ensure that the offence captures non-visual means of accessing information such as audio recordings, in addition to video, written information or other material that can be viewed.
The Government recognise the sensitivities of the issues and the need to ensure proportionality and to provide appropriate safeguards, and we have been open to exploring how clause 3 can be improved to do so in a clearer and more certain way. But we make no apologies for sending a clear message that it is unacceptable to view or stream such serious and harmful terrorist material without a reasonable excuse, nor for having in place robust penalties for those who abuse modern online technology to do so. We consider that clause 3, as amended, is both proportionate and necessary to allow the police to take action to protect the public from potentially very serious threats.
Government amendment 5 responds to the oral evidence heard by the Public Bill Committee about the maximum penalty for the offence of failure to disclose information about acts of terrorism. Section 38B of the Terrorism Act 2000 makes it an offence to fail to disclose to the police information that might be of material assistance in preventing an act of terrorism or in securing the apprehension, prosecution or conviction of a terrorists. This offence might apply in a case where a person, not themselves a terrorist, knows that a family member or a friend is planning or has committed an act of terrorism and fails to inform the police. In his evidence to the Committee, the independent reviewer of terrorism legislation, Max Hill QC, argued that the maximum penalty for this offence is too low and should be increased. Having considered the issue further in the light of recent cases, we agree. Those who know that others are engaging in, or planning, terrorist activity have a clear duty to inform the police about such actions. Where people do have information about attack planning or other terrorist activity and they fail to inform the police, it is right that we have appropriately stringent sentencing options in place. An increase in the maximum penalty from five to 10 years’ imprisonment will send a clear signal about the seriousness of this offence.
This group of amendments also includes amendment 13, in the name of the hon. Member for Torfaen, which seeks to provide for an independent review of the Prevent programme. I shall wait to hear what he has to say about that amendment.
Nick Thomas-Symonds (Torfaen) (Lab)
I am grateful to the Minister for setting out the designated area offence.
Before I turn to that, I join entirely with the Minister in his opening remarks marking the anniversary today of the terrible attacks on the twin towers on 9/11 in 2001, and indeed his remarks about the inquest on the Westminster bridge attack. We all join together in paying tribute to our emergency services, to the first responders in the United States and to all the families who were affected by those terrible events. Of course, as we debate this legislation today, we bear in mind that experience, and indeed the experience of other terror attacks.
I am pleased by and accept what the Minister said in apology for the late arrival of this new clause. I am sure he will appreciate that it was disappointing that we were not able to subject it to scrutiny in Committee, because it would obviously have been more useful had we been able to do so. Of course, that does not mean that we will not want to put it to scrutiny in the other place, and we certainly will do that, but I would have liked to have been a position to give it more scrutiny before today. None the less, I accept that, as legislators, we have to look to deal with the threat that foreign fighters pose to this country when they return, and I am not proposing that the Opposition oppose this measure. However imperfect legislation can be, the rule of law is paramount. If we ever sacrifice the rule of law—if we undermine our own values in dealing with those who seek to destroy them—then we lower ourselves to the level of their barbarism.
I am pleased that, in dealing with this, the Minister has rejected calls to update the law of treason, which, after all, reached our statute book in 1351, has not been used since 1945, and was meant for a different age. We are also pleased that the Minister has rejected calls simply to dole out justice summarily and arbitrarily, which would undermine the rule of law. Unfortunately, other members of the Government—not least the Defence Secretary, I am afraid, last December—have previously suggested that. I am glad that those courses for dealing with this have clearly been rejected by the Minister.
As the Minister set out, new clause 2 designates in a statutory instrument laid before Parliament an area for the purpose of protecting members of the public from terrorism. In a letter to me, the Minister made it clear that such a statutory instrument would be introduced via the affirmative procedure, so that whenever an area was to be designated, it would be done on the Floor of the House. I hope he can confirm that that will be the case.
As the new clause sets out,
“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area.”
That reasonable excuse defence will be an extremely important safeguard. I also draw attention to what Max Hill QC, the current independent reviewer of terrorism legislation, said in October 2017:
“those who travelled out of a sense of naivety, possibly with some brainwashing along the way, possibly in their mid-teens and who return in a state of utter disillusionment…we have to leave space for those individuals to be diverted away from the criminal courts.”
Prosecutorial discretion and whether prosecution is in the public interest will, of course, be vital in this area.
While it is essential to deal with this matter by legislation, we will want to look at it in more detail, particularly in the other place. I welcome what the Minister said about being willing to work constructively on this, as he has on other parts of the Bill. We clearly cannot guarantee where future conflicts will take place, but we have to be prepared for those eventualities. We will want to look at the mechanism by which the Home Secretary designates these areas and ensure that we have appropriate safeguards. I am sure that nobody in this House would want to discourage aid workers and other people who we want to be in these areas from going to them. That clearly is not the intention of this law, and we will have to look at how we can ensure that that is the case.
I turn to the issue of seizing flags. In evidence to the Committee, Assistant Commissioner Basu mentioned the absence of this power from the Bill. I have looked carefully at amendment 1, and I am grateful to the Minister for his briefing on the context of how this power will be used. The issue of the sensitivity with regard to Northern Ireland was raised in interventions on the Minister. I am grateful to hear that he has been in contact with the Police Service of Northern Ireland, and I hope that that will continue.
At present, the issue is that police can only seize material with an arrest at the scene. Amendment 1 allows material to be seized where notice is given of a summons—in other words, the person does not have to be arrested at the scene, and a summons can follow within the prescribed six-month period. The person will still have to appear in court, but there will not have been an arrest at the scene. There is a suggestion of the power being used where there is not quite enough evidence to arrest someone at the scene, but I suspect that that would be extraordinarily rare in practice, because if a flag is in support of a proscribed organisation, it is difficult to see how someone would not be committing a criminal offence in those circumstances.
I tend to see this amendment in terms of how large protests will be managed. This power provides police at the scene with an additional option. It may well be the case that trying to arrest someone at the scene can either cause a public order problem or exacerbate one, and the summons method might be easier. It is not, of course, for us to comment on an operational matter. That would have to be a judgment of the police officer at the scene, but we can set out the framework. I expect that we will have to review how the power works in practice, but it is not my intention to oppose the amendment in principle.
I turn to the Government amendments on the three clicks offence, which has been raised in interventions on the Minister. I raised a number of concerns about this in Committee and tabled a total of five amendments on it. First, let me say that I understand why the law needs to be updated in this area. It was designed for a different internet age, when people tended to download content and watch it. It does not cover those who stream it, and clearly it must cover those who do so. The difficulty in my view is that the three clicks approach simply creates more problems than it solves, and I am grateful to the Minister for listening in that regard.
Mr John Hayes (South Holland and The Deepings) (Con)
I hear what the hon. Gentleman says about Prevent, and welcome his warm support for its principles. I am glad that he has been to see its programmes, as I did when I was Minister for Security. He makes a useful point about the oversight of Prevent and about measuring the implementation of the Prevent duty. He will remember that we introduced that duty when I was the Minister. The duty affects a wide range of organisations, but the evidence suggests that its effectiveness varies across them. It would seem to be useful to take a look at that, but I would not call that a wholesale review; rather it is measuring its effect.
Nick Thomas-Symonds
I am grateful to the right hon. Gentleman for his intervention. I know the work that he did in this area. I have seen the Prevent duty in operation, both on visits as a shadow Minister and in my constituency, as it happens. I appreciate his point about whether a statutory review is justified. Clearly, we are talking about an aspect that could be taken into account in a statutory review, but wider issues to which I have already referred could also be taken into account. A statutory review would give us the opportunity to re-evaluate the programme fully, to look at those communities that have lost confidence in it and why, and to improve our ability to tackle counter-terrorism.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
I will speak about new clause 2 and the context in which it has been brought forward. The first responsibility of any Government is always to protect their citizens, and as the threats to our country evolve, so must our laws. In a speech on 17 October 2017, Andrew Parker, the director general of MI5, described the ongoing terrorist threat as
“multi-dimensional, evolving rapidly and operating at a scale and pace we’ve not seen before.”
The threat posed by terrorists and malicious actors is not going away—far from it. Last year, there was an increase of 58% in the number of arrests for terrorism-related offences. The threat is increasing and new clauses will be required to combat it.
Members have alluded to the fact that today is 11 September. No doubt we all remember where we were on this day in 2001 during the attack on the United States. I was on the wards in my first job as a hospital doctor. I was looking after an old lady who was watching television, and from behind her, I saw on the screen the aeroplane fly into the first tower.
We were all here last year when Westminster was attacked. People were tragically killed and PC Palmer gave his life protecting this House and protecting us. As we debate this topic today, we will be remembering those who were injured in those attacks and the good work and bravery of the police and the other emergency services who protect us. Every day when we come to work, the Annunciator reminds us that the threat level is “severe”. It has been severe continually for at least the past four years. This means that at any given time an attack is considered to be highly likely. As I said, it is our first duty to protect the citizens of the country. It is important, in a free and democratic country, that we do that in a way that is both proportionate and effective.
On declared areas, my understanding is that there is a significant precedent in Australia, where a specific law states that it is a criminal offence for people to go to an area. I understand that it has been used on three separate occasions in Australia, where, as is proposed here, the maximum sentence is 10 years imprisonment. That is understandable, given what the Security Minister has said, which is that 400 people who have returned to this country are believed to have been active in fighting abroad.
Alex Chalk (Cheltenham) (Con)
Does my hon. Friend agree that one of the problems facing police and prosecutors when people come back from overseas is that if they want to investigate them for preparing acts of terrorism, it is sometimes extremely difficult to get hold of evidence that may be in other parts of the world? This measure is an important way of filling that gap in the law, so that people can, when the evidence allows it, fairly be brought to account.
Dr Johnson
I thank my hon. Friend for his intervention. He puts what I was going to say much more eloquently than I could. He is exactly right. The Government need to have a way to manage the threat posed by these individuals, when they are not able to gather evidence from abroad, perhaps in a country that is a very dangerous place to be. How effective does the Minister feel the measures have been, where they have been introduced in Australia, in preventing people from going to those places and prosecuting them on their return?
The Bill also serves a vital role in updating and closing the gaps in counter-terrorism legislation in the online world. As has been described eloquently by other hon. Members, the way people use the internet has changed and continues to change. Material is more likely to be shared online than as hard copy. Material is often streamed, rather than necessarily downloaded. As the growth of the internet has provided us with unprecedented ways to stay connected and share information with each other, its potential has also been harnessed by those who wish to do us harm. This is seen every day in the huge amount of terrorist propaganda that is created and shared online. This is done at a rate much quicker than our ability, at present, to remove it. The updating of the offence of obtaining information likely to be useful to a terrorist to cover terrorist material that is viewed or streamed over the internet rather than downloaded is a reflection of how internet media are consumed today. In my view, this is an overdue update of our laws.
Furthermore, the Bill makes it clear that the existing offence of displaying in public an image that arouses reasonable suspicion that a person is a member or supporter of a proscribed organisation will now cover the display of images online. Again, that is important because if somebody on a protest march walks down a street carrying a flag or displaying an image, it will be seen by a limited number of people. Their ability to spread such images more widely and to influence more people is greatly enhanced by the ability to share them online. That is why this law is important.
Luke Graham (Ochil and South Perthshire) (Con)
My hon. Friend is explaining to the House how terrible the attack in Salisbury has been. Does she agree that it is actually a threat to the whole United Kingdom and that it is important that the provisions in the Bill are carried through not only so that action can be taken but so that information can be shared with security and police services right across the United Kingdom?
Dr Johnson
I agree that it is important in any part of police work that, where appropriate, information is shared throughout the country so that individuals who seek to do us harm can be stopped or caught if they have already committed an offence.
Being able to stop people at a border and question their intentions on coming to this country will be important in enabling the Government, the security services and the police to protect the citizens of the UK.
Stephen McPartland (Stevenage) (Con)
Does my hon. Friend agree that our constituents would expect us to be able to stop people at the border and question them in case they are a threat to this country?
Dr Johnson
I thank my hon. Friend for a great intervention. He is right that for many of our constituents, it will come as a surprise that we are not able to do this already.
Huw Merriman (Bexhill and Battle) (Con)
To continue on that theme, does my hon. Friend agree that the security elements of the White Paper on the future relationship will be essential in guarding our borders because they will ensure that we continue to work very closely with our European Union neighbours to tackle this as 28 countries, rather than just one?
Dr Johnson
I agree. Terrorism is a global threat. It affects us in this country, but, as we remember on 11 September, it has affected the United States, and it continues to affect countries throughout the world. It is absolutely right that we share information with trusted countries. We have the “Five Eyes” security grouping, and we also have the EU. It is important that we work with all our international friends to keep our country safe.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
It was said earlier from a sedentary position, “Well, that’s what the EU is for.” Does my hon. Friend agree that it is the whole international community? We are leaving the EU, but does that mean that this is any less serious a subject? As my hon. Friend has said, we will continue to work with the EU even after we leave.
Gavin Robinson
I am happy for the hon. Lady to expand on her point before she gives way—I hope—again.
Dr Johnson
The hon. Gentleman looked so keen to get to his feet.
It is absolutely right that we tackle the threat to our country by co-operating with our international friends and neighbours, and those neighbours will of course include the EU. Furthermore, it will not matter that we have left the EU because it will be in our mutual interest to co-operate on security.
Gavin Robinson
I am grateful to the hon. Lady for continually giving way as it allows us to develop some of the points.
This power already exists. Our authorities have the ability to stop people at our borders and airports who are suspected—or not even suspected—of terrorist offences. We discussed on Second Reading—and I engaged with the Minister subsequently on this point—how Border Force often uses the power erroneously against British citizens travelling from Belfast to Birmingham, for example, or from Glasgow down to Birmingham or London, and so on. It is not appropriate. I hope in this debate to get a sense that there will be some restrictions on a power that is worth while and useful from a terrorist prevention perspective, but which is being used improperly and erroneously.
Dr Johnson
I thank the hon. Gentleman for his question, although it is one for the Minister, rather than me. I would certainly expect the authorities to use the power proportionately and where necessary to keep people safe, not to stop and question people at the border without reasonable grounds.
Several hon. Members have raised the reasonable excuse issue in respect of people returning to this country. People who have been to a declared area will have the reasonable excuse defence. So people will be able to travel to these areas for legitimate purposes—for example, for journalism or to visit family for a funeral or some such important bereavement event. It will also be allowed for people delivering aid, and obviously for the armed forces. The Government have worked to ensure that these declared areas provisions meet the important test of protecting our citizens and are both proportionate and effective.
Joanna Cherry
The hon. Lady is being very generous with taking interventions. She said a moment ago that leaving the EU would not matter in terms of our co-operation with the EU. Does she not understand that when we leave the EU we will be a third country and that third countries do not have the same access to information sharing as members of the EU? Indeed, it is why our “Five Eyes” allies like the UK being in the EU—they get access, through the UK, to information they would not otherwise have.
Dr Johnson
I disagree with the hon. and learned Lady. Each country has a duty to protect its citizens. She says the “Five Eyes” like access to the EU’s information, but is it not also reasonable to suppose that the EU likes access, through us, to information from the “Five Eyes”? I am sure that the Government would share information only with the consent of the countries that had given that information, when appropriate; it is as much in the interests of the EU to have access to our information as it is for us to have access to the EU’s information.
Joanna Cherry
Can the hon. Lady name any third country that has the same access to information trading within the EU as an EU member?
Mr Hayes
It may be—I do not say this with any acrimony—that the hon. and learned Member for Edinburgh South West (Joanna Cherry) is letting her pro-European prejudices get the better of her understanding of security. The truth is that, as she will know, we draw on a variety of sources of information. It is true that we use the Schengen database, but only as part of the network of information that we gather across all kinds of borders and from all kinds of sources to help to inform our intelligence and security services. The likelihood of that changing as a result of our departure from the EU is being exaggerated by those who have a different agenda.
Dr Johnson
I thank my right hon. Friend the Member for South Holland and The Deepings (Mr Hayes) for his intervention. I agree with him profoundly. I think it is scaremongering to suggest that for some reason the EU would not wish to share security information with us, and that we would somehow become less of a security partner or friend because we had left the EU.
Huw Merriman
There is not a country that has left the EU yet. We are that test case. The reality is that the EU27 will rely on us hugely when it comes to security, because we are such a great provider of that. Perhaps I could urge Opposition Members to be a little more ambitious and recognise that we have a lot to gain from this, instead of running up the white flag.
Dr Johnson
Again, I agree profoundly.
The Bill is the result of a thorough review carried out by not just the Government but the security services of how we can best protect our citizens. I believe that we can best protect them by ensuring that the Government, the police and the security services have to hand all the tools that they need to deal with the modern threats that are posed to this country.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
I echo the comments made by both the Minister and the hon. Member for Torfaen (Nick Thomas-Symonds) about the anniversary of 9/11 and the Westminster Bridge inquiry, and all who have been affected by those tragic events.
As we have heard from the hon. Member for Sleaford and North Hykeham (Dr Johnson), the first job of any Government, whether in London or in Edinburgh, is to keep their citizens safe. It is clear that we need to take action to update legislation in these difficult times of high-level terrorist threat combined with the constant march of technology and online communication. I fully appreciate the difficulty of keeping legislation current, answering the calls of the police and security services for further powers and maintaining the balance of freedom and civil liberties that we expect and enjoy. Of course, while we are supportive of the Government’s efforts, it is incumbent on any decent Opposition to offer amendments to improve the Bill and ensure that the Government get that balance right.
In Committee, we submitted many amendments that, sadly, the Minister was not wise enough to accept. However, he was wise enough to make some concessions to the Opposition. Amendment 2, for instance, would remove the requirement to view documents or records containing information likely to be useful to terrorists on three or more occasions—the three-click policy. We have some serious concerns about the impact that that may have on innocent individuals who have no interest in, intent to engage in, or wish to encourage terrorist acts. I am glad that the three-click policy has been removed, but I fear that it has simply become a one-click policy.
The previous policy was arbitrary and unworkable, given that the clicks could occur in an unspecified window of time, did not have to relate to the same content on each occasion and did not require any terrorist intent for the offence to be committed. As I did in Committee, I accept the Government’s point that more people now stream material online than download it to a computer or other device, and in that context it is vital that we continue to review our counter-terrorism approach.
The Government had argued in relation to clause 3 that the three-clicks requirement was intended to identify a pattern of behaviour; this amendment runs completely counter to that objective. As had been asked for in Committee, the Minister has included a reasonable excuse defence for this new one-click offence. I would like the Minister to address concerns raised by many, not least my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who say that it is possible that the wording will have the perverse impact of narrowing the reasonable excuse defence available to people charged with the offence, as the courts are likely to reason that, in legislating for a reasonable excuse without including lack of terrorist intent within that excuse, Parliament did not intend for lack of terrorist intent to be an available excuse for this offence. We have to ensure that the clause does not criminalise people who may view these documents with no nefarious intent, such as academics and journalists.
Mr Wallace
The hon. Gentleman makes an honest and powerful point about Safaa Boular, whom he met. Terrorists do not always present themselves in balaclavas or as nasty pieces of work, and they are often the victims of grooming or other troubles. The people who groom the likes of Safaa Boular are those returnee fighters who are hardened and who come back here. In the past, we have found such people difficult to put on trial and put away to protect the likes of her from those groomers. The designated area offence will give us the ability to do that. If returnee fighters pose a real and present threat of radicalising people in these communities, as they do—
Mr Deputy Speaker (Sir Lindsay Hoyle)
Order. Just to help: the Minister will obviously want to come back at the end of the debate, and I want him to save something to come back with. Even those on the Front Bench are meant to make only short interventions.
Gavin Newlands
Thank you, Mr Deputy Speaker. I fully accept the central point that the Minister is making, but he has failed to convince us on the question of proportionality and on the necessity for the new clause. I should also point out that Safaa was not radicalised or groomed by someone who had returned; she was radicalised and groomed by someone overseas. In conclusion, I urge the Minister to commit to this review of the Prevent strategy.
Sir Edward Davey
Across the House, we share a determination to tackle terrorism. Seventeen years ago today, I was visiting my grandmother. She was watching the television and she showed me what was happening in the appalling attacks in the United States. We in this House also know about the atrocities that happened just 100 yards away on Westminster Bridge recently. So we all want to ensure that we can do whatever we can to keep our people safe and to fight against the scourge of international terrorism. The question tonight, however, is whether the new clause and the new Government amendments will help to protect us. We have seen a huge number of laws added to the statute book, quite rightly, to help us and our security services in the attack that we are making on terrorism and in the fight back, but I am not yet convinced that this new clause and these amendments will add to the successful work that has been going on.
I say to the Minister that I reach that conclusion reluctantly, but I should like to put forward my arguments, because I am not alone in this. Skilled independent commentators have reached a similar judgment to the one that I have reluctantly reached. My first argument in relation to new clause 2 is that it is not needed. Clause 5, with which we agree, will quite rightly expand extraterritorial jurisdiction. We have seen this before, and clause 5 takes those measures further to ensure that terrorist offences committed abroad can be prosecuted in the United Kingdom. That is sensible stuff. New clause 2 wants to go further, however. Rather than being primarily concerned with terrorist acts abroad, it seeks to criminalise the whole concept of going abroad. In other words, it is not about the actions of a person but about locations.
The Minister, in his usual rational way, tried to reassure us that this was not meant to apply to aid workers or journalists, and I presume that it would not apply to people who wanted to visit sick relatives and who might even risk going to a war-torn country to do so. He referred to proposed new subsection 58B(2), which is found in new clause 2, which offers that defence, but the way I read it, the person charged will have to prove that they had a reasonable excuse for entering a designated area. That is not quite what the Minister said at the Dispatch Box, and although I did not intervene at the time, I do not think that people will be innocent until proven guilty, and that should worry the House.
The other issue is one of common sense. If a terrorist or freedom fighter who has returned is accused of going to such an area, they could no doubt make a reasonable excuse defence. They could say that they were an aid worker, and the Government would then still have to prove that they have evidence that the person was doing something wrong and was not an aid worker. I am not absolutely convinced that the Government have got this right, and I will go on to quote the former independent reviewer of terrorism legislation, David Anderson QC, who supports my view.
Nick Thomas-Symonds
There are obviously concerns about new clause 2 that we will have to consider in the other place; it is a shame that it arrived late. As for the idea of the reverse burden, under section 118 of the Terrorism Act 2000 a defendant has to raise it and then it is up to the prosecution to disprove it.
Sir Edward Davey
I am just going by what the Minister has tabled today.
David Anderson, the former independent reviewer of terrorism legislation, said in 2016 of a very similar proposal that
“this offence would not be worthwhile for the UK.”
He also complained about the burden of proof being
“on the honest and worthy to show entry into the prohibited area for a legitimate purpose.”
He said that foreign terrorist fighters
“will also cite aid purposes, so the ultimate burden of proof will still demand evidence not just of presence but also of training, logistical support, or involvement in fighting”
and went on to argue that such activities are of course already covered by the law. He also looked at the practical problems, referring to the fluidity of the
“area controlled by Islamic State (Daesh)”
and how difficult it would be to fix an area in law when the task might be like mapping the shifting sands of time and reality as the space governed by such organisations changes. There are practical problems with this legislation and, like the former independent reviewer of terrorism legislation, the Liberal Democrats do not think that the Government have made a case for it. We want to ensure that the other place scrutinises the measure given that this House has not been given sufficient time.
Finally, Government amendments 2 and 4 seek to replace their original proposal for obtaining and viewing certain material over the internet—the so-called three-click rule—with a one-click rule and a defence of ignorance about the content of the click. I spoke against the three-click proposal on Second Reading, as did many other Members on both sides of the House, and asked Ministers to go away and think again, but I did not expect them to come up with an even worse proposal. The defence for viewing such material with good cause has actually been reduced, and I am not alone in thinking that. Amnesty International fears that there is a serious risk of a chilling effect on the freedom of inquiry, whether from journalists, academics or researchers.
Mr Wallace
The right hon. Gentleman makes the same mistake that the SNP Front-Bench team made. Contrary to narrowing the definition, proposed new subsection (3A) in amendment 4 states:
“The cases in which a person has a reasonable excuse for the purposes of subsection (3) include (but are not limited to) those in which at the time of the person’s action or possession, the person did not know, and had no reason to believe”.
There is no finite list. The legislation is as broad as possible to include a whole range of reasonable excuses, including ones that we have not even thought about.
Sir Edward Davey
I am grateful to the Minister for trying to clarify the situation, but I will let others in the House read the words on the amendment paper and reach their own conclusions. In my opinion, there is a serious concern that the definition is not wide enough and that there will be, as Amnesty International and others have said, a serious chilling effect on independent inquiry. Let us remember that it is already an offence under legislation introduced by the previous Labour Government to collect or record such information. Anyone behaving in a way to prepare for a terrorist act or to encourage such an act already, rightly, commits an offence, and there is a reason why, under the Counter-Terrorism and Security Act 2015, viewing material, as opposed to collecting or recording it, was not made an offence—it is called evidence.
John Woodcock
I rise to speak strongly in favour of new clause 2, not least because I have spent the past nine months beseeching the Government to introduce exactly this measure. I thank the Minister not only for his kind words in response to my earlier intervention but for the constructive and open way in which he has worked with me. He has been clear from day one that he had already identified this measure and was looking at following the Australian example.
It is disappointing to hear the right hon. Member for Kingston and Surbiton (Sir Edward Davey), for whom I have a great deal of respect, speak so passionately against bringing in this measure. It was less surprising to hear the hon. Member for Paisley and Renfrewshire North (Gavin Newlands) do the same. I listened carefully to both, and I am none the wiser as to what either the Liberal Democrats or the Scottish National party would do to improve the incredibly dangerous situation to which this country has been exposed through the current conflict against Daesh.
By the Government’s own figures, more than 800 British citizens of interest to the security services have travelled to Iraq and Syria during the conflict. More than 400 of them, around half, have returned to the UK, yet there have only been 40 prosecutions for terrorist offences. That one in 10 rate is absurdly low, currently, when we know that the overwhelming majority of those people are going over to Iraq and Syria with no other purpose than to support jihad—to support this evil organisation. Yes, I think the shadow Minister was right in the way that he referenced what Max Hill had said about the number of people who return who may have been coerced to go over, may be disillusioned and may be able to play a valuable role in preventing others from doing so. At the moment, though, the message that this country is sending through the laughably low prosecution rate is that it is okay to go over there, to follow that dream; that people can look for the Ummah over there, and then they will be able to come back and reintegrate into society and the police and security services cannot touch them. That is a dreadfully dangerous message to be sending to people. And the measure before us, surely, is a common-sense measure, for which safeguards can easily be provided. Those who are travelling over for legitimate purposes to do aid work clearly will do so as part of a wider group and will be able to show verification for doing so.
Bim Afolami (Hitchin and Harpenden) (Con)
Will the hon. Gentleman give way?
John Woodcock
I will in just a moment. I very much hope that this legislation will get on to the statute book, and when it does I very much hope that there are very few prosecutions. It ought to provide a deterrent effect for future generations who would otherwise be tempted to go over there. I will happily give way to the hon. Gentleman, if his colleague gets out of the way in time. Okay; he does not want to intervene.
It is disappointing to hear that the Scottish National party intends to press the new clause to a Division.
John Woodcock
I will give way to the hon. and learned Lady, and I hope she will answer to her constituents and the people of Scotland why she thinks that her approach would make the Scottish National party, in an independent Scotland, fit to keep its citizens safe from terror.
Joanna Cherry
I would just very gently say to the hon. Gentleman that it ill behoves him to question the motives of democratically elected Members who seek to test the necessity and proportionality of an amendment that was only tabled two or three days ago. I would ask him to consider his approach and his language. The reason I wanted to intervene was that the Australians have a sunset clause on this power. Does he think it might be an idea for the Government to introduce a sunset clause as a safeguard?
John Woodcock
I cannot see any convincing argument for doing so. If the hon. and learned Lady wanted to make one, surely she or her party spokesman could have done so. To be clear, I do not think the motives—nothing that I have said about her party has suggested, I hope, that she actively wants to make the citizens of Scotland at greater risk from terror. However, I am afraid that that is what her party would do. Time and again, there is a long tradition, over many—
Joanna Cherry
Is it really in order for this hon. Member to impugn my motives and suggest that I want to make the people of Scotland, or indeed the United Kingdom, unsafe simply by testing an amendment? Is that really in order? It seems to me pretty close to being out of order.
Mr Deputy Speaker (Sir Lindsay Hoyle)
I know that would not be the case with the hon. and learned Lady, and I am sure that was not the intention of the hon. Gentleman.
John Woodcock
I think what we are hearing today is the real lack of scrutiny that the Scottish National party has consistently had in this place, and perhaps in the Scottish Parliament, over the years.
John Woodcock
No, I am not giving way. Sit down. Sit down. After that absurd non-point of order, I am not going to give way. The hon. and learned Lady has had her opportunity, and her party has had its opportunity, to set out why they believe that they can actually add to the security of the United Kingdom. They have just summarily failed to do that, as her party, I am afraid, has done over many years in this place.
John Woodcock
I will of course give way to the right hon. Member for Kingston and Surbiton.
Sir Edward Davey
I am grateful to the hon. Gentleman and he should know that I have a lot of respect for him. Therefore, I would ask him gently if he would go away and look at the words of David Anderson QC, just two years ago, on an almost identical amendment. That very respected independent reviewer of terrorism legislation said that this type of amendment would not work and was not needed.
John Woodcock
I am of course aware of David Anderson’s views, and I am afraid I simply do not agree with him. Will the measure solve the problem of British citizens being brainwashed into supporting jihad? Clearly, it will not—I will say a little more about the Prevent strategy in a moment—but it is surely a valuable extra tool that has been shown to be severely lacking in the UK’s arsenal in the past few years, given the hundreds of people who have come back from the terror hotspot of Daesh-controlled Iraq and Syria and not been prosecuted.
I will wind up my remarks by talking about Prevent. I heard what the shadow Minister said about the official Opposition’s motion on review, and I have no doubt that those views are sincerely held, but I will not support him on the amendment, if it is pressed to a vote. I agree that Prevent should be continually under review, but I am concerned about the head of steam that has developed, sometimes from my good friends in this place, which has given the impression that there is something fundamentally at fault with Prevent. There are of course those in Muslim communities who question it, but the responsible position for people in this House and beyond is to make the case for the Prevent programme’s valuable work and to highlight the number of people who feel that their lives or the lives of their loved ones have been saved through it.
Ultimately, those who want to discredit Prevent and want it to fail are those who want to give a very different message to our young people. I hope that those on my side of the House—it remains my side of the House, at least—will reflect on the language and tone that they use when describing Prevent.
Mr Wallace
I was listening to the hon. Gentleman’s dulcet tones. He articulates the challenge with security. None of us wants to ratchet up security. We want to balance our liberal open democracy and our individual freedoms with the clear and solid duty of the state to keep people safe.
In the 21st century, we have had a rapid growth in insecurity around the world, brought to our doors by such things as the internet and communications service providers. My hon. Friend the Member for Sleaford and North Hykeham (Dr Johnson) talked about the work on CSPs and what we can do to deal with the issue. That is why the offence related to streaming is so important for us. It may not satisfy the Scottish National party on streaming, but streaming is a method by which people are being radicalised and terrorist content is being spread. Streaming is a modern method of viewing terrorist content that helps to turn those young 16-year-olds into potential terrorists. People have to come up with better alternatives. They cannot say, “We are going to stick with the older legislation that is entirely predicated on downloading.” They have to recognise how these people are doing business. That is why we brought in that offence of streaming.
The right hon. Member for Kingston and Surbiton (Sir Edward Davey) made a point about designated areas and the burden of proof. I wrote to the Opposition spokesman, the hon. Member for Torfaen (Nick Thomas-Symonds), on exactly that point. He has clearly articulated from the Dispatch Box that once the defendant has raised the defence, the burden of proof to disprove that defence to the criminal standard rests with the prosecution, as in section 118 of the 2000 Act. The burden of proof is positioned in that way, and at the moment we have decided that not having an exhaustive list is the way to go. Just as with the previous issues of reasonable excuse and streaming, we think the right thing to do is to allow people to present an excuse for being there. It also allows the broad space for their human rights and everything else to be correctly regarded.
Joanna Cherry
I am very grateful to the Minister for the many telephone conversations that we have had during the passage of this Bill and for keeping me up to date, albeit not on last week’s amendment. Does he understand that the reason why some of us on the SNP Benches are concerned by the designated area clause is that my very good friend and professional colleague at the Bar, David Anderson, who has expertise in this area, has expressed some concerns? Will the Minister note for the record that that is why some of us want to put this measure to the test—not for any reasons of frivolity, but for reasons based on sound legal concerns about necessity and proportionality?
Mr Wallace
Of course we listen to and respect current and former reviewers of terrorism. Lord Carlile, the former Liberal Democrat, has often had different opinions from Lord Anderson. Indeed, the current reviewer of terrorism, Lord Hill, has different views. They all do an amazing and thorough job, and they will, for example, have oversight of the use of this offence. They will be able to review the use of this offence as part of their role. I have no doubt that Max Hill, who has gone to be the next Director of Public Prosecutions, will be able to carry out the prosecution’s discretion, which is so important when deciding on the public interest test in some of these offences in the Crown Prosecution Service. The hon. and learned Lady may have confidence in those reviewers of terrorism, but I have confidence in Max Hill as the next DPP, coming from the review of terrorism, to make those sound judgments about when it is in the public interest to prosecute or not.
I can give assurances to Members about the Sentencing Council. Absolutely, we shall continue to work with it, and we will write to its members to make sure. When it comes to the naming of the designated areas, I will seek to bring the matter to the Floor of the House. It is an affirmative motion, and I am absolutely open to that; I do not oppose it in any way.
The hon. and learned Member for Edinburgh South West (Joanna Cherry) made a point about data and the European Union. She will know that national security is not in the jurisdiction of the European Commission or the European Union. What a country chooses to share in data for national security purposes is entirely the business of the member state. We can choose what we want to do with our intelligence, and it is not for someone else to pass that on. Her point about the “Five Eyes”, therefore, is not correct. Even when we share intelligence in the “Five Eyes”, if the intelligence comes from another partner in the “Five Eyes”, we do not have the authority to share that with our European partners because it does not belong to us; it belongs to that sharing partner.
Furthermore, on that data sharing point of the European Union, that is a negotiation that we are seeking to secure. Such a negotiation is in the interests of both the United Kingdom and the European Commission. If they want to keep their people safe, security is a partnership; it is not a competition. That is why our offer on negotiation of security is an unconditional open offer, which seeks to share in a way that we have done in the past.
Mr Wallace
I am sorry, but I want to press on, because I want to get to the final point and address Labour’s amendment on Prevent. I hear what the hon. Member for Torfaen says and I in no way question his motives.
Since I have been the Security Minister, I have made sure that we have published more and more statistics on Prevent; they did not previously exist. These statistics enable all of us in the public realm to scrutinise the results of Prevent referrals, including information on where they come from, people’s ages and the accuracy of the referrals. Without any statutory review, after some time—I think we have published two bulletins so far—we will be able to see whether the accuracy of Prevent referrals from different sectors is producing the results that we want. We will know how many people are being correctly identified as vulnerable and exploited. At the same time, we regularly review Prevent within the Government and the Department, and through engaging with the 80-odd community groups that deliver some of the Prevent programmes.
If the Government or I felt that Prevent was not producing a result and diverting many people from the path of violence, I would be the first to come to the House and say, “We have to get it right.” The critics of Prevent—which the hon. Member for Torfaen is not—never set out an alternative. They criticise its title, but always set out a provision that is exactly the same as Prevent.
It is not necessary to have a statutory review of Prevent at this time. It is improving and becoming more accurate, and people are absolutely becoming champions of it across every sector. Today I saw, I think in The Daily Telegraph, a letter by a long list of academics about the chilling effect of Prevent. Never mind that the Higher Education Funding Council for England said in its evidence to this House that it had yet to see any evidence of the chilling effect. In fact, a judge in a recent challenge about the Prevent duty said the same thing—that the defendant had yet to prove any chilling effect. I have not seen a letter from academics about the chilling effect on universities of no platforming, whereby people are shut out of debates entirely. The Prevent duty is about having balance in debate and due regard to the impact.
I understand the hon. Gentleman’s motives and, to some extent, what the Opposition want to achieve. I would say that the publication and transparency that we are increasingly moving towards with Prevent, and the assurances that Prevent is not an inward reporting system—that is, people do not go into Prevent and get reported to the intelligence services; it is deliberately kept as a separate safeguarding activity—means that the best way forward is to continue improving Prevent as it is. We can discuss its accuracy and success rates, but until someone comes up with an alternative policy to what we and the Labour Government had, it is unnecessary to put a review in statute. Therefore, despite our collaborative working on the Bill, I ask the House to reject the hon. Gentleman’s amendment.
Question put, That the clause be read a Second time.
The House proceeded to a Division.
Mr Deputy Speaker (Sir Lindsay Hoyle)
I ask the Serjeant at Arms to investigate a delay in the Aye Lobby.
Mr Deputy Speaker (Sir Lindsay Hoyle)
I ask the Serjeant at Arms to investigate the delay in the No Lobby.
Mr Speaker
With this it will be convenient to discuss the following:
New clause 3—Access to a solicitor—
“(1) Schedule 8 of the Terrorism Act 2000 is amended as follows.
(2) In paragraph 7 leave out “Subject to paragraphs 8 and 9”.
(3) In paragraph 7A—
(a) leave out sub-paragraph (3),
(b) leave out sub-paragraph (6) and insert—
(c) in sub-paragraph (7) at end insert—
(d) leave out sub-paragraph (8).
(4) leave out paragraph 9.”
This new clause would delete provisions in the Terrorism Act 2000 which restrict access to a lawyer for those detained under Schedule 7.
Government amendments 6, 7, 19, 8 and 9.
Amendment 26, page 36, line 7, schedule 3, at end insert—
“(6A) The Investigatory Powers Commissioner (“the Commissioner”) must be informed when a person is stopped under the provisions of this paragraph.
(6B) The Commissioner must make an annual report on the use of powers under this paragraph.”
Government amendment 10.
Amendment 27, page 46, line 17, leave out “and 26”.
Amendment 28, page 46, line 26, leave out sub-paragraph (3).
Amendment 29, page 46, line 33, leave out sub-paragraph (6) and insert—
Amendment 30, page 46, line 37, at end insert—
“provided that the person is at all times able to consult with a solicitor in private.”
Amendment 31, page 47, line 29, leave out paragraph 26.
This amendment would delete provisions in the Bill which restrict access to a lawyer for those detained under Schedule 3 for the purpose of assessing whether they are or have been engaged in hostile activity.
Amendment 14, page 47, line 31, leave out “and hearing” and insert “but not hearing”.
Government amendments 11, 12 and 20 to 25.
Nick Thomas-Symonds
New clause 1 would make our continued participation in the European arrest warrant a negotiating objective of the Brexit negotiations. There can be little doubt about the value of the EAW to this country. The Security Minister will be aware, for example, that it was vital to apprehending the man who helped to organise and co-ordinate the London bombings of 7/7. According to the National Crime Agency, between 2010 and 2016, the UK issued 1,773 requests to member states for extradition under the EAW and received 78,776 from member states. Of those the UK issued, 11 related to terror offences, 71 to human trafficking, 206 to child sex offences and 255 to drug trafficking.
According to the Government’s own White Paper, more than 12,000 individuals have been arrested, and for every person arrested on an EAW issued by the UK, the UK arrests eight on EAWs issued by other states. Without the EAW, extraditions can cost four times as much and take three times as long. The Security Minister will of course be aware that in counter-terror investigations speed really is of the essence, and it is therefore vital that we set the objective of continuing to play a key role on the European security scene.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I completely agree with what my hon. Friend has said, and I support the new clause. Does he share my concern that the current Brexit Secretary has a track record of voting against home affairs and justice co-operation before taking up his current post, and does he believe that that is reconcilable with the Government’s stated objective of close security co-operation? This is no-brainer stuff. We should be co-operating to deal with terrorist suspects and serious organised crime.
Nick Thomas-Symonds
I entirely agree. The Brexit Secretary’s previous record is of real concern, and it is certainly inconsistent with the Government’s stated objective. Tonight, the Security Minister has an opportunity to support the new clause and to put to bed any doubts that Members may have on this matter.
On 5 September, only days ago, in a speech updating the House on the attacks in Salisbury and referring to the two suspects, the Prime Minister said:
“with respect to the two individuals, as the Crown Prosecution Service and police announced earlier today, we have obtained a European arrest warrant and will shortly issue an Interpol red notice.”—[Official Report, 5 September 2018; Vol. 646, c. 169.]
That only goes to show that the European arrest warrant is a critical tool in our security toolkit. It is vital to ensure that should those suspects set foot in the EU, they will be remanded to the UK to face justice.
Having heard what the Security Minister himself has said in the past, I think that he actually agrees with me. On 9 December last year, he told the House:
“As we have said and will continue to say, we seek tools similar to the European arrest warrant, which we find incredibly useful. It helps us and our law enforcement agencies.”—[Official Report, 19 December 2017; Vol. 633, c. 1018.]
That is his view, and I hope that it will be reflected in his approach to the new clause this evening.
On 19 June, the EU’s chief negotiator, Michael Barnier, said that there was room for manoeuvre on the European arrest warrant. He said that if the UK
“cannot take part in the European Arrest Warrant”
in the way that it does now,
“This does not mean that we”
—the EU and the UK—
“cannot work together on extradition.”
The Government’s own White Paper stressed the difficulty in which the Government now find themselves, stating:
“Existing extradition arrangements between the EU and third countries do not provide the same level of capability as the EAW.”
Continued participation in the European arrest warrant really should be an objective of our negotiations. As we all know, organised crime knows no borders. To keep our country safe, we must co-operate with the EU27 and, indeed, other countries around the world.
My new clause does not bind the hands of negotiators. It simply says clearly that continued participation in the European arrest warrant is a negotiating objective. If it were passed tonight, it would send a signal to Brussels, reassuring those who are concerned about the Government’s approach to security in the negotiations—my hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) picked up that point in his intervention—and would also send a signal to the Security Minister’s colleagues.
Kevin Foster (Torbay) (Con)
We are not seeking to send signals this evening; we are seeking to create an Act, and inserting the new clause would create a part of that Act that would become irrelevant within months. Does the hon. Gentleman not agree that it would merely litter the legislation? While I accept some of his points, the Government have already made continued co-operation an objective. Why should we litter a permanent piece of legislation with a clause that would be defunct within months?
Nick Thomas-Symonds
With great respect to the hon. Gentleman, his argument seems to be circular. He will not vote for the new clause because he agrees with it: that appears to be his position. The idea that any piece of legislation is immune from becoming out of date, given time, is simply not credible.
Robert Neill (Bromley and Chislehurst) (Con)
I have a great deal of respect for the hon. Gentleman, and I understand the substance of where he is trying to get to, but in fairness to my hon. Friend the Member for Torbay (Kevin Foster), will the hon. Gentleman accept that there is a difference between what might be termed Brexit-facing legislation, such as the Trade Bill—and I myself have sometimes not been afraid to push a point because I thought it relevant—and a Bill that does not face in that direction? Given that the Government have made very clear their desire to replicate as closely as possible our arrangements under the European arrest warrant, I cannot, in this instance, agree with the hon. Gentleman that this is the right route for the Bill, although I accept his objective.
Nick Thomas-Symonds
As the hon. Gentleman knows, I have a great deal of respect for the work he does as Chair of the Justice Committee, but I simply say to him that security, which is what this Bill is about, is very much engaged in the issue of the European arrest warrant. As we look in the round at our security position, which we must do and are doing in the context of this Bill, I believe the EAW and the tools it gives us cannot be excluded from our consideration of security. That is why in my view this new clause belongs in this Bill, and why I hope that still, even at this late stage, the Security Minister might support it, because I think that deep down he agrees with it and I would like to see that reflected in the Division Lobby.
I think the Security Minister and I do agree on the original clause 14. The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) and I both tabled amendments to it in Committee. This is the part of the Bill that gives the power to impose charges on the organisers of an event for the purpose of protecting a relevant event or site from danger or damage connected to terrorism. The concern I and many others had in relation to that clause was to do with article 10 of the European convention on human rights, on freedom of expression, and arguably article 11 and the right to peaceful assembly. We did not wish to get to a position where somehow people were priced out of the right to peaceful protest. I am glad that the Government listened on that and have amended this clause so as not to impose any potential charges on those organisations that wish to gather and protest peacefully. I understand of course that the priority must be to keep citizens safe when people gather together and that that sometimes requires infrastructure in terms of policing events, but we must strike a balance between these charges and the right to assemble. On that basis, I am pleased that the Minister has made the concession and can support that amendment.
Amendment 26 in my name addresses a specific concern that I have flagged previously with the Security Minister. It relates to border stops where there is no reasonable suspicion in relation to the individual. I previously suggested that the Investigatory Powers Commissioner be informed whenever a person is stopped under the provisions of the relevant paragraph and that there be an annual report. I have suggested this amendment again on Report because of a concern about the position in Northern Ireland, which I will come back to shortly. However, the Minister justified the power in Committee by referring to an example. An aeroplane may land at one of our airports and we may have general intelligence that someone on it poses a threat, but we do not know which person it is. That is the justification for the power and the context in which the Security Minister and I had a discussion in Committee.
This evening, however, I am seeking some reassurances about how this applies to the situation in Northern Ireland, and the Security Minister will be aware that proportionately the number of border stops is high in Northern Ireland. In 2017, that border represented 3% of the passenger numbers for the whole UK but 18% of the stops. In other words, people are six times more likely to be stopped there than in another part of the UK. The figures show that nobody who was stopped was detained for more than an hour, and in the rest of the UK the figure for that is 9%. But this power applies to the first place a train from the Republic stops in Northern Ireland to let passengers off, and I refer the Minister specifically to paragraph 2 of schedule 3, which states that an examining officer may question a person who is in the border area for the purpose of determining whether their presence in the area is connected with the person’s entry into or departure from Northern Ireland. This applies on the border strip and at the Newry and Portadown train stations. Under the provision as it stands, people could be stopped, questioned and detained without reasonable suspicion.
As I have said, I understand the need for that power in relation to the perpetrators of hostile activity outside the United Kingdom coming in, but we do not want through this provision to somehow create a hard border for people on the island of Ireland, between the north and south. I really hope that, even if the Minister does not respond to this at the Dispatch Box tonight, he will at least go away and look at this issue before the Bill appears in the other place, and indicate what protections he envisages in relation to that power being exercised in Northern Ireland.
Stephen Pound (Ealing North) (Lab)
I know that the Security Minister needs no reminding of the sensitivity of this matter. Does my hon. Friend agree that there could not be an area of greater sensitivity than the area around Newry and Portadown? Does he also agree that we need a full, robust and transparent reporting mechanism? Otherwise, rumours will spread, and there are some people who will seek to make the situation appear worse than it is. We must have this out in the open, because this is an area of such sensitivity. I cannot stress overmuch how delicate and dangerous this situation is.
Nick Thomas-Symonds
I am grateful to my hon. Friend for that intervention. He always speaks eloquently when he speaks from the Front Bench on these matters. I do not want to divide the House on this issue. My amendment proposes a robust reporting mechanism. The Minister has stated that there are other ways of doing this, and I am perfectly happy to consider them, but I hope that he will go away and look at this proposal before the Bill appears in the other place, so that we can avoid the kind of suspicion that my hon. Friend has just described.
Amendment 14 relates to legal professional privilege and to a person’s ability to consult a lawyer in private. That is an important principle. In recent weeks, following the case in the UK Supreme Court of the Serious Fraud Office v. Eurasian Natural Resources Corporation, it has been stated that
“the rule of law depends on all parties being able to seek confidential legal advice without fear of disclosure”.
I do not believe that we have to balance liberty against security in these circumstances, as we have to do in so many other areas. There is a simple, practical solution to this, and I hope that the Minister will go away and look at it so that I do not need to divide the House on this amendment.
This relates to stops at the border. There is a power in the Bill for an officer not only to watch someone receiving legal advice but to hear that legal advice being given. The power to watch has pertained for some time. Lawyers often give advice with an officer standing behind a glass frontage, for example. That has been a feature of our criminal justice system for many years. The Chair of the Justice Committee is nodding, and he will know that that practice can be used to protect the person being questioned, or indeed to protect the lawyer in certain circumstances. I have no issue with that. The power to overhear the advice gives rise to a major issue, however.
I heard the concerns that the Minister expressed in Committee. His first argument was that, rather than contacting a lawyer, a person might contact someone they wanted to notify of the fact that they had been stopped. He also argued that they might notify a lawyer who would not adhere to the professional standards that we would expect and who might pass some information on. The third scenario that he mentioned was that of a lawyer inadvertently passing on a piece of information. The solution that I have suggested to the Minister, which I hope would deal with all three points, would be to have a panel of lawyers, properly regulated by the Solicitors Regulation Authority and the Law Society, just as we currently have a duty solicitor scheme in police stations. In that situation, lawyers would both have the expertise and be properly regulated, meaning that the Minister might not have the same concerns about people’s ability simply to contact who they wished.
James Heappey (Wells) (Con)
I am interested in the shadow Minister’s suggestion. Would he have any concerns about whether sufficient lawyers could be accredited to guarantee appropriate availability? Does he propose that they undergo some sort of security vetting in addition to their accreditation through the Law Society or whichever other organisation is deemed appropriate?
Nick Thomas-Symonds
I am not aware of an area of law where there is currently a shortage of lawyers, but perhaps the hon. Gentleman will be able to tell me of one—I say that based on many years’ experience of practising as a lawyer. As for the second question, I have no issue with vetting people before they can join a panel. Indeed, it is the case now that people are considered for their expertise in professional matters before they join a legal panel. I am just making a perfectly practical suggestion that would deal with the Minister’s worries while preserving that highly important principle of legal professional privilege which, as I said in my opening remarks, the Supreme Court has said in recent weeks is vital to the rule of law in this country. We should not abrogate that as we seek to tackle the real terror threat before us. I hope that the Minister will at least undertake to go away and consider whether that could realistically be looked at in the other place. It is an important principle, and I do not want to divide the House on it, but whether there is to be a concession is a matter for the Minister.
Stephen Doughty
I do not want to detain the House for long, but having served as a member of the Bill Committee I wanted to put on the record some of my concerns about the new clauses and amendments in this group.
I wholeheartedly support new clause 1, tabled in the name of my hon. Friend the Member for Torfaen (Nick Thomas-Symonds). I cannot see any reason why the Government would want to reject it given that the Chequers agreement and the White Paper—I have read both carefully—point out the 40 different areas of justice and policing co-operation that are so essential to our security and our counter-terror efforts across European borders. The White Paper suggests that some of that co-operation could even be strengthened and deepened, so I cannot see any reason why setting out in the Bill the importance of seeking participation in the European arrest warrant, one of the most crucial of those 40 instruments, would be a problem.
Given the transnational nature of some of the terror plots and serious organised crime that we have seen not only in my constituency, but in some tragic events over the past year at a UK level, I cannot see why we would want to diminish our security co-operation through, for example, Europol and Eurojust. As we approach the Brexit deadline that was set when the Government triggered article 50, we are potentially leaving a great deal of uncertainty around such issues. We do not want criminal or counter-terror investigations that are ongoing at the end of March next year to be jeopardised by the failure to secure participation in the European arrest warrant going forward.
As for my hon. Friend’s amendment 26, the Minister is aware of my concerns because we have discussed them both in person and in Committee. I fully support appropriate strengthening mechanisms to ensure that individuals can be detained at border points and that the police and security services have the appropriate powers to interdict those who might be trying to commit terror acts, serious organised crime or, indeed, espionage or other serious matters. However, it is important that that is balanced against ensuring that such powers are used carefully and effectively. Where problems exist, there should be appropriate appeal and oversight mechanisms to ensure that citizens feel that such matters are being used appropriately and securely and that individuals who are wrongly interdicted have appropriate restitution, which is important for confidence in the system as a whole.
My last point is an important one for the Bill as a whole. This part of the Bill includes many new powers and schedules, and there is cross-party agreement that our security services and the police need them to keep this country and other countries safe and to prevent us from experiencing terror attacks or the consequences of serious organised crime, but they can be applied only with appropriate resourcing.
We have seen what the Metropolitan Police Commissioner has had to say today about the 2% pay rise for police being a “punch on the nose.” We have seen the National Audit Office’s reports on the concerns about cuts in policing, and we in the Home Affairs Committee have been conducting an inquiry into police funding. The frontline policing community policing and specialist counter-terrorism policing that will be required to apply the provisions of the Bill, on which there is cross-party agreement, cannot happen out of thin air or by magic; it only happens if it is properly resourced.
I urge the Minister to make a strong case in the Home Office in the coming months that the police need more resources. We cannot continue cutting in this area, otherwise we put our national security at risk.
Robert Neill
I promise to keep my remarks short. Two important matters have been raised, and I take on board the force of the shadow Minister’s arguments in favour of the value of the European arrest warrant. My right hon. Friend the Security Minister will know that, in the last Parliament, the Justice Committee produced a report on the legal implications of Brexit, which included a strong case for retaining access to the European arrest warrant and its arrangements.
It is important that we stress the value of the European arrest warrant to our crime-fighting arrangements. It is particularly significant, of course, that the National Crime Agency, giving evidence to our Select Committee at the time of the report, stressed the value of the European arrest warrant. All the legal practitioners stressed its importance, and the Minister recognises that the European arrest warrant arrangements are infinitely superior to those that were available under the Extradition Act 1989.
It has sometimes erroneously been said by one or two Members of this House that the European arrest warrant can be used disproportionately, and my right hon. Friend the Minister will know that, since the reforms to the operation of the European arrest warrant back in 2013, that disproportionality has been removed and the UK is actually an overwhelming beneficiary of the proper use of the European arrest warrant.
The Prime Minister made it clear at the beginning of this negotiation process that it is her objective to achieve this, and I am sure my right hon. Friend the Minister will be able to say that whatever the mechanism, whether in the Bill or not, the Government are committed to maintaining access to the EAW and to the rest of the supporting mechanism of criminal justice arrangements, such as data sharing, information sharing and intelligence sharing, the European criminal records information system and other schemes. All those will necessarily be a crucial part of the Government’s negotiating strategy. Whether or not it is mentioned in the Bill is not the point—the Government are reaffirming their commitment.
Legal professional privilege is an important issue to be considered. Unless I am wrong, there are sometimes arrangements for counsel, such as in relation to some of the specialist tribunals dealing with these matters, to be specially cleared and vetted. Perhaps my right hon. Friend the Minister will take that away and consider whether further application of that scheme might offer a sensible and proportionate way forward.
Gavin Newlands
It is a great pleasure to follow the irrepressible Chair of the Justice Committee, of which I am a member.
Before I discuss access to lawyers under legal professional privilege, it would be churlish of me not to thank the Minister for tabling amendments 6 and 7, versions of which both the shadow Minister and I tabled in Committee. The amendments will essentially ensure that public demonstrations cannot be subject to any financial charge under the Road Traffic Regulation Act 1984. It is vital for our democracy, now more than ever, that the right to assemble, and to do so without charge, is protected.
Without going over the ground covered fairly extensively from the Labour Front Bench, I put it on the record that I share the concerns voiced by the hon. Member for Torfaen (Nick Thomas-Symonds) about the Northern Ireland border stops and the huge sensitivity of this issue. I genuinely hope that the Minister will look at that, take it away and come back having addressed it.
The Bill as it stands restricts access to a lawyer for those detained under schedule 7. Specifically, it would restrict the right of an individual to consult their legal representative in private, away from a relevant officer. Being able to speak with a legal representative in private is a fundamental right, which should not be infringed. Indeed, in oral evidence, a whole cast of people backed us up. Michael Clancy of the Law Society of Scotland spoke about the fundamental importance when he said:
“If we want people to be in a position where they can freely discuss matters with their legal representatives, we have to preserve this value. It is key to the rule of law that people can discuss matters openly with a legal representatives so that the solicitor, advocate or barrister is in a position to advise properly on what avenues are open to the person. Clearly one would want to ensure that that was adequately protected.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 49, Q103.]
Richard Atkinson from the Law Society of England and Wales also raised concerns, suggesting that the proposal risked the excellent reputation across the world of UK justice systems. He said:
“The cornerstone is legal professional privilege. That is not access to a lawyer; it is the confidential nature of discussions between a lawyer and their client. That is the cornerstone that has been in existence for hundreds of years and that is held out internationally as a gold standard that we have in this country. That is what is being undermined by this Bill saying that a police officer can stand and listen to the consultation that is going on between the client and the lawyer.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 28, Q63.]
Access to a lawyer—fundamental access to justice—is something we should not compromise on. This is not about constraining the powers of the hard-working men and women who work at our borders; it is acting on the concerns that were expressed to us, to ensure that correct and proper due process is followed.
I suspect that the schedule has been drafted as a result of concerns that lawyers and legal advisers could be exploited and manipulated in some way, as has been outlined. However, as was pointed out, it is not unknown to our criminal justice system; we already have powers in place to deal with such occasions. For example, in code H of the Police and Criminal Evidence Act 1984, which deals with counter-terrorism cases, if there is a concern about an individual lawyer, there is provision for the suspect to have the consultation with that lawyer delayed, but to be offered the services of another lawyer in the meantime, so the suspect is not devoid of legal advice. We should protect that access at all costs. I accept that the Government propose the changes with the best of intentions, but we have pointed out that there are ways for it to be done without eliminating or infringing on the basic principle under the rule of law.
I express my support for the Liberal Democrats’ new clause 1, to which I have added my name. One of the greatest threats to our national security currently is, of course, Brexit and the fact that we face losing our seamless access to multilateral information-sharing tools. As we have heard, organised crime and terrorism do not respect borders and it is essential that Police Scotland—in fact, all the police services in the United Kingdom—can access the information systems, support and technical expertise available through Europol, not only to make Scotland safe, but to contribute to making Europe safer. As the hon. Member for Torfaen said, the recent naming of two suspects in the Salisbury incident and the issuing of a European arrest warrant showed just how vital this tool is to protecting the UK from threats, and why it must be maintained.
Following our exit from the EU, there is a major risk that any new arrangements that are put in place will be suboptimal to those at present. Further to that, there is also an issue with data sharing between the UK and the EU, as the EU will most likely require the UK to maintain data protection and privacy laws that can be deemed equivalent to those in force in the EU. We must ensure that our law enforcement agencies can continue to have the same access to Europol as they currently enjoy.
There is also a need to preserve stability in the law. Repealing legislation and preparing new legislation to fill in gaps arising from leaving the EU will compromise a significant part of domestic legislation that is passed at, or following, a withdrawal. Any future arrangements must take into account the autonomy of Scottish criminal justice institutions and provide a continuing basis for the direct co-operation that currently exists between law enforcement agencies in Scotland and their counterparts.
As a matter of security, we cannot afford an operational break in our access to EU cross-border tools, because they are part of the day-to-day work of the police force. Just today, the Lord Advocate of Scotland, giving evidence to the Scottish Parliament Justice Committee, said:
“I don’t think it controversial to observe that leaving that regime without replacing that regime would significantly and adversely affect our capabilities. From a professional criminal justice point of view, the realistic issue is the extent to which this can be mitigated.”
The Government’s dangerous Brexit plans, such as they are, may well leave us outside the European arrest warrant and key agencies such as Europol. I cannot insist enough that that would be incredibly dangerous to the future security of Scotland, the United Kingdom and, potentially, the EU. We must be able to share vital information to keep people safe from terrorism, human trafficking and organised crime. Leaving the European arrest warrant is yet another potentially disastrous Brexit bonus that we could all do without. I wholeheartedly support new clause 1.
Sir Edward Davey
I rise partly because I have been encouraged by the speech made by the Chair of the Select Committee, the hon. Member for Bromley and Chislehurst (Robert Neill). He made the point that this issue is central to the Brexit negotiations, so the House is grateful to the Labour Front Benchers for tabling new clause 1. I also rise because although the Government wish to sign up to some new security deal and the Minister understands the importance of the European arrest warrant, there can be no doubt that these tools are at risk. Given how significant they are, not only for the fight against terrorism, but for the fight against some of the most serious criminals in our world, many people are deeply worried.
The Government have continually made the argument—I have some sympathy with it—that the other members of the European Union will want to work with us because we have some of the best security services in the world. That is undoubtedly the case. I visited Europol and Eurojust in the Hague. When I talked with the then executive director of Europol, Rob Wainwright—he has now left and been replaced by Catherine de Bolle—he made it clear that the UK was at the heart of this crime-catching set of tools and instruments. It was clear from that and the work of the Select Committee and others who have delved into the issue that co-operation has become central to our activities to tackle criminals, whether that is organised crime, terrorists or others. If that is put at risk at any level, it should worry the House greatly.
It may be—I suspect it will be—that there is a deal on some of the most serious crimes. I would imagine that our European friends will want to co-operate with us against terrorists and other people who seek to commit mass murder. Of course they will want that co-operation, and I wish the Government well in achieving that goal. That is why it is good to see new clause 1, but I say to the Minister that there is a whole range of other serious offences that Europol, Eurojust, the European arrest warrant and the various data-sharing systems enable our forces to use. I am not yet convinced that Europeans are going to gladly throw all those open to us. There is certainly an incentive when it comes to terrorism and mass murder, but what about financial fraud? When I was at Europol, it was pretty clear that a lot of its resources were going after financial fraud in the capitals of the European Union and beyond—in Switzerland and elsewhere. I am not so sure we will be let in on that major issue, which is of crucial importance to the British economy.
If we go down the list of activities that Europol does on a day-to-day basis, it is not clear that the incentives for the Europeans to co-operate with us are as great as they are on terrorism. I am deeply troubled, because we need to deepen co-operation in tackling these organised criminals. The Government do not quite understand how these European organisations work. When Rob Wainwright, an ex-MI6 agent, was there, Britain was leading the operation at Europol. We will no longer be leading that operation, and that means a big loss of influence. We will not be in the room.
I went to Eurojust, and I saw the one floor of the office block in the Hague where it has one delegate from each country. They sit and work together to help each other deal with the different issues with criminals crossing jurisdictions, whether they are warrants for tracking mobile phones or other legal necessities required to conduct an investigation and, in some cases, a chase. They were clear that they had to be in that room, in that building. Where will the UK delegate to Eurojust be? I think that they will be outside. Furthermore, given the Government’s red line on the European Court of Justice, one really feels that the Europeans will be slightly less flexible on many aspects of these crime- fighting tools. I know that we are rightly focusing on terrorism today, but these other aspects of security link into that. The Government need to work much harder than I have seen so far to make sure that we are fully signed up members of absolutely everything and that the Europeans have an incentive to include us in on everything.
Finally, other Members have mentioned Northern Ireland. It is absolutely clear that the use of the European arrest warrant to tackle terrorists who go across the borders there is an essential tool, and it is right at the top of the concerns of the PSNI and the Garda. Whatever the scenario in the future—whether it is a no deal and a crash-out, or some other cobbled-together deal—the real concern is the European arrest warrant and whether it will operate on all these issues. I am talking about not just on suspected terrorism, but on suspected fraud and smuggling from where the terrorist organisations get their money.
Ensuring that we get the European arrest warrant sorted out in these negotiations on terrorism and on other offences could not be more important for the security of the British people. I wish the Minister and his colleagues well on this, but the Opposition are absolutely right to press this point. This could not be more central to the security of our country.
Mr Wallace
I will start if I may by addressing the amendments in this group. First, let me turn to the Anti-Terrorism Traffic Regulation Order. Amendments 6 and 7 respond to the debate in Committee about the provisions of clause 14, which, among other things, will enable a traffic authority to impose reasonable charges in connection with the making of an Anti-Terrorism Traffic Regulation Order or Notice.
In Committee, I indicated that I would consider amendments tabled by the hon. Members for Paisley and Renfrewshire North (Gavin Newlands) and for Torfaen (Nick Thomas-Symonds) designed to prohibit charges from being imposed on the organisers of public processions and assemblies. They were quite properly concerned about protecting the right to peaceful protest. Having considered the matter further, I agree that it should not be possible to impose those charges as they have suggested, and amendments 6 and 7 ensure that that is the case.
Throughout the Bill, I have made it my business to make sure that we make changes with as much consensus as possible. I have made the point that, in my time as an Opposition Back Bencher, I rarely, if ever, saw my party or the Opposition get any concession—small or big—from the Government. I do not take that attitude in legislation, and I am delighted that we could make concessions. The Opposition and the SNP were correct in making their points, and it is right that we have put them on the statute book in the right place.
The other Government amendments in this group concern the new power in schedule 3 to stop, search, question and detain persons at a port for the purpose of determining whether they are, or have been, engaged in hostile state activity. It is important to note that this is an exact mirror of schedule 7 concerning counter-terrorism as was introduced by the previous Labour Government in 2000. Therefore, all the questions raised by hon. and hon. and learned Members from all parts of the House should be put in context that some of those issues have been in existence for 18 years—the point on the Irish border, for example. The power was specifically introduced into the Bill to deal with the aftermath of the attack in Salisbury in March. The point is that, in an open trading liberal democracy, we are vulnerable to hostile states abusing that ability to travel and that openness to come and do harm to our society and our citizens. It is a very real threat.
This was in fact considered before last March because the independent reviewer of terrorism legislation, David Anderson—who has often been quoted by the Opposition— highlighted the fact that we were stopping people we suspected of hostile state activity under schedule 7 counter-terrorism stops and said that hostile state activity needed its own separate stop power. We agreed with his observations and have acted on them. It was a tragic coincidence that the attack happened in March, reminding us just how hostile some states can be.
Amendment 10 is about oversight and representations to the Investigatory Powers Commissioner, as we seek to allow those representations also to be made in writing. It is incredibly important that we have these powers. We face a real challenge if a state—as opposed to an amateur or a terrorist—seeks to penetrate our border supported by the logistics of that state. An example is the recent case of GRU officers entering this country with genuine passports, logistically supported by the wider state. This type of activity is better disguised. It is not as easy as it is to stop someone with a rather dodgy back story who is coming here for the purposes of terrorism. This is serious, which is why it is important to take this power.
I know that there is concern about having no requirement for suspicion. That goes to the heart of the ability for us sometimes to action intelligence that is broad. For example, we might know about a certain route that is used or about certain flights in a period of a week, but known no more beyond that. We need to be able to act on that intelligence effectively on the spot.
Nick Thomas-Symonds
I accept that point. Indeed, I set it out in my speech. Our concern is specifically in relation to Northern Ireland. How best are we going to secure accountability for how the power is used?
Mr Wallace
I agree. We have had the power regarding the Northern Ireland border, or any other border, since 2000. In theory, we able to deal with matters using a counter-terrorism stop. Over the years, I have never seen so much nonsense written about the border of Northern Ireland. I have patrolled the border. I have lived on the border. I have been on the border of Northern Ireland as the Minister for Northern Ireland. I have known the varying powers—the smugglers and the people involved—on that thing for decades.
There have always been checks and stops on the border. There has been a different customs regime on the border of Northern Ireland since the 1920s. Famous smugglers have taken advantages of duty differences. There have been different tax ratios, duties and powers to make immigration stops, and we have carried these out even since the Good Friday agreement. In fact, one of the last things I did before the reshuffle that made me the Security Minister was to stand on the road near Newry doing a traffic stop of cars coming across from Ireland; they were squeezing the money out of me during my time there. These checks have always happened. This has happened for counter-terrorism for the last 18 years and we feel that should be mirrored in the case of hostile state activity.
Sir Edward Davey
May I take the Minister back to the point about spies from other countries and people from other security forces, whether from Russia or elsewhere? In my time in government when I was occasionally asked, as a member of the National Security Council, to sign off warrants so that the security services could search bags, tap phones and so on—even at very short notice—it was clear to me that we had powers, if we had suspicions, to do everything required to track, trace and examine the people coming into this country with hostile intent from foreign powers, and we did that on a regular basis. Will he just explain to me why the new powers are needed, given that we already have a panoply of powers?
Mr Wallace
I can clarify briefly. If we had a line of reporting that said, in a certain week, that there was intelligence that a hostile state was seeking to come in via Heathrow airport, but we only had a certain period, or if we had some intelligence that someone from a hostile state was coming in on a plane on a Monday through there, and we were therefore choosing to focus on those planes, that would be too broad to issue a specific warrant, and too broad for us to seek a warrant to search everybody’s bags covertly on the whole aeroplane. Everyone would be standing around worrying how long it was going to take. This is a power that reflects the operational pressure. On the Front- Bench spokesman’s question about oversight, when someone is stopped under this power, a report will be taken and made to the judicial commissioner, who has the power of oversight. I can give the hon. Gentleman the assurance that it will be recorded, and if materials are retained—journalistic or legal—that, again, will involve a permission needing to be given to examine it.
Nick Thomas-Symonds
On the point about consultation with a lawyer, I have offered a very practical solution. Will the Minister at least undertake to look at that before this Bill goes to the other place?
Mr Wallace
I know that the hon. Gentleman absolutely means the best in making his recommendation. I certainly give him the assurance that I will take it away and look at it before the Bill’s introduction in the other place. Many of his points about giving reassurance to people are certainly valid. He accepts, I think, that there is a risk that a state that has deliberately planned to enter this country will sometimes be making sure—if they do a proper operation—that the so-called lawyer they would consult would be in a position to be tipped off. That is why his suggestion is a good one, and I promise to take a look at it.
Tony Lloyd (Rochdale) (Lab)
There is really no fundamental disagreement on the objective that the Minister is trying to achieve. The idea that the Irish border could be used as a way for foreign powers, or those who would do us harm, to come into Great Britain and Northern Ireland is simply unconscionable, so we are in the same place. However, he knows Northern Ireland well and knows the border well, and he also understands the necessity of having a regime of trust. Given that background, he has gone quite a long way in what he has said about the reporting requirements. Between now and when the Bill moves to another place, will he think very long and hard to make sure that there is enough reassurance to those involved that, in the context of Northern Ireland, this could not be used in a way that leads to misunderstanding or—I do not want to use the word “frivolous”—would allow those who want to trash what lies behind his intent to so do? We are in the same place; we simply want a mechanism of accountability.
Mr Wallace
I am grateful to the hon. Gentleman for the tone of his comments. I am happy to give him as much assurance as he would like. I am very conscious as to the issue around the Irish border and its sensitivities. I will certainly seek to give him that reassurance in writing. If there is any further assurance that we can seek to give in relation to the PSNI, I will definitely do that.
SNP Members have made a similar point about their concern about the border. With all due respect to them, they make a strong point—and also with regard to the European arrest warrant—about the value of seamless sharing and the value of the Union, but there is an issue whereby they seek on a daily basis to erect barriers between our Union. It is no good their saying that they like the seamless tool of the European arrest warrant while at the same time seeking to split our great nation and erect barriers between a political and economic union. They should just remind themselves that they cannot have it both ways.
My hon. Friend the Member for Bromley and Chislehurst (Robert Neill) made a clear point on the European arrest warrant. It is very clear that the Government’s offer on security to the European Commission is unconditional. We wish to have the European arrest warrant or something as identical as possible. Some Opposition Members made a point about the current Brexit Secretary’s position. I assure them that if that was not our negotiating position, I would not be standing here as the Security Minister. The key to good security is partnership, and not just on the European arrest warrant. One fault of the new clause is, why not say the Schengen information system II? Why not say Prüm? Why not say all the other sharing mechanisms that are really important to our security?
I do not believe that placing this in primary legislation makes sense, first because this is a counter-terrorism and hostile state Bill, and secondly because it is what we are asking for. If it was not what we were asking for, I might understand the pressing need for the new clause, to try to change the Government’s position, but it is what we are asking for. The message I urge all Members to give to the European Commission is, “How far do you want to cut off your nose to spite your face?” It is not a position of the members of the European Union. When I meet their intelligence services, police forces and Ministers, they all agree that they want to give us a security agreement.
It is not because we have better capabilities, which we do. It is because the sum of the parts is greater than the individual parts when it comes to security partnership, and this will benefit us both. It does not matter who has equity of capability. It benefits us both when we work together in a security partnership.
Stephen Doughty
If what the Government seek to achieve is no different from new clause 1, the Minister should just vote for it. I ask him in all seriousness, what message does he have for the 80 Members on his own Back Benches who threaten to vote down the Chequers deal because of their concerns about European Court of Justice oversight of those security arrangements? I see the hon. Member for North East Somerset (Mr Rees- Mogg) in his place. What does the Minister have to say to those Members, who would wreck the security co-operation we have with Europe?
Mr Wallace
I would say to them and to anyone else that the first duty of a Government is security, and it is absolutely important that we maintain that. The message to Michel Barnier is that security is not a competition; it is a partnership. I hope he will reflect that in his negotiations with this country, but I do not believe that putting it on the face of primary legislation is the best way to go about it, especially as it is our Government’s ask to the European Union on that issue. I therefore urge the hon. Member for Torfaen (Nick Thomas-Symonds) to withdraw his new clause.
Nick Thomas-Symonds
I certainly will not be withdrawing my new clause. Continued participation in the European arrest warrant is vital for the security of this country. Can the Minister name another example of a Minister failing to vote for a part of a Bill he agreed with?
Mr Wallace
I would be interested to know whether the hon. Gentleman could name a single Labour Minister who, during the passage of any European treaty or any other treaty, put the negotiating position—not the results of the negotiation, but the negotiating position—in primary legislation. I do not think he will find one. We do not intend to put it in primary legislation, especially because it is what we are asking for and we do not need to. I therefore urge hon. Members to reject the new clause.
Nick Thomas-Symonds
I do not find that explanation convincing in any sense.
Question put, That the clause be read a Second time.
Mr Wallace
I beg to move, That the Bill be now read the Third time.
On 22 May last year, I was woken from my slumber by the tragic news of the attack on the Manchester Arena: the murder of women, children and men who had been out enjoying their day and night at the arena. A member of ISIS chose to target them ruthlessly, in a way that showed total discrimination, when they were at their least defensible. Last year, society faced numerous attacks from terrorists. In March this year, we saw the reckless and very dangerous use of the Novichok nerve agent on our streets, which sadly led to the death of a British citizen.
The Government did not knee-jerk—we did not jump, as has sometimes happened over the past few decades, to take measures. The Government considered the issues, considered our vulnerabilities and not only took strong steps to produce a Bill that will help our security forces and our police tackle the changing threats, but were determined to be as collaborative as possible throughout the legislating process. Tonight, Members will have heard how we rightly accepted the observations from the Labour Front Bench and the SNP about some of the measures. The Labour party and the Government discussed the streaming of content online and came up with a sensible solution to make sure that people who stream horrific material are brought to justice.
This is not an attention-seeking Bill; it is a Bill designed to make a difference, to make our streets safer, to make our citizens safer and to send a message that one of the reasons the United Kingdom is one of the world leaders in counter-terrorism is that we not only learn our lessons from every event, but build on the experience of previous Governments. Much of the Bill is built on the back of the Terrorism Act 2000, which was brought in by the last Labour Government. We have taken the best elements and learned from our experiences and the threats to produce a piece of legislation that in my view and that of the Government strikes the right balance between liberty, individuals’ rights and the security of this nation. It is a balance that we do not take for granted and that we review constantly.
That is why this country probably has some of the greatest oversight of its intelligence services, ably led by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the judicial commissioners, Lord Justice Fulford and the independent reviewer of terrorism legislation. All those learned and respected individuals take a strong role, as do the Members who sit on the Intelligence and Security Committee, in scrutinising the people who are charged with delivering the security of this nation. That, coupled with our long adherence to human rights, makes me confident that the Bill does not tip the balance in the wrong way, but navigates the difficult course that we are faced with, given the emerging technologies, to keep people safe.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
I am grateful for the approach that the Minister and the Secretary of State have taken and for the fact that the loophole in terror insurance to cover non-physical damage has been addressed in the Government’s plans. However, the explanatory notes suggested that the Government would do several things to support my community, which was so badly affected last June, yet still not a penny of Government support is going to the employers in my constituency who were affected by that terror attack. Despite the fact that the Government failed to update the legislation sooner, that could have been done some time ago and was not. My constituents and their businesses are still not being compensated for the damage they have experienced—150 firms have lost more than £2 million.
Mr Wallace
The hon. Gentleman made that point in Committee. I was due to meet him last week. Unfortunately, because of the Salisbury issues, that meeting was delayed, but I will meet him. I have spoken to the Exchequer Secretary. The hon. Gentleman is right about some of the issues with the package for his community, compared with what has happened after other events. That is a discussion for us to have with the Mayor of London.
Mr Wallace
The hon. Gentleman’s points are well made but, with respect to him, I need to draw to a close.
If it is passed, this Bill, much of which has the support of all parties in this House, will leave this House doing the right thing to keep people safe, striking the right balance with our rights and allowing us to remember those people who in the last few months and years have lost their lives tragically to terrorism and, lately, to the actions of a hostile state. I am afraid we must remember that out there, there are very bad people, very bad terrorist organisations and, nowadays, some very bad states who wish to do real harm to our values. This Bill protects our values, but deals with the issues and gives our security services and police forces the tools that they need.
Nick Thomas-Symonds
The UK national threat level, set by the independent Joint Terrorism Analysis Centre and the security services, has been at severe or higher since 29 August 2014. We put on the record our debt of gratitude to the police and the security services for the work they do in keeping us safe. Since the terrible murder of Fusilier Lee Rigby in May 2013, 25 terrorist attacks in the UK have been foiled. We should never forget that as we consider this Bill.
In June 2016, there was the terrorism-related murder of our late colleague in the Labour party, Jo Cox, and between March and September 2017, there were a further five terrorist outrages, at Westminster, on 22 March, at Manchester Arena, on 22 May, at London Bridge, on 3 June, at Finsbury Park, on 19 June, and at Parsons Green, on 15 September—although, mercifully, no one was killed in that final attack. It is fundamental that our approach in legislation does not undermine the very values that the terrorists seek to attack. The rule of law has to be fundamental to our approach.
I am grateful for the consensual approach that the Security Minister has taken on the Bill and the concessions he has made. The concession in respect of the three clicks in clause 3 makes it a better Bill. The concession on clause 14 and the preservation of the right to peaceful protest is very important, too, and is very much a part of what he rightly said about protecting our own values as an open, liberal and tolerant democracy.
I hope that this consensual approach can now continue into the Lords. As I indicated in my speech on the first set of new clauses and amendments, I am concerned that the designated areas clause came so late, and we will therefore want to subject it to scrutiny. As I indicated, we are not opposing it, but I would like to subject it to appropriate scrutiny—and I am sure it will be so subjected in the other place. I hope that the Minister will continue to work with me in that regard.
In addition, the Minister made two concessions during our debate on the second set of new clauses and amendments. First, he said he would look at the situation in Northern Ireland and accountability for the number of stops. I appreciate what he said about that. Of course, powers have been in place since 2000, but we have to ensure transparency in how the stop power is used. The second concession was on legal professional privacy. He knows that I feel passionately about this and have set out its key importance. He said that he would look at my very practical proposal before the Bill goes to the other place. That was, I accept, a concession. I hope he will continue to work on a consensual basis. Under my proposal, we would not need to balance liberty and security; we could have the position as it is but with a very practical solution.
Before drawing my remarks to a close, I want to put on the record my thanks to the Minister, the rest of my colleagues in the shadow Home Affairs team, the Members who served on the Committee and finally the Clerks who served the Committee so well as well as all of us who wished to table new clauses and amendments on Report.
Gavin Newlands
I would like to echo the thanks expressed by the hon. Member for Torfaen (Nick Thomas-Symonds) to our police and security services and all those who put themselves in harm’s way to keep us safe. We owe them a debt of gratitude. I also thank the Clerks in the Public Bill Office for their assistance during the passage of the Bill. This is the first time I have been in charge of a Bill for the Scottish National party. I also thank the individuals and organisations that provided evidence—[Hon. Members: “We can’t hear you.”] Is that okay? Have I got you now? Right, thank you. I also thank the Opposition Front-Bench team for their collegiate approach during the Bill Committee’s deliberations.
Mr Mark Francois (Rayleigh and Wickford) (Con)
I do not agree with it, but I want to hear it.
Gavin Newlands
I appreciate that.
The Minister himself, despite the late tabling of new clause 2, has been open to improvements suggested by the Opposition, and I thank him also.
The SNP supports the Government in their attempt to modernise this crucially important legislation, and we appreciate the need to combat the constantly evolving threat from international terrorism in the modern digital world, but we must be extremely careful about how this is executed. We are fully aware of the challenges that we face from increasingly sophisticated criminals and terrorists, and we are in favour of giving law enforcement agencies and the security and intelligence agencies the powers they require to keep our communities safe, but those powers must be subject to stringent checks and safeguards if we are to maintain the balance of security and civil liberties that we currently enjoy.
While stressing that we support the Government’s aims, I remind the Minister that they have awarded themselves, and the police and security services, an enormous amount of power in the last three years, not only—potentially—in this Bill, but in the Investigatory Powers Act 2016 and the Immigration Act 2016, to name but two. Sadly, more often than not the Government have simply not got the balance right between civil liberties and the extension of intrusive powers.
If Scotland were independent—and that time is coming—we would no doubt be drafting and enacting more legislation to deal with the increased threat of terrorism. Luckily, that legislation would not be drafted by me, but I cannot help wondering how similar our measures would be. I should like to think—in fact, I am positive—that we would ensure that our Ministers, our police and our security services had the necessary powers, without impinging too much on civil liberties. That, I am sorry to say, often seems to be an afterthought in the case of this Government.
Sir Edward Davey (Kingston and Surbiton) (LD)
In his opening remarks, the Minister rightly reminded us of the terrorist outrages that have been inflicted on our country and our people. The response to those outrages brings the whole House together, and I know that the Minister and his colleagues do their very best, along with the skilled people in the security services, to keep us safe on a daily basis.
On Second Reading, I explained to the Minister why I had some concerns about individual measures in the Bill. The Liberal Democrats wanted to see whether or not they would pass through the House and emerge in a better form. I have to say that in our view, regrettably, the Bill has not improved as a result of that scrutiny, and if anything, it has got worse. I will not rehearse what I said on Report, but I will say that my criticisms referred to the comments of independent experts—independent reviewers of counter-terrorism legislation—and were not made in the absence of any evidence.
There are, of course, some good parts of the Bill. Clause 5, which extends extra-territorial jurisdiction, is very welcome, as is clause 19, which deals with terrorism reinsurance and which I discussed on Second Reading. Those welcome measures, however, have been packaged with a collection of ill-thought-through measures that will not work: they will not do what they promise to do. In its report, the Joint Committee on Human Rights concluded that
“some of these offences risk a disproportionate interference with the right to privacy, the right to freedom of thought and belief, and the right to freedom of expression.”
The Committee—a Committee of both Houses—warned us that the Bill
“strikes the wrong balance between security and liberty”
and doubted its compliance with the European convention on human rights.
My list of things that are wrong with the Bill has grown since Second Reading, and the more I have looked at those items, the more my concern about some of them has deepened. Clause 1, for instance, expands the offence of inviting support for a proscribed organisation to recklessly expressing support for such an organisation. I was too kind about that on Second Reading. I argued that the concept of recklessness already exists in criminal law in respect of physical actions and physical violence, but even in that context it is controversial, given the different legal versions of what “recklessness” actually means in respect of physical actions. How much more subjective is “recklessness” when applied to speech? Ministers have failed to defend this extension, and I think that they are in serious danger of criminalising innocent people and the naive.
Given that this is a Third Reading debate, I will not rehearse many of the other problems with the Bill, but I do want to end on one particular problem that I failed to mention on Second Reading. It relates to the border security powers we briefly discussed in the last part of our debate. What the Bill says in schedule 3 is quite chilling. It gives a lot of power to state officials, which goes beyond anything I have ever seen before. I refer what the Bill says to colleagues, because this is what they are voting on tonight. In giving powers to border security guards to stop, question and detain, the Bill does not require them to justify that at any level. It states:
“An examining officer may exercise the powers under this paragraph whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity.”
It says “whether or not”; not “if” there are grounds for suspecting, but “whether or not”.
Mr Wallace
As I said earlier, these are just mirrors of the powers that have been in force since 2000. When over subsequent years the right hon. Gentleman was a member of the National Security Council in the last coalition Government did he use his senior position in the Government to seek, as this power is so unjust, and “chilling” as he says, to undo it? Will he also please reflect on this? I read the Joint Committee on Human Rights report, and there was one flaw in it: it did not take evidence from the police, the intelligence services or victims. It took evidence from Cage and other such groups, but I think its duty was to be balanced. Perhaps the right hon. Gentleman will reflect on his time in government.
Sir Edward Davey
I am happy to reflect on that. As I said to the Minister in an earlier intervention, as a member of the NSC, I was often asked to sign warrants to go after some of the most wicked people and in each case I was impressed by our security services and the systems of accountability. I signed every single warrant put before me because it was very clear that the powers were proportionate and justified. I am arguing tonight that the Government are going further. I do not think it is in the traditions of British justice that we give carte blanche powers to the border security guards, and if other Opposition Members were to read this provision in detail, I do not think they would be as comfortable as they are being lured into being.
I urge colleagues even at this late hour to actually read this part of the Bill, as I think we are in danger of losing our attachment to reason. That is a dangerous position in this very important Chamber. I hope that if some of us stand up tonight and say, “These powers are overreaching,” we can send a signal to the other place that it can do its job and scrutinise this legislation in ever more depth.
Neil Coyle
I welcome the Government’s attempt to use this Bill to close the terror insurance loophole, with the two provisos already mentioned, but there are other concerns that have not been addressed. Even if terror insurance now covers non-physical damage, the take-up of terror insurance covers only about 2.5% of UK businesses, and the Government have not addressed how to boost take-up and ensure greater coverage.
I thank the Minister for his letter, which I received today. It addresses two further issues. First, it is good that certification will be sped up, but there is no detail in the letter as to how that will be done. Secondly, there is no detail in it about how the potential for legislation to become out of date again will be addressed other than through a vague assurance. I hope that more detail will be provided in the other place.
The Bill was an opportunity to address the fact that some seek to take profits out of public generosity and public support when terror attacks occur. Sadly, giving only half a million pounds in profits, above admin costs, in the last year alone for Grenfell, Manchester and the London Bridge and Borough market attacks is appalling. That is pickpocketing from the victims of terror and it should have been addressed here. I hope the Government will look at this again before the Bill reaches the House of Lords.
Question put, That the Bill be now read the Third time.
Counter-Terrorism and Border Security Bill
Wednesday 12th September 2018
(5 years, 7 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 11 September 2018 - (11 Sep 2018)
Counter-Terrorism and Border Security Bill
Tuesday 9th October 2018
(5 years, 6 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 11 September 2018 - (11 Sep 2018)
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, no Government take any pleasure in having to put before your Lordships’ House another counterterrorism Bill. Like its predecessors, this Bill is borne out of necessity. Regrettably, the threat to this country from terrorism is ever present. Indeed, the threat level has been at severe or higher for over four years, meaning that a terrorist attack is highly likely. The police and security services now assess that over the last two years we have seen an enduring shift in the threat, rather than simply a spike.
It is easy to reel off statistics. Seventeen Islamist or far-right terrorist plots have been thwarted since March 2017; as of June, there were some 3,000 subjects of interest known to the police and intelligence agencies, and 412 arrests for terrorism-related offences in 2017. But dry statistics can never bring home the pain and sorrow suffered by individual victims of terrorism. Over recent weeks, we have heard the harrowing testimony at the inquest into the deaths of the five victims of last year’s terrorist attack on Westminster Bridge and at the gates of this very building. In this and the four subsequent attacks in 2017, in Manchester, London Bridge, Finsbury Park and Parsons Green, a further 31 innocent victims lost their lives, and in total over 200 others were injured. The family and friends of those who lost their lives will have to live with this painful loss for the rest of their lives, while the victims who survive have to deal with the ongoing mental anguish and, in some cases, life-changing physical injuries.
As a Government, we must do all we can to prevent such tragedies happening again, although regrettably there can be no guarantee that every plot will be foiled. One way we can do this is to make sure that our counterterrorism legislation remains fit for purpose. Much of the current legislation dates back to Acts passed in 2000 or 2006. In the intervening years, the nature of the threat has evolved. We have seen new patterns of radicalisation, the widespread use of social media to spread hateful ideology, and the draw of the so-called caliphate in Syria. We have also seen more rapidly evolving plots using everyday items such as vehicles and knives as weapons, which although still deadly are less sophisticated and complex than the plots of previous years. This has led to a lowering of the barriers to entry and a decrease in the time taken to plan and prepare by those with murderous intent.
Against this evolving threat, it is only right that we should bring our counterterrorism legislation up to date so that our law enforcement and intelligence agencies have the necessary, but proportionate, powers to help counter the threat as it manifests itself today, and not the one they had to contend with nearly 20 years ago. The provisions in Part 1 are directed to this end. In reviewing existing legislation, we have listened carefully to our operational partners: the police, prosecutors and the intelligence services, but also the current and former Independent Reviewers of Terrorism Legislation—I am pleased to see the noble Lord, Lord Anderson of Ipswich, in his place. We have also listened and responded to the debates on these provisions during the passage of the Bill in the House of Commons.
The Bill closes a number of gaps in existing terrorism offences. Under Section 12 of the Terrorism Act 2000 it is already an offence deliberately to invite support for a proscribed terrorist organisation, whether expressly or by implication. However, there are demagogues who, without intending to encourage others to support such groups, or at least without the prosecution being able to prove such an intention, nevertheless recklessly choose to voice their own support, knowing full well that the effect of their words will be to do just that. It is right that the criminal law should bite in such cases.
The Bill also updates Section 13 of the 2000 Act which criminalises the display, in public places, of a flag or other emblem of a proscribed organisation in such a way, or in such circumstances, as to arouse a reasonable suspicion that the person is a member or supporter of a proscribed organisation. The provision in Clause 2 makes it clear that the publication of an image of such a flag or emblem online, in circumstances which arouse that reasonable suspicion, comes within the ambit of Section 13. So, for example, a person would commit the offence if he or she posted on social media a picture of themselves taken in their bedroom and displaying a Daesh flag in the background, thereby making the image available to the public, and, if taking all the surrounding circumstances into account, such a display aroused a reasonable suspicion that he or she was a member or supporter of Daesh.
We are also strengthening the existing offence, in Section 58 of the 2000 Act, of collecting or possessing information likely to be of use to a terrorist. Here again, we need to ensure that the criminal law reflects how people now make use of the internet. If someone were to download a document containing information likely to be useful to a terrorist, it would be in their possession and they would therefore be committing the Section 58 offence. If, instead of downloading the document, they were to view it online or to stream a video or audio recording containing the information, without any record being made on their device, the offence would not apply. This cannot be right. This loophole is a clear illustration of how criminal law has not kept pace with the digital age. Clause 3 therefore provides that a person who views or otherwise accesses terrorist material online is within the ambit of the Section 58 offence. But it is not the intention here to criminalise a person who unintentionally views such material, so the clause provides that it is a defence for a person to show that they did not know, or had no reason to believe, that the material is likely to be useful to a person preparing or committing an act of terrorism.
This part of the Bill also helps us to respond more effectively to the threat posed by foreign terrorist fighters—an issue which I know is of great interest to my noble friend Lord Marlesford. We already have a number of powers to disrupt travel to conflict zones overseas but here, as elsewhere, we need to ensure that the coverage is as comprehensive as it should be. Accordingly, the Bill provides for a new offence of entering or remaining in a designated area overseas. The Home Secretary may make such a designation where he or she is satisfied that it is necessary to restrict UK nationals and residents from travelling to, or remaining in, the area for the purpose of protecting the public from risk of terrorism. Any regulations designating an area will be subject to the affirmative procedure; consequently, after they have been made and come into force, they will need to be debated and approved by both Houses if the designation is to remain in effect.
The designated area offence will be subject to a reasonable excuse defence. We are clear, for example, that the defence would apply to a person travelling to a designated area for the purpose of providing humanitarian aid or to carry out work as a journalist. This defence will operate in the same way as the existing reasonable excuse defences in the Terrorism Act 2000. Accordingly, once a defendant has raised the defence, the onus will be on the prosecution to disprove the defence to the criminal standard.
The Bill also seeks to tackle the phenomenon of foreign terrorist fighters by extending the reach of the UK courts. It is not for the law enforcement agencies in this country to police the world but, when someone has travelled from the UK and committed a terrorist offence abroad, it is right that they should be brought to justice if they return here. Many terrorist offences are already subject to extraterritorial jurisdiction. We are now extending the jurisdiction of the UK courts to cover further terrorism offences committed abroad, including activity that we have seen conducted by those who have joined Daesh, such as the dissemination of terrorist publications to individuals back in the UK and the possession of explosives for the purposes of an act of terrorism.
It is not enough that we prosecute and convict those who commit terrorist offences; we also need to ensure that the punishment properly reflects the seriousness of the crime and that our communities are protected by the courts having the scope to hand down appropriately lengthy sentences. New sentencing guidelines which came into force in April will go some way in this direction, but the Sentencing Council and the courts necessarily have to operate within the current maximum penalties set out by Parliament.
Having reviewed the maximum penalties for some terrorism offences, we are satisfied that they no longer adequately reflect the seriousness of the offending behaviour and the high level of harm that can be caused. Accordingly, the Bill increases to 15 years’ imprisonment the maximum penalty for four offences, namely: collecting terrorist information; eliciting, communicating or publishing information likely to be useful to a terrorist about a member of the Armed Forces; encouragement of terrorism; and dissemination of terrorist publications. In response to representations from Max Hill QC, the outgoing Independent Reviewer of Terrorism Legislation, we are also increasing to 10 years’ imprisonment the maximum penalty for the offence of failure to disclose information about acts of terrorism. As now, it will be for the courts to determine the appropriate sentence in each individual case.
In addition, we are bringing preparatory terrorism offences within the scope of the extended sentence regimes in England and Wales, Scotland and Northern Ireland. Where an extended sentence is imposed by the court, the offender is not released automatically at the halfway point of the custodial term, and is instead only released ahead of the end of the custodial term when the independent Parole Board considers it safe to do so. They are then subject to an extended period on licence.
These changes to the sentencing regime will be further reinforced by a strengthening of the notification requirements, which can apply for up to 30 years following conviction. Registered terrorist offenders will be required to notify the police of a wider range of information, including banking and passport details and details of any vehicle they have use of, to enable the police to better manage the risk of reoffending.
As I said, the Government greatly value the work of the Independent Reviewer of Terrorism Legislation, and we are fortunate to have in this House two former occupants of that office. I look forward to hearing the speech of the noble Lord, Lord Anderson, and I hope that we will also be able to hear from the noble Lord, Lord Carlile, during the course of the Bill.
I am pleased that this part of the Bill gives effect to two recommendations made by the noble Lord, Lord Anderson, when he was the independent reviewer. First, it introduces a statutory bar on the admissibility in criminal trials of verbal admissions made during an examination at a port under Schedule 7 to the Terrorism Act 2000. Secondly, it provides for the “detention clock” to be paused where a person arrested or detained under the Terrorism Act 2000 is taken to hospital for treatment. This brings the 2000 Act into line with the long-standing provisions in the Police and Criminal Evidence Act. It is right that the police should have the full time allowed under the law to question a suspect before they are released or charged.
Clause 19 is further evidence that this Government are receptive to reasoned arguments for changes to counterterrorism legislation. Noble Lords will recall that what is now the Counter-Terrorism and Security Act 2015 put the Prevent duty and Channel panels on to a statutory footing. I have no doubt that we will hear more about the Prevent programme during the debate today and subsequently, but for now I just pay tribute to the prescience of the noble Baroness, Lady Hamwee, who argued back in 2015 that local authorities, as well as the police, should be able to refer to a Channel panel a person at risk of being drawn into terrorism. It might have taken us three years to take on board that suggestion but I hope that she can take some satisfaction from the fact that her proposal is now being given effect.
Finally on this part of the Bill, I want to mention the amendment to the Reinsurance (Acts of Terrorism) Act 1993 made by Clause 20. That Act enables the Government to extend an unlimited guarantee to the terrorism reinsurer, Pool Re. This in turn enables the insurance market to provide insurance to businesses for loss caused by damage to commercial property from terrorist attacks. The Bill will amend the 1993 Act to enable Pool Re to extend its business interruption cover to include losses from terrorist attacks that are not contingent on damage to commercial property.
The threats to our national security are not confined to terrorism; they also come from hostile state activity, and we have seen recent devastating evidence of this threat in our communities. In March, we saw the poisoning in Salisbury of Sergei and Yulia Skripal and Detective Sergeant Nick Bailey using a military-grade nerve agent. The Crown Prosecution Service has now charged two men for this attack, and the Government have concluded that they are officers in the Russian military intelligence service, the GRU. This was not a rogue operation. It was almost certainly approved outside the GRU at a senior level in the Russian state. The same two men are now the prime suspects in the case of Dawn Sturgess and Charlie Rowley.
The events in Salisbury are part of a pattern of behaviour by the Russian Government, and they are not alone in engaging in hostile activity that threatens the United Kingdom. Given this, the time has come to harden our defences against hostile state activity. As a first step, Part 2 of the Bill provides for a new power to stop, question, search and detain persons at ports, airports and the Northern Ireland border area to determine whether they are, or have been, engaged in hostile activity by or on behalf of a foreign state.
These provisions will serve to address a current gap in our ability to tackle the threat posed by hostile state actors and will mirror in many respects the existing powers to stop and question persons at the border for counterterrorism purposes. Indeed, this is another area where the Bill reflects a proposal made by the noble Lord, Lord Anderson, in his previous role as independent reviewer. In his report on the terrorism Acts in 2015 and subsequently in evidence to the Home Affairs Select Committee, he argued for a power to determine whether a port user is engaged in national security threats such as espionage or proliferation.
No one wants their travel plans disrupted, or to be subjected to intrusive questioning as they enter or leave the country. As with existing border powers in the Terrorism Act, those afforded by Schedule 3 to the Bill will be subject to a number of checks and balances to ensure that they are not used in an arbitrary fashion, but are subject to rigorous independent oversight—in this case by the Investigatory Powers Commissioner. The important safeguards on the face of the Bill will be augmented in a statutory code of practice, and I can give an undertaking to the House today to publish a draft of the Schedule 3 code of practice before we reach Part 2 of the Bill in Committee.
It is incumbent on the Government of the day to keep the people of this country safe and secure from the threats posed by terrorism and hostile state activity. As part of this, it is inevitable that from time to time we need to refresh our laws to ensure they remain up to date for present-day threats. Faced with the horrors of the five terrorist attacks last year, it is inevitable that such events can act as a catalyst for change. It is right, however, that your Lordships’ House should consider the provisions in this Bill dispassionately. Such individual tragedies should not cloud our judgment, but we must remain alive to the fact that the decisions we make as legislators have real world consequences. This Bill will help reduce the risk of tragedies similar to the ones we saw in London, Manchester, Salisbury and Amesbury from happening again, and on that basis, I commend this Bill to the House.
Lord Rosser (Lab)
My Lords, I thank the Minister for her explanation of the content and purpose of the Bill, and of the thinking behind the Government’s proposals. We too would like to take this opportunity to express our thanks to our security agencies and the police for the work undertaken to protect us from acts of terrorism. We are aware of the significant number of major acts of terrorism—potential and intended—that have been prevented. We also express our thanks to the staff of the emergency services, including hospital staff, who are called into action when incidents—perhaps one should say atrocities—occur. Our thoughts remain with the victims of those atrocities and their families. We accept the need for the Government to update counterterrorism legislation to reflect changing situations and circumstances as well as technological changes and developments.
We expressed our broad support for the Bill in the House of Commons, did not divide on it at Second Reading and supported it at Third Reading. We did, however, table substantial amendments, some of which led to alterations in the Government’s position and government amendments to the Bill, to address concerns we had raised, including those in respect of human rights, which cannot simply be brushed aside.
One feature of the passage of the Bill to date has been the Government laying down amendments of some import just prior to Report stage and Third Reading in the House of Commons. That did not suggest that counterterrorism and security legislation is always being considered and evaluated by the Government in quite the calm and measured way they would like us to believe, but in some areas is being rushed to meet deadlines—even though the events that have weighed most heavily on the Government’s mind in formulating the Bill have not all occurred within the last few weeks or months.
We have no objection to late amendments when the case for their wording and intent is clear. However, it is hardly satisfactory if such amendments are to a Bill that has been through the Commons without there having been time for proper consideration and debate in the other place about the necessity and—equally significantly—appropriateness of the wording of those late amendments. That is the situation we are in with the Bill. A new clause was laid by the Government, with a number of consequential amendments, just prior to Report. It provides for an offence under the Terrorism Act 2000 of entering or remaining in an area outside the United Kingdom that has been designated in regulations made by the Secretary of State. There was an exchange of views in the Commons about where the burden of proof lay in the light of the wording of that new clause, which states:
“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.
The Minister for Security and Economic Crime stated in the debate, on behalf of the Government, that,
“we have provided for a reasonable excuse defence. Once such a defence has been raised, the burden of proof, to the criminal standard, will rest with the prosecution to disprove the defence”.—[Official Report, Commons, 11/9/18; col. 656.]
The Minister has, in effect, repeated that statement in her opening speech today. However, the wording of the Bill and the Minister’s statement appear to be in conflict. I say that not as a legal authority but as someone whose legal career began and ended with the apparently now steadily diminishing lay magistracy.
Will the Minister indicate why the Bill does not appear to say the same on burden of proof as was said by the Commons Minister when moving the new clause on Report in the Commons and again by the Minister here today? Will she also tell us, assuming that the Commons Minister’s statement is correct on burden of proof under the new clause, whether it will be sufficient for the prosecution to prove that the individual was not in reality engaged in a claimed valid activity for a reasonable excuse defence or whether the prosecution will also have to prove that the individual was also involved in a terrorist or terrorist-related activity, which I thought was something that the prosecution could already seek to prove under the existing law to secure a conviction?
I raise this point in the context of a further statement made on Report by the Minister for Security in the Commons that,
“breaching a travel ban and triggering the offence will provide the police and the Crown Prosecution Service with a further tool to investigate and prosecute those who return to the United Kingdom from designated areas, thereby protecting the public from wider harm”.—[Official Report, Commons, 11/9/18; col. 656.]
Can the police and the Crown Prosecution Service not already investigate an individual returning to the UK from a potential future designated area if they have reasonable doubts as to the true reasons for their being in those areas or countries, or will it, under this Bill, be sufficient for imposing up to 10 years’ imprisonment to show that the individual concerned was not there for a claimed reasonable excuse defence activity or purpose?
The Government appear to have some reservations of their own about this late new clause, which they expect will lead to only a “few people” being prosecuted. In the Commons on Report, the Minister for Security said that,
“I recognise that we have introduced this measure into the Bill late, and I apologise for that. However, we are in the Commons, and the Bill will no doubt go to the other place, and I am happy to discuss further how we can clarify it and safeguard it and make sure that it is not abused as a system, and that the reasonable excuse issue is further explored. I think that is appropriate”.—[Official Report, Commons, 11/9/18; col. 658.]
We will indeed need to look at the process, procedures and criteria against which the Government seek, by affirmative statutory instrument, to designate these areas, and consider the adequacy or otherwise of the safeguards for those with legitimate business in these designated areas, such as aid workers and journalists or those who went there without appreciating what they were getting involved in and came back disillusioned.
In the Commons, the Government were asked by John Woodcock MP if they had,
“an estimate of how many of those 800 Brits who we know went over to Raqqa during the recent conflict could have been prosecuted under this legislation, had it been on the statute book at the time”.—[Official Report, Commons, 11/9/18; col. 658.]
The Minister for Security said that he would write to the Member with a specific number—will the Minister tell us what that figure is? I assume that the figure will also, by definition, be for those who could not be prosecuted under existing legislation. Will the Government also indicate how many designated areas or countries they anticipate there will be under the new clause? It looks as though there will be quite a few, since the Commons Minister, during his opening speech on Report, referred to Turkey, Syria, Iraq, “parts of Africa”, “parts of the Philippines” and,
“areas of conflict where there is a risk of terrorism”.—[Official Report, Commons, 11/9/18; col. 656.]
A further government amendment on Report relates to the seizure of flags or other activities associated with a proscribed organisation, and would give the police the option of seizing such items on suspicion of an offence being committed under the Terrorism Act 2000 without having to make an arrest, subject to that course of action being needed to prevent the evidence for a potential subsequent prosecution being concealed, lost, altered or destroyed. Such a course of action could still have the effect of raising the temperature at a march or demonstration, even though that is what the provision is designed to avoid, and not least in Northern Ireland. We will need to consider how the proposed course of action might work out in practice.
Further government amendments on Report changed the Bill’s original provisions on the viewing of terrorist material online so that the provision applies to information that is accessed online rather than covering only information that is downloaded first. We will need to consider that issue further since the Bill now provides, instead of the much-criticised three clicks test, for a reasonable excuse defence if the person does not know and has no reason to believe that the information they are accessing is likely to be useful in connection with terrorism or terrorist-related activities. We will need to probe the position of those who might look at such material for legitimate and non-terrorist or terrorist-related intent, such as journalists or academics, or those who look at it inadvertently. The issue of proportionality has to be considered.
A further government amendment on Report increased from five to 10 years, as the Minister said, the maximum penalty for failing to disclose information about acts of terrorism. It would be helpful if the Minister could expand on the reasons that led the Government to believe that the original maximum penalty of five years should be increased to 10 years, apart from it being also the view of Max Hill QC.
Apart from legislation, a further aspect of the Government’s approach to addressing the threat of terrorism is the Prevent programme. It has been in operation for some time now and has been the subject of both positive and negative comments. On the latter point, there is some doubt about whether all sections of the community have confidence in the programme and whether its aims and objectives, which include diverting people from involvement in terrorism and terrorist activity and strengthening community cohesion are always being achieved. Some appear to regard Prevent as primarily an intelligence-gathering exercise.
There is also an issue about the impact on the Prevent programme and its ability to deliver its stated aims and objectives of the cuts in local government services, including those for younger people. As part of the counterterrorism strategy, there should be provision in the Bill for an independent statutory review of the Prevent programme to look at and evaluate the extent to which it is or is not achieving its objectives and the support that it has or does not have across the community, with a view to making changes and improvements to the programme where deemed necessary to enhance our ability to counter the threat and reality of terrorism. Counterterrorism, after all, is not just about creating new offences and fixing maximum penalties.
We will wish to pursue other matters during the passage of the Bill. The European arrest warrant is an important weapon in countering terrorism. Following the attacks in Salisbury and the identification of the two suspects, we have recently obtained a European arrest warrant and either already have or are about to issue an Interpol red notice. Yet the Government opposed an amendment on Report in the Commons that simply required them to adopt the continued participation of the UK in the European arrest warrant in relation to people suspected of terrorist offences as a negotiating objective in the withdrawal negotiations with the European Union.
On Report in the Commons, the Government, in response to the shadow Minister’s concerns in relation to border stops where there is no reasonable suspicion in relation to an individual said that they would look at the situation in Northern Ireland and accountability for the number of stops. That border represents 3% of the passenger numbers for the whole of the UK, but 18% of the stops. There has to be transparency in how the stop power is used—a power to stop, question and detain without reasonable suspicion exercised by officials. We do not want to create a situation that looks like something akin to a hard border on this aspect between the north and south. When do the Government intend to come back with the results of their further consideration on this point? Perhaps the Minister will say.
A further issue raised on Report by the shadow Minister concerned legal professional privacy and the provision in the Bill for an officer not only to watch someone receiving legal advice, which is not new, but to hear that legal advice being given. The shadow Minister suggested that to overcome the government concerns that have led to this provision, there should be a panel of lawyers regulated by the Solicitors Regulation Authority and the Law Society. The Minister for Security said that he would look at the proposal before the Bill’s introduction into this House. It would be helpful if the Minister could say what the Government’s position now is on this issue.
While we supported the Bill at Third Reading in the Commons, there are a number of outstanding issues that we flagged up on Report, many of which I have referred to, including the need to look in more detail in this House at the significant late amendments tabled by the Government just prior to Report, which could not receive the consideration they should have done in the Commons. We will wish to pursue these points during the passage of the Bill through this House; nevertheless, it would be helpful if the Minister could respond to the specific points and questions I have raised. Surely we all have an interest in ensuring that the Bill is balanced and proportionate, that its provisions are all necessary, and that it strengthens our hand in countering terrorism and terrorist activity while safeguarding human rights.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am grateful to the Minister for the clear and helpful way in which she opened the debate on this very difficult subject—and indeed I agree with much of what the noble Lord, Lord Rosser, said, and I join with him and the noble Baroness in paying tribute to the work of the police and security services in combating terrorism. I also look forward to the maiden speeches of my long-standing friend the noble and learned Lord, Lord Garnier, and of the noble Lord, Lord Tyrie.
On these Benches we agree with the Government in acknowledging the need for strong legislation to counter terrorism and to protect the public, so we accept the principles underlying many of the measures in the Bill. However, the approach we take to this legislation, as to all counterterrorist legislation, is that we must balance the security imperatives to protect the public and to combat terrorism against the liberal imperative to safeguard our freedoms as citizens in a democratic society. We assess each of the measures proposed with the following questions in mind. First, what is the purpose of the measure and what is the mischief it seeks to address? Secondly, is the measure necessary to achieve that purpose? Thirdly, is the measure a proportionate response to the mischief, having regard to the restrictions on liberty that it entails, and in particular would a more limited response achieve the purpose in a more proportionate way? Fourthly, will the measure be effective in achieving its purpose?
I also suggest that we should approach these new powers having in mind that we may in the future have not a Government with genuine respect for liberty and democratic values but a Government who are prepared to ride roughshod over our freedoms as citizens. If the tests I set out are not met in the context of such a Government, the powers proposed should be opposed or limited by Parliament. In a number of areas we believe that these tests are not met in this Bill. Some measures may be capable of amendment while others, we believe, are irredeemably bad.
Clause 1, creating a broad offence of expressing support for terrorist organisations, is drawn in very wide terms. We share the concerns of the Joint Committee on Human Rights that the offence must be restricted so as not to criminalise legitimate freedom of expression. As presently drafted the clause is demonstrably not proportionate or sufficiently limited. I would add at this stage that Parliament has every reason to be extremely grateful to the Joint Committee on Human Rights for its careful work on this Bill. Its existence and thoroughness help us to ensure that human rights are respected when we consider legislation and its reports deserve our closest attention.
Clause 2 would criminalise the publication of images of clothing or articles arousing reasonable suspicion of membership of a proscribed organisation. Again, this is insufficiently restricted and disproportionate. It could catch honest and fair reporting, cultural work and international and political study, and stifle genuine discussion. Clause 3, relating to use of the internet, is targeted at the legitimate objective of preventing the internet being used for terrorist purposes. But again, it is insufficiently limited. In spite of the reasonable excuse defence, there is a risk that the clause will operate to restrict innocent and harmless research and journalism.
As was pointed out by the noble Lord, Lord Rosser, Clause 4 was added late by an amendment in the House of Commons. It gives the Government power to designate areas outside the UK and prohibit travel to such areas by UK citizens—a radical restriction of individual liberty. Outside wartime, such a curtailment of citizens’ rights is very difficult to justify. I do not believe that the availability of a reasonable excuse defence adequately mitigates the violence that the creation of this offence would do to our liberties.
The provisions in Clause 6 on extraterritorial jurisdiction seem to risk injustice to both UK citizens returning to this country and foreign nationals travelling here. Much more thought needs to be given to the proper limits on the ability to prosecute here for offences committed abroad.
I turn next to the sentencing provisions, starting with Clause 7. I and many others in this House, in the senior judiciary and throughout the criminal justice system have pointed out many times the dangers of sentence inflation, yet elements of the populist press still urge their readers and politicians to push for longer sentences. No one would argue that prison is not the proper punishment for terrorist offences, but longer and longer sentences are not the answer. Our prisons are overcrowded, understaffed and violent. They do not function as places of reform and rehabilitation. Educational facilities are limited or non-existent. It is a fact that our prisons tend to radicalise their inmates. Sending those guilty of terrorist offences there for ever-longer terms is more likely to encourage others to commit such offences than to reduce the threat to the public. The Government will need to produce a stronger case before I will be prepared to support these provisions. We will look at the numerous other powers and requirements proposed in the Bill in the same spirit, seeking to ensure that any new powers meet the tests I outlined earlier. Where they do not, we will oppose or seek to amend them.
Finally, it is one of the ultimate contradictions of this extremely difficult period that while our Government struggle to improve domestic counterterrorist legislation, they nevertheless risk through Brexit abandoning most of the UK’s international work in this area over decades. With our active participation, the EU has painstakingly constructed the most comprehensive and effective international network ever devised, certainly in a democratic context, to combat terrorism and safeguard public security. It has achieved this with great sensitivity to protecting democratic freedoms, supported by the requirements that EU legislation have regard to the Charter of Fundamental Rights and that its implementation be monitored by the Court of Justice of the European Union.
The Government prepared Part 2 of the Bill in response to the poisoning of Sergei and Yulia Skripal, as the Minister pointed out. We should remember the co-operation of our friends and neighbours across Europe in resisting Russian aggression in the wake of the Salisbury poisoning. Is it not ironic that on 5 September the Prime Minister pointed out in the House of Commons that although Russia resisted any extradition, we obtained a European arrest warrant to ensure that, if the two suspects ever travelled to Europe, we would be able to secure their arrest and bring them swiftly to justice in the United Kingdom?
We hope that the Government will get a deal to retain the European arrest warrant system, but they are also planning for no deal. In those circumstances, it is not just the European arrest warrant system that is at risk. Access to the Prüm database, which was secured in 2016 just before the referendum, would also be at risk. An Interpol DNA search takes 143 days on average. Through Prüm, it takes 15 minutes, a fingerprint match comes back within 24 hours and car registration numbers are searched in just 10 seconds.
Europol, the European law enforcement agency, which was led until May by an energetic and effective British director, Rob Wainwright, and into which we opted back in December 2016, is also at risk. So is Eurojust, the network for co-operation between judges and prosecutors across the EU to combat serious cross-border crime. Then there is the Schengen Information System, which enables enforcement agencies to exchange information about risks presented by serious criminals and suspected terrorists. Although the UK is not part of the Schengen agreement, under the treaty of Amsterdam it has access to the Schengen Information System for law enforcement purposes.
By this Bill the Government seek to introduce new measures to protect the security of the UK public. Yet by risking our co-operation with the EU on terrorism and cross-border security through the imposition of arbitrary and indefensible red lines—for example, on the role of the European Court of Justice—the Government threaten to undermine the very security they seek to protect.
Baroness Manningham-Buller (CB)
My Lords, as the Minister said in her introduction, it is sad in a way that we are here again dealing with counterterrorism legislation. In the 10 years that I have been in your Lordships’ House, I have lost count of how many times we have come back to this subject. Indeed, in my maiden speech 10 years ago, I spoke against detention without charge for 90 days for terrorist suspects, then a government proposal. I very much look forward to hearing the maiden speeches of the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Tyrie, on this subject. The need for this legislation is well argued and, during the course of the Bill’s passage through this House, we will certainly want to pick up on a number of the details of it.
In the wake of last year’s attacks there was serious scrutiny of my former organisation and, indeed, of the police and their performance in responding to those attacks. A number of lessons were learned and changes were made. Scrutiny of my former service was overseen by the noble Lord, Lord Anderson. This legislation attempts to fill various gaps arising from some of that scrutiny. It covers a pretty wide range of things, from detection, sentencing, management of offenders, borders, territorial scope, DNA retention and others. What is different is that, for the first time that I can recall, there is specific information about the rise of extreme right-wing terrorism, which I am sure we will come back to in the course of our discussions, and of course—I have some familiarity with this from my past, which I thought was over—Russian activity and criminality in this country. I spent a year of my life interviewing a defector from the GRU 30 years ago; I did not expect that that information would still be current.
The issues that will give rise to scrutiny in this House are very familiar to us. The noble Lord, Lord Marks, mentioned some of them. I do not always acknowledge a balance between security and liberty. I think that there is no liberty without security—I would say that, of course—and the right to life in the first section of the European convention argues that we should look very carefully at the suggestions being made to try to improve that. We will think about what the threats are—as I said, they are not just terrorism, but the affairs of state—what is necessary and what is proportionate, and where our state should draw the line. These are important issues.
I could go on. During the course of our discussions, I will certainly pick up on the points from the noble Lord, Lord Marks, on our relationship with our European friends on these subjects, which was of critical importance throughout my former career and which I am sure people are working hard to ensure is not damaged.
At this early stage, I will touch on what the Home Office calls the contemporary pattern of radicalisation. We know that the terrorist threat from Islamist terrorism is severe. We also know that the pace of radicalisation is quite different from what it was a decade ago. It is very rapid indeed. It can be between breakfast and lunch. When I was in charge of a number of operations with my noble friend Lord Blair of Boughton, the colleague on my right, we often had plenty of time to consult the Crown Prosecution Service, to decide who was chargeable, to develop operations over weeks and indeed months. That is now rare, as I understand it, and that makes the life of those trying to detect these attacks in advance much more difficult. So the pace has changed and the scale has changed.
I have said in this House before that I can scarcely imagine the figures: 3,000 people of security interest is way beyond the capacity of any security service or police force to monitor on a regular basis, and there are at least 500 active investigations into terrorist plots. It is also worth remembering—some of the questions already raised are key—that a great deal is stopped that we do not hear about. Unless we are paying attention to when cases come up in the courts, we do not know how many are stopped, but it is substantially more than occur. One question has to be: will the provisions of the Bill increase the opportunities of preventing more of them? I think that is what we will be focusing on later in the debates.
The Lord Bishop of Newcastle
My Lords, first I too want to say how much I am looking forward to the maiden speeches of the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Tyrie. The noble Lord, Lord Tyrie, will be well acquainted with these Benches, having worked closely with my most reverend brother the Archbishop of Canterbury on the Parliamentary Commission on Banking Standards, which the noble Lord so ably chaired.
In opening this debate, the Minister spoke powerfully and movingly about the terrible consequences of terror, the effect on people’s lives, the suffering that is lifelong for people. It is in this context that I broadly welcome the Bill. I certainly recognise the difficulty of drafting and steering this kind of legislation. It is to walk something of a tightrope, as described by the noble Lord, Lord Marks. The current national security situation is complex, as is seen so sharply in our news headlines this morning. At Second Reading, I would like us to stay alert to that tightrope we walk, to proportionality and, perhaps especially, to the danger of unintended consequences.
For example, I echo the concern of the noble Lord, Lord Marks, that in implementing Clause 1 we may end up criminalising the mere expression of a thought or a belief, as opposed to action. Freedom of thought and expression is a treasured value in this country. As a Bishop in the Church of England, it is perhaps not surprising that I hold dear Elizabeth I’s assurance in relation to religious freedom that,
“I would not open windows into men’s souls”.
We need to keep a watchful eye so as not to imperil something that is so precious to us.
On Clause 3, as well as the questions raised by the noble Lord, Lord Rosser, I ask a genuine question: are these powers responsive enough to keep pace with technology and communication channels, or are we giving powers to the Secretary of State and judges that are designed to fight the last, rather than the current, battle?
Finally, I raise a wider concern. As we work to ensure that we are safe from something, are we thinking enough about what we want to be safe for? As we work to ensure that we are safe from terror, we need to check that we put an equal emphasis on being safe for a compassionate society. Safety from terrorism is of absolute importance and, when we get this wrong, the consequences are disastrous. However, it is equally important that we foster a society in which all our citizens are able to feel safe and secure and can be free to flourish.
Just last week, I met with Tyne & Wear Citizens. We met in Newcastle Central Mosque and what we heard was distressing. We heard from some women in the mosque that, over the last period, there has been a sharp rise in the instances of women wearing hijabs being abused on public transport in Newcastle and the surrounding area. They are having to gather up a lot of courage to travel on the Metro. This abuse is unacceptable in our society. Our desire to keep our borders secure should never jeopardise the safety of any of our citizens as they go about their day-to-day lives. In all the complexities of the Bill—and I do not underestimate the complexity of the issues—it is important that we carefully nuance our discussions to avoid any religious or ethnic group being associated with those who wish to do our country and its citizens harm.
My prayers continue to be for those who draft our legislation and those who will administer justice in the light of it for years to come. I also pray for those who keep this nation secure. It is my hope that we will continue to build a country which will allow all our citizens to feel safe and in which kindness, respect and courtesy abound.
Lord King of Bridgwater (Con)
My Lords, it is a great privilege to follow the right reverend Prelate. In her relatively brief remarks I think she impressed the whole House with the quality of her contribution. I wonder whether any of her predecessors as Bishop of Newcastle would have dreamed of standing up in your Lordships’ House and saying, “I have just had a meeting in Newcastle Central Mosque”. That drew attention to the challenges and differences that we now face in our country and in the world. I am grateful to her for carrying on what has been an extremely impressive start to this important debate.
I support my noble friend the Minister, who took exactly the right approach in her introduction to this complicated and difficult issue. I will make only one criticism. The paperwork that has come out has been outstanding, explaining all the issues involved, but there is one thing there which I do not believe for a minute: the impact assessment. Some bright gentleman has said that it will cost £49.8 million over 10 years. Who came up with that wonderful figure? If the Minister cannot answer that today, will she write and tell me who worked out this calculation and what it is meant to mean?
I was struck by the debates in the other place, in which a tribute was paid to Ben Wallace, the Minister, for the consensual approach that the Government took to this legislation. I pay tribute to the noble Lords, Lord Rosser and Lord Marks, for the approaches they took in recognising that there are issues. I agree with every one of the tasks that the noble Lord, Lord Marks, set out. We will not necessarily agree on the answers, but he is absolutely right that these tasks have to be addressed. We are very lucky to have my noble friend the Minister, who I think will carry on the tradition of Mr Wallace and take a consensual approach to these difficult issues, which are very important to our country.
When the House of Commons at Third Reading said—rather cheekily, I thought—that it had adopted a consensual approach and hoped the other place would as well, I thought that we were rather more likely to do that than the Commons in normal circumstances—and to bring it forward. The quality of the contributions in this House can be exceptional. We have already had the viewpoint of the noble Baroness, Lady Manningham-Buller, who is uniquely qualified. We are going to have maiden speeches from two very distinguished former Members of the other place: my noble and learned friend Lord Garnier and the noble Lord, Lord Tyrie. It is also a great pleasure to see the noble Lord, Lord Anderson, who knows more about some of this legislation than any of us will ever know. So this House is uniquely placed to carry it through.
Looking through the legislation, I have learned a lot. Having had some years in Northern Ireland and some in defence—and having chaired the ISC for seven years—I am very conscious of how much the situation has changed. The noble Baroness, Lady Manningham-Buller, referred to the pace and scale of what is happening. That absolutely sums it up. I also noted the phrase that my noble friend used at the start: this is an enduring shift in the challenges of terrorism, not a spike. I think we would all agree with that.
At the end of its Third Reading, the other place said that it had done quite a bit of work but there was still quite a bit to do. The noble Lord, Lord Rosser, spelled out the things that were not dealt with in the other place and which we now have to take on. The advantage is that we at least start from a common understanding of the threat that we face. Take the threat assessment with which we live all the time: noble Lords will know that it is at “severe”. What does “severe” mean? It means that an attack is “highly likely” and we have no excuse for not knowing that, having been through what happened tragically on Westminster Bridge and in our own Parliament. We went right on to the tragedies in Manchester, at London Bridge and in Finsbury Park. What happened at Parsons Green could have been very bad indeed, in my understanding, if the bomb had been put together correctly; we were extremely lucky in that respect. Since then, I understand that 12 serious Islamic threats have been thwarted and, I think, four right-wing threats as well. If I have the right figures, we have had 441 terrorism-related arrests and 72 people were convicted of terrorism last year. There are 228 people in prison at this stage for terrorist-connected offences.
Against that, we now have the challenge of the pace to which the noble Baroness, Lady Manningham-Buller, referred. Undoubtedly, the impact of social media is quite enormous. Some of us sat through part of the debate on the Investigatory Powers Bill, when I quickly realised that ISIS knew a lot more about WhatsApp than I ever did and was using it to great effect. The speed with which extremist propaganda and intelligence, along with the knowledge and instructions on how to make weapons and bombs, can turn up on social media is a major threat for us at this time.
Taking it on further, I see the scale of the challenge and some new complications. I understand that 74 groups are currently proscribed in this country. I have also tried to understand the phrases that turned up in the Explanatory Notes. Everybody will now know that an RTO is a “registered terrorism offender”. That is somebody at large in our community who is guilty of a terrorism offence and has to report in under certain regulations. The term SOPC means “sentences for offenders of particular concern”. The other interesting phrase is ATTROs, which refers to “antiterrorism traffic regulation orders”. We know what that means: it means putting barriers up on bridges to stop cars running into them and killing a lot of people. At the same time, there is the completely new dimension which we live with at the moment of state-sponsored terrorism. Whatever happened at the Organisation for the Prohibition of Chemical Weapons or in Salisbury, those are threats that we have faced in only the last week. I understand that the Islam Channel—a major UK-based TV channel—has been subjected to Russian hacking, causing considerable difficulty. So we have these occurrences weekly.
I think that the noble Baroness, Lady Manningham-Buller, said that she had lost track of all the Bills and Acts of Parliament that there have been. I have written them down. We have had Acts trying to address the problems of terrorism in 2000, 2006, 2008, 2010, 2011 and 2015. We are now heading for one in 2018. The noble Lord, Lord Anderson, knows much more about some of those than I do. We know there is a need for effective action to counter terrorism. We cannot allow the protection of the public to fail for lack of effective legal power, but at the same time a challenge for this House is to ensure that when this legislation comes out we have the balance right on the proper protection of individual rights and freedom of speech. This House is uniquely placed to achieve that.
I will add two further points. One interesting suggestion has been promoted by Policy Exchange to meet the challenge of those who are betraying our country and are going out to fight and kill our forces. Australia and New Zealand have already taken action against people who are aiding the enemy by adapting the ancient law of treason to give a penalty of life imprisonment for people in that situation. I imagine that during the course of our discussions this may come up. I do not expect that I am the only person to whom Policy Exchange made this suggestion.
Although I do not agree that there should be amendments on this in the Bill, I agree about Europol and the European arrest warrant. It would be a travesty if in the negotiations between us and European Union we do not come out with a satisfactory continuing arrangement for the European arrest warrant. The figures are absolutely enormous. I think that I saw 12,000 arrests. We receive eight times as many requests to find criminals who have committed offences of one sort or another in the European Union as we make. It is almost compulsory to say something about Brexit, so I will say that whatever comes out of the Brexit negotiations must include some continuing arrangement for the European arrest warrant in the interests of all the countries around that table who have benefited from the present arrangement.
This is an important Bill, there are some very important discussions, and I hope that we can now go consensually forward.
Baroness Hamwee (LD)
My Lords, I, too, thank the Minister for her introduction. I agree with the noble Lord, Lord King, that the speeches we have heard so far have given us a thoughtful and helpful context for the Bill. I speak from the Liberal Democrat Benches, but also as a member of the Joint Committee on Human Rights. The two positions are not incompatible, as my noble friend Lord Marks has indicated; indeed, the reverse is true.
As background to some of my remarks, I shall quote two paragraphs from the report on the Bill that the committee published earlier this year. It stated:
“Our Committee recognises the need for the Government to have strong powers to defend our national security, prevent individuals from being drawn into terrorism and to punish those who prepare, commit or instigate acts of terrorism, or encourage or connive with others to do so. However, when these powers interfere with human rights, they must be clearly prescribed in law, necessary in the pursuit of a legitimate aim, and proportionate to that aim”.
It went on:
“We are concerned that some of these ‘updates’”—
that is, updates to existing offences—
“extend the reach of the criminal law into private spaces, and may criminalise curious minds and expressions of belief which do not carry any consequent harm or intent to cause harm. In doing so, some of these offences risk a disproportionate interference with the right to privacy, the right to freedom of thought and belief, and the right to freedom of expression”.
I think our Minister will understand that approach, but I am afraid I am not being consensual in this and I cannot let today pass without responding to comments made by the Security Minister, Mr Wallace. At Third Reading in the Commons he criticised the JCHR for not taking wider evidence. He said:
“It took evidence from Cage and other such groups”.
I do not know who he was referring to among the 13 who, in response to an open call, gave written evidence. They included such dodgy characters as the National Union of Students, the Muslim Council of Britain and Clive Walker, adviser to successive Independent Reviewers of Terrorism Legislation. The committee took oral evidence from Max Hill, still—just—the current independent reviewer, and from Liberty, and invited oral evidence from the Metropolitan Police, the Commission for Countering Extremism and the Investigatory Powers Commissioner. There was a very tight timetable and, although they were invited, they were unable to attend.
Not only did Mr Wallace impugn our witnesses, he went on to say of the committee that,
“I think its duty was to be balanced”,—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 11/9/18; col. 717.]
and said in a letter to the committee that our report was not set in the context of current threats. I accept that liberty requires security, and I resent very much the suggestion that the committee was not balanced. I resent that too on behalf of our witnesses who, on the basis of their own experience and backgrounds, would have been irresponsible if they had not voiced their concerns. Max Hill went out of his way to give credit, as he put it, to the Government before his more negative comments. He said:
“There are some good, pragmatic solutions here for the modern world, but there are some aspects of the extension of existing offences that give me serious cause for concern”.
I also resent the suggestion that the committee ignored or was unaware of the threats, which have of course been referred to and described in this debate. I hope that by the end of the debate the Minister will have found a different formula to describe the committee’s work, including acknowledging that—like human rights, which are a matter of proportion and balance and are the scale against which we measure propositions—the committee’s approach has been balanced.
It is in the nature of scrutiny that we focus more on issues of concern in these debates. At this stage there is time only to give a flavour of these; we will have opportunities later. I say that particularly to those outside this place who have sent us briefings. Not referring to those briefings and organisations does not mean that they are ignored; on the contrary, they are very much appreciated.
I start with the new offence in Clause 1. We are troubled by the lack of clarity coupled with the low threshold of recklessness. I am also unclear whether expressing an opinion using social media—I might plagiarise the observation that ISIS knows more about it than I will ever do—and directing that opinion to someone when it is on social media, and open to whoever cares to look at it, comes within the offence. There is a lot of material for the lawyers who will help us on matters of construction. However, I will say now that arguments from the Government that we should be reassured by the prosecution’s sensible use of the public interest test are unlikely to convince me, because that is no substitute for getting the legislation right.
The new offence in Clause 2 also seems to have a low threshold. What if the suspicion is reasonable but wrong? We will no doubt spend time on the reasonable excuse defence to accessing material in Clause 3. The point was made in the Commons that in legislating for a reasonable excuse without including a lack of terrorist intent as an excuse, we could be thought to be intending that not to be an available excuse. Additionally, here and elsewhere we seem to be in the territory of reverse burdens, the burden being on the defendant—guilty until proved innocent.
One of the reasons given by the Minister in the Commons for Clause 4 was,
“to strengthen the Government’s … advice to British nationals … against all travel to areas of conflict where there is a risk of terrorism”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 11/9/18; col. 656.]
I am not sure that it is necessary to create an offence to make it clear that the advice is to be taken seriously. I also wonder whether there will be a correlation with what are regarded as safe places for the purposes of deportation.
Reasonable excuse is a defence. What thought have the Government given to getting their defence in first? I doubt that a comprehensive list could be assembled, but some situations are obviously relevant. If your objective is journalism or humanitarian work, the clauses provide for the designation of areas but there is no arrangement for licensing travel, if I can use that term rather broadly.
I have one specific example which I do not think has been mentioned: funerals. Certain faiths require funerals to take place very soon after a death, and families will be in some difficulty in that situation. This seems to be a provision which makes it an offence to think and to be, as distinct from doing.
My noble friend Lord Marks has been very persuasive about sentences and sentence inflation. Is there any evidence of a deterrent effect of such increases, which seems to be part of the rationale here? Conversely, should we not be aware of the potential for people to be presented as martyrs?
Border control provisions take up about half of the Bill’s length, although they may not take up half of our time in the Chamber. I look forward to hearing the analysis of the noble Lord, Lord Anderson, of the restrictions on the use of what someone says when he is stopped at the border and the limits of those restrictions, both in the Bill and as applied to the continuing Schedule 7 procedures.
We shall need to be clear about how the Schedule 3 powers are expected to be operated. It seems that decisions to stop and search individuals will be informed—and known to be informed—by intelligence of travel patterns, which seems to me to weaken the argument for a no-suspicion power, which is inherently unchallengeable.
We will need very persuasive arguments about the extensive definition of a hostile act. The economic well-being of the UK in a wide sense will be discussed in other contexts at the same time as the passage of the Bill. I simply ask here whether that phrase is intended to address cybersecurity.
Serious crime is obviously not to be condoned, but is not the most serious if it attracts only a three-year sentence. As defined, it is crime which may be on behalf of another state. Are we now to have stops if there is suspicion—or no suspicion—of someone travelling while Russian or travelling while Asian?
This House has previously made clear its view of the importance of access to a lawyer and the confidentiality of the relationship between a client and his lawyer as to both advice and material. I am sure that we will do so again and ask why the existing protections against dodgy lawyers are insufficient.
I knew that the Minister would tease me about the role of local authorities on Prevent. I have looked at the exchange on my amendment during the passage of the 2015 legislation. I am very flattered that anyone recalled it and took the trouble to look it up and brief the Minister on it. I have to say that I do not understand why my amendments were resisted then but are now in the Bill. They put local authorities and the police on a similar footing. There are a lot of issues about the powers, duties and functions in what I would call a safeguarding as well as a security activity, as well as resources, of which local authorities have a good deal less than they did in 2015. That thread runs through everything.
In conclusion, it is not surprising that lawyers, academics, journalists and people generally concerned with free thought, free speech and human rights have raised issues about the Bill. These Benches and the Joint Committee on Human Rights on a cross-party basis look forward to a vigorous Committee aimed at achieving a balanced Bill.
Lord Janvrin (CB)
My Lords, it is a pleasure to follow the noble Baroness, Lady Hamwee, and I look forward to her contribution to the detailed scrutiny of this Bill, which I am sure will be extremely important. I thank the Minister for her introduction, and apologise for being a couple of minutes late for the start of her speech. I welcome this debate and especially look forward to the maiden speeches of the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Tyrie, both accomplished parliamentarians who I am sure will contribute a huge amount both to this debate and in the future.
I should begin by drawing attention to my membership of the Intelligence and Security Committee. That said, this Bill mainly concerns the work of the police and other criminal justice agencies, which are not directly scrutinised by the ISC. I am speaking for myself and not on behalf of the Committee.
I welcome the debate because I think it entirely right to look at the scope of our existing legislation covering counterterrorism and hostile state activity, particularly in the light of last year’s attacks and the Skripal attack earlier this year. I too would like to take this opportunity to express my heartfelt sympathy to those affected by these attacks. The human dimension is all too apparent.
I support the broad terms of the Bill, which is an important legislative response to recent developments in the threat both from terrorism and hostile state activity, and I look forward to detailed scrutiny of it. I would like to add my voice to those acknowledging the outstanding work of the intelligence agencies and the police at the present time. They face an unparalleled range of threats on three broad fronts: terrorism, particularly but not only in the name of radical Islamic extremism; hostile state activity, particularly but not only from Russia; and on the cyber front, this growing threat across a whole range of interests and spectra. I would like to take this opportunity to pay tribute to the leadership of the intelligence agencies and the Metropolitan Police in ensuring unprecedented collaboration between their two organisations at every level—a collaboration I judge to be world class.
In scrutinising this draft legislation, I can see that much attention will necessarily be focused on some of the legal issues to which it gives rise. There are many people in this House more qualified than me to debate these issues, and I look forward to hearing their views. I will confine myself to one general point on what is proposed, and three specific points on the detail of the legislation. My general point is, in giving powers to the police and other agencies, are we confident that they have the additional resources to carry these powers out?
The noble Lord, Lord King of Bridgwater, rightly drew attention to the impact assessment. The figure of £5.3 million a year, which caught my eye, seems on the modest side. Even if modest, it needs to be seen against other competing priorities, particularly, for example, as determined by the internal reviews the intelligence agencies conducted after last year’s terrorist attacks. Could the Minister, in winding up, say something about the resources being made available against the many other competing priorities of the intelligence community?
My first specific point concerns the internet and the new offences around obtaining or viewing material. I do not have difficulty with the new offences as drafted following the debate in the other place, but I look forward to the comments of others on some of the issues raised. However, there is another side to the story, which concerns the responsibilities of the communications service providers. In the past these providers have been slow to recognise their responsibilities in taking down extremist material—a point to which the ISC report on the murder of Fusilier Lee Rigby drew attention as long ago as 2014. Could the Minister say something about recent discussions with the CSPs around these responsibilities?
My second point concerns radicalisation in prison. The Bill proposes increasing the maximum sentences for terrorist offences. I have no difficulty with what is proposed, but has there not been evidence in the past of a serious problem of radicalisation within our prison system? There are some very real issues concerning how we tackle this—other noble Lords are more qualified than me to comment on this—for example with the creation of separation units, and problems associated with prisoners not of a Muslim background who become drawn into this world of extremist ideology while in prison. If the intention of the Bill as proposed is to convict more terrorists and for longer sentences, have we the resources and techniques to ensure that we can prevent the creation of terrorist incubators in our prisons?
My third point concerns the new designated area offence, which has already been commented upon. I entirely understand that the aim is to deter some of those who will in future try to travel abroad to support terrorist movements which threaten this country. Both Denmark and Australia have similar offences on their statute books. But despite some 900 individuals travelling from the UK to Syria, we have hitherto not pursued this option. So there is an obvious question: why now? There are also questions of detail. What kind of criteria will be used to determine both the imposition of a designated area and the lifting of that designation? How will evidence that is useable in court be obtained? And, as other speakers have mentioned, will the introduction of this offence have a chilling effect, particularly on humanitarian work? In other words, will it discourage genuine and much needed humanitarian relief activities in designated areas, if there is a risk that those engaged in supporting terrorism increasingly try to claim some humanitarian cover in case they are detected?
In conclusion, these points in many cases concern clarification of what is proposed. As I have said, others better qualified than me will wish to comment on many of the legal points. I look forward to the debate on what I see as a modest, incremental but very necessary adjustment to our current legislation to take account of dynamic developments in the threat from both terrorism and hostile state activity. But even if it is modest and incremental, it deserves our closest scrutiny.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to follow the noble Lord, Lord Janvrin. As he and other noble Lords were speaking, I began to have some sympathy for the Government on this issue. It is one of those areas where it is incredibly difficult to get the sort of balance that is needed to satisfy the whole of society. Although I have had dealings with the police in the past and I understand in some small way the problems of terrorism and the threat of terrorism, I speak as somebody who, like a lot of other people outside this place, might come out on the wrong end of this legislation through innocence and through no fault of their own, simply because the areas are just too broad.
Clause 1 is a classic example. We have to be very careful when we legislate about terrorism; we cannot throw out our values of freedom and democracy when trying to protect against those who attack them. There is a careful line to walk. We need only look at recent history to see how regularly Governments and security services have mislabelled people as terrorists—an example is the iconic image of Jeremy Corbyn being dragged away by police when carrying an “end apartheid” banner, at a time when the Government viewed Nelson Mandela as a terrorist and many on the Conservative Benches were calling for him to be hanged.
However, it is not just recent history that puts heroes up against the full force of the state; this is happening literally today, as 15 people—the Stansted 15—are in court, charged with terror offences for locking themselves to a plane to stop people being deported in the midst of the Windrush scandal. I am horrified that they are there on terrorist charges. It is totally wrong that peaceful protestors, who cannot in any way be thought of as terrorists, should be caught up in the net of terrorism legislation. It proves to me that the warnings and concerns voiced by so many of us in the activist world have come to pass. Terrorism laws are being used and abused by the state to suppress peaceful protest and political dissent.
Other laws too are being deployed against peaceful political activists and campaigners. The “Frack Free Four” have been sentenced to 16 months in prison for sitting on top of a fracking lorry. These brave activists have had their futures destroyed for taking a peaceful stand against the fracking dangers being forced on their community; these are live cases. It would be wrong if your Lordships’ House considered expanding the laws without bearing in mind the fact that these laws are being used and abused.
I believe that, if the suffragettes were to rise against patriarchy today and fight for women’s rights, they would face probably even greater violence and oppression than that levelled against them by the state 100 years ago—indeed the provisions of this Bill would be levelled against them. History celebrates the suffragettes as heroes but, at the time when they were active, they were thought of as dangerous heretics who wanted to destroy British society.
I am very concerned about Clause 1. I was delighted to hear the noble Lord, Lord Marks, the right reverend Prelate the Bishop of Newcastle, and the noble Baroness, Lady Hamwee, talking about our rights and freedoms and the fact that we must not compromise them when we try to legislate against people who wish to take them away. This Bill will make it a crime to express an opinion or belief that is supportive of a proscribed organisation. When the noble Lord, Lord King, spoke about ISIS knowing more about WhatsApp, or whatever, than he does, I thought to myself that that sort of comment could actually fall within the parameters of this legislation—you do not have to intend to support a particular organisation, or intend to support terrorism, you have only to be reckless.
Would anyone who tweeted or retweeted support for an independent Kurdistan be guilty of terrorism? It would amount to a belief supportive of the proscribed organisation PKK. What about someone who says they support the withdrawal of Israeli troops from occupied Palestine? We have already seen some of the vitriol levied against people who support peace in Palestine, who are repeatedly accused of supporting Hamas and Hezbollah—both proscribed organisations. This Bill opens the door for terrorism charges to be brought against peace activists for the simple crime of advocating peace in a war-torn country.
I was looking forward to hearing noble and learned Lords talk about the slight changes in Clause 1 between “supported” and “supportive”; I look forward to hearing them in subsequent debates. These parts of the Bill curtail legitimate political debate about major geopolitical issues and risk exposing anyone who expresses a view contrary to the UK Government’s foreign policy. It is not conspiracy theory to suggest that these types of provisions could be used in an undemocratic and oppressive way. It is a simple fact that the more powers we give to the Government, the more they are used to crack down on dissent and protest.
I want to be able to speak my mind, to protest and to debate the kind of future that we want to see; I want to be able to criticise British foreign policy if necessary; I want to fight for peace at home and abroad; and I want to protect our fundamental rights against a Government who seem hell-bent on taking away our freedoms and use the cover of terrorism to do so. If I want to overthrow this Government, I want to do it peacefully through the ballot box; nevertheless, I could be accused of being a terrorist, and of course I have been accused of being a domestic extremist. There are proscribed organisations which my beliefs could be argued to support and, in expressing those beliefs, I could be said to be reckless as to whether listeners could be encouraged to support a proscribed organisation.
I will not vote for a Bill that risks people being charged with terrorism simply for expressing criticisms of British foreign policies. Protest and dissent are essential components of a well functioning democracy. I will be tabling amendments to the Bill to protect those fundamental rights and to restore the balance between the state and its critics.
Lord Garnier (Con) (Maiden Speech)
My Lords, I made my maiden speech in the other place 26 years ago. I was not entirely sure whether I would make the right, the wrong or any impression, but I need not have worried. My turn came to speak well after midnight, and we were debating the Maastricht legislation. It seems that the relationship between the European Union and the United Kingdom has dogged my political life like two squabbling passengers at the back of a bus—no matter where you sit, you can still hear them. However, on that occasion the hour and the subject worked to my advantage because I addressed an almost empty Chamber.
The few people present were, with one exception, there only because they had to be: the Deputy Speaker; the Clerk at the Table; the Government and Opposition Whips, playing some demented game of chicken to see who would give up and go home first; the junior Minister from the Foreign Office, who sensibly was concentrating on his correspondence; and a handful of Back-Benchers, who were waiting to speak and certainly not listening to me. The exception was Douglas Hurd, my noble friend Lord Hurd of Westwell, then the Foreign Secretary, who kindly came from his room to sit on the Front Bench as I mumbled at the back. Sadly, he has retired from this House but, to me, he represents so much of what is good in our public life.
On this occasion, I find myself speaking to a fuller House at a much earlier hour than last time, following speeches of great quality and great depth. However, I do not want to try anyone’s patience, not least because of the list of speakers due to speak after me, who have far greater expertise than I do, and because I want to hear my good friend, the noble Lord, Lord Tyrie, make his maiden speech as well.
However, I want to record that in the very short time that I have been a Member of your Lordships’ House I have been struck by the kindness, not least during today’s debate, that I have received from noble Lords on all sides of the House and from members of staff in every department. Despite the fact that my peerage was announced on the evening before Prince Harry’s wedding, and therefore the Harborough Mail had other things to report, I was delighted to find that one or two people were expecting me when I got here. I particularly want to thank my noble friends Lord Goodlad and Lord Young of Cookham for supporting me at my introduction. They were friends in the Commons and they have stood fast to that friendship here.
I have taken my territorial designation, Harborough, from the constituency in south-east Leicestershire which I represented for 25 years. Although I come from Norfolk, my wife’s family have lived in Rutland, Leicestershire and Lincolnshire for many years, so I was delighted to be adopted by a constituency that covers most of south-east Leicestershire between the city of Leicester and Northamptonshire.
Despite my 25 years in the other place and my experience there as a Back and Front-Bencher, both in opposition and in government, there is much that is new to me here. The lines of communication between the two Houses are not always well maintained. This is a very different place, with its own characteristics, procedures and traditions, but we should celebrate these differences. Let it not be thought that because our parliamentary system is old, it must therefore be bad. Our system is old because it is good, not bad because it is old.
One of the defining features of our country is a general respect for the rule of law, and today’s debate demonstrates that justice and the rule of law remain in the forefront of our public discourse. Freedom of expression—political and otherwise—has been protected by the common law and the vigilance of Parliament every bit as much as by the European convention. Parliament and the law should be vigilant to ensure that our right to comment freely and honestly, and even offensively and idiotically, is never cut down. But terrorism—and the threat of terrorism—tests our freedoms and our tolerance of others’ opinions. The first four clauses of this Bill, with suitable safeguards, adjust the limits of acceptable conduct—where freedom of expression ends and where crime begins—just as the increased sentences in Clauses 6 to 10 make it plain how unacceptable we find these criminal acts to be.
There is no one answer to the questions posed by terrorism, by those who commit terrorism offences and by those who persuade others—or who are persuaded by others—to commit these hideous crimes. Ironically, at a time when electronic communications and information technology have allowed for the creation of highly sophisticated weapons and remote triggering systems, there is, as my noble friend the Minister indicated at the outset, a greater use of simple weapons such as vehicles and kitchen knives. The attacks are planned in days, not over months, and it is remarkably easy to buy bomb parts and chemicals, and to research targets online. This makes it harder to detect terrorist crime in advance, but with greater information sharing between those tasked with our protection, things could improve.
I understand—the Minister has indicated as much—that there are currently about 500 terrorist plots at various stages of development, and I think the noble Baroness, Lady Manningham-Buller, made the same point. I further understand there are about 3,000 people of interest, as the noble Baroness mentioned. Further, there are about 20,000 people on the fringes called closed suspects—the 2017 offenders were, I gather, in that category. We therefore need to provide the security services and the police with the resources to allow them to review everyone in that group.
As the shadow Attorney-General when my noble friend Lord Hague and David Cameron were leaders of the Opposition, and as Solicitor-General in the coalition Government when Mr Cameron was Prime Minister, I spent a good deal of time on matters to do with terrorism and the sometimes conflicting rights under the European convention. There are a number in your Lordships’ House who, like me, are members of the former law officers’ club. Forty years ago, I was led by Lord Rawlinson of Ewell, a former Solicitor-General and Attorney-General, for the Daily Mail, in a libel action brought by the Moonies. He told me that when he was appointed Solicitor-General in 1962, the Prime Minister, Harold Macmillan, gave him a learned seminar on the history and constitutional role of the law officers. It was made clear that as Solicitor-General, his first duty was to the rule of law, his second was to Parliament and only his third was to Macmillan’s Administration. Mr Cameron appointed me Solicitor-General in 2010 during a three-minute telephone call. Had he had the time to think about it, I am sure he would have agreed with Macmillan. I certainly tried to keep Harold Macmillan’s advice to Peter Rawlinson to the forefront of my mind when I was Solicitor-General.
To many Ministers, the law officers are—with the exception now of Geoffrey Cox— either mysterious, barely-known creatures, or an inconvenient reminder that the law of the land applies to them. Like lawyers in private practice, law officers cannot talk in detail about their work, which is confidential to their client: the Government. But nor should they only say “no”—they should try to be imaginative and help the Government navigate through their difficulties. Their power—if they have any at all—lies in speaking truth unto power and in resignation. The law officers are more like submarines than the ships of the line in the Cabinet: you know they are down there somewhere, unseen and unheard, quietly going about their business, but if they surface and their concerns or disagreements become known to the wider world, either the Government are in trouble or they are.
Shortly after my appointment in 2010, I was showing off to the then Lord Chief Justice, the noble and learned Lord, Lord Judge, that one of my ancestors, Sir William de Grey, had been successively Solicitor-General and Attorney-General from 1763 until 1771, under five Prime Ministers. After that, I told him, my ancestor became Lord Chief Justice of the Common Pleas. The noble and learned Lord smiled engagingly and gently reminded me that some apparent precedents are easily distinguished upon their facts.
After reading history at Oxford, I went to the Bar. In 1976, I joined a set of chambers in the Temple that specialised in media and information law—it still does. Leon Brittan, a Member of Parliament and a shadow Minister, was then the junior silk in Chambers. My friend Lord Brittan is sadly now dead, but he taught me that it is possible to be a practising barrister and a conscientious Member of Parliament and that, although lawyers are not everyone’s favourite, we have our uses. In response to my persistent questions about politics he said, “Stop talking about it; just go and do it”. He also demonstrated that it is possible to maintain one’s dignity in adversity. In the last months of his life, he was cruelly assailed by baseless allegations that would have broken healthy men. It is sad that he did not live to witness his own exoneration, but I hope it is of some comfort to his widow, Diana, that his reputation has, without question, been restored to its rightful place.
Somehow, I have arrived here among you all. I am honoured to be here and I hope to play my part in shaping the legislation that comes before us. Now is not the time for me to say much more about this Bill. Although it amends and adds to criminal law—a prospect that usually makes me worry for the judges and the lawyers who will have to apply it—for a modern statute, it is mercifully short. Its intentions are properly confined and the policy behind it is clear. I am not a fan of creating new offences, renaming existing offences or increasing sentences to send a message, when those who are hell-bent on killing police officers, soldiers and ordinary citizens, or encouraging others to do so, will pay no attention, seeing themselves as warriors for their hideous cause. Nor do I forget that, if the prison sentences set out in the Bill come to be used, we will have failed to educate, influence, inhibit or prevent those who have committed terrorist acts. However, I believe that this Bill is more than a message. It is part of a practical approach to countering terrorism and to protecting our borders; problems that we, but more acutely those whose job it is to protect us, face daily. I wish it well and I look forward to considering it further in due course.
Lord Faulks (Con)
My Lords, my noble and learned friend Lord Garnier has given us a taste of things to come. I have had the privilege of knowing him since we were adolescents, so it is a particular pleasure for me to see him in his place today—yes, lawyers were children once.
It is a matter for celebration that so many of our current politicians are the sons and daughters of immigrants and that people come into politics from all sorts of backgrounds. My noble and learned friend, on the other hand, comes from a family with a long tradition of public service, and this country is richer for that tradition. He has managed to combine a quarter of a century as a Member of Parliament with a successful practice at the Bar, where he has been for some time one of the leaders in the field of defamation and media law. He was also instrumental in the introduction of deferred prosecution agreements to the prosecutorial armoury; a valuable weapon against corporate economic crime. Further, he has sat for some time as a recorder of the Crown Court.
Despite all these achievements, and a term as Solicitor-General, my noble and learned friend has a quality that is all too rare in barristers: modesty. I am confident that his contributions to debates in your Lordships’ House will be relevant and brief, and that, unlike some of us, he will not consider it necessary to give the House the benefit of his views on every subject. My noble and learned friend Lord Gamier is a most welcome addition to your Lordships’ House.
I now turn to the Bill. The scale of the terrorist threat to this country can hardly be overstated, whether from extremists claiming allegiance to the Muslim faith or from state-sponsored terrorism as we witnessed in Salisbury. We should pay tribute to the contribution that the police and the security services make to keep us as safe as they can in increasingly challenging circumstances.
One fact that I took away from the Home Secretary’s recent speech in Birmingham was that an estimated 800,000 people who currently live in this country do not speak English. I am not of course suggesting for a moment that if you do not speak English you are likely to be a terrorist. However, it is a considerable challenge for our security services simply to understand what is going on in communities where English is not spoken or not spoken much, and where there is little or no loyalty to British values or traditions.
In its report on the Bill, the Joint Committee on Human Rights was critical of it in a number of respects, identifying various potential violations of human rights. Of course, that is the remit of the committee, of which I was once a member, and I do not for a moment impugn the integrity of the process, as it was suggested the security Minister did in the other place. However, I wish us to bear in mind that, in this country, there was a long-established respect for free speech before Article 10 of the European Convention became part of our law through the medium of the Human Rights Act in 1996. If we must look at issues through the prism of the Human Rights Act, can we bear in mind Article 2, the right to life, and Article 8, the right to a family life, in the context of those affected by terrorism? The first duty of a Government is to keep their subjects safe. To do so, there must sometimes be restrictions on individual rights.
The primacy of individual rights is such that loyalty to one’s country seems in some quarters to be regarded as something of an option, coming below loyalty to one’s religion or even one’s football team. Many would agree with EM Forster, who wrote in 1938 that he hoped, given the choice, that he would have the guts to betray his country rather than his friends. But if you choose to live in this country, is it so unreasonable to expect you to show some loyalty to it and not to give assistance to our enemies?
The word “treason”, mentioned by my noble friend Lord King, has a dated feel about it, but may I also commend the recent Policy Exchange publication, Aiding the Enemy: How and Why to Restore the Law of Treason? Its authors include two Members of Parliament, one Labour and one Conservative, and it has a foreword by the noble and learned Lord, Lord Judge. It provides a compelling case for the return to the statute book of a modern law of treason—the 1351 statute is plainly no longer fit for purpose.
The new offence of entering or remaining in a designated area may help but clearly needs further scrutiny. For British subjects who leave this country to serve with ISIS or the Taliban, for example, is a maximum sentence of 10 years really enough? What about Anjem Choudary, sentenced to five and a half years in prison and due out this month? Even though this Bill promises, rightly, to end in certain circumstances automatic release on serving half a sentence, that is too late for Choudary and others. Does the current statutory framework adequately capture the gravity of being a recruiting sergeant for ISIS at a time when it is engaged in combat with our forces and actively trying to attack the United Kingdom? The time may well have come to update the law on treason as Australia, Canada and New Zealand have done.
As the noble Lord, Lord Janvrin, pointed out, radicalisation in prison is a real threat. Government policy is to imprison those who pose a threat to national security in separate units to minimise the risk of other prisoners being radicalised. Very few have in fact been separated, apparently because of apprehension in the Prison Service about human rights litigation. Perhaps the Minister would care to comment on that.
This Bill deserves careful scrutiny, and it is clear that there is the expertise in this House to do just that. There are certainly improvements that can be made. For example, the Law Society has made some powerful points about the erosion of legal professional privilege at border interceptions, referred to by the noble Lord, Lord Rosser. For my part, I need convincing that all those restrictions are currently justified. But, for the most part, I welcome the Bill and hope that it receives support across the House.
Lord Thomas of Gresford (LD)
My Lords, I join the noble Lord, Lord Faulks, in his welcome to the noble and learned Lord and former submariner, Lord Garnier. I have a wonderful picture of the two of them as adolescents together discussing football and human rights over a pint. I welcome the noble and learned Lord’s strong expression of his belief in the rule of law and of freedom of expression. I am sure that we shall hear a lot more from him about that.
There are many aspects of this Bill that we shall no doubt consider in Committee, but I will confine myself to three. First, I consider Clause 1 to be unnecessary and a disproportionate interference in the right to free speech. Secondly, I want to emphasise the importance of private consultations with legal advisers. Thirdly, I have some comments about the proposed designated areas offence.
Clause 1 penalises the expression of an opinion or a belief that is supportive of a proscribed organisation. The state of mind of the accused must be that, in expressing that opinion, he is reckless as to whether a person is encouraged to support that proscribed organisation. There is already an offence, under Section 12(1) of the Terrorism Act 2000, of inviting,
“support for a proscribed organisation”.
As for hate preachers, Section 12(3) of the 2000 Act reads:
“A person commits an offence if he addresses a meeting and the purpose of his address is to encourage support for a proscribed organisation or to further its activities”.
The same words in that legislation appear in the Bill before us, so what lacuna does this new offence fill? It adds “reckless” to “purpose”, but “reckless” is a word that has caused difficulties in the past in defining its meaning.
Back in 1981, I argued the case for a Mr Caldwell against the Metropolitan Police Commissioner before the Judicial Committee of this House. Caldwell had in a drunken moment broken a window and set fire to a hotel. The flames were quickly extinguished and no serious damage was caused, but he was charged with the aggravated criminal damage offence of being reckless as to whether life was endangered. His defence was that he had been so drunk that he had given no thought as to whether life would be endangered and was therefore not reckless. The issue was whether recklessness should be judged objectively or subjectively. The problem with the subjective test is that the prosecution has to prove the defendant’s state of mind—that he foresees the risk of harm. The problem with the objective test is that it criminalises those who genuinely did not foresee a risk of harm, including young children, people whose mental capacity is impaired and indeed drunks. Lord Diplock in the Judicial Committee, contrary to my argument in favour of a subjective test, held that the defendant was reckless if he had not given any thought to a risk which he should have appreciated. At that time, the committee plumped for the objective test. It was not until 2003, in the case of R v G and Another, that my argument succeeded and the Judicial Committee, in a rare exercise of its powers, overruled Caldwell and decided that the subjective test was appropriate. The case involved two 11 year-old boys who had set fire to a wheelie bin; the fire spread to the roof of a Co-op store and caused £1 million worth of damage. They had given no thought at all to the risk that might be involved by what they did.
So what does “reckless”, under its current definition, mean in the context of Clause 1? It means that the prosecution will have to prove that the defendant foresaw the risk that the person to whom his opinion or belief was directed would be encouraged to support a proscribed organisation but nevertheless went on to express it. What does that add to the current criminal acts of speaking or writing with the purpose of encouraging or inviting such support? The use of “reckless” does not catch a person who does not realise the effect of his words on the listener or reader of a column. The test of recklessness is no longer objective.
Simply expressing your opinion is not enough, as the right reverend Prelate the Bishop of Newcastle’s apt quotation from Elizabeth I pointed out earlier. A person at Hyde Park Corner can say, “I believe in Scottish independence, and I think the best way to achieve this is through Scottish Dawn”, which is a proscribed organisation; perhaps that could also be said by someone from a Wee Free pulpit. That person would not be committing an offence under the proposed clause; he is merely opening the window into his soul, as Elizabeth I put it. If what he says is an invitation to join Scottish Dawn, he would commit an existing offence under Section 12(1) of the present Act. If his purpose in so speaking is to encourage listeners to join Scottish Dawn, it is already covered by Section 12(3) of the existing law.
My noble friend Lord Marks set out a number of tests, one of which asks, very appropriately, what mischief the clause is aimed at. In the Choudary case, the Court of Appeal considered whether Section 12 of the Terrorism Act offended against the European Convention on Human Rights. The court said:
“When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation. To the extent that section 12(1)(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified”.
Clause 1 seeks to punish the expression of an opinion with up to 10 years’ imprisonment. I suggest to your Lordships, as I will argue in Committee, that it is a disproportionate interference in the right to free speech protected by Article 10.
I turn to legal professional privilege. Paragraph 26 of Schedule 3 mirrors Schedule 7 to the 2000 Act. Under paragraph 23(1) of Schedule 3, there is the right to consult a lawyer “privately … at any time”, but paragraph 26(1) states:
“A direction under this paragraph may provide that a detainee who wishes to exercise the right under paragraph 23”,
to consult a lawyer privately may, if the direction is made,
“consult a solicitor only in the sight and hearing of a qualified officer”—
that is, an eavesdropping officer. That direction may be made by a senior officer in certain circumstances, such as interference with evidence or the alerting of a person who is suspected of having committed an offence but has not been arrested for it. Maybe a tiny minority of legal professionals pass on illicit information—there are rogues in any profession. If caught, they will go to prison and be struck off or disbarred. The noble Lord, Lord Rosser, talked about the suggestion made in the other place of an approved panel of lawyers being set up to advise people detained under the Bill. I fully support that. I look forward to hearing more about it.
If criminal lawyers want to make a successful living, they need to get the truth from their client. There must be a firm platform on which to base a defence. Initially, the client might not be open with his own lawyer. He might tell lies through consciousness of guilt, fear or a misplaced desire to cover up for somebody else. Perhaps he says he cannot remember. But when his own lawyer rubs his nose in the evidence, the story frequently changes. It should be remarked that, of the cases that appear in the Crown Court, between 60% and 70% plead guilty, very largely due to this activity carried out by the defendant’s own lawyer. It is obvious that this sometimes subtle, sometimes vigorous process cannot take place in the presence of someone listening in from the investigating authority. The provision that appears in this schedule, as it appears in Schedule 7 to the 2000 Act, is contrary to the public interest in the wider sense.
I remember being in the Court of Appeal when we lost an appeal in a murder case. Afterwards, my client turned to me and said, “Well, now I’ll tell you the true story”. He gave me an account entirely consistent with the prosecution case, which would have provided him with a defence, but he had not told me and there was nothing I could do about it. It is important for people to realise that defence solicitors and barristers need to have professional privilege to see their client privately to carry out the sometimes rough interrogation of their own client, which can lead only to the proper result.
Finally, on Clause 4 on designated areas and the reasonable excuse defence, your Lordships should remember that, although the Minister, Ben Wallace, now says that a reasonable excuse will,
“cover persons entering or remaining in the designated area … for the purpose of providing humanitarian aid; to carry out work for a foreign government … or the UN; to work as a journalist; or to attend a funeral of a close relative”,
he said:
“It would be for the defendant to demonstrate that the defence applied. Once a defendant has raised the defence the burden of proof (to the criminal standard) to disprove the defence would rest with the prosecution”.
That is right, but there has to be some evidence to support the defence. It cannot be raised simply by argument, so a burden is placed on the defendant in these circumstances to explain why he was in the designated area. I agree with Rowan Popplewell of Bond and with my noble friend Lady Hamwee that there should be a system of pre-visit authorisation of people who wish to visit designated areas for a particular purpose. Nothing could be simpler to arrange and it could avoid unnecessary prosecution of a person.
There is much further to discuss as the Bill goes through.
Baroness Howe of Idlicote (CB)
My Lords, I warmly congratulate the noble and learned Lord, Lord Garnier, on his excellent maiden speech, and I look forward with equal enthusiasm to hearing that of the noble Lord, Lord Tyrie, which I am sure will be of equal quality.
Clearly, as other noble Lords have said, it is only right, after the terrorist attacks of last year, that the Government should work hard to make sure that our anti-terrorism legislation is fit for purpose, so I welcome the fact that through the Bill they are seeking to discharge this important responsibility. The challenge that they face in doing so is a difficult one. On one hand, we must do all we can to keep our citizens safe. On the other hand, we do not want to introduce changes that fundamentally change the nature of our society. It would be the supreme irony if, in seeking to preserve our society, we end up changing what it means to be British. In particular, it is very important that, in developing legislation and attendant guidance, great care is taken to ensure that it does not jeopardise the enjoyment of human rights.
In July 2018 the Joint Committee on Human Rights published a report highlighting serious concerns over the new powers in the Bill. Among other things, the report raised concerns about the Prevent programme, which is engaged by Clause 19, on which I shall concentrate. Clause 19 amends Section 36 of the Counter-Terrorism and Security Act 2015 to impose a new duty on local authorities. In addition to being responsible for assessing individuals vulnerable to being drawn into terrorism, through panels mandated by Section 36, Clause 19 also gives local authorities the power to refer people to the panel. The discharging of this new duty will be informed by the relevant guidance pertaining to the Prevent duty, namely the Prevent duty guidance of 2015, the Counter-terrorism Strategy, the newest version of which was published in June 2018, and the Counter-Extremism Strategy of 2015. My difficulty with this arrangement is that while the statute is narrowly focused on terrorism, the Prevent duty guidance, the Counter-terrorism Strategy and the Counter-Extremism Strategy engage with extremism in all its forms, including non-violent extremism, which has no statutory definition.
The lack of a definition of non-violent extremism in law, and the lack of any sanction against non-violent extremism in law, is a very good thing. If someone espouses violence, they cross a very clear threshold. I find it hard to imagine that any Member of your Lordships’ House would have any difficulty in having very robust laws against such practice. The idea, however, that we should target people espousing non-violent views seems deeply problematic to me. The only content we are left with is that the view is “extreme”, but in whose opinion? What is extreme to one person is sensible to another. Unless we are to fundamentally change the nature of the society in which we live and start policing speech in a way that would be deeply inimical to the British tradition. I do not think that we should introduce sanctions against opinions that do not espouse violence.
I appreciate that the Bill does not ask us to endorse directly the Prevent duty guidance and the Counter-Extremism Strategy. We are, however, being asked to indirectly endorse these documents because they provide the guidance according to which local authorities will be required to take on the new responsibilities that we will ask them to assume in sanctioning Clause 19.
The difficulty that this presents is compounded further by a critical development in the courts. In July 2017, in his judgment in Salman Butt v Secretary of State for the Home Department, Mr Justice Ouseley stated very clearly that the Prevent duty does not refer to all forms of extremism as defined in the Prevent duty guidance of 2015 and the Counter-Extremism Strategy of 2015. Mr Justice Ouseley rightly said that extremism is,
“the active opposition to fundamental British values”,
which,
“must in some respect risk drawing others into terrorism before the guidance applies to it. If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it”.
Thus the Prevent duty does not apply to all forms of extremism, and specifically not to non-violent extremism if there is no risk of people being drawn into terrorism.
However, that is not what the Prevent duty guidance, the Counter-Extremism Strategy or the Counter-terrorism- Strategy say. Mindful of this, I very much hope that the Government will introduce an amendment in Committee to the effect that Clause 19 will not be implemented until the Prevent duty guidance, the Counter-Extremism Strategy and the Counter-terrorism Strategy have first been subjected to a review and updated in light of the judgment of Mr Justice Ouseley. Let us uphold the right to non-violent free speech and fight terrorism by preserving rather than compromising our own heritage.
Baroness Warsi (Con)
My Lords, I am grateful to my noble friend Lady Williams for introducing the Bill. I could not think of anybody better to do that and it will certainly make expressing any concerns that I have much more difficult. I am also grateful to my honourable friend the Security Minister, Ben Wallace. I consider them both to be not just political colleagues but friends. I congratulate my noble and learned friend Lord Garnier on his maiden speech and look forward to my noble friend Lord Tyrie’s maiden speech. Both are unfashionably expert and inspiringly principled and have the ability to be politely awkward. They will fit in well.
I wholeheartedly support measures designed to keep us safe. As someone who has been targeted by extremists throughout most of my public life, from being attacked by al-Muhajiroun and its supporters in Luton to numerous threats by email and on social networks—and who for the past two and a half years has been on a target list for ISIS—I, along with my family, have had to live in the shadow of some of those who seek to cause Britain harm. So although I support some of the Bill’s provisions—for example, the increase in the custodial sentence for those who were aware of and do not disclose information on terrorist offences—as a lawyer, I am also concerned that we should make more criminal law only if the current law and policy are simply incapable of being applied or, indeed, applied better.
Sadly, I have some concerns about the drafting of the Bill, both in the mischief it seeks to remedy, as outlined by the noble Lord, Lord Marks of Henley-on-Thames, and the way in which it seeks to do so. We must not become a country that polices thought, as was explored by the right reverend Prelate the Bishop of Newcastle. As Liberty succinctly put it, the Bill,
“pushes the law even further away from actual terrorism, well into the realm of pure speech and opinion”.
We must not cite exceptional circumstances to justify a blanket law change.
Of course, we are just over a year on from a seven-month series of terror attacks on UK soil. Five attacks led to 36 deaths and dozens more injured. A further 17 both religiously inspired and far-right inspired attacks have been thwarted since. It is entirely right in these circumstances for the Government to look again at what more could be done to prevent such attacks in the future. Much commentary has taken place since the attacks and recommendations have been made, yet, interestingly, some of the most informed voices, including eminent academics such as Professor Clive Walker—who has been researching and writing about Britain’s counterterrorism laws since the 1980s, and who also happens to be my former university tutor—have argued that new laws are not the answer. Professor Walker has said:
“The failure to identify major legal gaps is further emphasised by the findings of the three weighty reports”—
post the attacks—
“none of which called for major legal changes”.
There is much to concern us in the individual clauses and I hope that we will have the opportunity to scrutinise these further as the Bill passes through the House. Concerns include the proposed three clicks offence, which has become the one click offence—an offence which reverses the burden of proof and, rather than focusing on the ill-intentioned creators and well-resourced publishers of material, seeks to criminalise end users, whether innocent or not. The proposed publication of images offence creates a new offence of the publication of an image,
“in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation”.
Apart from the obvious point, as stated by the Joint Committee on Human Rights, that what this offence seeks to cover is already covered by existing legislation, it risks criminalising a broad range of legitimate behaviour by academics, journalists and human rights activists—a concern voiced by the UN special rapporteur on human rights. A person risks imprisonment not for being a member or supporter, but for merely publishing an image that could be construed as arousing reasonable suspicion. This is in a space where images can have a historical context and meaning far broader than a relatively modern and often cynical adoption by a terrorist group; the Irish flag is one such example.
Today I want to focus in detail on one aspect: the lack of debate, engagement and consultation surrounding the Bill—an issue raised by the noble Lord, Lord Rosser. Taking the example of the late-introduced proposed designated area offence, there was a lack of engagement with those groups likely to be disproportionately impacted by the Bill, such as journalists, human rights activists, British citizens with family in areas of the world that could be so designated, aid workers working in areas of acute humanitarian crisis, a community I am a part of—British Muslims—and, of course, a community which most Members of your Lordships’ House are part of: the naturally curious. Alongside the potential for mistakes and the clumsy application of this proposed offence, the scope for abuse of the use of designated areas is real—as a carrot or a stick to pressurise or seek favour with foreign countries and to legitimise or deem illegitimate political disputes around the world. Selective use of this provision would leave people helpless even where there is no risk of harm to the United Kingdom and, for example, could deter the proper reporting of a conflict. The much simpler answer would be something I have advocated for many years: that in a globalised world with multiple identities, many of which overlap borders, rather than zoning no-go areas, make a simple “no fight” rule and criminalise any person who travels abroad to take up arms in any conflict for any foreign despot, group or even Government, so that if you are British you fight for and on behalf of the British Armed Forces and no one else.
Intervention at an earlier stage is one of the reasons cited for the Bill in the Government’s explanatory factsheet. This early-stage intervention is nothing new: it is the Prevent strand of the four pillars of the Contest strategy, alongside Prepare, Protect and Pursue. It is a policy which has been in play since 2003 and in the public domain since 2006. It is a policy which fundamentally was about communities leading the battle of ideas to challenge some of the views and behaviour that could become the basis for terrorism. It is a policy which has significantly shifted over the past decade. I agreed with all four strands of the original Contest strategy, including the early thinking behind Prevent. For me, the Prevent policy was—and still should and could be—a battle between violence and democracy, based on a belief that everyone has a right to their view, providing that it does not break the law or incite or encourage someone else to break the law. Democracy, if it works, should be able to temper unsavoury views—although the latest US presidential election has left many questioning that notion.
The battle of ideas about violence and the justification of it is one in which government need to be a player and quite rightly stand against groups that promote such. It is right that the battle of ideas and views on everything from tax to torture, from farming to family to foreign policy, and from welfare to wind farms is debated and accommodated through our parliamentary democracy. The battle of ideas was but one part of the Prevent work, alongside tackling discrimination, engaging communities and addressing grievances. The Prevent strategy, however, over time slowly started to shift its emphasis.
The process of understanding—not accepting, but understanding—why British Muslim communities themselves felt that people were being drawn into violent extremism became a less important issue for politicians and policymakers. The Muslim communities’ views, which themselves were varied and broad on the drivers of terrorism, were sidelined and we saw the start of a process of disengagement between government and British Muslims. Rather than doing counterterrorism with British Muslims to defeat the menace of terrorism collectively, we chose to do counterterrorism to Muslim communities. Through this approach we both created an obstacle to confronting and defeating terrorism and alienated a large community of law-abiding citizens. We “othered” them.
Putting Prevent on a statutory basis in the last months of a coalition Government, with both Labour and Liberal Democrat eyes being on an election rather than legislation, has been the subject of much criticism and mistrust. It is a policy which I as well as academics and senior police officers, along with many others including the noble Lord, Lord Anderson, as the ex-Independent Reviewer of Terrorism Legislation, have called to be independently reviewed. That policy is opaque and inconsistent—its flaws were outlined by the noble Baroness, Lady Howe—while the published statistics on referrals which lead to action act as a net, which catches and has damaged as many lives as it has potentially saved. In this climate, with much respect to the noble Baroness, Lady Hamwee, I believe that it would be entirely inappropriate and counterproductive to expand its reach. If the Government are genuinely committed to early intervention then they must start by engaging openly, honestly and transparently. A cohesive country is a more secure country. Engaged communities are more cohesive.
Let me end on an issue that I have been arguing for while inside government and since, in private conversations with colleagues and in detail in a book. I now raise it on the Floor of your Lordships’ House. It is time for the Government to end their policy of disengagement with British Muslims, which started under the last Labour Government and the leadership of the then Secretary of State for Communities and Local Government, Hazel Blears, in 2007. John Denham tried to restore sanity when he replaced Hazel Blears in 2009 but months later, when the coalition Government were formed in 2010, the policy returned. It continues to be applied today.
Successive Governments have adopted that policy of non-engagement with a wide range of Muslim community organisations and activists. More and more groups and individuals have, over time, simply been seen as beyond the pale, often for something they said or did in the past, or for what someone they were associated with said or did. Time and again the message from government is: if you are a British Muslim and have ever believed, thought, said or even flippantly commented on an issue in a way which could be seen as extremism today, then however historic your view there is no road to rehabilitation. There is no path to redemption, no meeting, no engagement. So if in your youth or your heady days of activism—or simply during your political journey—you have not believed and said exactly what we, the Government, say and believe right now on the issues of politics, faith, women, minorities or homosexuality, then you are persona non grata. Imagine if that approach was used against us politicians. Certainly, many in this House have moved on in their views on many issues: the rights of women and minorities and LGBT rights, to name a few. We have all made mistakes. I have made mistakes.
This policy is ludicrously impractical at a time when the need for engagement with and understanding of our Muslims is greater than ever before. It is also dangerously counterproductive. Over half of British Muslims are under the age of 25; a third are under the age of 15. They are in the media spotlight almost daily. They have access to more connections, information and travel than ever before. Last year, terrorist offences were either done by individuals who purported to belong to a faith that they follow, or aimed at the Muslim community itself. They are in the front line and have seen a 77% increase in attacks against them in 2017, and they are disengaged by government.
The issues around terrorism can be properly responded to only with a whole-community response. This includes the Government, the police and the communities of which British Muslims are an essential component. The policy was originally driven by a small number of politicians and commentators influenced by the now much-discredited and failed neo-conservative thinking from the United States, although the election of Donald Trump has planted this divisive thinking into the mainstream. There is real unease about it at the heart of the Civil Service, at senior police officer level and within local authorities, to name a few examples. Over a decade into this approach, I am yet to be convinced that not engaging with and not listening to a community is the best way to influence it.
I said at the outset that we should make criminal law only if the current law and policy is simply incapable of being applied, or applied better. Ending the policy of disengagement is a simple and necessary step that requires no legislation. It would be a start with immense security benefits, possibly even more so in the long term than the offences proposed in this Bill.
Lord Tyrie (Non-Afl) (Maiden Speech)
I have just heard the latest in a long line of extremely interesting and informative speeches. The enormous expertise in this House is clearly on view and I have learnt a great deal already. It is certainly an honour to follow the noble Baroness, Lady Warsi, who spoke from considerable personal experience. This is also an opportunity to say how impressed I was, if that is permitted from one maiden to another, by the maiden speech of the noble and learned Lord, Lord Garnier. I know him as a reliable and thoughtful person—one of the most reliable and thoughtful people in public life—but much more importantly he is also a very good friend.
For me, this House is a curious mixture of the familiar and the surprisingly new. On the latter, I have benefited a great deal from the guidance of the staff: doorkeepers, librarians and clerks among them. I would particularly like to thank my sponsors, one of whom is sitting next but one to my right: the noble Lords, Lord Luce and Lord Turnbull. They have been very kind to me and are two people who have made exceptional contributions to public life, and on whose advice I have been fortunate enough to call on a good number of occasions not only in recent weeks but over many years. They are two outstanding public servants.
I am making this speech from the Cross Benches because, as chairman of the Competition and Markets Authority, that is the right place for me to be. The CMA has some major challenges ahead, not least Brexit—I have to mention it somewhere—but those will be manageable because the CMA has, as I am now discovering, some exceptionally able and dedicated people aboard. Those challenges, and competition policy more widely, are not for now; they are for another day.
I have just completed an exhilarating 20 years in the other place and it was a great privilege to represent Chichester. More important than the beauty of the area, or even the fact that it returned me five times with increased majorities, has been the chance to make many deep friendships. I hope and intend to keep those for life. As I was clearing out my office at the other end of the building last year, I came across a letter from a resident of the parish of Tyrie in Aberdeenshire, which I received shortly after I was first elected. I have it here and it reads:
“If you ever went into the House of Lords … you could become Lord Tyrie of Tyrie. And, if you moved up here”,
the correspondent went on—I suppose there were perhaps some properties for sale up there—
“you would be Lord Tyrie of Tyrie, Tyrie”.
I am grateful to that citizen of Tyrie for his suggestion, but I hope he will understand that I would rather stick to Chichester, where I have put down deep roots and to which I owe a great deal.
About the same time that I got that letter 20 years ago, the Conservative Party, reduced to 165 MPs, was locked in a bitter row with itself about Europe, much as it was when the noble and learned Lord, Lord Garnier, arrived five years earlier. At about that time, I happened to hear a speech by the late Sir Denis Thatcher. He was asked from the floor how the Tory party was going to get out of that mess, to which he replied: “Well, it’s all very straightforward. All we have to do is stick to our values”. He then thought for a bit and said, “But don’t ask me what they are”.
In today’s debate, and particularly with respect to anti-terrorist legislation generally, it is the values not of a political party but of the country that are at stake. I have no particular expertise in that field, but it seems to me that legislation is certainly needed to respond to the digital age, so I shall not oppose the Bill and I welcome its intent. None the less, the noble Lord, Lord Marks, made a trenchant point with his four tests and I think the noble Lord, Lord King, acknowledged the same point. As both of them implied, the issue before us is to reconcile the requirements of a free society and the needs of those who work to protect us from terrorism. We should bear in mind that they do that work in an outstanding manner and in very difficult circumstances.
Rather than examine that issue in depth in relation to the Bill, I prefer to take advantage of the licence I am told is afforded to a maiden speech and the Long Title of the Bill, which is very broad, to raise one aspect of anti-terrorist policy where successive Governments have fallen short.
In the years following 9/11, Britain facilitated a US programme of extraordinary rendition. Just to be clear what we are talking about, in the 21st century Britain facilitated the kidnapping of people and having them taken to places where they could be maltreated and, in some cases, brutally tortured. I was shocked when I first heard those allegations, and I still am. That is why in 2005 I founded the All-Party Group on Extraordinary Rendition. My purpose was to find out the scope and limits of Britain’s complicity, to establish who authorised it and to do whatever was required to give us greater confidence that it would not happen again.
Since 2005, there have been three inquiries, all of them at least partly prompted by the group I founded. The first, by the ISC in 2007, completely erroneously concluded that Britain had not been involved at all. The second, a judge-led inquiry that I persuaded David Cameron to establish in the months before the 2010 election, was closed down before it had a chance to get very far. The third, another by the ISC, has just completed its work and has done its best but, by its own admission, has not been able to get to the bottom of the issue. That it failed to do so is scarcely surprising. The Prime Minister blocked the ISC’s access to almost all the relevant witnesses. It is clear from the report that in response to that the ISC closed down its inquiry. The ISC did not examine some of the toughest cases, such as Belhaj, who was rendered with UK assistance to Libya, nor detainee transfer in theatre.
How involved were Ministers in those decisions? We still do not know, and we still do not know what really happened. For much of the past 13 years, it has been an uphill struggle to elicit much information. Denials were frequent and often pretty comprehensive, if completely wrong. Here is Jack Straw’s in 2005, when he was Foreign Secretary, in response to a question I asked a colleague to ask at the Foreign Affairs Committee:
“Unless we all start to believe in conspiracy theories and that the officials are lying, that I am lying ... there simply is no truth in the claims that the United Kingdom has been involved in rendition full stop”.
Only a couple of years ago, I was assured by a very senior civil servant that there were only a handful of cases. Now the ISC has established that the UK was involved in more than 70. I do not think this issue can be left unaddressed. The question is how to address it. More than a decade ago I concluded that only a judge-led inquiry could hope to clear this up and enable us to move on. That inquiry is still needed, and I am very pleased that Ken Clarke, the former Justice Secretary who suspended the first judge-led inquiry, now agrees.
Freedom of information will not achieve much in the UK on rendition now that its effectiveness has been greatly curtailed by the Justice and Security Act, but in the US the group’s FOI requests are now eliciting significant further information which the group will put into the public domain. It could be that FOI in the US becomes the best remaining source on UK involvement, given that so many domestic avenues towards more information have been closed off. But best of all would be a judge-led inquiry, which would also be able independently to assess what can reasonably be put into the public domain and what must not be. Clearly, much of the information might carry operational risk for those in the security services today and should remain secret.
It is not just that kidnap and torture is deeply repugnant or even—which is the case—that it is probably ineffective as a means of gathering information. It is much worse than that. Complicity in kidnap and torture eats away at the moral authority of the perpetrators. To the extent that the UK has facilitated such practices, we have diminished ourselves and we have undermined the values that we seek to export. That is why getting to the truth about rendition is not some recondite backwater but goes to the heart of the kind of society that we aspire to be. In the age of Trump, Putin, fake news and the erosion of trust in the electorates of western democracies that is now taking place, it is all the more important that we stick to our values and on that issue, unlike Sir Denis perhaps, we know what those values are. That is why we now need to stick to those values and get to the truth on rendition.
Lord Stunell (LD)
My Lords, it is a privilege to follow the speech by the noble Lord, Lord Tyrie. I congratulate him on it and welcome him to the House. I am sure the whole House will be looking forward to his future contributions. In the other place, he had a reputation for and record of original thinking, forensic inquiry, plain speaking and ruthless honesty, and we saw some of that in his maiden contribution in this House. Even his most severe critics would never describe him as a yes-man. Witnesses who sat in front of him in the Treasury Select Committee at the other end of this building would be ready to testify to that, even if they did not always wish to testify to his committee. His words today illustrate a thoughtful, analytical and fearless approach to the issues that come before your Lordships’ House, and I am sure his future contributions will continue that. It was also a pleasure to hear the maiden speech of the noble and learned Lord, Lord Garnier. His contribution was well up to the quality of this debate, which has, so far, been excellent and well informed.
Turning to the Bill, I associate myself with the words of my noble friends Lord Marks, Lady Hamwee and Lord Thomas and those of the noble Baroness, Lady Warsi. In coalition days, she and I had many a quiet chat to see whether we could restore some sanity to the situation, but we did not always succeed as we wished. The noble Baroness, Lady Howe, said wise words about how extremism without violence must not be tangled up in our thinking about offences.
I want to focus on Clause 19. It is a very minor provision in the Bill; indeed, it appears under the subheading “Miscellaneous”. It deals with the granting of enabling powers to local authorities to nominate people who should go to Channel panels. The noble Baroness, Lady Howe, commented on this to some extent. The Explanatory Notes to the Bill explain that, in 2016-17, 6,093 people were referred to Channel panels, and that 332 of those 6,093 were given support as a result of discussion in those Channel panels. Channel panels are established and run by local authorities, and up to now referrals to them have been exclusively in the hands of the police. The proposal in Clause 19 is to allow local authorities to have that right to refer people to the Channel panels that they themselves organise. It could be seen as just operational tidying up, but there is a little more to it than that. The Government’s impact assessment says of it that it is a magic provision; the word “magic” does not appear but it does say the provision will provide a saving to the police and no additional cost to anybody else. So what could possibly be wrong with it?
I suggest to your Lordships that there are some aspects that need to be looked at a bit more carefully than this entry under “Miscellaneous” currently grants: first, the reputation and effectiveness of Prevent itself—the noble Baroness, Lady Warsi, has said some powerful things about that; secondly, the workloads and competences of those running Channel panels; and, thirdly, something about their success rate and performance.
First, on reputation and effectiveness—this case has already been strongly made by the noble Baroness, Lady Warsi, and apart from saying “Hear, hear” I cannot add much more—Prevent is counterproductive and its apparent impact is skewed. A careful reading of the report by the Joint Committee on Human Rights, especially page 24, sets out the case again.
Secondly, on workloads and competences, I make the point that those 6,093 referrals in a year mean 115 referrals a week to Channel panels. The outcome of those Channel panels is that six people a week receive support after referral. Let us just take those figures again: 115 cases come up each week, of which six are, on inspection, decided to be appropriate to receive Channel support. My first question is whether the Minister is satisfied that the 6,000 who are being referred in the first place are in fact an appropriate 6,000, and whether she is satisfied that only 6% of them subsequently being seen as requiring intervention by Channel panels suggests that the right people are coming forward and being selected.
My second question is: what analysis has the department done on which participating agencies are most likely to produce the false positives—the 109 people that week who are referred to a panel but for whom Channel support is not thought to be appropriate. Who are the people who are getting it wrong, and what can be done for them to get it right? What feedback and learning is there from the cases that do not get Channel support, and where evidently those nominations were inappropriate for one reason or another? What change is Clause 19 expected to produce to those outcomes? Is the clause’s intention that there will be more referrals as a consequence of local authorities having the right to refer, or is it supposed that in some way there will be more priorities for action by Channel panels as a consequence of those referrals? What is the driver for the change, something on which the Explanatory Notes are completely silent?
That brings me to the success and performance of Channel panels and the Prevent system as a whole. What happened to the 332 who received Channel support in 2016-17? Who was missed? The Explanatory Notes quite rightly point out that there were five terrorist incidents where deaths occurred, and seven terrorists were directly involved there. The noble Lord, Lord King, brought forward some other figures about the quite substantial number of attacks that were intercepted and where plots were foiled. Had any of those people come into the 6,093? Had any of them come into the 332 who were referred to Channel? In other words, is Prevent actually doing what the name suggests it should be doing, or is it simply a cosmetic overlay on a system that is widely seen as clumsy and counterproductive at best?
The Joint Committee on Human Rights wanted to see an independent inquiry. The Government’s rejection of that was really quite abrupt; they said such a claim was unfounded because there had been so many external and internal reviews that basically everything was fine and everything was known. I therefore hope that the questions that I have posed can be simply answered by the Minister today or, if not, that she is ready to answer them in Committee when we get there. It is necessary for the Government to justify the change that is proposed and the base from which that change is being made. What in fact is happening to the 94 out of every 100 people who are referred who have no further action taken regarding their case? I hope that when we get to Committee the Minister will be able to fill in some of those gaps. If not, I will certainly be returning to these matters at that time.
Counter-Terrorism and Border Security Bill
Tuesday 9th October 2018
(5 years, 6 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 11 September 2018 - (11 Sep 2018)
Lord Tebbit (Con)
My Lords, I thought the House might like to be reminded of just three of our parliamentary colleagues who were the victims of terrorism: Airey Neave, the Reverend Robert Bradford and Ian Gow. After all, in this debate today we have not heard much about the victims.
There has been a degree of consensus in the debate, but it is a consensus that I do not in any way share. Of course I agree that this is a complex Bill with an ambitious purpose. To quote from the Queen’s Speech of June 2017, that purpose is,
“to ensure that the police and security services have all the powers they need, and that the length of custodial sentences for terrorism-related offences are sufficient to keep the population safe”.
In other words, it is a contribution to the first and second of the key obligations of government. The first obligation is to maintain the borders of the kingdom securely and to bar entry to those who do not share our purposes in life in this kingdom. The second purpose is to maintain the Queen’s peace.
As we all know from our long experience of grappling with the terrorist movement of the Irish Republican Army and Sinn Féin, these are difficult tasks that have been costly in both treasure and blood. However, the threat today is unlike that from the Irish dimension. There was a simple logic to that threat. Unable to persuade the people of Northern Ireland to vote for a union of Ulster with the Irish Republic, Sinn Féin conducted a terrorist campaign of violence by its armed organisation, the IRA, towards that aim. Fortunately, the courage of the people of Ulster and the skill and bravery of the Royal Ulster Constabulary, the Police Service of Northern Ireland and the Armed Forces of the United Kingdom demonstrated that the ambition of the republican movement could not be attained by violence either. That task was made no easier by the support given to IRA/Sinn Féin by what was then the hard left in this country and is now the leadership of the Labour Party today.
The nature of the threat today is different, and it is made worse by the rise of so-called social media, which provides an open platform for—what shall we call them?—the proponents of terrorism. Some of the threat is directed to bringing about a worldwide caliphate. Much of it is largely directed from overseas, bringing a requirement for extraterritorial action—and I welcome that particularly in this Bill. Some of the threat arises from Islamist extremists resident or born in this country. But a great deal of it springs from a love of violence, and uses the language of Islam to justify inflicting violence in its name. That may well prompt others of unstable mind to inflict violence on peaceable followers of Islam.
The provisions of the Bill well deserve support. There may be ways in which it might be improved, but I hope we will not see nit-picking in the name of liberty by those who have sympathy with the aims of those who inflict terrorist violence, whether from political or religious conviction or because of mental illness.
There was talk today, and in the other place before the Recess, of the need to protect free speech, freedom of assembly and association, and all that. There was talk also of the effects on the meanderings of the European Court of Justice. I speak tonight, as nobody else seems to have done so far, for those who died at the hands of terrorists. I support the Bill, and others who have suffered at the hands of terrorists and survived will undoubtedly support it, too. There are many who will support this Bill from beyond the grave. I speak for them tonight.
Lord Blair of Boughton (CB)
My Lords, like others, I think that this has so far been an excellent debate, and I shall try not to spoil that record. It is an honour to follow the noble Lord, Lord Tebbit. His views and mine do not normally coalesce in any way whatever—except on terrorism.
As far as I can see, I welcome the Bill in its entirety. We all remember with sadness the lives lost and the lives horrifyingly changed by the attacks in Britain in 2017. This Bill is part of our nation’s response to those events. I thought that the decision by the Government, MI5 and the police to put in train the operational improvement review—carried out by the then David Anderson QC, now my noble friend Lord Anderson of Ipswich—was wise and proportionate, and this Bill reflects that position.
In the same way as the noble Lord, Lord King, said, I appreciate the bipartisan approach taken by both Houses to this matter. It has not always been thus. As a rather famous namesake of mine once said, I have “scars on my back” from the times in which there was not a bipartisan approach to terrorism.
The Bill recognises that terrorist behaviour and terrorist threats are changing, particularly, as my noble friend Lady Manningham-Buller said, in the way in which terrorists are using less sophisticated methods, radicalising more quickly and more often acting alone. The Bill takes account of the increasing number of ungoverned spaces in the world and of the evolving nature of the internet, from downloading to streaming. In addition, the background to the Bill is that not all the changes in circumstance represent the new. We are seeing old threats returning, particularly the rise of the far right, which we should not underestimate, and the presence on British soil of state agents with malign intent.
Perhaps the most important feature of the Bill, however, is its implicit recognition, as the present Commissioner of the Metropolitan Police and the noble Baroness both said, that what is happening in the UK is not a spike in terrorist criminality but a shift to what appears to be a long-term, higher intensity of activity, with more than one arrest a day for terrorism occurring in the year to March 2018. Even with all the passion and doubts expressed by the noble Baroness, Lady Warsi, I welcome the way in which the Government, faced by this and by the speed with which individuals can move from being at risk of radicalisation to direct action, have continued to support the Prevent arm of the world-leading Contest strategy. I really look forward to the involvement of non-central parts of government in that endeavour. I thoroughly agree with that proposition and I will explain why.
I was involved at the very beginning of the discussions about what became Prevent. I passionately argued that it was inappropriate for the police to have fundamental responsibility outside government for making Prevent work. It seemed to me absurd that communities, especially at that time Muslim communities in the aftermath of 9/11 and 7/7, should be asked to report suspicious behaviour to an arm of the police when that might mean that another arm of the police—literally an armed unit of the police—might eventually respond to what they had said. I argued fiercely that local authorities and education authorities should be co-responsible for Prevent, and I am really glad to see that happening.
However, in addition to that, our past comes back to haunt us as previously convicted terrorists are now being released, having served prison sentences for which too short a maximum sentence had been prescribed in earlier legislation. I welcome the increasing length of sentences for preparatory behaviour short of actual action. I am not normally in favour of lengthening maximum sentences for anything, but I am when we talk about terrorism. Beyond that, I still believe that the terrorist prevention and investigation measures, TPIMs, remain of too short a duration, and I hope that the Government will look again at that issue during the passage of the Bill through the House.
I congratulate the Government on their decision to keep this important legislation coming through both Houses in the middle of the tensions of Brexit, and I hope that the Bill completes its full legislative passage as soon as possible. I also hope that, by the time its provisions come into effect, they do not do so in a Europe in which Britain has lost most of its ability to co-operate effectively with EU countries on security and policing, particularly on the European arrest warrant, Schengen and the Prüm arrangements—but that is probably for another day.
Lord Ahmed (Non-Afl)
My Lords, all of us share the same objective when it comes to the safety of our country and our citizens. Since the tragic acts of 9/11 and 7/7, the United Kingdom, like many countries around the world, has put in place many laws to ensure that the police and security services have all the powers and means to arrest terrorists and stop terrorist acts in our country and around the world. In rightfully making such provisions, it is critical that we do not allow legislative provision to go forward that fundamentally undermines who we are and what we stand for—our rights of freedom of speech and thought and our right to freedom of religious belief.
Britain has the most wide-ranging terrorism laws in Europe. Since 1998, a raft of terrorism laws has been passed in the UK. Despite these laws, the summer of 2017 saw major terrorist incidents, which were mentioned earlier. So, politically motivated violence remains a problem from which the state must safeguard its citizens. However, while the law needs to target criminals and their acts and plots, constantly widening laws and offences to bring more people within the definition of terrorism and treating them as a security threat will ultimately prove counterproductive, as that alienates the very people whose support is needed for an effective counterterrorism strategy. The Bill again widens the scope of terrorism, which will affect every citizen, and when we come to look at the details, we will see that innocent citizens could be caught by the proposed new laws.
My concerns are shared by many, including human rights organisations such as Amnesty International, which has voiced concerns over Clauses 1, 2 and 3 as well as Clause 20 and Schedule 3. The Government’s own inadequate impact assessment does not even refer to the fact that this major piece of legislation will have a differential impact on many citizens and communities. Legislation already on the statute book has already been widened by our courts. For example, the definition of terrorism in Section 1 of the Terrorism Act 2000 has already been criticised for being too wide, and its scope has been widened by the Supreme Court.
For a moment, I will highlight the impact on the Muslim community. This proposed legislation would place Imams, scholars and Muslim speakers in a difficult position when they are talking about overseas conflicts in which Muslim communities are suffering and local scholars have already declared resistance as legitimate. As a consequence of the definition of terrorism and the extra offences created in the Bill, speakers and comments may be deemed terrorist or seen to be encouraging terrorism when they are discussing matters overseas and pose no threat to the UK whatever. Clauses in the Bill make this even more likely.
The provisions covering expressions of support for a proscribed organisation extend the offence of inviting support for a proscribed—terrorist—organisation to cover expressions of support that are reckless regarding whether they will encourage others to support the organisation. Creating an offence that criminalises “expression of support” as opposed to “invitation to support” a terrorist group—this can also be “reckless”—will draw into criminal activity people who may be speaking, writing and discussing political affairs around the world. The law seems to be moving away from criminalising people for their acts to their thoughts and expressions.
There is also an underlying acceptance in this clause of the conveyor belt to violence theory—that there is a straight-line progression from expression of political ideas, leading to joining groups and/or violence. That theory has been rejected by a host of security and academic experts. Such a clause will have a chilling effect on freedom of expression and opinion. One can still hold an opinion, but if it cannot be expressed, then individual freedom has effectively been curtailed. This clause also appears to be in contradiction with Article 19 of the ICCPR and Article 10 of the ECHR, according to the UN Special Rapporteur for the Protection of Human Rights in her submission to consultation on the Bill.
New provisions covering the obtaining or viewing of material over the internet have been mentioned on many occasions. They update the offence of obtaining information likely to be useful to a terrorist to cover terrorist material that is just viewed or streamed over the internet, rather than downloaded to form a permanent record. The existing “reasonable excuse” defence will apply in circumstances where a person did not know that the documents would contain terrorist material. However, the clause now seeks to extend the current offence of downloading or distributing terrorist materials to capture people who may not download but view streamed materials online. This would mean that a person who clicks online rather than downloads may be committing a terrorist offence. The offence was meant to apply to three clicks, which has been mentioned, and even if someone did not click directly but was looking over someone else’s shoulder. In an interconnected world where social media provide the platform to meet people’s intense interest in what is going on, there is a real potential to criminalise them for their curiosity or legitimate interest in general research for journalism purposes. Innocent people may click on links sent on Messenger but may not actually view them. For example, my inability to understand IT means that I click everything that is sent to me on my mobile phone.
Terrorist materials are categorised as tier 1, tier 2 or tier 3 and can include literature, articles and lectures by prominent personalities. They can also include videos of conflict battle scenes. Without a definitive published list of terrorist materials and personalities, how do we know whose lectures and work should not be viewed? Many people, particularly children and young people, may not know what constitutes terrorist material and may be unaware that they are committing an offence. For example, in communities originating from conflict zones such as Syria and Libya, viewing and sharing conflict scenes from those areas is common as they have a legitimate interest in the conflict and want to keep up to date, or their families are affected by them. Some of these viewings and materials may be deemed terrorist in nature. Even if an investigation takes place and no prosecution is brought, the burden of proving “reasonable excuse” will cause much distress, especially to young people.
Between 2000 and 2015 Parliament passed six counterterrorism laws; this Bill will be the seventh. Many human rights groups have argued that there are enough laws to deal with the current threats posed to the UK. At some point there will need to be a new debate and thinking around how we tackle violence with political motives, which is essentially how the law defines acts of terrorism. We can continue to enact more legislation to tackle the challenges of terrorism, but the truth is that until we work with our communities to counter the evil of terrorism, we can have as many new laws as we want and spend as much public money as we want, but we will never rid ourselves of the scourge of terrorism. We will not be successful in meeting the challenges of terrorism until we work with all communities, as mentioned by the noble Baroness, Lady Warsi, and our communities take on the challenge of fighting terrorism with our Government. Our police and security services may need more powers, but equally important is that those powers do not erode our fundamental freedoms. Urgent thought and action is required to engage with our communities and unite them behind our fight against terrorism.
Baroness Barran (Con)
My Lords, I am aware that my remarks stand between your Lordships and the much anticipated speech of the noble Lord, Lord Anderson, so I will focus my comments on the proposed changes to the Prevent duty, as set out in Clause 19. As we have heard, they will allow local authorities as well as the police to make a referral to a Channel panel. Before I do so, I congratulate my noble and learned friend Lord Garnier, and the noble Lord, Lord Tyrie, who has moved, on their excellent maiden speeches. I am not sure what the collective noun is for maiden speeches, but I suggest that it should be “a brilliance”, based on what we have heard in the debate.
I also acknowledge the many community groups, head teachers, including one whose school overlooks Westminster Bridge, and Prevent leads from around the country who shared their practical experiences of Prevent and the Channel panels with me, both good and bad. It is fair to say that a majority value how Prevent is working in their communities, but all are worried that its reputation will limit its impact. The fears we have already heard expressed are about securitising our schools and communities, identifying the wrong people, stigmatising in particular Muslim communities, stifling debate and a general lack of transparency about the effectiveness of the approach. I will try to address some of those issues.
Allowing local authorities as well as the police to make a referral to a Channel panel should help to reduce the sense of securitising or criminalising those who are referred and will rather focus on the safeguarding aspects of the referral. That is not to say that safeguarding is without fear or stigma as well. Any of us who are parents will know that conversations with a professional about one of our children about abuse, neglect, sexual exploitation, drug use, criminal behaviour or violent extremism are not conversations that we are keen to have. However, we need to recognise the context: difficult conversations about safeguarding and referrals to children’s services happen more than 640,000 times a year, with Prevent referrals making up less than 1% of that figure. While they are important, we need to see them in that context. I hope that a conversation with a social worker rather than a police officer, with the greatest respect to the former police officers in this House, will feel more about safeguarding and less about criminalising. That was confirmed by the feedback from the Dovetail projects that have taken place over the past year. One of the key points that came out was that real care was taken over communication with families if a member of the family was being referred to a Channel panel. My main concern about this change is that where we are working in local authority areas that are already struggling with all their duties, this additional one will represent a real challenge. I hope that my noble friend the Minister will consider whether additional resources are required to fulfil those new duties.
I turn now to the second criticism, which is whether Prevent identifies the right people. Like any preventive programme, the short answer is that we do not know exactly, but from looking at the data, it is encouraging that Prevent appears to identify people with a real vulnerability to different forms of grooming, of which violent extremism is one. It is much less compelling when we look at the young people referred to by the noble Baroness, Lady Manningham-Buller, who apparently could be resilient but could be quickly radicalised. However, we still need to find those vulnerable people. I read the data rather differently from the noble Lord, Lord Stunell. Of those identified by Prevent, two-thirds were identified as needing support, 14% went to a Channel panel, 50% got some safeguarding support and just over a third were not in receipt of any support. That proportion of a third is identical to all other safeguarding referrals. Moreover, in relation to the noble Lord’s point about who gets screened in and who is screened out, the people we want to see being screened in are those who are being screened in. You are almost twice as likely to go from a referral to a Channel panel if the referral comes from educational or children’s services than if it comes from the police, again pointing to more of a safeguarding focus. We lack clarity, however, on what interventions happen at a panel. More data here would be extremely helpful.
Finally, and importantly, critics of Prevent rightly point to the risk of stigmatising Muslims, stifling debate and creating more divisions in our society—points picked up on by my noble friend Lady Warsi. Although the data may point to an increase in referrals of right-wing extremists, who now account for about 25% of the total referrals, the perception in too many communities remains that Prevent is, to quote a Muslim community worker I spoke to, “a stick to beat Muslims with”. The workers who gave me their time varied in their views: some were staunchly supportive of Prevent, some equivocal and some fiercely opposed to it. The key lies as much in the legislation as in the quality of the implementation.
Everybody I spoke to came up with the same recommendations on how to address that quality, whether they were supportive or sceptical and whether they came from the voluntary or the statutory sector. First, they all stressed that Prevent will succeed only if it is built on a foundation of community cohesion and tolerance in our schools and in our communities more widely. Secondly, they stressed the need for high-quality training. Many people mentioned how tired the training is; one former head teacher described it as “tired, boring and patronising”. For my sins, I did some of the online training, thinking that I ought to eat my own cooking, and I can only agree. They also suggested that the training needs to cover not only how to deliver Prevent but how to engage with hard-to-reach groups, and should be delivered by people from the most affected communities. I would be more than happy to share some of the great examples I heard.
Thirdly, there was a universal call for greater transparency. A number of noble Lords mentioned the call for an independent review. I am concerned about the delay this might create. I am also concerned that the answer it will find is that in areas where Prevent is implemented well, it works pretty well, and in areas where it is implemented badly, it does not. Instead, we need to build quickly on the data published last year by the Home Office and put ourselves in a position where we can be more confident in the effectiveness of both identification and intervention. That needs to be reinforced by the national Prevent oversight board.
Finally, the word that was used most frequently in relation to Prevent, as mentioned by the right reverend Prelate the Bishop of Newcastle, was a call for “compassion” in its implementation. There is currently a stark gap in the Prevent and Channel guidance. Nowhere does it mention the need to acknowledge the stigma and fear that will inevitably accompany being identified as needing support in relation to extremist or terrorist activity; nor does it guide agencies on how to respond to those fears in an empathetic and kinder way.
The changes set out in Clause 19 give a solid opportunity to move both the reality and the perception of Prevent from one of securitising to one of safeguarding. If implemented with compassion, I hope it will have a wider impact and help to rebuild trust in our communities. I hope the Minister will consider the points made to me about training, data and improved guidance when the materials for Prevent and Channel are updated.
Lord Anderson of Ipswich (CB)
My Lords, I congratulate the twin maidens on their enviably assured and elegant speeches. I thank the Minister, noble Lords and the noble Baroness, Lady Barran, for the overly kind comments they addressed to this near-maiden.
The noble Lord, Lord King, referred ruefully to the number of anti-terrorism laws that have come before this House in recent years. He can perhaps take comfort from the fact that he has not been sitting in the Australian federal Parliament, which last time I checked —on Thursday last week—had passed 74 counterterrorism statutes since 9/11. It was my privilege to assist MI5 and counterterrorism policing last year in drawing the necessary lessons from the atrocities perpetrated in London and Manchester. The most important of those lessons relate to the gathering and processing of intelligence, but it is right to ensure also that our laws are in the best possible shape.
In support of the Bill on the whole, I will make two comments. First, whatever its faults, it is based on the criminal justice approach to counterterrorism that has served this country so well. Our freedoms are better protected by the common sense of a jury than they are by an expansion in the range or volume of Executive commands such as control orders, and now TPIMs, which are imposed by Ministers and reviewed in court only months after the event and on the basis of evidence that cannot be shown to the subject.
Secondly, I welcome the conclusion, to which I was reluctantly driven when I was the Independent Reviewer of Terrorism Legislation, that the existing law may not deal sufficiently with radicalisers. Anjem Choudary has been mentioned, with good reason. As many as 25% of British jihadis convicted between 2001 and 2015 were associated with his organisations, outnumbering the 10% linked to al-Qaeda and the 5% linked to ISIS, or Daesh. His organisations also had great influence in northern Europe, yet although the police reported his activities to the Crown Prosecution Service 10 times between 2002 and 2015, no prosecution could be brought, whether for incitement to religious hatred, indirect encouragement to terrorism, inciting terrorism overseas, incitement to murder or proscription offences. In my mind, his eventual conviction in 2016 does not excuse us from seeking to improve the law in this area.
The Bill has some troubling features. I will refer to three of them which have so far been touched on only lightly or not at all. The first relates to proscription offences, which are supplemented or strengthened in Clauses 1, 2, 6 and 9 to 11. Whatever the merit in extending these offences, we should do so only if we can be sure that proscribed organisations are proscribed lawfully because they are, in the words of the Terrorism Act 2000, “concerned in terrorism”. Unfortunately, we have no such certainty; rather, the reverse. In 2013, the Home Office admitted to me that up to 14 proscribed international terrorist groups did not appear to be lawfully proscribed. It allowed me to publish the fact and commenced a programme of deproscription, but as I recorded in my report of December 2016, that initial honourable resolve on the part of the then Home Secretary soon foundered, I suspect under the influence of another great department of state. So it is likely that at least 14 international groups remain proscribed despite not meeting the statutory requirements for proscription.
We do not know how many of the 14 Northern Irish groups, every one of which has been proscribed continuously throughout this century, are in the same position. There, as the Committee on the Administration of Justice pointed out, the flags of proscribed organisations fly everywhere and their symbols cover memorials, appear on gable walls and decorate banners hanging from lamp posts. The law is applied to them only partially and occasionally, inadvertently injecting an unwanted political element into the exercise of police and prosecutorial discretions. It is true that proscribed organisations are eligible to seek deproscription, but this is a rarely invoked and extremely costly process, as was shown by the PMOI case—the only one in which such an application has ever gone to trial.
Then, to make it worse, the Government abandoned the regular reviews that they used to conduct until 2013, despite those reviews having been described by a High Court judge in the PMOI case as,
“certainly a practice that the Secretary of State should continue to adopt”.
As I wrote at the time, they seem to have discontinued these reviews out of embarrassment at their own inability to act on their conclusions.
It is surely unjust to expose a person to prosecution for a proscription-related offence when the organisation that he or she is said to support does not meet the statutory conditions for proscription. There are solutions to this, but would the Minister accept in the meantime that we are confronted with a tricky problem that is exacerbated rather than relieved by the Bill?
My second point, much more briefly, is on Clause 4, which would create the so-called designated area offence. I was quoted on Report in another place as a vigorous opponent of this idea, but, to set the record straight, the comments in question came from my former special adviser Professor Clive Walker and, despite their distinguished source, were never adopted by me. But some of his words at least ring true. I have spoken, as I know others have, to organisations and individuals engaged in humanitarian and peacebuilding activity in conflict zones who are not at all reassured by the discretions that Clause 4 would confer on the Secretary of State and prosecutors. The Government have cited Australian and Danish precedents for this law, so I hope that the Minister will consider adopting either some more precise conditions for designation and defences, as in Australia, or a pre-authorisation regime, as in Denmark, or both.
My third point is on the new Schedule 3 port power. When I was independent reviewer I noted that, over a five-year period, between 13% and 25% of all intelligence reports resulting from stops under the existing Schedule 7 were concerned not with terrorism, which is the object of Schedule 7, but with nuclear proliferation or espionage. Ports officers sometimes expressed to me their unease at being invited to stop people who could be described as possible terrorists only on the most elastic interpretation of that already broad definition. The case of David Miranda is a well-publicised example.
I am glad that the object of the Schedule 7 power is being extended to counterproliferation and counter- espionage, but the Schedule 3 powers do not stop there. It is proposed that they might be used to determine whether a person appears to have engaged in “hostile activity”, including acts that threaten the economic well-being of the country in the interests of a foreign state, whether or not those acts constitute criminal offences. That is far too broad a basis on which to allow these extremely extensive no-suspicion powers to be exercised. Then there are the additional powers exercisable at the Irish border under paragraph 2 of Schedule 3, which will also need to be elucidated.
Each of my three points echoes concerns expressed by the Supreme Court in the 2013 case of R v Gül about the very broad discretions already given in this area to prosecutors and to police. In particular, the court warned against Parliament delegating to the DPP or to the Attorney-General the power to decide whether an activity should be treated as criminal for the purpose of prosecution. That, as the Supreme Court puts it, leaves citizens unclear whether their actions or projected actions will be judged to be criminal and risks undermining the rule of law. I do not wish to embarrass the noble and learned Lord, Lord Hope, but he put his name to that judgment.
I will keep those comments in mind throughout our scrutiny of this important Bill. Flexibility is useful, but when behaviour is criminalised we all need to know where the line is drawn.
Lord Kirkhope of Harrogate (Con)
My Lords, in the same way that my noble friend Lady Barran indicated that she would be a form of warm-up act for the noble Lord, Lord Anderson, I suppose I serve the function of offering an anticlimactic effect following his excellent speech. I too congratulate my noble friend Lord Tyrie and my noble and learned friend Lord Garnier on their excellent maiden speeches. They are old friends in many ways and they are still operating as effectively as they ever did at the other end of the Corridor. They are very welcome indeed. I declare an interest in this debate as a lawyer, a former spokesman for justice and home affairs for many years in the European Parliament and a former Home Office Minister here responsible for, among other things, immigration and control of our borders.
I make it clear that I agree that terrorism, without doubt, is an evil that must be met with determination by democracies and by all those who value freedom. It is a matter of the greatest priority that that should be the case. But when I look at the nature of the legislation—indeed, I was interested to hear remarks by the noble Baroness, Lady Manningham-Buller, about the number of pieces of legislation; that was referred to by others, including by the noble Lord, Lord Anderson, a moment ago—it is interesting to note that we are by no means a country without a continuing concern and interest in legislation to keep us up-to-date with the challenges we meet. As far as I am concerned, it is vital that we keep abreast and catch up, if you like, with the changes in the approach of terrorists and major criminals. Andrew Parker, the director-general of MI5, said about a year ago that the ongoing threat was,
“multidimensional, evolving rapidly, and operating at a scale and pace we have not seen”.
It is quite clear from that that the terrorist seems always to have an advantage over democracy, justice and the way in which we operate our laws.
Our response in recent times has of course been to have independent reviews under the control and leadership of the noble Lord, Lord Anderson, and, until recently, Max Hill QC. While those reviews are very valuable as an ongoing consideration, it is still difficult to keep our legislative programme up to date. That rapid evolution has to be met. I have always thought that we need to review how we legislate to keep up to date. I had previously described the need for what I call “smart legislation”, where either the law itself is required to be examined at a set point and that is written into the legislation, or we have a more flexible system where we can make changes not to the principles that we have already agreed but to some of the practical elements that run alongside them.
When the French state of emergency ended last November following the Paris attacks, President Macron introduced new counterterror laws that some might say were more draconian than the provisions of the Bill before us—but at least they included very clear understandings that the law had to be not only continually monitored but revised or reviewed by Parliament within two years after that monitoring. That is an important element that we see very much in other countries. I saw it in my work in the European Parliament. Now written into almost all legislation are these necessary reviews or, in some cases, sunset clauses, depending on what sort of legislation it might be.
At the same time, President Macron looked carefully at the co-ordination between the domestic and the foreign intelligence agencies and the police forces in France, because one of the elements of difficulty after the Paris attacks—certainly in Belgium, where I was located—was that there were issues regarding co-ordination between the police services and the intelligence agencies. There was an element of confusion and concern that these were not properly co-ordinated and that there were competitive elements between them that were not in the interests of detecting and dealing with terrorism. That is something we always ought to consider.
In the same way, we ought to consider the issue of scrutiny. I know that to some people the word “scrutiny” is not particularly attractive. Sometimes it looks as though they cannot do what they think they must do because someone is always going to be looking over their shoulder. But if you want to get a balance between the security of the state and its citizens and the civil rights of those suspected of threatening it, you have to allow for scrutiny—not only scrutiny of an official nature, organised by government, but an understanding that we are now, inevitably, in this modern world, scrutinised constantly, whether we like it or not, by the media, by NGOs and by international partners and players. We need to be sure that whatever we do measures up to the sort of scrutiny and the balance I have referred to.
I will mention the need for something that has been referred to by several speakers: the criterion of necessity and proportionality has got to apply not only in terms of what we do about terrorism but in how we consider it. Noble Lords would be surprised if I did not mention international relations briefly. We have not really got anything here, because of course our legislation on terrorism is a national matter. However, it is necessary to refer again to the ongoing partnerships that have allowed us to deal with what is a worldwide phenomenon in an effective manner. In fact, there is plenty of evidence that we have been able to deter and detect terrorists on the basis of information we have received from our neighbours.
Of course, we have a trusted position, currently, with our EU neighbours, but also, through the Five Eyes arrangement with Australia, Canada, New Zealand and the United States, we have been able to obtain information and intelligence which has assisted us to protect our citizens. As one of the authors, or rapporteurs, involved in developments in the EU such as SIS II—the Schengen Information System that has been referred to—Prüm and PNR, passenger name records, I feel very strongly that whatever the Brexit process brings, it must ensure that there is no gap or uncertainty, even for one hour, in the ongoing full exchange of intelligence. That includes intelligence exchanges in real time, because the whole point of terrorism is that terrorists get away with it if we delay taking action and using information that we have. This is important—indeed, it is more than important, it is vital.
I dare not quote, perhaps, Sir Bill Cash, the Member of Parliament and chair of the House of Commons European Scrutiny Committee—not necessarily the greatest Europhile, I have to say—who said, when asking for clarity about the Government’s intentions in these measures:
“We can see no justification for this reticence. We expect the Government to be far more forthcoming about their intentions in relation to SIS II”—
and, I would add, all the other areas in which we have close co-operation with Europe.
My last area deals with legal issues. Very briefly, as a solicitor, as a lawyer, I have always believed in the right of an accused to have a lawyer to support them at the earliest possible opportunity. When we dealt with measures in a directive on access to lawyers in Europe, we made it clear that this access had to be without undue delay: I think it was quite clear what sort of thing that meant. I would like some reassurance on this because I think there is some confusion. It was referred to earlier. The confusion lies, of course, in our Schedule 3, where there is some contradiction. First, there is an issue regarding the privacy and confidentiality of lawyers with clients, where the presence of a “qualified officer” seems to be required even when a lawyer is present to take instructions. That is quite a serious matter. The Law Society and others are deeply concerned about it. Yet it is contradicted by Schedule 3(24)(2) which says, as has also been referred to:
“The examining officer may not question the detainee under paragraph 1 or 2 until the detainee has consulted a solicitor”.
So there is confusion—there is no certainty about this, and I think we need to clarify and make sure that the protection of the rights of the defendant are always in place.
Finally, on the issue of recklessness, I am a little curious. Other noble Lords here are far more distinguished lawyers than I am, and have been over many years—I concentrated on knowing Rylands v Fletcher and one or two other interesting cases—but it nevertheless seems to me rather odd that we have a new approach that makes recklessness in itself criminal in this context. In my understanding of what is required for a crime, there is mens rea, which is made up of intention or knowledge of wrongdoing. That is fairly clear, but it constitutes only part of the crime. The rest of it is action and conduct. Apart from strict liability, where no mens rea is required, I cannot find myself particularly sympathetic to the term “recklessness” as being conclusive in relation to somebody’s intention, and enough for criminal liability.
Having said all that, I support the Bill; I think it is important that we keep the legislation going. I would like to see it more mobile and more flexible. But, in the meantime, we rightly carry out our duties—the responsibilities we have to protect our citizens from crime and from terrorism at every opportunity.
Lord Bew (CB)
My Lords, I support the general purposes of the Bill and I thank the Minister for her introduction, in which she stressed that the focus is on the new terrorism. Matters have evolved, she said; things have changed since 2006 and we are not dealing with the same problems we dealt with in the latter part of the last century with respect to Irish terrorism. But she also expressed her concern about those who act with hostile intent on the Irish border and, of course, there is the question of the activity of dissident republican organisations. I would add the slightly surprising point that has come to me in preparing for this debate: there is another dimension to this question of people with hostile intent on the Irish border.
I have taken to reading intensely the Irish expert writers on matters of intelligence and security. They argue two things. One is that Ireland simply cannot have the intelligence infrastructure that the United Kingdom has—the incredible skills of our intelligence services, GCHQ and so on. These simply cannot operate in Ireland. The second is that people of extremist and Islamist views know this and therefore have in some ways made Ireland the backdrop for the unfortunate and tragic events that have happened in this country. Therefore, when the Minister talked about her fears of people with hostile intent on the border—the only land border between the United Kingdom and the European Union—she is entirely right to have a concern, and it might unfortunately be a little broader than I suspect was in her mind when she made the point.
In talking about the Bill, I must express a degree of surprise. The House is well aware of the intensity of the recent debate in this Chamber about a possible Brexit hard border. It was a deeply passionate event and I well remember the noble Lord, Lord Alderdice, explaining that there were circumstances in which he would not be content with Liberty Hall on the Irish border; there were circumstances in which there would have to be checks, which he could envisage without too much stretching of his imagination. Yet the House chose to vote down the Government’s proposal on that day. I think the majority was 65. The general feeling was that any check of any sort on the Irish border was a hard border. Yet tonight, who is saying this?
I was very pleased by the tone of the debate in the other place, which was largely consensual. The points raised by the Opposition Front Bench were perfectly reasonable. Matters that it was suggested we should consider here included the concern about aspects of accountability for actions on the Irish border. But the intensity of the emotion, which the noble Lord, Lord Alderdice, will recall, and the certainty of moral conviction about checks on the border seem to have disappeared entirely, and I do not quite know why. For the Irish Government, I might be able to offer a kind of answer but, believe me, within Ireland itself hackles have been raised by this proposed legislation.
The noble Lord, Lord Anderson, mentioned the Committee on the Administration of Justice. Its objections go far beyond the significant point to be discussed about proscribed organisations and how we handle them. That is a serious point, but its objections go far beyond that. The objection of the influential Committee on the Administration of Justice is that this is another hard border, which we all apparently promised that there would not be. That is its objection. Articles have appeared in Irish newspapers saying that we are establishing a double standard for citizenship between citizens who live on the border and who may be stopped and citizens who live in Ulster and are not likely to be stopped. The phrase “border area”, which appears in the legislation, also requires some comment. I am not referring to these points because I necessarily agree with them, I am saying simply that there is a debate and hackles have been raised.
On the Parliament website there is a description of the Bill:
“To make provision in relation to terrorism; to make provision enabling persons at ports and borders to be questioned for national security and other related purposes; and for connected purposes”.
That last phrase has been seized on in Ireland: “Ah, this is about smuggling”. Frequently, smuggling is a connected purpose with respect to Irish terrorism. It would not be a stretching of the language for an officer to interpret it in that way because it frequently is and the money is used for the purposes of terrorism. So there has been finger-wagging and the claim that this is indeed a hard border and, not only that, it is actually concerned with matters—well, to be honest, smuggling is a trade in Ireland. Paragraph 9 of Schedule 3 refers specifically to the apprehension of goods. There is no question that that is part of the intention of the Bill.
Personally, I support this but I wonder where all the other people are who were so indignant only a few weeks ago in this Chamber and are so indignant about it in general. I wonder where the Irish Foreign Minister is, who I recall saying on “The Andrew Marr Show” that there could be no checks of any sort on the island of Ireland. This was a moral and psychological blow that no decent Irish nationalist should be forced to live with even the contemplation of. There is a problem with that in that the Irish Government currently carry out checks on their side of the border on individuals they do not want entering their labour market, on quite an extensive scale. All right, perhaps he had temporarily forgotten that, but he was very indignant on this point. But the Irish Government have been silent about the Bill.
The Irish Government do have a difficulty and I will explain what it is. It is in United Nations Security Council Resolution 1373, passed shortly after 9/11, which I know some academic lawyers do not like because they think it is the United Nations Security Council making itself a legislator, but it has remained, with some modification and some further reflection, the byword for the international approach in this matter. Incidentally, just before the turn of the year, the European Union, whose standards on these questions have been invoked many times in the debate, issued a document on Resolution 1373, broadly expressing solidarity with its purposes. The purpose of the resolution was to have border security in the fight against terrorism. Clause 2(g) talks explicitly about the need for “effective border controls” and checks. The problem for the Irish Government is that Ireland was a non-permanent member of the Security Council that passed it—we, of course, are permanent members—and they are now trying to get on the Security Council again as a non-permanent member and it is not particularly good advertising for such a campaign to say, “The last time we were here, we thought this resolution was a fantastic idea. Now we want to get back on the Security Council, we did not mean a word of it”, so they are circumscribed to some degree.
I also hope that another reason the Irish Government have been so calm on this matter is that we are moving towards a compromise on these very difficult issues. There is so much writing by all the informed commentators, all the national and international think tanks, about the damage that will be done to the Irish economy by a hard Brexit that the need for a compromise is becoming painfully obvious. I am hoping that for these reasons we are moving away from the intense and angry mood in which these issues were discussed. But the dog has not barked in the night in the case of the Irish Government. I suspect that if we get a relatively benign resolution—that will be no perfect one—over the next few months, the dog will not bark in the night. But I warn the Minister that we are still in a difficult circumstance because the formal position of the European Union was, “You must stop our internal market being polluted by goods coming over the border from Northern Ireland but you are not allowed to have any checks to stop our internal market being polluted”. It is a brilliant Catch-22 and the only solution is to semi-detach Northern Ireland in a way that the Prime Minister has said is unsatisfactory.
Something has to give here. There has to be a compromise. I very much hope that there will be a compromise. I think there are some signs that there will be one. I end my remarks by saying to the Minister—unkindly, perhaps—that rough tides may be returning to the discussion of this issue; rough tides that we have seen and the noble Lord, Lord Alderdice, saw that night, have infected the way we talk about this issue in this House. I am glad we are in such calm waters and that there was such a significant degree of cross-party consensus in the other place.
Lord Marlesford (Con)
My Lords, I would like to say, first, what a wonderful brief the Library produced for this debate and, secondly, how excited I am that we now have my noble and learned friend Lord Garnier and my noble friend Lord Tyrie with us. They are a great addition. I have never been an MP, but I know them both and have huge admiration for them.
The Home Secretary said in the Commons Second Reading debate that,
“the wide-ranging Counter-Terrorism and Border Security Bill … is about keeping the people of this country safe”.—[Official Report, Commons, 11/6/18; col. 630.]
I strongly support the Bill, as it seeks to widen and deepen action against terrorism. But for the purpose stated, some of its provisions seem to be rather theoretical and almost metaphysical rather than practical. They risk, as we have heard during the debate today, allowing the argument to be between lawyers and libertarians. The result is likely to be slow and amorphous. In short, it bears the hallmarks of Home Office drafting.
I hope during the passage of the Bill to fill in some of the gaps with a couple of practical steps that can and should be taken. This is a subject in which I have been involved for well over a decade, and I am afraid that I have found, under successive Governments, that the Home Office constantly resisted taking the steps necessary to keep the people of this country safe. I remember that, in 1997, I got Parliament to agree to the introduction of a centrally held electronic register of all legitimate firearms, and I got Ministers in successive Governments to support that. The Home Office resisted and resisted it; the provision eventually came into force in 2006 and is working extremely well.
Even when I have convinced Home Office Ministers, the trouble is that the officials usually oppose them. In fact, the attitude of the Home Office to its own Ministers sometimes reminds me of my early youth, when I started my national service as a recruit at the Caterham guards depot. In those days, probably rightly, the response to any of us who began a statement, “Sergeant, I thought …”, would be—I am deleting the expletives—“You are not here to think. You are here to do what you are told”. Of course no civil servant would dream of addressing a Minister in that way, but the attitude of the Home Office reflects that approach all the same. I hope that the appointment of Sajid Javid as Home Secretary, with the advantages that he has over some of his predecessors, may produce a more effective counterterrorism policy.
But let me first mention the backdrop we face. There is no need for parliamentarians to be made aware of the scale of the threat, surrounded as we are by dozens of armed police. But it is not just we who work or live in London who have suffered a monstrous intrusion into our normal way of civilised life. It has been bad enough to lose the former ease and flexibility of air travel; now it appears that we may face a similar challenge to road travel.
The cost to the economy of terrorism is a serious and growing factor. In May this year, the European Parliament published a report by the RAND Corporation which makes some estimates of the human, physical and GDP cost of terrorism in each EU member country. The highest cost is in France: some €38 billion for the four years from 2013 to 2016. The UK comes second at €16 billion, which is €4 billion a year. This is over 25% of our total annual spending on foreign aid, which is around €15 billion. Of course, the opportunity cost to public spending is a significant factor in keeping down the standards of our social services. There is no doubt that the threat of terrorism and the cost of countering it has expanded rapidly since those figures were calculated for 2016.
We used to have enough problems with the IRA, but that was nothing compared with the threat of Islamist jihad. That of course became a whole new dimension in April 2014 with the formation of the Islamic State from the Iraqi franchise of al-Qaeda. It called itself ISIS—Islamic State of Iraq and Syria. It has as its stated and implacable aim the installation of a worldwide caliphate under sharia law. Although its military forces have suffered heavy defeats, it is active in many other countries. In Europe I suspect that the main country in which it is making progress is Spain.
Let me turn to a couple of proposals which really need to be taken seriously by the Home Office and could be incorporated in the Bill. First, a nation state, even one at peace, needs to know who its citizens are—and by citizens I mean inhabitants, whether of UK or other nationality. I do not advocate identity cards. They are dangerous because they can be forged and thus convince those who need to know of a false identity. This applies especially if there are biometrics in the card because of course any competent criminal or terrorist—and by competent I do not mean the amateurs who now operate for the Russian GRU—can ensure that their biometrics are on the identity document. What is needed is a national identity number with centrally held biometrics of the holder. These could enable the holder to be checked against the central record. This would replace the plethora of other ID numbers used, including those on driving licences and passports.
My second point is on something that I have been advocating for a long while. I believe it has long been essential that the UK passport authority should know what other passports are held by British passport holders. I emphasise that I am not for one moment suggesting that people should not be allowed a second, third or even fourth passport. All I am asking is that their possession of such passports is recorded in such a way that the scanning of a passport at the UK border reveals their existence; otherwise, as I was told years ago, people travel to a place on one passport and do things that they should not do on another passport.
I believe that the powers to take some action envisaged in Clause 4 are long overdue, but rather than designating areas of no travel I prefer the approach suggested by my noble friend Lord Faulks of introducing modern treason legislation. We should look more closely at some of the proscribed organisations. In this context, I think particularly of the Muslim Brotherhood. It was founded in 1928, and practically its first action was to kill the Prime Minister of Egypt in 1947, I think. Its leader was then assassinated and it has been behind huge troubles all over the world, but it keeps its face clean. It is really like Sinn Féin was to the IRA.
We should be more discriminating over those to whom we grant refuge. When David Cameron proposed to take 20,000 refugees from Syria, some of us asked for priority to be given to Christians and Yazidis, who were particularly subject to persecution. Up to now, the Government have resisted this.
It is a disgrace that more than 1,200 members of the UK Muslim community were able to join ISIS and it is an even greater mistake that 400 of them have been allowed to return to the UK. To take up arms against forces of which Her Majesty’s military form a part should be grounds for the immediate withdrawal of UK citizenship.
A national identity number system would be of value not only for national security but also for the administration of social services and health services where the present mess of identity through national insurance numbers and NHS numbers is laughable. The potential saving in that area would easily pay for the introduction of national identity numbers.
Finally, I shall comment on what my noble friend Lady Warsi said. She wants the Government to re-engage with the Muslim community. I am all in favour of that, of course, but the best way to do that would be for the leaders of that community to exclude and excommunicate those who support Islamist jihad. Only then can we really get together to prevent and fight terrorism.
Lord Ramsbotham (CB)
My Lords, with so many distinguished experts contributing to this Second Reading, including the noble and learned Lord, Lord Garnier, and my noble friend Lord Tyrie, both of whom I congratulate on such outstanding maiden speeches, I am conscious that by speaker number 25 all that could be said has been said and that all I can do is make some additional points. Like other noble Lords, I thank the Minister for her comprehensive introduction and express my thanks to Russell Taylor for his excellent Library briefing, particularly because it included analysis of the very detailed and penetrating report of the Joint Committee on Human Rights and of the passage of the Bill through the other place. Like the noble Lord, Lord King, I was very sceptical about the impact assessment. Impact assessments seem to be done incredibly badly by all ministries. I have to admit that, like other noble Lords, while I recognise and support the Government’s intention behind the Bill—to keep people safe and to update legislation—I remain uneasy about some of the detail.
My noble friend Lady Manningham-Buller, who mentioned the increased pace and size of the threat, reminded me that my practical experience of counterterrorist operations is somewhat dated, but the principles have not changed and include the need for any action taken to be balanced and proportionate. As my noble friend Lord Anderson was speaking, I remembered being frustrated, when commanding troops in Belfast between 1978 and 1980, that the conspiracy law was so inadequate that we could not arrest those who incited people to violence when making speeches at IRA funerals.
I have two general comments as well as some detailed ones. First, having been critical for many years of the Home Office’s failure to direct and oversee the systematic processing of legal asylum and immigration applicants, I am concerned about how any of its fragile systems will cope with the demands made on them by both legal and illegal immigration after Brexit. Having lost sight of at least 631,000 legal applicants—a figure that the then Minister confirmed during the passage of the last immigration Bill through this House—and having no record of who has left the country, how on earth will border officials identify, let alone question and detain, individuals suspected of involvement in hostile activity for or on behalf of another state?
Like the Joint Committee on Human Rights, I believe that the definition of “hostile act” is extremely wide, and I worry about the lack of any threshold test before a person is detained and examined. The Minister confirmed that the Government intend to publish a draft code of practice before Committee, which I suggest will need the closest scrutiny.
In responding to proposed amendments to Clause 21 and Schedule 3 of the Bill, the Security Minister in the other place set out in some detail the Government’s riposte to the human rights committee’s concern that access to a lawyer was not adequately protected. The fact that access to such lawyers is currently patchy suggests that his explanation will need to be scrutinised in Committee.
My second general concern is about the European arrest warrant, which many noble Lords have mentioned. The other day I listened to a lecture by the EU’s head of counterterrorism, in which he deplored the potential loss to other European countries of UK intelligence in particular after Brexit, emphasising how vital an ingredient it was to all their antiterrorist operations. Of course, bilateral arrangements can be made with each one of them, but there can be little doubt that in the context of European security the European arrest warrant is a vital ingredient. The Security Minister in the other place alleged that the proposed amendment was not needed because the Government were already negotiating for the European arrest warrant, or something as identical as possible, to apply. Could the Minister please confirm that this is so?
I turn to my other concerns. I share the human rights committee’s concern about the wide scope of Clauses 1 and 2, and echo its view that to criminalise the publication of an article that may be worn or displayed in a private place risks catching a vast amount of activity and being disproportionate. The Minister indicated that the Government intend to update Section 13 of the Terrorism Act 2000, on which Clause 2 of the Bill is based, for the digital age. I hope that update will be available before Committee. In that connection, I note the Government’s reassurance that the existing safeguards were adequate following the human rights committee’s concern that Clause 3 may capture academic and journalistic research as well as those with inquisitive or even foolish minds. I hope that is true.
Acknowledging the views of the noble Lord, Lord Faulks, about the need for convicted terrorists to be sent to prison but also the concerns of the noble Lord, Lord Marks, about the current situation in our overcrowded and understaffed prisons, I am concerned that insufficient thought has been given to the implications of the increased sentences in Clauses 7 to 11. As Chief Inspector of Prisons I inspected both HMP Maze, which housed terrorists in Northern Ireland, and the special separation unit in HMP Belmarsh, which housed both Northern Ireland prisoners, some of whom were on hunger strike, and others convicted of terrorist offences. In both cases, I was very concerned about the lack of support for staff, who were put under immense strain, particularly mentally, because of the intensity of their task and their subjection to propaganda. Do the Government intend to separate terrorists from other prisoners and, if their numbers build up, do they intend to establish a Maze? Either way, consideration needs to be given to what regime might be imposed on terrorist prisoners and what additional resources, including management, support and training, ought to be provided for their guards.
Finally, I agree with all those who have recommended that the Prevent strategy be independently reviewed. I am very glad that the noble Baroness, Lady Warsi, said what she did, because Muslims risk being demonised by the failure to engage with them. If the Government are so keen on revising the legislation as a whole, why not all of its parts, including Prevent?
Lord McInnes of Kilwinning (Con)
My Lords, I, too, begin by congratulating my noble and learned friend Lord Garnier and my noble friend Lord Tyrie on their excellent maiden speeches this evening. We have had a good glimpse of the contribution that they will make to your Lordships’ House in the coming days, weeks, months and years. The noble Lord, Lord Ramsbotham, mentioned the difficulty of being the 25th speaker. The 26th discovers that he has no original thought whatever. However, I will try to let your Lordships know what I think about our discussion this evening.
The priority of any Government must be the protection of their people. I am therefore very pleased to see this Second Reading before your Lordships’ House. The updating of our counterterrorism legislation following the horrific terrorist attacks in Manchester and London last year is essential. It is fortuitous that the Bill comes before us at this time, when it can incorporate measures that, in Part 2, reflect our response following the deplorable Salisbury attack.
The very nature of terrorism is that those who wish to wage war on innocent people and spread terror will always try to find means to circumvent existing legislation. It therefore behoves all of us to ensure that the legislative framework within which our excellent and brave security forces need to work is flexible and not only up-to-date but predictive in identifying future threats to our country.
As the Bill makes progress through your Lordships’ House, it will, correctly, face significant scrutiny. Some aspects of this scrutiny have already been requested at Third Reading in the other place, when many Members there gave their support to the Bill contingent on the scrutiny of your Lordships’ House. It will therefore lie with this House to ensure that freedom and safety are maintained within the confines of the Bill.
Given the breadth of legal and security knowledge and expertise in the Chamber, which we have already heard today, I shall limit my remarks to three areas. The first is Clause 1 and expression of support for proscribed organisations. Like my noble friend Lord Faulks and the noble Lord, Lord Anderson, I agree that the Bill as drafted allows the correct balance between ensuring freedom of expression and allowing our security services to pursue those who seek to radicalise others and use expressions of support in a reckless manner.
As the noble Lord, Lord Anderson, intimated, it took nearly 15 years before Anjem Choudary, the so-called preacher of hate, could be imprisoned, and of course he is about to be released. The same man is widely acknowledged as having radicalised many, leading to their deaths as well as the deaths of others. He maintained his freedom by using the law and keeping ahead of it, moving from one proscribed organisation to another. I hope that the Minister will resist significant dilution of the clause, and so ensure that our justice system can adequately deal with the Choudarys of the future.
I turn to Clause 4, which deals with designated areas. I am pleased to see that among the reasonable excuses that will be considered are those of humanitarian workers and those who work for the United Nations. Many of the best professionals and NGOs across the world are British, and it is important that we do not allow that soft power to be undermined or stopped because they happen to work in the most dangerous parts of the world. The very reason a location may be designated often goes hand-in-hand with the humanitarian requirements of a failed state. I seek reassurance from my noble friend the Minister that, provided there is stringent verification of the humanitarian nature of the work, the Government would consider the kind of pre-registration used in Denmark, mentioned by the noble Lord, Lord Anderson, this evening, or consider the suggestion made by the noble Baroness, Lady Hamwee, of pre-authorisation for those who work in NGOs, journalism or other fields where we need to ensure that British subjects are able to go into dangerous areas of the world.
Finally, I shall deal with Clause 19, on Prevent. I have listened very carefully to the noble Lord, Lord Stunell, and the noble Baroness, Lady Howe, as well as my noble friends Lady Warsi and Lady Barran. Of the four pillars of the Contest strategy, the effectiveness of Prevent is always the most difficult to measure. This has led to regular and some well-founded public criticism of Prevent, and an amplification of publicly embarrassing cases. It is also clear, as my noble friend Lady Warsi told the House, that the Prevent strategy has failed to engender confidence in many of the communities with which it was originally suggested it would build cohesion, specifically our Muslim communities. But we need to keep this criticism in context. As my noble friend Lady Barran intimated, in 2016-17 there were no fewer than 6,033 referrals through Prevent, 20% of which made it to a Channel panel. That is over 1,000 vulnerable people, while 300—as the noble Lord, Lord Stunell, said—were able to receive further Channel support after that referral.
At the same time, some 2,700 were signposted to alternative services, mostly in education. That suggests to me that there is a government pathway that is providing, as my noble friend Lady Barran suggested, safeguarding to very vulnerable, often young, people in this country. I would be very suspicious and concerned if we were to undermine that process in any way before we were clear that internal review and the opportunity to build confidence in communities—using the local government mechanism that will be available, should the Bill pass this House—will allow us to build community cohesion, and allow the Prevent strategy and safeguarding to continue.
I appreciate that Prevent is not perfect and has significant hurdles to overcome if it is to properly build confidence with many. But there is an opportunity, and I hope the Minister will take it to ensure that the priority of reviews within the Home Office is building confidence in Prevent among communities across the UK.
It is also worth emphasising and dealing with the perception that Prevent is there to deal only with Islamic extremism. An increasing stream of Prevent’s work deals with right-wing extremism, often directed at Muslim communities. We cannot allow that to be forgotten as we move forward.
Lord Tebbit
What is this right-wing extremism? Is it people who want to reduce taxes and have smaller government and greater liberty?
Lord McInnes of Kilwinning
I thank my noble friend for his intervention. I refer to the 1,000 cases out of the 6,000 in 2016-17 that the Home Office report identified as providing a channel for those with extreme right-wing views that could lead to terrorism.
I therefore hope that the Minister will be able to reassure me that the focus of building public confidence will be a core element of continuing internal review.
The Bill protects the freedoms and liberties we all enjoy while fulfilling the state’s responsibility to protect all our citizens from harm. The Government must continue to do all they can to ensure that we have a flexible and fit-for-purpose framework that our security services may work within, keeping ahead of those who wish to cause harm. I look forward to the Bill’s progress through your Lordships’ House.
Lord Hogan-Howe (CB)
My Lords, I support the intentions of the Bill. I will say a little about the context that has not already been covered by the many speeches we have heard today, and will then say little about three of the clauses that have been mentioned. Before that, I will respond to the excellent speeches of the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Tyrie, both of which were informed and entertaining. The noble Lord, Lord Tyrie, who is not here at the moment, referred at the end of his speech to extradition cases. Although he talked about three of the inquiries that have taken place, he did not refer to one police investigation which delayed the conclusion of the first inquiry. Should there ever be a judge-led inquiry, as he would prefer, I hope that the Belhaj case that the Crown Prosecution Service decided not to pursue will be made available to that inquiry, as it would provide vital information that would help inform any future decisions in that area.
Secondly, the noble Baroness, Lady Warsi, has concerns about Prevent. I do not particularly share those, but I agree with her that cohesion and integration are a vital element in preventing terrorism in the future. Usually we see two elements where we get radicalisation: a lack of integration and Middle East foreign policy. Those two things tend to repeat time and time again. This is not necessarily my view of Prevent, but minority communities have become so concerned about it, and it is a strong thing, not a weak thing, to review something. The time has come to at least look at it and perhaps move on. It has achieved a lot but may yet achieve more if we are able to be flexible.
We are still reaping the effects of two civil wars which started more than seven years ago: one in Syria in 2011 and the other in Iraq a few years later. At least 12,000 people travelled from Europe to fight, particularly in Syria but also in Iraq. We know that at least 15% of the 900 UK people who went died, and that about 55% of them have returned. Some went for humanitarian purposes and some to fight. We have seen the effects of that terrorism on the streets of Brussels, Nice, Paris and, sadly and more recently, London. The next phase of our fight against terrorism is now evolving. I suggest that the Bill is a good time for us to reflect on our preparations for that future.
It will have three distinct elements that we need to plan to combat. The first is the potential for those foreign fighters to return. They are brutalised, and dangerous because of their training and their motives but also because they are now in contact with a network of other terrorists, and they may still perpetuate conspiracies. The second is the release in the coming years, and even now, of the first wave of prisoners convicted of terrorist offences during the last five to seven years. Sometimes they were convicted of other criminal offences, because, although we believed that they had a terrorist motive, we could convict them only of a criminal offence.
In prison they met people called criminals. Many of the people who we are suspicious of and worried about do not have a criminal background. That is of great benefit, because it means that they do not have access to organised criminals, who are the means by which criminals generally get hold of firearms. They have now met a lot of people in prison, and on their release they will still have those associations, along with the people they met in prison who may have become radicalised.
Finally, the terrorists will have learned from the first series of prosecutions, because the prosecutor reveals the tactics by which they were caught, and that means that they will adapt. We see that with various generations of terrorists, who adapt their tactics to meet their failures, as they see them, when successful prosecutions occur.
I will not repeat the numbers we have already heard for what I always think of as the pyramid of doom: the 20,000 subjects of interest, the 3,000 subjects of current interest, and, as we heard from the noble Baroness, Lady Manningham-Buller, the 500 security service operations. There are a further 600 counterterrorist police operations, so that is over 1,000 live operations dealing with this threat.
The point I am supporting is that it is clearly fair to say that we have a serious threat now, as described in the threat assessment, but the numbers alone are concerning. It is a real threat that we must all think about. It is, of course, evolving, and the vectors through which the threat operates are evolving too. We need to respond in a proportionate and incremental way; I would argue that, in legislative terms, the UK has responded incrementally. We have not seen the mistakes that, sadly, those with more experience of terrorism in Northern Ireland saw, when general internment caused more problems than it solved. We should approach the problem incrementally and see whether we can adapt; then, if we need to legislate, let us legislate to the problem, not use generic legislation. We need always to keep a majority in our society—and our minority communities in particular—on side.
The question is: if the threat has evolved in a way that requires new legislation, what is it that we are trying to address? The simplicity and volatility of the threat require us to intervene earlier to protect the public, individuals and groups. We need to make sure that a process that goes from planning to attack in a matter of hours is interrupted quickly. Also, offences previously considered peripheral and minor are now seen as indicative of a volatile, unpredictable actor. We do not want to wait for high-level offences before taking action, given how rapidly that threat can escalate; we need lasting disruptive impact and control of offenders, which is where lengthier prison sentences can have an impact.
The noble Lord, Lord Marks, is not in his place, but I agreed with a lot of what he said; the tests he applied were sensible. I agreed with an awful lot, but one of the reasons he gave for not extending sentences, if I understood him correctly, was that our prisons are already full and therefore we cannot get more prisoners in. If that is the case, we none the less ought always to find room for terrorists, even if that means excluding other people. In fact, the prison population is starting to drop now—albeit, I would argue, not enough, but we must always find space for terrorists if we consider that they are committing serious offences.
We must also think about technological changes; a significant amount of our coverage of people involved in terrorism concerns their online persona and methods of communication. As we have heard, it is 20 years since legislation set out the various ways in which we can monitor that technology. Particularly in the streaming area, this is a good time to make sure that we can monitor in the way that we need to, and prove offences. We know that radicalisation is happening in a very powerful and influential way by streaming video. It seems to be an incredibly useful way for people to get over quickly some very dangerous methods of implementing terrorist attacks.
There have been some criticisms of the Bill already and we have heard more of them today; I do not necessarily support them all. In the debates to come, I am sure that improvements will be made forensically to the eventual Act when it is concluded. There is a concern that the Bill will capture innocent or accidental online activity, but none of the proposed offences is absolute, as they are in child sexual exploitation offences. Intent has to be proved. In any event, all cases must pass three tests, including sufficiency of evidence and public interest. I know the noble Baroness, Lady Hamwee, was not convinced by the public interest test, but I am; I think it is a thorough test, supplied by an independent prosecutor, with good lawyers in the CPS, and my experience is that they are quite hard to persuade of something I might find blindingly obvious.
Baroness Hamwee
Perhaps I could explain that my concern about the public interest test is that we should not be forced to rely on it; we should get the legislation certain and reliable rather than look to public interest as the mechanism to catch what we have not been able to solve in the legislation.
Lord Hogan-Howe
The noble Baroness did make that point, and I accept it. My third point is that the prosecution has to overcome any reasonable excuse defence. That is the third measure which I think is helpful in reassuring those who might not be persuaded by the first two tests. Only rarely will a single action or statement be a basis for a charge, as we have seen on many occasions. We heard of the Choudary case, which I shall come back to. In that case, it took an awfully long time to prove a criminal offence, and I think that this strikes the right balance between protecting society and protecting the rights of the suspect.
I will mention a couple of clauses which I particularly support. The first is Clause 4. I argued for this measure about two or three years ago and it relates to the concerns of the investigators. I argued that having a designated area is particularly helpful. Investigating an offence that has occurred within a failed state, such as Syria or Iraq, can be particularly difficult. There is no one at the border keeping a clear register of people who have travelled across it, and there is no easy state mechanism for gathering evidence, particularly from number plate recognition, CCTV, hotel records or anything else that you might want to access. That is particularly difficult in a failed state. So saying “Please give me all the evidence to prove that offence” when people return is a particular challenge for investigators.
I accept that we have intelligence, but the distinction between intelligence and evidence is that we can use intelligence to gain evidence but only evidence can be put before a court. So this is an important change. I understand that some amendment might be needed in relation to humanitarian cases, which I do not think anyone is seeking to stop in any way, but I think that it is a particularly helpful development, and certainly I support it. In my view, it should have happened quite some time ago. Of course, it will not capture the people who are presently in Syria or Iraq, but that is not the intention here, and there is a cooling-off period of, I think, one month for future offences.
The second thing is that putting a responsibility on the traveller to explain why they went to a certain place would not be unreasonable. The Foreign Office will usually have issued a travel advice warning and a designated area warning—and finally there is the reasonable excuse defence. Given the threat that we face, these are not unreasonable things to ask of someone who chooses to travel to a war zone and is acting in a potentially treasonable way, as has been suggested in the past.
I also support Clause 1. I will not say a lot more about it, as others have covered it better, but I think that we have to capture the Choudary-type offence. Clever interlocutors or demagogues will adapt to the latest movement of the law and we have to adapt with them. They will always be clever and try to find a new way round it, so that we have to adapt. Although not the only one, Choudary was an example of where, no matter how hard the security services tried, they could not persuade the prosecutor that they had a case. I do not think that there was a lack of evidence; the law was not helpful and did not allow something that we all agreed was wrong to be prosecuted.
My final points are small ones. The noble Lord, Lord Rosser, mentioned the legislation relating to flags and the fact that removing a flag could cause tension. That is a fair point, but most police officers use discretion when making an arrest or an intervention. The display of a flag can cause tension too. People might remember an incident about four years ago in Parliament Square. When I was in charge of it, the Met was criticised for not taking from someone what appeared to be an ISIS flag. The officers were quite right to decide not to do so. First, the person involved was a seven year-old child and, secondly, the officers could not be absolutely sure that the flag they saw with Arabic writing on it was in fact a proscribed flag. They made a perfectly reasonable decision based on discretion. We expect that of officers and I do not see this as a particular problem.
I hesitate to make my final point because it concerns resources—although the noble Lord, Lord West, raises these points, so I do not see any reason why I cannot. I entirely accept that the Government have supported the police and the security services by maintaining resourcing for counterterrorism policing. That is a fair point and there is no argument about it. However, when you lose 20,000 police officers and probably 10,000 police community support officers, it is a real challenge. There are other things as well, but two-thirds of Security Service leads come from community contacts. That comes through neighbourhood policing, and that is the first thing to go when you lose 20,000 cops. So it is an important point and it needs to be considered.
Finally, I remind the House that the threat remains severe and is evolving. The society that we live in has progressed since the Terrorism Act 2000 and this Bill is a reasonable response. It should command the support of the majority and minority communities and, I argue, of this House.
Lord Bethell (Con)
My Lords, I would like to start by saying what a memorable pair of maiden speeches they were. I am a newcomer, so I can say—quite literally—they were the best I have ever heard, a real showcase of two great parliamentary careers, and I welcome them both. I would also like to thank the Minister, who did an excellent job of capturing the essence of the dilemma facing us. How do we protect public security while simultaneously safeguarding civil liberties, and at a time when technology is changing very quickly?
My noble friend Lady Warsi and the noble Lord, Lord Ahmed expressed very well the challenge to the Muslim community in the UK and the noble Lord, Lord Hogan-Howe, talked very interestingly about the strategic challenge the police face. I want to come at it from a different direction and declare an interest. I am a founder of a campaign against neo-Nazi fascist and racist extremism, sometimes called far-right extremism, but we will be careful about that epithet. I would like to give the perspective of someone who has worked as a volunteer on the front line against the threat of that kind of extremism, against the kind of people who spend their time online trying to recruit, foster hate and agitate for violence. I ran a campaign 10 years ago to challenge the distasteful and disruptive politics of that kind of extremism. It brought me face to face with supremacists, neo-Nazis and agitators for terror. I spent a lot of time personally rebutting and challenging these keyboard warriors, and have some first-hand experience of how that kind of online extremist propaganda is deliberately calculated to foment civic rage and acts of violence. I came to realise that from a legal and technical point of view, we are really struggling to keep up. Many of the activists of the extreme far-right are thoughtful, systematic strategists who study the law, network technology and human psychology deliberately to create turmoil in our society and to groom individuals into their ideology and potentially into acts of criminality.
I went into this enterprise keen to preserve democratic values and free speech, but came to understand that our laws need to be updated. With some regret, I realised it was necessary to prosecute those who, through their words, images and videos, were spreading hate, and to counter the advantage they had through modern technology. I wrote a report 10 years ago, A Shadow over Democracy, which projected a lot of our fears at the time. I am concerned that those predictions have come true. I remember earlier this year Mark Rowley, the outgoing Assistant Commissioner of the Metropolitan Police, warning about four foiled right-wing terrorist attacks, the potency of leaders like Tommy Robinson, 24% of Channel panel referrals earlier this year being from extremist groups at the neo-Nazi end of the scale, and this awful interdependent ratchet between Islamist terrorism and far-right terrorism that we need to try to break. The internet has played a central role in these developments. It has provided these groups with a network to spread their hate, to leap borders, to raise money to recruit people and to circumvent the societal norms and laws around incitement to hate and violence. I keep a watchful eye on what is happening in Europe and America, and fear we may be looking at an increase in this area. It is for that reason I welcome this Bill, and in particular Clause 1, which makes reckless statements of support for proscribed organisations illegal. I took on board what the noble Lord, Lord Marks, said—I thought he put it very well—but from my experience, it feels like we need to tighten up the law in this area.
I welcome Clause 3, which tightens up the law around streaming and downloading materials useful to committing or preparing an act of terrorism. I have seen how individuals have been inspired by words and videos to perform acts of violence. However, I was one of those researchers who clicked on these videos a lot, and I do not want to be captured by this law. Therefore, I urge the Minister to stretch every sinew to reassure people like me that we have a reasonable excuse and that this measure will not somehow be lost because of that. The noble Baroness, Lady Hamwee, made very good points on that.
Lastly, I welcome Clause 5, which strengthens the Terrorism Act 2006 and measures concerning the dissemination of material that might encourage people to commit acts of terrorism. Ten years ago, we were warning that self-radicalised, lone wolf, white-supremacist terrorists were a big threat, but it seemed distant and unlikely. However, since then, we have seen Anders Breivik, the Norwegian far-right terrorist, Darren Osborne, the Finsbury Park mosque attacker, and Thomas Mair, the far-right terrorist who killed Jo Cox. In that context, Clause 5 seems both proportionate and timely.
The one nudge I would give the Minister concerns the culpability of the distribution network—the tech giants who own the networks. It is obviously beyond the ambit of this Bill to cover that, but I know that the DCMS is looking at its White Paper and at potential legislation in this area. I urge the Minister please to look at that. A lot has been done, I know, but a lot more needs to be done.
Lord Paddick (LD)
My Lords, this has been an interesting and well informed debate. We also had the joy of listening to two excellent maiden speeches. While listening to the noble and learned Lord, Lord Garnier, I wrote down the words, “Amusing and informative”. Unlike during his previous maiden speech, noble Lords were riveted by what he had to say. I am sure the noble and learned Lord will prove that he has his uses in this House. “Generous and thoughtful” is what I wrote while listening to the speech from the noble Lord, Lord Tyrie. His electoral record in Chichester speaks volumes about the esteem in which he is held generally. Judging by what he said this evening, I am in no doubt that he will be fearless in his future contributions in the House. I also thank the Minister for comprehensively introducing the Bill.
I pay tribute to the police and the security services. During consideration of previous legislation, I had the privilege of going both to GCHQ and to the security services headquarters. I was impressed not only by the capability of those working in the services but by their integrity. The noble Lord, Lord Hogan-Howe, and others talked about the numbers involved—the number of suspects and the number of operations going on—which just goes to prove how successful the police and the security services have been, despite the tragic events that we have seen in recent years.
I am not wrong in saying that there has been a general consensus, on all sides of the House, that the legislation—whatever it ends up as—needs to pass the test of being necessary and proportionate. The noble Lord, Lord King of Bridgwater, the noble Baroness, Lady Howe of Idlicote, and even the noble Baroness, Lady Manningham-Buller, all suggested that that was necessary. There were perhaps two notable exceptions to that consensus, as that was not something that the noble Lords, Lord Blair of Boughton and Lord Tebbit, would support.
I say to the noble Lord, Lord Tebbit, in particular that I was the police spokesman after the bombings on 7 July 2005. I was in this House when the terrorist incident happened in which one of our police colleagues was killed. I was at home, a 10-minute walk away from London Bridge, when that attack happened. That is not the first-hand, tragic experience that the noble Lord has had, and I completely understand that his experience has deeply affected him. We should not lose sight of the impact that these incidents have had on the victims.
So there is a consensus, generally. Clearly, as the noble Lord, Lord King, said, there may be some differences of opinion as to what is necessary and what is proportionate. Obviously, we accept that this legislation has already been through the other place. But, as the noble Lord, Lord McInnes of Kilwinning, said, some in the other place said that they agreed to the legislation being passed subject to it receiving scrutiny in this House, and that is clearly what we must do.
We on these Benches will support any necessary and proportionate measure that makes the United Kingdom safer or will help defeat terrorism, but we will not support measures that we consider to be disproportionate and counterproductive. Colleagues on these Benches, particularly my noble friend Lady Hamwee, highlighted evidence from the Joint Committee on Human Rights—concerns that not only we share but the current Independent Reviewer of Terrorism Legislation, Max Hill, also shares. We offer a similar view to his. There are some good, pragmatic measures in the Bill, but there are others that go too far.
As the noble Baroness, Lady Jones of Moulsecoomb, suggested, only in the most extreme cases should the police be given such wide discretion that they can arrest someone engaged in potentially completely innocent activity where the person arrested has to rely on a reasonable excuse defence. Having a reasonable excuse defence in legislation is no protection from an innocent person being arrested and potentially charged.
I echo the concerns of the noble Baroness, Lady Warsi, and the right reverend Prelate the Bishop of Newcastle. If I understand my noble friend Lord Thomas of Gresford correctly, with “reckless”, either it is an objective definition of reckless, in which case we are into the realms of people being arrested for what they think or simply for expressing their view, or we are looking at a subjective definition of reckless, which is what the current law says. In that case, the provision is superfluous to what is already in existing legislation. Clearly, we need to consider these issues carefully.
Similarly, in terms of other provisions in the Bill, it is not too difficult to think of circumstances where a teenager innocently takes a selfie in a mate’s bedroom not realising that there is an ISIS flag on the wall behind him and posts that photograph on Facebook. The next thing, that individual is in police custody—a completely innocent action that results in them being arrested.
Under this Bill, it would also be an offence to click on a page on the internet that has,
“information of a kind likely to be useful to a person committing or preparing an act of terrorism”.
Just one attempt to look at the document could result in that individual being arrested, with a potential term of imprisonment not exceeding 15 years. The Minister said that previous legislation covered only situations where documents were downloaded and now we have a situation where people are streaming or simply just looking at documents. Not too long ago, we in this House considered at length internet connection records. Surely that sort of thing will provide the necessary evidence, even if people are looking at or streaming information rather than downloading documents. There is a lot to be considered here in terms of whether the legislation is necessary or whether it goes too far. Of course, it was only at the last minute that that particular provision about looking at things on the internet was changed from being one where someone looks at a page on the internet, goes back to it and goes back to it again before they can be convicted to being a one-click offence.
The other last-minute provision that we have serious concerns about is the Secretary of State designating areas overseas as being illegal for UK citizens or residents to travel to. It could become illegal for a Syrian refugee who is resident in the UK but whose family still lives in Syria to visit them, even though his mother or father could be dying. Again, the Government will say that there is the “reasonable excuse” defence, but how sick does your mother have to be before it is considered reasonable for you to travel to a designated area? There would be no reason in law why you should not be arrested and charged, whatever the circumstances. The Government will say that the police are not going to arrest innocent people, but the history of policing is littered with cases of innocent people being wrongly arrested where legislation has been drawn too broadly. Sometimes they have even been charged and wrongly imprisoned.
Surely there must be a way for academic researchers to get permission in advance in order to look at offending pages on the internet, or that grieving family members or humanitarian workers can get permission to visit these areas in advance. As my noble friends Lady Hamwee and Lord Thomas of Gresford said, should there not be an opportunity to get the “reasonable excuse” defence in first?
Clearly, offences should carry a penalty that both deters and keeps innocent people safe, but sentence inflation, as suggested in this Bill, will simply add to the crisis in the Prison Service, as my noble friend Lord Marks said. Contrary to what the noble Lord, Lord Hogan-Howe, said, this is not about the fact that prisons are full and therefore we should not put terrorists in prison. This is about the difference between prisons being a place where people with extremist views can be rehabilitated and prisons being a place where radicalisation can become endemic because of overcrowding and the lack of ability of prison staff to carry out any sort of rehabilitation. Surely a smaller prison population would be better, in that we know that prisons are places where people, being at their most vulnerable, are more easily radicalised. Keeping people in prison for longer periods of time surely gives more opportunity for that to take place.
As many noble Lords have said, in some communities there is deep suspicion about Prevent, and along with Independent Reviewers of Terrorism Legislation, the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Warsi, we support not only an independent review of Prevent but a recasting of the programme with a much more community-based approach that is incorporated into other safeguarding functions. Those at risk of being radicalised are also in danger of being exploited sexually or being drawn into criminal gangs. Prevent should be part of a broader safeguarding process rather than people being potentially stigmatised as a result.
I have to say that there was a bit of conflict between what my noble friend said and what the noble Baroness, Lady Barran, said in terms of the statistics around referrals to Channel panels. On one reading, it would seem that only a small proportion of people who are referred are actually considered to be at risk of being radicalised, while on another reading it seems to be a rather higher proportion. Again, we need to consider those issues very carefully.
Finally, there is the extension of Schedule 7. We agree with the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson of Ipswich, that Schedule 7 powers and the powers in this Bill should be limited to those who are reasonably suspected of being involved in the commission, preparation and instigation of acts of terrorism.
Lord Anderson of Ipswich
On a point of order, I have always accepted that the Schedule 7 power to stop should be exercisable without the need for reasonable suspicion. I said that some higher threshold should perhaps be required for some ancillary powers, for example those to detain and examine electronic devices.
Lord Paddick
I am grateful to the noble Lord, but the fact is that at the moment, if you are crossing the UK border, you can have your mobile device or computer seized and examined even without any reasonable suspicion. Extending that to those who are now engaged in hostile activity would seem to make this issue potentially worse.
I understand that the Bill is a response to the Prime Minister promising to harden the country’s defences against all forms of hostile state activity following the attempted assassination of the Skripals, but can the Minister confirm whether that was an act of terrorism covered by the existing Schedule 7?
As I have said, we on these Benches will support any reasonable and proportionate response that makes this country of ours safer. However, we believe that large parts of the Bill are unreasonable, disproportionate and could potentially make us less safe, although we look forward to being convinced otherwise.
Finally, I completely agree with the noble Baroness, Lady Warsi, on the Government’s disengagement with Muslim organisations. Individual members of those communities may have said things that they now regret, but as a result the Government refuse to engage at all with those communities. At the end of the day, a former head of police counterterrorism said that the police and security services alone will not combat terrorism, but organisations working closely with communities will defeat terrorism. If communities are to work with us to defeat terrorism, we need to engage with them.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, the first duty of a Government is to keep their citizens safe and have legislation on the statute book that gives powers to the appropriate authorities to keep people safe. I will always support the work of the Government in this regard. That is not to say that I will not question and probe them and seek to amend legislation when we believe that they are not striking the right balance. That is the point of our being here: to make legislation better and more effective; to fully understand the Government’s intentions; and to avoid as far as possible the problems caused by unintended consequences —a point made earlier by the right reverend Prelate the Bishop of Newcastle.
The noble Lord, Lord Anderson of Ipswich, speaks with great knowledge and experience of these matters and the House will benefit enormously from his contributions. I hope the Minister will answer the points he made.
It would not be right to respond to a debate on counterterrorism and border security without putting on record our thanks to and gratitude for the members of the security services and the police who have done so much to keep us safe, as well as those of the other emergency services, such as the fire brigade and the ambulance service, who are there when they are needed. They save people’s lives, as do NHS staff—not only doctors and nurses but the other healthcare professionals and ancillary staff who work together to deliver the services we all rely on, particularly in times of emergency.
We have seen terrorism on our streets too many times, most recently on Westminster Bridge and at Carriage Gates, at Manchester Arena, London Bridge and Borough Market, and at Parsons Green. There were also the terrible events in Salisbury—the poisoning of Sergei and Yulia Skripal, then the poisoning of Dawn Sturgess and Charlie Rowley on 30 June, leading to the death of Dawn Sturgess on 8 July. I express my sympathy to all victims of these terrorist incidents and their families. This is very real and we are lucky that many more plots and plans have been prevented, as the noble Baroness, Lady Williams of Trafford, mentioned in opening the debate. The noble Lord, Lord King of Bridgwater, set out in his contribution the number of offences and convictions and the potential terrorist operations that have been prevented. We thank all those heroes for their bravery and professionalism; they were there when we needed them to keep us safe.
The noble Lord, Lord Tebbit, was right to remind us of the names of parliamentary colleagues who lost their lives and were murdered by terrorists. I would add the name of Jo Cox, MP for Batley and Spen, who was murdered by a terrorist with links to the far right in her constituency on 16 June 2016. The terrorist shouted “Britain First” as he stabbed her to death outside the library in Birstall, where she was due to hold a surgery.
Lord Tebbit
The noble Lord referred to the murder of our parliamentary colleague Jo Cox by a far-right terrorist. He was not a far-right terrorist. He was an unbalanced man who was obsessed with the Nazis, the National Socialist German Workers’ Party—a left-wing party.
Lord Kennedy of Southwark
We will have to disagree on that point.
As I said, I support the Bill and will always seek to make a contribution in your Lordships’ House that supports the work of those who seek to protect us and to provide constructive opposition to improve legislation before us, as does my noble friend Lord Rosser.
Before we get to the Bill itself, I join other noble Lords in congratulating both noble Lords who made their excellent maiden contributions today. They bring considerable experience from the House of Commons where they served for many years with distinction. The noble and learned Lord, Lord Garnier, served as the Solicitor-General in the first part of the coalition Government. I lived and worked in the east Midlands for many years and, although I am a Londoner, I have much affection for my time there and in Leicestershire. I know the noble and learned Lord’s former constituency very well.
The noble Lord, Lord Tyrie, was the formidable chair of the Treasury Select Committee for the last seven years of his time in the House of Commons, having succeeded my noble friend Lord McFall to that position. In a previous life some years ago I appeared before a House of Commons committee. It was a scary experience. I am very pleased that the noble Lord was not a member of that committee; I would have been very worried about his forensic questioning. I am now worried about some forensic interventions in future debates, but I know that we all look forward to both noble Lords’ contributions in this House, which they will make many times.
We can support the Bill in general and will seek to make improvements during its passage through this House, building on issues raised in the other place and in today’ debate. The Bill is in two parts, with the first making changes to the law following reviews by the Government of their counterterrorism strategy and of counterterrorism legislation in force, while Part 2 seeks to provide new powers in respect of the detention and questioning of people at ports and border controls suspected of being involved in hostile acts on behalf of and in the interests of another state outside the United Kingdom.
As my noble friend Lord Rosser pointed out, a number of amendments to the Bill were tabled fairly late in the day in the Commons and were added with little scrutiny. Those amendments in particular will require detailed examination by the House. There are Members on all Benches, many of whom have spoken today, who are expert in providing scrutiny and challenge. In particular, I refer to the amendments made to the Bill in the other place covering entering and remaining in a designated area, the publication of images, obtaining or viewing material over the internet, increases in maximum sentences and extended sentences for terrorism offences.
My noble friend Lord Rosser outlined concerns about proportionality, particularly arising from amendments introduced in the House of Commons. The noble Lord, Lord Marks of Henley-on-Thames, drew out some contradictions in the Bill that will need to be examined further. The noble Lord, Lord Janvrin, made a very important point about people being radicalised in prison. I hope that the noble Baroness, Lady Williams of Trafford, will address that in her reply. That is not to say that we do not agree with the proposals but they need proper scrutiny, which they have not received so far.
Legitimate concerns have been raised by Bond, the UK network for organisations working in international development, humanitarian aid and peacebuilding. Can the noble Baroness tell us what the protections for aid workers in high-risk jurisdictions are? She may not think that these proposals pose any risk to them, but that view is not shared by everyone: we need to address the legitimate concerns raised by NGOs in this regard.
It would also be useful if the noble Baroness addressed the protection afforded by “reasonable excuse”. Is she really satisfied that it provides protection to mitigate the impact on individuals? The wider point was made about banks and other financial institutions taking derisking measures such as stopping bank payments and closing the bank accounts of NGOs. Journalists and foreign correspondents of UK news organisations can sometimes find themselves in very difficult and dangerous places. What they find and report on is vital, shining a light on those individuals, organisations and Governments, including dictatorships, who work in the dark, who abuse, oppress, terrorise and murder people, and who do not want their activities to be widely reported on. These activities can be against their own citizens or citizens of another country.
I made the point earlier about unintended consequences of legislation. We must be very mindful of that during the passage of the Bill, which I hope the whole House can see could have far-reaching effects on both international aid and journalism if not handled properly. I very much support the protection of press freedom and journalistic sources, as I support the victims of press abuse and their right to proper redress. Again, it will be important to clarify the intention of some of the clauses so that legitimate investigative journalism and reporting is not caught up and criminalised. It may be that, through regulation and guidance, protections will be sufficiently strong, but this is an important area for our deliberations.
The noble Baroness, Lady Warsi, made a powerful speech which the Government would be wise to listen to carefully. Getting the balance right on this legislation will be crucial. I was very sorry to hear about the abuse the noble Baroness has received on social media, which I condemn. The internet and social media is a wonderful thing and can enrich our lives, but the darker side and the abuse must be stopped. The Government really have to address that issue separately from the Bill.
Of course, we fully understand that the Government have to deal with the issue of foreign fighters returning from abroad, but any suggestion of updating and using the concept of treason, a law dating from 1351 and not used since 1945, is misplaced. There are other, more appropriate means of addressing these issues. I also think that we undermine, not uphold, the rule of law by removing the right to private legal advice. My honourable friend in the other place, Nick Thomas-Symonds MP, reminded us that the Appeal Court upheld this principle recently in the case of the Serious Fraud Office v Eurasian Natural Resources Corporation. Lawyers are subject to professional standards and it is right that they are. Illegal activities should be dealt with appropriately, but we should not lose the principle of being able to seek advice from a lawyer in private. Proposals in the Bill seek to change that, and the reasons given are that the person in question may want to contact someone in order to alert them that they have been stopped at a border crossing, or that a lawyer would not adhere to proper professional standards and would pass information on or would leak information inadvertently. There is a better solution, which is to establish a panel of lawyers, subject to proper rules and regulations, who would be able to give legal advice. The advice would remain private, retaining an important legal principle but also safeguarding against a person misusing the right to seek advice from a lawyer in private.
My noble friend Lord Rosser referred to the European arrest warrant and the important role it plays in bringing suspects quickly into the criminal justice system. We need a deal to secure the European arrest warrant and it will be a disaster if this cannot be assured. Criminals will be the only beneficiaries. It is worth noting that the Government sought a European arrest warrant against the suspects in the Skripal incident.
I fully endorse the comments of the noble Lord, Lord Kirkhope of Harrogate: there must not be even one hour’s gap in the work of sharing information with other European partners, as to allow this will benefit only the terrorist who is seeking to harm our country, citizens and residents.
The noble Baroness, Lady Manningham-Buller, made an important point about getting the balance right and the importance of co-operation with our partners. I accept the point she made about the pace and scale of operations and the need to plug a number of gaps in our legislation to address certain issues.
My noble friend Lord Rosser spoke about the Prevent programme and I fully endorse his comments.
In conclusion, this is an important Bill covering many serious issues for this House to consider over the coming period. I look forward to working with others to improve what is before the House today and to send a much better Bill back to the other place for its agreement. With that in mind, I hope the Government will continue to work in the consensual manner they have demonstrated to date.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have taken part in this very serious debate. We should never forget the nature of the issues we are discussing. Contributions throughout the debate have reminded us just what we are dealing with. I echo the tributes paid to not just the police but the emergency services, who dealt so bravely with the terrorist threats we faced last year, and to my noble friend Lord Tebbit, who spoke not only as a victim of terrorism but for the victims who can no longer speak.
It was particularly pleasing to hear the two maiden speeches. When my noble and learned friend Lord Garnier told the House that he had made his maiden speech in the middle of the night, I did not know whether he had actually engineered that because I arranged for my maiden speech to be in the Moses Room so that not many people would hear it. He brings to this House many years of experience practising at the Bar and of course was Solicitor-General for two years. Drawing on his experiences, he has given us some valuable insights into the provisions in the Bill, particularly those relating to the changes to the criminal law and sentencing. We also heard from the noble Lord, Lord Tyrie. I am glad he is not “Lord Tyrie of Tyrie, Tyrie”, because that might be a bit of a mouthful. But I know he will hold the Government to account in this House with the same vigour that he showed during his 20 distinguished years in the House of Commons, including seven years at the chair of the Treasury Select Committee. I note that one of the accolades he earned in that time was,
“The most powerful backbencher in the House of Commons”,
so it was with some trepidation that I listened to his speech, but I was very interested in some of the things he said and I look forward to further discussions with him.
The many other contributors to the debate demonstrated yet again the considerable experience that the Members of your Lordships’ House bring to bear when scrutinising legislation such as this. I am sure that, given the length and breadth of the debate, noble Lords will appreciate that I cannot possibly answer every single question but, in addition to responding to the debate, I will endeavour to write a fulsome letter, which I will place in the Library. We have had the benefit of insights from a former Independent Reviewer of Terrorism Legislation, a former director-general of the Security Service, two former Metropolitan Police Commissioners, a former Chief Inspector of Prisons, and current members of the Intelligence and Security Committee and the Joint Committee on the National Security Strategy. We are so lucky to have such expertise, while other noble Lords bring to this debate their highly relevant experiences as members of the legal profession or academia.
As this Bill has already been through the House of Commons, where it was given a Third Reading by an overwhelming majority of 376 votes to 10, noble Lords have quite properly approached this debate from the perspective of our role as a revising Chamber. We have heard a range of views, as I have said. It was most important that the noble Baroness, Lady Manningham-Buller, my noble friends Lord King and Lord Tebbit, and the noble Lords, Lord Blair and Lord Hogan-Howe, reminded us how very real the threat of terrorism is. I welcome the broad measure of support for the Bill from the Opposition Front Bench and from many who spoke from the Cross Benches, while accepting that they, like other noble Lords, will want to scrutinise the detail of the Government’s proposals. I think we are in for an interesting Committee stage. I sense from the Liberal Democrats that they might be more sceptical in nature but, even in that, there were expressions of support from noble Lords there. I am sure that they will approach Committee in the same constructive manner that we have heard in the Second Reading speeches.
It is evident that noble Lords will want to probe some of the changes to terrorism offences, the increase in maximum penalties—that was clear—and aspects of the new hostile-state activity ports powers in Schedule 3. I welcome the opportunity to explain these provisions in more detail and respond to some other points that have been raised in the debate.
Regarding Clause 1, “Expressions of support for a proscribed organisation”, and the concept that these provisions might be an attack on the freedom of speech, noble Lords are absolutely right to raise that issue. The noble Lords, Lord Marks, Lord Thomas and Lord Ahmed, and the noble Baroness, Lady Jones, expressed concern that the extension of the offence of inviting support for a proscribed organisation would undermine that freedom of speech. The right reverend Prelate the Bishop of Newcastle also spoke about this issue. It is of course right that we uphold the right to freedom of expression, something which we value so highly in this country and is part of our core values. People are free to express any view they wish, even ones which the wider public might find distasteful, as long as they do so within the law and do not harm others. However, we are clear that any groups or individuals that cause harm to our society and promote hatred and division will not be tolerated. This measure is aimed at those who are reckless—“reckless” being quite a well-established word in law—as to whether statements that they make will encourage others to support a proscribed terrorist organisation. That type of activity is very serious. It can have a strong influence on individuals who are vulnerable to radicalisation, as some noble Lords pointed out, and can create a real risk of harm to the public. As such, it is vital that we are able to target those who seek to exploit others and lure them into terrorism, so that they can no longer skirt the fringes of legality—something that noble Lords have talked about extensively today.
Moving to Clause 4, the noble Lords, Lord Rosser and Lord Anderson, my noble friend Lord McInnes and the noble Baroness, Lady Hamwee, raised the designated area offence that it provides for and sought reassurance that it would not apply to those with legitimate reason to travel to a designated area. I can absolutely confirm that the offence as drafted includes a reasonable excuse defence, which will be available to individuals who travel to a designated area solely for a legitimate purpose—such as, as noble Lords have said, to deliver humanitarian aid or journalism, or indeed to attend a family funeral. The police, the CPS and the courts are familiar with this approach, and it works well in other contexts where an offence has a reasonable excuse defence. In practice, such cases are unlikely to come to court as they would not get beyond the police investigation or scrutiny by the CPS, which would be unlikely to conclude that there was a reasonable prospect of securing a conviction. We do not consider it necessary or helpful to take a different approach for this offence. Whether a particular excuse is reasonable will be highly dependent on the facts and circumstances of the individual case and cannot be prescribed in advance in the abstract.
The noble Lords, Lord Janvrin and Lord Hogan-Howe, asked whether the police have the resources to implement the provisions in the Bill. It is of course important that we ensure that counterterrorism policing has the resources needed to deal with the threat we face. That is why the counterterrorism policing budget has gone up by £50 million of entirely new money in 2018-19 to at least £757 million. This follows the £28 million of new money the Government provided in 2017-18 to forces across the country for CT policing to meet costs relating to recent terror attacks. I totally get the point made by the noble Lord, Lord Hogan-Howe, about the pipeline of people required to fulfil those roles.
The noble Baroness, Lady Hamwee, and the noble Lords, Lord Ramsbotham and Lord Anderson, talked about the definition of hostile state activity and questioned whether the definition in Schedule 3 is sufficiently precise. For the purposes of this power, hostile activity has been defined as the “commission, preparation or instigation” of an act that threatens the national security or economic well-being of the UK or is a serious crime,
“carried out for, or on behalf of, a State other the United Kingdom, or … otherwise in the interests of a State other than the United Kingdom”.
That may seem broad, but I am afraid that the threat posed to the UK from hostile state activity is wide-ranging and includes espionage, sabotage, coercion, assassination and subversion. Consequently, the definition of hostile activity must necessarily be broad to encompass the range of threats this country faces from nefarious states.
The noble Lord, Lord Bew, talked about Schedule 3 and the creation of a hard border. He pointed to concerns that have been raised in some quarters about how the provisions of Schedule 3 will operate on the Northern Ireland border. As the noble Lord, Lord Rosser, indicated, the issue was raised on Report in the Commons and the Minister for Security has written to Tony Lloyd on this question. I will make sure that noble Lords receive a copy of that letter rather than me repeating it this evening.
My noble friend Lord Faulks and the noble Lords, Lord Thomas of Gresford, Lord Kirkhope of Harrogate and Lord Kennedy, raised detainees’ right to consult their lawyer in private in the context of Schedule 3. In exceptional circumstances there may be a need for a more senior police officer to restrict that right by requiring that the consultation take place in the sight and hearing of an officer who has no connection to the detainee’s case, for instance, where there are reasonable grounds to believe that private consultation will result in interference with evidence, gathering of information, injury to another person, alerting others that they are suspected of an indictable offence or hindering the recovery of property obtained by an indictable offence. The aim of the restriction is to disrupt and deter a detainee who seeks to use their right to a solicitor to trigger activity that would lead to those consequences. It could be achieved by the detainee using their solicitor to pass on instructions to a third party by, for example, intimidating the solicitor or using a coded message of which the solicitor is unaware. However, the shadow Security Minister has put forward an alternative proposal for dealing with this issue, and we can explore it further in Committee.
There were a lot of contributions on Prevent, expressing support for aversion to it, or suggesting review of it. In particular the noble Lords, Lord Stunell, Lord Rosser and Lord Ramsbotham, and my noble friend Lady Warsi called for an independent review. Prevent is fundamentally about safeguarding and supporting vulnerable individuals to stop them supporting terrorism or becoming terrorists, regardless of whether that is in support of Islamist, far-right or any other form of terrorism. That point was extremely well made by my noble friends Lady Barran and Lord McInnes. When considered from this perspective, Prevent is working and we do not accept the need for an independent review. It has had a significant impact on stopping people being drawn into terrorism. Indeed, the Commissioner of the Metropolitan Police, Cressida Dick, said recently:
“There have been hundreds of people who have been turned away from violent extremism by their engagement with Channel and other aspects of Prevent, and that is all positive”.
It is clear that those who work to keep us safe from the terrorist threat back Prevent.
The noble Lords, Lord Janvrin, Lord Kennedy and Lord Rosser, and in particular my noble friend Lord Bethell, talked about online harms and ensuring that tech companies are responsible for rapidly taking down terrorist content that is posted online. That point about rapid takedown is very well made. The then Secretary of State for Digital, Culture, Media and Sport announced in May that at the next possible opportunity the Government will bring forward online safety legislation that will capture online terrorist content. We need a comprehensive online safety strategy, not one that tackles specific harms in a piecemeal fashion. That is why the Home Office is working closely with DCMS to publish a White Paper later this Session that will set out proposals for new online safety laws to ensure that the UK is the safest place in the world to be online.
A number of noble Lords, including the noble Lords, Lord Rosser, Lord Kennedy, Lord Marks, Lord Blair and Lord Ramsbotham, and my noble friends Lord King and Lord Kirkhope, talked about co-operation on counterterrorism after Brexit. That is a crucial point and I think that the whole House is in agreement on it. It is something that the Government are absolutely focused on working towards. The government White Paper provides an ambitious and comprehensive vision for our future security relationship with the EU and reinforces the Prime Minister’s message that the UK remains unconditionally committed to maintaining Europe’s security, both now and after our withdrawal from the EU.
Some interesting points were made about updating the treason laws to reflect what is happening, particularly in foreign states, by my noble friends Lord King, Lord Faulks and Lord Marlesford. We have a comprehensive range of terrorism offences and other powers that the Bill will update for the digital age. That will provide the police and intelligence services with the powers that they need to protect the public from terrorism. We do not consider it necessary to create new treason offences for this purpose, but I know exactly where my noble friends are coming from. The Prime Minister announced on 14 March that the Government will consider the need for new counterespionage powers, including legislation to harden our defences against hostile state activity. Where relevant, treason offences may be considered as part of that work.
A number of noble Lords talked about combating radicalisation in prisons, which is a very good point. I must first point out that those convicted of terrorism offences have already themselves been radicalised, but it is important that we do not exacerbate the problem, as noble Lords said, while defenders are serving their sentences. A joint HM Prisons and Probationary Service and Home Office extremism unit was created in April 2017 to lead the response to extremism and terrorism in prisons and probation. We make every effort to ensure that terrorist offenders are given the best possible chance to rehabilitate while in prison and on probation, and all offenders of extremist or terrorist concern are managed actively as part of a comprehensive counterterrorism case management system.
In conclusion, all sides of the House recognise the real threats that we face, whether from terrorism or the hostile acts of foreign powers. As those threats evolve over time, so must our response. We must ensure that our law enforcement and security agencies have the powers and capabilities that they need to disrupt the activities of those who would do the people of this country harm. The safety and security of those who live in this country must always be our paramount concern, but I recognise that the laws that we create to help ensure such security are a matter of legitimate debate and should rightly be subject to proper scrutiny. In that spirit, I look forward to our further deliberations on the Bill, but it is the Government’s firm belief that its provisions are a necessary and proportionate response to the ongoing threats that we face. On that basis, I have no hesitation in commending the Bill to the House.
Counter-Terrorism and Border Security Bill
Monday 29th October 2018
(5 years, 5 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 131-II Second marshalled list for Committee (PDF) - (29 Oct 2018)
Lord Rosser
Lord Rosser (Lab)
My Lords, this Bill creates an offence of expressing an opinion or belief that is supportive of a proscribed organisation if the person doing so is reckless as to whether a person to whom the expression is directed would be encouraged to support a proscribed organisation. Currently, encouragement of and invitation to support a terrorist organisation is a criminal offence, so what is proposed in the Bill is, in reality, an extension of this. The Bill requires not an intent to increase the ranks or membership of the proscribed organisation, but rather being reckless as to whether another person would be more likely to support the proscribed organisation as a result of the expression of an opinion or belief that is supportive of a proscribed organisation.
The Joint Committee on Human Rights has pointed out that the wording of the Bill could cover an academic debate if, for example, those taking part were speaking in favour of de-proscription of a currently proscribed organisation. The wording could also cover a similar debate taking place in the pages of national or other newspaper or journal. What also appears clear from the wording is that a person potentially commits the offence if they express their opinion or belief that is supportive of a proscribed organisation just once.
The test of the wording is presumably whether a reasonable person would regard the expression of the opinion or belief as encouragement to support a proscribed organisation rather than whether someone had actually been encouraged to join such an organisation. Perhaps the Minister can pick up or confirm that point in her reply and explain how the Government intend that “reckless” should be interpreted or defined in the context of this Bill.
It seems that one purpose of Clause 1 is to address the situation if Mr Choudary, just released from prison, continues to express his views to others, or someone with a similar outlook does likewise. There were clearly difficulties under the law as it stands in pursuing a successful prosecution against Mr Choudary, bearing in mind the length of time it took for that to happen. However, the snag is that, in seeking to address the situation to which I have just referred, we may end up criminalising, or silencing through fear of being criminalised, those who have no intention or wish to make it more likely that others will support a proscribed organisation but who are expressing an opinion in the legitimate pursuit of their employment or profession—for example, as an academic or a journalist might. We may also end up criminalising those who say something only once, and certainly not with any thought that it might encourage support for a proscribed organisation.
Amendment 1 provides that the expression of an opinion or belief that is supportive of a proscribed organisation has to be,
“as part of a pattern of behaviour”,
with the intention that only those who express such opinions or beliefs as part of a regular pattern of behaviour that is supportive of a proscribed organisation would be deemed to have committed the new offence. That should make it less likely that those involved in legitimate academic work or journalism, for example, could fall foul of Clause 1, as well as an individual expressing and directing their opinion or belief for the first occasion to others, perhaps without realising the significance of what they are doing.
Baroness D'Souza (CB)
My Lords. Clause 1 makes a neat distinction between free speech and incitement. New subsection (1A)(a) states:
“expresses an opinion or belief that is supportive of a proscribed organisation”.
That surely is free speech, depending on the context in which it occurs. New paragraph (b), which states,
“in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation”,
is incitement and infringes Article 19 of the Universal Declaration of Human Rights. However, the first paragraph does not because free speech must be maintained and protected, depending on the context. This of course goes back to the old adage that falsely crying “fire” in a crowded theatre is incitement, whereas to shout “fire”, falsely or otherwise, on a crowded corner is clearly not incitement because people are not in danger of violent disruption. It is important that that distinction is made in the Bill.
Baroness Jones of Moulsecoomb (GP)
My Lords, I start by making it clear that I am completely opposed to people encouraging the membership and support of terrorist organisations. I did not need to say that but I felt that I should.
However, Clause 1 casts the net far too wide and risks criminalising perfectly innocent behaviour. There is widespread concern in this House about the fact that it is far too wide. Therefore, my Amendments 2 and 4, alongside the other amendments in the group, seek to make this new offence a reasonable one. Without making significant changes to the clause it will be in clear breach of the European Convention on Human Rights. As currently drafted, the offence is too vague to be “in accordance with the law” and too broad to be a proportionate way of achieving a legitimate aim.
From the Government’s Explanatory Notes to the Bill it is clear that this clause is a response to the case of the Crown against Choudary, as we have heard, in which the Court of Appeal considered the existing Section 12 offences. The Explanatory Notes state:
“The Court of Appeal was clear that a central ingredient of the”,
existing,
“offence was inviting support from third parties for a proscribed organisation and that the offence ‘does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs’ ... This clause therefore provides for a new offence which criminalises the expression of an opinion or belief that is supportive of a proscribed organisation”.
It is therefore necessary for this House to consider Clause 1 in light of the Court of Appeal’s judgment in Choudary.
The focus in that case was on the meaning of “inviting support” in the existing Section 12(1) offence. There were additional questions of whether that offence was a breach of the European Convention on Human Rights. The answer to the first question meant that there was no breach, but using the court’s analysis is illuminating.
Without wanting to get into a legal wrangle, as we have done so often in the past, such as on the different between “agreement” and “consensus”, I have to explain the definition “inviting support”. The court used dictionary definitions. Inviting was taken to mean making a request; support was taken to include the provision of assistance, encouragement, advocacy and endorsement—a mix of practical, tangible and intangible support. On that basis, the court held that there was not a breach of human rights. Although the right to freedom of expression was engaged, it was a legitimate aim to restrict that right when it comes to inviting support for proscribed organisations.
Next, in accordance with jurisprudence from the European Court of Human Rights, the court asked whether the Section 12(1) offence was a proportionate response to the legitimate aim. If it was, it was lawful; if not, it would be an unlawful breach of human rights. In paragraph 70 of its judgment, the court determined the following:
“When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation. To the extent that section 12(1)(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified”.
This is where it becomes obvious to me that Clause 1 would be an unlawful interference in human rights. In fact, it is so obvious that I am surprised the Government could bring a clause of this sort before the House. Making a statement in the Bill that it is compatible with the European Convention on Human Rights is plain wrong.
Clause 1 seeks to create a much broader offence than the existing statutory one but in doing so, it crosses all the red lines that were identified as making the existing offence lawful. The existing offence does not criminalise the expression of views and opinions—free speech—whereas Clause 1 does. The existing offence is limited to “support”, whereas Clause 1 uses the broader term “supportive”, and the existing offence applies only to people with the requisite intent—a guilty mind—whereas Clause 1 extends to anyone who is “reckless” whether they meant to support a terrorist group or not.
The Bill casts the net far too wide. It risks criminalising all sorts of opinions that are supportive of a proscribed organisation. The Oxford English Dictionary definition of “supportive” is something that,
“provides strength by assistance, belief, or tolerance; providing sustenance or resources; sustaining; that provides evidence or authority; confirmatory, corroborative”.
Even expressing an opinion of tolerance would fall foul of this new offence. I believe that the Government have deliberately used the broader wording, so my Amendment 2 seeks to retain the existing word “support”. I would welcome the Minister explaining the Government’s reasoning and what effect they intend by using “supportive” in its place.
My Amendment 4 aims to do the same as Amendment 3, tabled by the noble Baroness, Lady Hamwee, which I support and am supportive of. Casting the broad net of guilty intent in this offence over people who did not intend to encourage support will catch so many innocent people; it is just plain wrong. It would include any expression of tolerance where a person, perfectly innocently and sensibly, advocates a ceasefire and peace talks with a proscribed organisation, if that person identified the risk that someone might feel encouraged to support the organisation as a result. Put simply, Clause 1 criminalises the search for peace, makes innocent people guilty and is an unforgivable breach of our human rights. I will vote against its inclusion in the Bill.
Lord Carlile of Berriew (CB)
My Lords, with great respect to the noble Baroness, I think that we have just heard a gross exaggeration not only about the effect of this clause but also its intention. Judgments as to whether organisations should be proscribed are of course expressions of an opinion by a Minister. They are not perfect judgments, and to that extent I support Amendment 5 tabled by the noble Baroness, Lady Hamwee, and others. The Independent Reviewer of Terrorism Legislation—I think that there are two former independent reviewers in the Chamber today—might well suggest in reports that a proscribed organisation should be deproscribed on the basis, for example, that it is better to deal with the organisation openly in debate than by proscription. I recall during my now somewhat historic time as the independent reviewer that there were strong debates about whether certain organisations should be proscribed or not.
With that reservation, it seems that this clause would achieve the following. First, it recognises that even in this relatively gun-free country, if someone expresses support in a certain way for a proscribed organisation, it may put some of our fellow citizens in mortal danger of their lives. There are plenty of examples of that having happened, and indeed there are examples of the person who has already been mentioned, Mr Choudary, himself a former lawyer, of having possibly achieved exactly that. It does not criminalise the expression of support, rather it forbids and criminalises the expression of support on certain terms as set out in proposed new Section 1A(b), and that is the test of recklessness. Recklessness requires awareness of the risk that is being taken by the speaker. I can see absolutely no reason to allow people to take a risk of which they are aware that potentially will put other people in mortal danger.
Viscount Hailsham (Con)
I am grateful to the noble Lord for giving way. Does he agree that the test of recklessness is a less stringent one than that of specific intent?
Lord Carlile of Berriew
Of course I agree with that, but in my view, and as I thought I made clear, the test of recklessness is entirely appropriate in this situation. If, for example, somebody preaches a sermon while being aware of the risk that he knows or should expect may radicalise another into killing citizens such as Lee Rigby, that to me is a proper protection of our society and the responsibility of the Government. I do not see why that should not be criminalised. I know that the noble Lord, Lord Thomas of Gresford, is an expert on recklessness so I shall give way to him.
Lord Thomas of Gresford (LD)
I rise only to criticise the use of the term “should expect”. It seems to introduce an objective test when, as he said earlier, it is subjective.
Lord Carlile of Berriew
When I referred to the noble Lord as an expert on recklessness I was not making a personal slight. I believe that he appeared in the case of Caldwell, which for some years has been overruled, so he knows the law on this. But in my view, a person who makes a statement of that kind, knowing of the risk of it being taken up by a radicalised Islamist or right-wing extremist, should expect the force of the criminal law to fall upon them. That is all the Government are seeking to do. On this clause at least, in my view, the Government are meeting the legitimate expectation of citizens subject only to my reservation about Amendment 5, which I would suggest the Government should consider carefully.
Baroness D'Souza
Does the noble Lord agree that context is still a very important matter? If someone is preaching a sermon and is therefore in a position of authority, it is likely that they will actually persuade another person to commit a particular criminal act in a place and over time. However, expressing that view in a different context would not necessarily cause there to be violent action within the particular space and time. One therefore has to define the context.
Lord Carlile of Berriew
There may be a philosophical difference between my noble friend and myself: I take what those who remember him call the Selbornian view that, of course, we have our freedom to speak, but with that freedom of speech we owe certain responsibilities to our fellow citizens. In my judgment, for what it is worth, this clause actually creates that social contract on these issues.
Baroness Hamwee (LD)
My Lords, I have various amendments in this group, but I start with a general point: all the amendments in the Marshalled List where mine is the first name were proposed by the Joint Committee on Human Rights, of which I am a member, and I have been tasked by the committee to raise them with your Lordships. I take this opportunity to thank not only the committee but its officials, who have done a huge amount of work on the Bill, particularly Samantha Godec. Having said that, I have no doubt that my noble friends will agree with much that I have to say, but I leave that to them. I suspect that I will not be able to refrain from commenting on some other amendments.
The committee has put forward amendments that seek to ensure that the Bill restricts rights only to the extent necessary and proportionate—terms with which noble Lords will be very familiar. I make it clear, though I hope it does not need saying, that this is by no means wholesale opposition to the Bill. We recognise that the Government need powers to defend national security, but when powers engage human rights or interfere with them, they must be clearly prescribed, necessary in pursuit of a legitimate aim and proportionate to that aim. The committee was concerned that the Bill legislates close to the line and sometimes crosses it, taking the criminal law further into private spaces. It looked, as noble Lords would expect, for the right balance between liberty and security.
Among the evidence that we received was a long paper from Professor Clive Walker, adviser to successive Independent Reviewers of Terrorism Legislation, who commented:
“It can readily be demonstrated that the United Kingdom already has the most extensive counter terrorism code in Europe if not the world”.
That was a point made by Max Hill before he became the independent reviewer; he has said several times that we have sufficient offences, we do not need any more. The obligation on us is obviously to identify whether there are gaps that need to be filled, and whether we agree with the Government about that. Professor Walker also made the point, which I think is worth repeating at this point—I am not seeking to make a Second Reading speech—that,
“criticism should be made of the failure on the part of Home Office to issue any consultation paper prior to the CT&BS Bill”.
He wrote about the value of a pre-legislation phase, allowing not only for public scrutiny but for other independent proposals, and said how well that worked in the case of the Sanctions and Anti-Money Laundering Act.
My name is attached to Amendments 3 and 5 in this group and I have also given notice that I oppose Clause 1 standing part of the Bill.
Lord Faulks (Con)
The noble Baroness has indicated to the House that she speaks, in effect, on behalf of the Joint Committee on Human Rights, and we are all grateful for its report. Can she help the House in that context with one thing? The Joint Committee on Human Rights, of course, has particular reference to the provisions of the Human Rights Act and the articles of the European Convention on Human Rights. Does she and her committee consider it important also to consider the rights of citizens affected by, or potentially affected by, acts of terrorism or encouragement to terrorism, whether it be their rights under Article 2 or Article 8 of the convention? These are, of course, also human rights.
Baroness Hamwee
Indeed they are, my Lords, and that was why I very deliberately mentioned security as well as liberty in my opening words. It would be wrong to give the noble Lord an assurance that we specifically discussed those rights in the same way or at the same length as other rights, but I have been in enough meetings of the committee to know that that is a backdrop to the other rights we address. I hope that reassures him. It may not, but I did say that we were not opposing this Bill in any wholesale way.
Amendment 3 would leave out paragraph (b) and instead insert a reference to intention,
“to encourage support for a proscribed organisation”.
Other noble Lords have referred to that at some length. I agree with the point about context made by the noble Baroness, Lady D’Souza—whether this is the point at which to agree with her or not, I do not know. But I do think context assists one to understand what is in the mind of a person making a statement or undertaking an act.
Regarding Amendment 5, I am grateful for the support of the noble Lord, Lord Carlile. His point about open discussion is an important one. I know that he balances the importance of transparency and free debate on these matters. I agree with the noble Baroness, Lady Jones, about “support” and “supportive”. In debate and correspondence, the Government have relied on Section 4 of the 2000 Act as providing a route to apply to the Home Secretary for de-proscription. I do not challenge that, but do not think it is by any means a complete answer to this. The defence in the 2000 Act only protects statements of support related to a de-proscription application. It is not a defence for those taking part in debate outside those proceedings.
The clause creates a new offence, and the Minister in the Public Bill Committee in the Commons said:
“Dealing effectively with the power of inspiration or incitement is not new”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 28/6/18; col. 71.]
I do not read this clause as being about incitement or inspiration. Recklessness is lesser than that.
I have a specific question for the Minister about new subsection 1A(b), which refers to a person to whom a statement, or whatever, is directed. I would like to understand the term “directed”. Are you directing something if it is not addressed to a named person or an identifiable/identified group? If you tweet or post something on Facebook, accessible to the world, are you directing that? The Minister in the Commons made a point similar to the one made by the noble Lord, Lord Carlile. He gave the example of walking down a high street swinging a baseball bat. Are the people who might see a tweet equivalent to the pedestrians in the high street?
Viscount Hailsham
Surely “directed at” is really equivalent to “published”, and the world at large is published, too.
Baroness Hamwee
My Lords, I asked what it means. The noble Lord, Lord Faulks, has given his view. If it means “published” perhaps it should say “published”, which is well understood, not only by lawyers but by ordinary people—I was going to say “normal people” but I should not say that. I hope none of us is abnormal. If that is the answer, it would be very helpful to know. I am grateful to the noble Viscount for adding to the debate.
To finish the point on direction, there was also a comment about intent meaning to invite support, as in the existing Section 12(1). Does the Minister have any comments on that term and its relationship to this new provision?
Finally, the committee was concerned about a lack of clarity in this provision on the boundaries of a debate. We agree with the Minister that it is hard to define valid debate, but we believe that the lack of clarity and the low threshold of recklessness risk a chilling effect on free speech and a disproportionate interference with the right to free speech.
Earl Attlee (Con)
My Lords, my Amendment 6 is in this group. I am grateful for the support from the Opposition Front Bench. I am confident that the Government will have thought very carefully about the need for Clauses 1 to 6, so I support them and share the view of the noble Lord, Lord Carlile. I will leave it to other noble Lords to scrutinise the principles, but I understand the concerns that have been—and will be—raised by other noble Lords when speaking to their amendments.
I have put my name to Amendment 5 and I agree with all that the noble Lord, Lord Rosser, has said. The decision to proscribe a group is not taken lightly. Nevertheless, in a free and democratic society, it is a major step to take and it should be possible to question it. One might want to suggest that proscription is acting as a recruiting sergeant for the group concerned. Under Clause 1, there would be a danger of that suggestion being regarded as a,
“belief that is supportive of a proscribed organisation”,
because it supports the de-proscription. There is also a very fine dividing line between stating that HMG’s policy is flawed and supporting a proscribed organisation.
Earlier this year, I tabled amendments to the Data Protection Bill dealing with press regulation. Some thought that I and other noble Lords were somehow anti-press and against freedom of speech. Nothing could be further from the truth, as we shall see. My Amendment 6 inserts an exemption for opinions or beliefs that are,
“published or broadcast for the purposes of journalism”.
Viscount Hailsham
Will my noble friend tell the Committee whether he thinks there is a distinction between “for the purposes of journalism”—the phrase in his amendment—and “in the course of journalism”?
Earl Attlee
It might be important, but I do not know the answer.
This exemption is needed because the vagueness of the offence, combined with the absence of an intent requirement, puts journalists and news organisations in danger of wrongful prosecution and legal harassment just for doing the job of reporting what is being said and engaging in debate. As drafted, a news organisation reporting on the activities of a terrorist organisation could be ensnared by the offence for relaying to the public the words of the members of the terrorist organisation. It is easy to imagine a situation where doing so is essential for the public’s understanding of a terrorist outrage, yet in doing so the news organisation will be expressing words that are supportive of that organisation and so fulfil the elements of this new offence.
Lord Davies of Stamford (Lab)
My Lords, I did not take part in the Second Reading debate because I was not able to be at the wind-up, although I heard a great deal of it. I am very concerned, as I believe everybody ought to be, about this matter. I cannot think of anything more important in a free society than freedom of speech, which should be tinkered with or eroded with the very greatest reluctance, if we do it at all.
I am concerned about a number of things in the Bill. One is the issue of recklessness, which has already been debated. To bring recklessness in here seems extremely dangerous. I know that I am about to be told by somebody that recklessness already exists in the criminal law in different contexts, but it exists in such a way that it is easily definable. Reckless driving of a motor car involves driving it too fast or taking no account of the traffic on the road, or not having one’s car checked and so forth. There are specific ways in which you can say that is reckless and define “recklessness” in such a way as to create little difficulty for judges or juries, or indeed for one’s general sense of justice. That is not the case here.
The idea that every word one speaks and every sentence one enunciates might be looked at with a view to whether it could have been reckless is quite alarming. It opens up the prospect which concerns me: that one might say something which happens to agree with something that is in the platform of a proscribed organisation and, as a result, find oneself indicted under the Act, if the Bill becomes one, without having the slightest notion that one had committed any offence, or necessarily that some terrorist or proscribed organisation shared one’s view on a matter. I am really concerned about it.
It seems to me that we should have the good old concept of intention here. Intentionality should automatically form part of the criminal law, except in special circumstances. In strict liability, intentionality does not apply, but intentionality is a principle very much bound up with the criminal law in almost all contexts, and I think that is the right way to go. That is much more specific. We would therefore not be doing violence to the precious principle of free speech if we adopted the intentionality route. I very much agree with those in the debate who have taken that line, and I very strongly disagree with those who have not.
There is another matter which I am very concerned about, and I dare say I shall make myself very unpopular by saying this. I do not for a moment think that we ought to have some privilege for journalists in the matter of free speech. I will not only speak against that but will use any opportunity I can to vote against any such Motion. Freedom of speech belongs to every citizen in a free society. Of course journalists must not do dangerous things, any more than anybody else must not do dangerous things, but the idea that journalists have a special form of free speech which is not available to the rest of us is quite absurd. If there are indeed proscribed terrorist organisations and journalists can legitimately report on what they are saying or what they stand for, it should be equally up to any of us. I am thinking not particularly of parliamentarians. Parliamentarians and other people should be able to report on that and talk about that. A free society consists of people being able to express views or refer to views, however awful they may be, without committing a criminal offence. The suggestion is obnoxious. I understand why it has been made. It has been made for the most honourable and pure reasons, but it would not be a good idea.
I also see some difficulty in definition. Who is a journalist? If a journalist leaves a newspaper or the media channel for which he or she is working, does he or she cease to be a journalist? Does he or she cease to be a journalist after five years or 10 years if he or she ceases to practise that profession? What does “practice that profession” mean? Some of us write articles for the press from time to time. In the old days, in my case it was for money, but not at present. Does that make us journalists? If we create a special right and privilege for so-called journalists, obviously a lot of people would like to define themselves or their activities in such a way as to get the benefit of the franchise that has been created. That is an undesirable development.
Earl Attlee
The noble Lord raises an extremely good point about who is a journalist. When I was being briefed by the media, I asked that very question. The answer is that traditionally we do not define who is a journalist, but I am confident that it does not cause a problem in the way my amendment works.
Lord Davies of Stamford
I have great affection and respect for the noble Earl, but that is no good at all. The idea of creating a special category of people in the key sensitive matter of free speech is bad enough but if you then say that you do not need to define it—in other words, you do not need to restrict in any way the benefit that is being accorded or the possibilities of its misuse—you are on a hiding to nothing. I do not agree with the noble Earl on that subject.
Viscount Hailsham
The noble Lord’s anxieties may be further compounded by looking at the terms of the amendment, because the reference is not to journalists but to “for the purposes of journalism”. What is journalism? It is writing in a newspaper—neither more nor less. That is all it is.
Lord Davies of Stamford
The noble Viscount has reinforced my point with greater eloquence than I could have done.
Lord Anderson of Ipswich (CB)
My Lords, it is an uncomfortable fact that the law as it stands has not been as effective as it might have been in prosecuting radicalisers who have stopped short of inviting support for a proscribed organisation but whose words have none the less been instrumental in encouraging others to support terrorist groups, often by actions, not just words. I shall not rehearse the saga of Anjem Choudary and the many unsuccessful attempts to prosecute him over the years. Clauses 1 and 2 attempt to fill a gap in our law by extending the proscription offences. For that reason I look sympathetically on their general thrust although, like the noble Lord, Lord Carlile, I support Amendment 5.
For my part, I could not vote for an extension of the already strong proscription offences in circumstances where substantial numbers of proscribed organisations— 14 by the Home Office’s own admission, and no doubt more in Northern Ireland—are proscribed despite failing to satisfy the statutory condition for proscription, which is being concerned in terrorism. That would expose people to the risk of long prison sentences for expressing opinions supportive of organisations that have long since laid down their arms and committed to peaceful engagement, but which however remain proscribed because no one associated with them has been willing to go to the expense, or indeed attract the associated publicity, of going to court to get them de-proscribed. My support for Clauses 1 and 2 will therefore depend on the outcome of Amendment 59, which would introduce the meaningful review of proscription orders and which noble Lords will consider on another occasion.
Viscount Hailsham
My Lords, I shall speak briefly to Amendments 3, 4, 5 and 6. I accept that there may well be a need to further criminalise the overt support of proscribed organisations; I do not dissent from that view. However, we have to accept that what we are proposing in the Bill is an infringement of human rights—the right to free speech. The noble Baroness, Lady Hamwee, is entirely right about that. We therefore need to apply the test of proportionality: to weigh up the evil in one hand and then look at the consequences of what is proposed in the other. It is in that context that I would be very much happier—I now speak directly to my noble friend on the Front Bench—if we were to look again at the concept of specific intent. I would be very much happier if what we were providing for was that the offence was establishable only on proof of specific intent. I find myself very much in support of Amendments 3 and 4 because they seem to satisfy the test of proportionality.
To comment briefly on Amendment 5, I find myself entirely in agreement with the noble Lord, Lord Carlile. Anyone who advocates the de-proscription of a proscribed organisation seems to fall foul of the general language of this part of the Bill, and that should not be the case. It is perfectly proper as part of public debate to argue that a specific organisation should not be proscribed. I therefore hope—
Viscount Hailsham
May I just finish this point? Then of course I will give way to my noble friend. I hope the Government will look sympathetically at Amendment 5.
Lord Faulks
I understand what my noble friend says about Amendment 5 but I am little puzzled by why suggesting that a proscribed organisation should cease to be proscribed is supportive of a proscribed organisation. It is one thing to say that proscription should cease; it is another to be supportive of it.
Viscount Hailsham
I wondered that myself but came to the conclusion, having weighed up the language, that to argue that something should not be proscribed probably does constitute action supportive of the proscribed organisation. Even if I was wrong about that, though—in this context my views are shared by the noble Lord, Lord Carlile—it is certainly an arguable position, and I am in favour of clarity in law. That is why I would go with Amendment 5 in the name of my noble friend.
That brings me to Amendment 6, where I am afraid I part company with my noble friend.
Viscount Hailsham
I will give way. On this matter I share the views of the noble Lord, Lord Davies.
Lord Davies of Stamford
I know that the noble Lord will be very familiar with the quotation I was mindful of in what he just said, which was Voltaire’s great phrase: I disagree totally with what you say but would defend with my life your right to say it. In that situation, you might disagree totally with what an organisation stands for. I greatly disagree with what a lot of organisations stand for but would defend—I think to the death—their right to say it. Does this not resolve the matter that the noble Lord has just put to the House? You can at the same time urge the decriminalisation of an organisation that has up to then been regarded as a terrorist organisation while not agreeing whatever with the views that it holds.
Viscount Hailsham
I shall respond to that intervention and then revert to Amendment 6. I have a lot of sympathy with what the noble Lord, Lord Davies, has said. I have always been on the fairly extreme end of libertarianism when it comes to free speech—and, indeed, in many other aspects of life. As a general proposition, it is much better to know what your enemies are saying, not to ensure that they say it covertly. I like to know who my enemies are and what they are saying: it is then much easier to combat them than if you create a context in which everything is done covertly. In principle, I agree with his position.
Viscount Hailsham
I will, but I say for the avoidance of doubt that I have the misfortune to be deaf in one ear. Therefore, when people come up from behind, it is very difficult for me to know that they are there. I hope that I will be forgiven and not treated as discourteous.
Lord Carlile of Berriew
The noble Viscount is fortunate to be deaf in only one ear; I and many others here are rather deaf in both. Leaving that aside, does he agree, particularly having regard to what was said by my noble friend Lord Anderson about Clause 59, that it might be helpful to hear from the Minister something about how the Government review and examine the list of proscribed organisations, so that Parliament can be reassured that it is not simply a static list that never changes? I understand that there is a regular review process, but I may be out of date.
Viscount Hailsham
My Lords, the point made by the noble Lords, Lord Anderson and Lord Carlile, is entirely right. As I get the sense that the Committee wants to hear from the Minister fairly smartly, I shall now proceed to Amendment 6 and deal with it fairly swiftly. I hope my noble friend will forgive that I cannot accept Amendment 6, for this reason: the phrase used is “for the purposes of journalism”. There is no real distinction between the concepts of “in the course of journalism” and “for the purposes of journalism”: they are very close, if not the same. Many of the proponents of the cases of proscribed organisations, including Mr Choudary, often use newspapers to express their view. If you provide a specific defence to cover language in newspapers and people writing in newspapers—that is what the amendment does—you drive a coach and horses through the entirety of this part of the Bill.
The noble Lord, Lord Davies, also has a point here. I am very cautious about making distinctions between journalists and the ordinary citizen. I am very far from persuaded that, as a general proposition, a journalist should have a privileged position as contrasted with the ordinary citizen. I am not able to agree with my noble friend, but I will of course give way to him.
Earl Attlee
I remind the Committee that we give journalists a privileged position in the Data Protection Act and significant freedoms of manoeuvre.
Viscount Hailsham
That is true but there are many aspects of the law where it is not true. I look nervously at my noble friend Lord Faulks, but I think privileged communications to journalists are not covered by the definition of confidential and privileged information in the ordinary and criminal courts. I would therefore be very chary about extending the privilege to journalists qua journalists. There is also a serious point: who is a journalist? When does a career become spent and when is it still operational? There are quite a few problems along that line. I will bring my remarks to a conclusion so that the noble Baroness can respond to the points made by the noble Lords, Lord Anderson, Lord Carlile and many others.
Lord Brown of Eaton-under-Heywood (CB)
Just before the Minister responds, can I add a word, I hope not too tiresomely, on Amendment 5? If you suggest that it would be a good idea to deproscribe a particular organisation, can you do so only on the basis that it is better to deal with it in the open, as suggested by the noble Lord, Lord Carlile, and indeed, by the noble Earl, Lord Attlee, so as to discourage recruitment, or can you say that it is because you regard the organisation’s aims as essentially innocuous or perhaps even beneficial overall? If the latter, surely that would risk destroying much of the effect of Clause 1 as a whole. You would simply couple your remarks with a suggestion for deproscription. If the former, surely the amendment, if it is to be incorporated in this legislation, had better build in the need to make it plain that at the same time as promoting deproscription, you continue to condemn the aims of the organisation.
Lord Harris of Haringey (Lab)
My Lords, I apologise for not having spoken on Second Reading, but I came to this debate on the basis that I had one point to make. Having heard such a range of views, I am afraid that I now have three or four.
To keep the flow going, I shall pick up on Amendment 5 and the argument that there should be an exemption for organisations that cease to be proscribed. I start from the same position as the noble Viscount, Lord Hailsham, that by and large it is better not to proscribe organisations, but to have them out in the open. When they are proscribed, they tend to reformulate and call themselves something else, and it all becomes a bit silly.
Amendment 5 could create a rather large hole through which those who wish to circumvent the purpose of these clauses would get through. People could say, “I am not arguing for what they want; I am simply saying that it is wrong for them to be proscribed because they are rather excellent people whose objectives are entirely understandable, which any sensible person in that part of the world would think is a good thing”. We could run the risk of providing a defence for people and allowing them to do things that we are trying to prevent them doing.
Moving on to Amendment 6, the question of who is a journalist is wider than has already been suggested. We are all citizen journalists now. We all have the option of putting stuff out on the web; we can blog and tweet; we can put things on Facebook, YouTube or whatever we want. Increasingly, people now define themselves as citizen journalists. Unless we go back to something very old-fashioned such as saying that journalism is a controlled profession and you are a journalist only if you have a card issued by the National Union of Journalists, which is probably unlikely, then anyone can say, “I’m doing this for the purposes of journalism, or to further journalism”—whatever it might be—“because I am a journalist; I am a citizen journalist and I am putting this material forward”. While I do not want to undermine what we would all regard as legitimate—we are all rooted in the past and think of journalism as being about newspapers and producing seriously researched articles and investigations—the word no longer means what it used to mean. Therefore, if we are going to say that there should be some sort of exemption for journalism, we need to define it much more closely than it is in Amendment 6.
I pity the Minister who has to pull all these threads together. I understand the concerns about freedom of speech; we all share them, in principle. This is all about proportionality: balancing that freedom against the harm that may be being done. It is apparent that, as the law stands, it has been impossible to pursue people who are palpably causing a great deal of damage. That is why the Government are seeking to amend it. I assume that they have not gone down the route of saying that someone must have the “intent” to do this because proving intent is rather difficult. Under those circumstances, if we put proving intent in we will be back where we started and not able to pursue some of the individuals who do so much harm.
This is why I rather like the phraseology of my noble friend Lord Rosser, who talked about a “pattern of behaviour”. This exempts people who just express an opinion on one occasion and suddenly find they have fallen foul of the law. However, somebody who has a systematic approach to pushing people in a certain direction would fall foul of it. For that reason, I hope that the Government will carefully consider Amendment 1, or something akin to it, which indicates that what should be prosecuted is not a simple isolated act—a mere expression of an idle opinion—but somebody pursuing a course of action which is designed to have this effect.
Lord Hylton (CB)
I hesitate to join this discussion, but I support the intention behind all the amendments in this group. They seem to narrow and clarify the rather wide scope of the Bill. On Amendment 4, it may or may not be right to take away the test of recklessness but the noble Viscount, Lord Hailsham, may have a good point about specific intent. I may need the protection of Amendment 5 myself, because I have previously argued that Hamas and the PKK should be removed from the list on the grounds that they have ceased to use terrorist methods and shown a willingness to enter into negotiations about the conflicts in which they have been engaged.
Earl Attlee
My Lords, several noble Lords have opposed Amendment 6, in my name, partially on the grounds that it does not define what “journalism” means. That definition is going to be a problem for my noble friend the Minister in due course, because she will tell us that journalists have nothing to fear from the new Act. It would be helpful if, in due course, she writes to noble Lords to tell us what she means by “journalism”.
Lord Judge (CB)
I suspect that the discussion about journalism and journalists focuses the Committee’s attention on these provisions. I share the views expressed in the House that there should be no special position for journalists. When they exercise their rights to freedom of expression they are simply exercising our rights to that freedom and to looking at other people’s expression. Does the current provision in the Bill run a serious—or any—risk that a genuine, bona fide journalist, examining the issues without any criminal intent at all, may be caught? If so, the provisions need to be re-examined; if not, not.
Lord Paddick (LD)
My Lords, I am reminded of the words of the noble Lord, Lord King of Bridgwater, at Second Reading. He said that the provisions of the Bill must be “necessary” and “proportionate” but that we may not agree on what that means. The debate so far has reflected that.
I support all but one of the amendments in this group. I apologise to the noble Earl, Lord Attlee, for having some reservations about his amendment. Amendment 1 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, highlights the fact that this offence should be part of a pattern of behaviour—and not a single instance that could well be inadvertent, as the noble Lord, Lord Harris of Haringey, has just suggested.
4.30 pm
Amendment 2 in the name of the noble Baroness, Lady Jones of Moulsecoomb, necessarily tightens up the very loose term “is supportive of” by substituting “supports”. I am grateful to Liberty for its briefings on this group of amendments, on which I intend, in part, to rely. As my noble friend Lady Hamwee has explained, and as the Joint Committee on Human Rights concluded in 2006:
“Speech does not naturally reside in the realm of criminality. This is why the element of intention should always be attached to speech offences”.
A reference has already been made—by the noble Baroness, Lady Jones of Moulsecoomb, for example—to the Court of Appeal case R v Choudary and Rahman, which concluded that,
“the criminality … lies in inviting support”.
It continued that,
“the expression of views and opinions, no matter how offensive”,
should not be criminalised,
“but only the knowing invitation of support from others for the proscribed organisation”,
as this would otherwise amount to interference with Article 10 of the European Convention on Human Rights, which provides the right to freedom of expression.
As my noble friend Lady Hamwee has said on Amendment 3, to which I have added my name, this amendment restores what we consider to be the vital element of knowingly encouraging support for a proscribed organisation by inserting an intention to encourage support. Amendment 4, in the name of the noble Baroness, Lady Jones, has a similar effect.
Amendment 5, in the names of my noble friend Lady Hamwee and the noble Earl, Lord Attlee, to which I have added my name, provides an exception where a person is arguing that an organisation should not be proscribed. We have just heard from the noble Lord, Lord Anderson of Ipswich, that there are currently proscribed organisations that should not be proscribed. The noble Lord seeks to bring forward an amendment that he has already referred to, later in the Bill, to ensure that proscription decisions are regularly and proactively reviewed. It cannot be right that the noble Lord—or the noble Lord, Lord Hylton, or anybody else—should be committing an offence if they argue that an organisation is wrongly proscribed.
As I have suggested, I am slightly nervous about Amendment 6 in the name of the noble Earl, Lord Attlee, and the noble Lords, Lord Rosser and Lord Kennedy. I can see their objective, but claiming that an opinion or belief was published or broadcast for the purposes of journalism could allow those deliberately expressing or encouraging support for a proscribed organisation to claim this exemption.
This clause criminalises expression of opinion or belief, contrary to the fundamental human right of free expression, despite what the noble Lord, Lord Carlile of Berriew, has said. The existing offence, under Section 12 of the Terrorism Act, is comprehensive. It covers somebody who invites any kind of support for a proscribed organisation, or arranges, or assists in arranging, a meeting in support of a proscribed organisation, or a meeting addressed by someone who belongs to, or says they belong to, a proscribed organisation.
I appreciate that the Government want to be seen to be taking further action, and I accept what the former independent reviewers of terrorism legislation have said about the gap in the legislation. But I believe that this section strays beyond a necessary and proportionate interference with freedom of speech, even where balancing the public’s right to life. I therefore agree with my noble friend Lady Hamwee that Clause 1 should not stand part of the Bill.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords for their many and varied points on the amendments and, up front, I apologise if I take some time to respond to all of them.
This is the first of a number of clauses in the Bill that update existing terrorism offences to ensure that the police and prosecutors can respond effectively to the current terrorist threat and contemporary methods of radicalisation.
I should say at the outset that I am well aware that this clause addresses a sensitive area of the law—namely, freedom of expression—and I recognise that concerns have been raised both in the House of Commons and in this House. As has been so eloquently explained, it is such concerns that have motivated the noble Lord, Lord Rosser, the noble Baronesses, Lady Hamwee and Lady Jones of Moulsecoomb, and my noble friend Lord Attlee to table their amendments. However, I hope that I can allay such concerns and persuade the Committee to support Clause 1 as drafted by explaining exactly why the Government believe that this measure in its current form is necessary, the types of cases it is aimed at and how it will operate in practice.
Under the law as it stands, it is already an offence under Section 12(1)(a) of the Terrorism Act 2000 to invite another person to support a proscribed terrorist organisation such as Daesh or the racist neo-Nazi group National Action. What is an “invitation” in this context? The Court of Appeal addressed this question in the 2016 case concerning the extremist preacher Anjem Choudary, who was eventually convicted for the Section 12(1)(a) offence. The court made the following point:
“The use of that word means the offence in section 12(1)(a) is one where ‘the words descriptive of the prohibited act ... themselves connote the presence of a particular mental element’, as per Lord Diplock in the 1970 case of Sweet v Parsley. As the judge said, it is difficult to see how an invitation could be inadvertent”.
The invitation may be explicit or more indirect, implicit or opaque, but either way, for a conviction to be secured, the prosecution must be able to prove an intention to influence others to support the terrorist organisation. I recognise that at first blush this might appear to be the right threshold for the offence. However, having conducted a careful review of our terrorism legislation, the requirement always to prove intent to influence others has been highlighted by the police, MI5 and the CPS as a gap in their ability to act against certain individuals: those who, despite it not being possible to prove that they intend to do so, as the noble Lord, Lord Harris, said, none the less clearly and unambiguously risk harm to the public by virtue of their expressions of opinions and beliefs which have the effect of encouraging others to support proscribed groups, with the associated harm that flows from such support.
Baroness Jones of Moulsecoomb
Perhaps I should have asked this question earlier of some of the noble and learned Lords here or perhaps of the former police officers, but is there another criminal offence where a person who expresses an opinion has to police themselves to make sure that there is no risk of any outcome from what they write? That seems to me utterly illogical. Are there any other criminal offences of that kind?
Baroness Williams of Trafford
I look to the cavalry behind me to answer that as I am not an expert in criminal law, but noble and learned Lords might wish to say whether such offences exist.
Lord Judge
I do not see myself as a horse and therefore I am not the cavalry, but some hate crimes are rather seriously deficient in relation to these issues.
Baroness Williams of Trafford
Yes, the noble and learned Lord is quite right. Many of them would be caught, particularly in an online context, expressing an opinion quite poisonous in nature and intended to cause harm.
As a result of the gap, it has not been possible for the police to act against prolific and high-profile preachers of hate—as the noble and learned Lord has just pointed out—who have made highly inflammatory public speeches that are very clear about the speaker’s support for a terrorist organisation and that are, on any reasonable assessment, likely to cause the audience to be influenced to support the organisation. Prosecution has not been possible in these cases because the statements made cannot be proven to amount to an “invitation”—a deliberate act of encouragement—to support the group. The gap that the law needs to address concerns individuals who are reckless as to whether they will cause harm to arise.
Under Amendments 3 and 4, however, in the names of the noble Baronesses, Lady Hamwee and Lady Jones, this gap would not be addressed. They would remove the recklessness test and replace it with one that effectively repeats the existing position, so it would still be necessary to prove the same deliberate act of encouragement. To be clear, Amendments 3 and 4, both of which would have the same effect, would effectively nullify the utility of this clause and, as such, if they are made we might as well strike the whole clause from the Bill—and I know that some noble Lords want to do that.
Reckless activity such as I have described can have a powerful and harmful effect in initiating or moving along the process of radicalisation. We have seen time and again that engagement with radicalisers, hate preachers and organisations such as that headed by Anjem Choudary has been a prominent feature in the backgrounds of those convicted of planning or carrying out terrorist attacks.
In giving evidence to the Bill Committee in the House of Commons, Assistant Commissioner Neil Basu provided two powerful examples—Mohammed Shamsudin and Omar Brooks—to illustrate the type of case where this gap arises. I urge noble Lords to consider carefully that evidence. Both examples are senior figures within al-Muhajiroun, both have an extensive history of involvement in radicalisation and the spreading of extremist propaganda, and one has previous terrorism convictions. Both individuals gave public speeches that were clear about the speakers’ own support for Daesh, its ideology and its actions—including, for example, throwing gay people off buildings—and both voiced their approval of past terrorist attacks, including the murder of Lee Rigby and the 2015 Sousse attack in which 30 Britons and eight others were killed.
I do not need to explain to noble Lords how such speeches can cause great harm, spreading hatred and poison and radicalising vulnerable individuals, potentially to the point of carrying out attacks. But Assistant Commissioner Basu reported that, despite this, it was not possible to prosecute either individual in relation to the public speeches he had described. This is because, on the specific facts, neither could be proved to have invited their listeners to support the proscribed organisation they were speaking so vehemently in support of. This surely is not the right answer.
It cannot be right that we do not give the police and the courts the power to take action in the face of such poisonous rhetoric and such unmasked and virulent support for terrorism, in circumstances where there is, on any objective assessment, a real risk that individuals to whom it is directed will be influenced by it. Clause 1 does just that and would close this gap. Specifically, it amends Section 12 of the Terrorism Act 2000 so that it will be an offence for an individual to express support for a proscribed terrorist organisation when that individual is reckless as to whether another person will be encouraged to support the organisation. The crux of the amended offence will be the introduction of the recklessness test, which Amendments 3 and 4 would remove.
Baroness Hamwee
The noble Baroness used the word “aimed”. I thought that “directed” may have meant “targeted” as distinct from “published”, which is a wider concept. Saying that it is “aimed” takes me, at any rate—and maybe other noble Lords—back to my same question. Of course, after today’s debate, I shall read what the noble Baroness has said. It is a difficult issue.
Baroness Williams of Trafford
My Lords, we are dealing with many difficult issues here. I thank the noble Baroness. We will, of course, have further discussions.
Amendment 1 would raise the threshold for commission of the offence from a single instance of the prohibited behaviour to a pattern of behaviour. Given the seriousness of this type of behaviour and the potential harm that can be caused, I cannot agree that the amendment is appropriate. I point out that there is no requirement for there to be a pattern of behaviour in the existing Section 12(1) offence. I therefore do not see a case for adopting a different approach for the new Section 12(1)(a) offence.
I also fear that the amendment would run into similar issues with definition and certainty to those which were raised in the House of Commons in relation to the three clicks element of Clause 3, and which ultimately led to the Government’s removing that provision. For example, how many instances constitute a pattern of behaviour and how far apart can they be?
Lord Harris of Haringey
The noble Baroness says it is difficult to define. Presumably, the court would then have to interpret it and would say that this is clearly a pattern which is designed to have this effect.
Baroness Williams of Trafford
The court might also say that it is evidence, along with other types of evidence, which leads it to a certain conclusion. Just as the three clicks approach was seen as arbitrary in debate in the House of Commons, this is probably similar in the sense that downloading, together with other types of evidence, would lead a court to come to its conclusions, as it would here.
I want to talk about the concept of recklessness. It involves a person being aware of the risk that what they plan to say will have the effect of encouraging support but none the less going on to say it. In such circumstances, a reasonable person would not have gone on to make that statement.
On Amendment 2, the noble Baroness, Lady Jones, explained her concerns both at Second Reading and today that statements supporting an independent Kurdistan may fall foul of the new offence on the basis that it is a political objective held also by the proscribed group the PKK. I hope I can provide some assurance. On the noble Baroness’s example, I suggest that our hypothetical person could have a very high level of confidence that they would not fall foul of the Clause 1 offence. Support for an independent Kurdistan is a view held widely across a far broader range of people than just PKK members. To put it another way, while all members and supporters of the PKK are likely to support an independent Kurdistan, it is certainly not the case that all supporters of an independent Kurdistan are members or supporters of the PKK. It certainly could not be inferred from a statement in the terms described by the noble Baroness that the speaker supports the PKK or another such organisation; rather, they support an independent Kurdistan.
Noble Lords can take further assurance from the fact that in addition to not referencing any particular organisation, our hypothetical speaker has not said anything of the methods by which they would wish to see an independent Kurdistan brought about. Were they to suggest that this should be through means of terrorist violence, a reasonable person might anticipate that such a statement might influence the listener to support a terrorist organisation, such as the PKK, which supports the same political cause. Such a statement may well be reckless and may fall foul of the new Clause 1 offence. I hope we can agree that such a statement of support for terrorist violence would be unacceptable in any event. But in this example, there is no such suggestion of support for terrorist methods to achieve a legitimate political aim.
The same would apply to a statement in support of the withdrawal of Israeli troops from Palestine that does not voice support for violent methods or any proscribed terrorist organisation. There would be no basis on which a reasonable person might equate such a statement with support for Hamas or Hezbollah or anticipate that a listener would be influenced to support those organisations. As such, the statement would not meet the recklessness test and would not be caught by Clause 1. I make it clear that none of this analysis would be any different if “is supportive of” were replaced with “supports”.
Amendment 5, in the name of the noble Baroness, Lady Hamwee, would provide an exemption from the offence for those who make statements to the effect that a particular terrorist organisation should cease to be proscribed. We will have a wider debate on deproscription when we reach Amendment 59 in the name of the noble Lord, Lord Anderson. In that context, the noble Lord, Lord Carlile, is correct in saying that the Home Secretary regularly reviews proscribed organisations.
Perhaps I may make a few observations in the context of Amendment 5. I am happy to agree that those who make neutral statements along these lines should not be caught by the criminal law. However, I am clear that this will be the position under Clause 1 as currently drafted. The amendment, while well intended, is not needed to secure this result and would risk introducing unintended consequences. It has been a long-standing feature of the proscription system that individuals and organisations will question the proscription of certain organisations. It may be suggested, for example, that a group is not really terrorist in nature but is engaged in legitimate activism in the form of resistance or freedom fighting, or that its proscription inhibits a peace process or some other form of positive engagement and should therefore be lifted as a matter of discretion. The law already provides a clear route for people who hold such views to apply to the Home Secretary for the deproscription of any organisation. Three groups have been deproscribed following such applications.
The law also provides at Section 10 of the Terrorism Act 2000 clear and unambiguous immunity from prosecution under proscription offences for anything done in relation to such an application, including any statements made in support of the organisation.
Lord Carlile of Berriew
I apologise for interrupting the Minister. Can she reassure the Committee that the Home Secretary’s regular reviews are, first, regular in the sense that they take place at fixed periods and, secondly, that the reviews include looking at organisations—there may be some in Northern Ireland—which now have no members at all and have not engaged in any activity, so no one is going to apply for de-proscription and they are simply redundant? I certainly suspect that there may be some organisations of that kind.
Baroness Williams of Trafford
The point the noble Lord makes moves us very much into the territory of Amendment 59. However, I can confirm absolutely that the Home Secretary regularly reviews proscribed organisations. As noble Lords will probably remember, I have advised deproscription on a number of occasions. We will come to that point in due course.
Perhaps the noble Lord would remind me of his second query.
Lord Carlile of Berriew
It was simply about the deproscription of organisations that basically do not exist any more.
Baroness Williams of Trafford
I have probably answered that, but I know that we will have a full debate on Amendment 59.
Section 10 intentionally does not extend a blanket immunity to situations where a person makes a statement that may generate support for a proscribed terrorist organisation and which is not connected to an application for de-proscription, but is made in the course of a debate about whether in principle the organisation ought to remain proscribed. Such statements may well be entirely legitimate and may address matters of fact and of law in neutral terms, in which case they would not be caught by Clause 1, but they may also be reckless as to whether they will encourage others to support the organisation. They may not only suggest that the proscription should be lifted but argue that this should be done because the terrorist aims and activities of the organisation are a good thing, potentially giving rise to the serious harms I have described. One noble Lord has given examples of both of those scenarios. To provide a blanket exemption for any and all such statements would undermine the fundamental purpose of the offence and would risk preventing its use in exactly the situations for which it is intended.
Finally, I turn to Amendment 6 in the name of my noble friend Lord Attlee. This would introduce a blanket exemption from the offence for any expression or belief that would otherwise be unlawful which is published or broadcast for the purposes of journalism. It is of course beyond doubt that the freedom of journalistic expression, within the law, should be sacrosanct. Given the importance of this public interest, I expect the police, the CPS and the courts to tread very carefully indeed in any case where a journalist is suspected of an offence under Clause 1, in line with the normal safeguards and tests for prosecution. However, just as the noble and learned Lord, Lord Judge, argued so succinctly, I cannot agree that there should be an absolute exception for any person engaging in journalism.
Lord Rosser
I thank all noble Lords who spoke on this group of amendments. It has been a very wide-ranging debate with a wide range of views either supportive of or opposed to Clause 1, or to specific amendments we have debated. I certainly do not intend to try to summarise what has been said or to comment on the response we have heard from the Minister. As I said, I thank her very much for her reply, which I am sure has been appreciated because it was comprehensive and addressed a number of the questions raised, albeit people will of course have different views on whether they found that reply acceptable.
As far as my amendment is concerned—it related to pattern of behaviour—I do not want to say anything that commits me one way or another to doing anything on Report, but I will certainly reflect on what the Minister said when arguing against it. One of her points was that it was not in the existing offence, but it could be that the existing offence is rather more clearly definable than the new offence that appears in Clause 1. We had similar difficulties over the three clicks issue. That was slightly more difficult than, frankly, seeking to define what a pattern of behaviour might be.
I conclude by once again thanking noble Lords who have participated in the debate on this group of amendments and genuinely thanking the Minister for her reply: I am sure the House will have appreciated the depth to which she went in explaining the Government’s position. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall also speak to Amendment 8 in this group. Clause 2 amends Section 13 of the 2000 Act to criminalise the online publication of an image depicting clothing or other articles which,
“arouse reasonable suspicion that the person is a member or supporter of”—
maybe even supportive of—“a proscribed organisation”. At least we are not taxed with whether that is directed at anyone.
In their response to the Joint Committee’s report the Government told us that they do not believe that legitimate publications will be caught, as the offence bites only where the publication arouses reasonable suspicion of membership or support. However, in our view the arousal of reasonable suspicion is a low threshold to make out an offence. We are concerned that the clause risks catching a lot of conduct that, in common-sense terms, should not be caught. The amendments are, of course, alternatives: they would either leave out subsections (2) and (3) or, in Amendment 8, amend subsection (3) rather than omitting it, to provide that there is no offence,
“if there is a reasonable excuse for the publication of that image, such as”—
whether this is the best way to give examples or not I do not know—
“historical research, academic research or family photographs”.
In other words, those are not exclusive. Amendment 8 also specifies that there be no intention,
“to support or further the activities of a proscribed organisation”.
In other words, it would create a defence of reasonable excuse.
The Minister in the Public Bill Committee relied on the “reasonable suspicion” provision. I do not think that is the whole point. He also relied on there having been no prosecutions of journalists or researchers under the existing provisions which use similar wording. Of course that is of some comfort but, as I said at Second Reading, I do not think we should rely on the public interest test for prosecutions: I hope that the collective brainpower of this House can get us to a point where the wording is correct without our having to look at the public interest test. I beg to move.
Lord Carlile of Berriew
My Lords, in my view it is very important that photographs which may have a dramatic effect on the opinion of those who view them should be dealt with in the way described in this clause. They may, for example, include photographs derived from execution scenes which are both disturbing and, unfortunately, very influential.
In general terms I support this clause. I have a reservation about the Northern Ireland situation, and ask the Minister to reflect on this before Report and possibly consult more widely. I have travelled extensively in Northern Ireland, both when I was Independent Reviewer of Terrorism Legislation and subsequently. I have been taken to scenes where there is imagery which is now internationally regarded as works of art. I have been taken to scenes where there is imagery which may on the face of it be very distasteful, but plays an extremely important part in the history of the community concerned and in the extraordinary settlement that has taken place in Northern Ireland as a result of the Good Friday agreement, and I would not wish anything to be done that might disrupt that. It seems that the Secretary of State for Northern Ireland and the Police Service of Northern Ireland should be consulted to determine the issues raised in those amendments, before we become too dogmatic about them.
Lord Marks of Henley-on-Thames (LD)
My Lords, my noble friend Lord Thomas of Gresford and I oppose this clause standing part of this Bill. I agree with my noble friend Lady Hamwee that it goes well beyond what is necessary for the protection of the public against terrorism. While I quite understand the point just made by the noble Lord, Lord Carlile, that imagery is in many circumstances unacceptable, I disagree with him that this provision meets that problem. We have seen no evidence from the Government that persuades me that the terms of this proposed new section would reduce terrorism or make terrorists easier to catch. I believe that it departs from the sensitive balance between the protection and the security of the public, and the public’s civil liberties, in a way that is irredeemably bad.
The Government seek to define an objective—deterrence of displays encouraging terrorist groups—but offer no evidence as to why the new offence in these terms is needed. That is the first reason why it should be opposed. In other words, if we apply the first test I suggested at Second Reading for considering these measures—what is the purpose of this provision, which is a measure criminalising publication only; and what is the mischief it seeks to address—the Government leave both questions unanswered. Because the purpose is left undefined, it is not possible even to move to the second test of whether the measure is necessary to achieve that purpose.
The second reason why this clause should be opposed is that a person might be convicted of an offence under proposed new Section 1A, even if no mens rea of any kind is proved. To introduce a new offence criminalising behaviour where the prosecution is not required to establish any mental state on the part of the alleged offender is a very serious matter, and needs compelling justification. No such justification has been advanced in support of this clause. This is an absolute offence of publication, the only indicator of a guilty mind being that publication takes place,
“in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation”.
No requirement is proposed that the person charged should have deliberately, or even recklessly, given rise to such suspicion; no requirement that that person should be a member or supporter of a proscribed organisation; or even that the person should in fact have done anything to make anybody think that he or she was such a member or supporter. There is not even a requirement that the publication itself should be deliberate. A person who accidentally captures an offending image and unwittingly publishes it might be committing the offence merely because other reasonable people might regard the publication as casting suspicion on the person who publishes it. As for the images published that may be caught by this clause, the range is very wide. It follows, applying the test of proportionate response, that this measure is disproportionate, and it is no surprise that this term was used frequently in the first report on the Bill by the Joint Committee on Human Rights.
Lord Paddick
My Lords, I support all the amendments in this group. Amendment 7, in the name of my noble friend Lady Hamwee, to which I have added my name, removes the publication of images from this section and the new offence of publishing an image.
The existing offence under Section 13 of the Terrorism Act 2000 already outlaws the wearing of an item of clothing and the wearing, carrying or displaying of an article,
“in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”.
As I understand it, the Government want this new offence to cover photographs taken in a private place. As Liberty has pointed out in its briefing, this increases the risk that in so doing law enforcement may,
“mistake reference for endorsement, irony for sincerity, and childish misdirection for genuine threat”.
I gave the example at Second Reading of an innocent Facebook post of a selfie in a friend’s bedroom, with the subject not realising that there was an ISIS flag on the wall behind them.
Both the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights have expressed their unease with the new offence, which, like Clause 1, risks disproportionate interference with Article 10 of the European Convention on Human Rights. There is a general point here that covers both Clause 1 and Clause 2. I accept what the Minister has said—that these offences are designed to address a gap in the ability of the authorities to prosecute some people—but this runs the risk of creating a chasm into which innocent people are going to fall. Regrettably, we have seen time and again—I speak as a former police officer with more than 30 years’ experience—legislation that is too loosely drawn being abused by the police to arrest and detain people who should not be arrested or detained.
Amendment 8, in the name of my noble friend Lady Hamwee and the noble Baroness, Lady Lawrence of Clarendon, to which I have added my name, seeks to exclude those circumstances identified by the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights of,
“historical research, academic research or family photographs”,
and any publication that,
“was not intended to support or further the activities of a proscribed organisation”.
I appreciate that I have not heard from the Labour Front Bench in support of Amendment 9, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark—that has a similar intention to Amendment 8 but specifically includes journalism.
Taken together with the requirement that the publication was not intended to support, encourage support for or further the activities of a proscribed organisation, my concerns about universally exempting journalism, as in Amendment 6, do not apply to this amendment and therefore I support it.
This extension of the law risks criminalising those who have no intention of carrying out acts of terrorism or encouraging others to do so. As such, I agree with my noble friends Lord Marks of Henley-on-Thames and Lord Thomas of Gresford that Clause 2 should not stand part of the Bill.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, the amendments in this group seek to provide clarity on the issues in question before the Committee on this clause. They seek to put into the Bill the recommendations of the Joint Committee on Human Rights, which has looked at the Bill in detail. The committee has set out the position clearly. This clause is intended to criminalise the online publication of an image depicting clothing or other articles which arouse reasonable suspicion that a person is a member or supporter of a proscribed organisation. The committee has taken the view that the arousal of reasonable suspicion of support for a proscribed organisation is a low threshold under which to make an offence. I agree very much with the committee in that respect, as I do with the noble Baroness, Lady Hamwee—it may be too low a threshold.
The noble Baroness and the noble Lord, Lord Paddick, have put forward Amendments 7 and 8 in this group, as the Joint Committee suggested. Amendment 9, as proposed by myself and my noble friend Lord Rosser, is similar in effect to Amendment 8 but, as we heard from the noble Lord, Lord Paddick, we also make reference to journalism and academic research. All the amendments in this group are reasonable and proportionate. The new offence of publication of an image would be retained but through them we have created a proper defence of reasonable excuse in the Bill, which is important. The noble Lord, Lord Marks of Henley-on-Thames, has opposed Clause 2 standing part of the Bill. That gives the Minister the opportunity to justify this afternoon what is proposed in the clause.
The noble Lord, Lord Carlile, made an extremely important point in respect of images in Northern Ireland. Like the noble Lord, I have travelled extensively in the Province, where you can now visit areas with murals all over the place. Some of them can still look quite aggressive but they are also very much part of the tourist trail in certain parts of Belfast. We need to look at this issue and be careful about whether what we do here has unintended consequences. If the Minister does not accept the amendments before the Committee, can she set out how we can be satisfied that there is adequate protection in place within the clause as drafted?
Baroness Williams of Trafford
My Lords, under Clause 2 it will be an offence to publish an image of an item of clothing or other article associated with a proscribed organisation,
“in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of”,
the organisation, as noble Lords have pointed out. This provision updates for the digital age the existing offence at Section 13 of the Terrorism Act 2000, which criminalises the display in a public place of such an item in such circumstances. That existing offence applies only partially in cases where a person publishes an image online. While it would be likely to catch a person who publishes an image of, for example, a Daesh flag displayed on the streets, it could be argued not to apply to publication of an image of the same flag displayed within a private home, even if both images are made available to the general public by publishing them online in the exact same way.
The purpose of Clause 2 is to put beyond doubt the application of Section 13 to any case where a person publishes an image of something which it would be unlawful to display in person. It does this by inserting a new offence into Section 13 as its new subsection (1A). This is important to ensure that the law applies properly to contemporary online activity. In the 18 years since the Section 13 offence was enacted, we have of course seen an exponential growth in the importance of the internet in day-to-day life, and sadly its role in radicalisation and the spreading of terrorist propaganda is no different. This includes publishing images of flags and logos associated with proscribed terrorist organisations. We therefore need to update our legislation to reflect these developments and to ensure that all public spaces, including those online, are properly covered by laws which prohibit the publication of such material. Amendment 7 would simply remove this provision in its entirety, rather than seeking to amend or improve it, leaving the gap I have just described and leaving our terrorism legislation out of date and incomplete.
Amendments 8 and 9 would add a reasonable excuse defence to the new Subsection (1A) offence I have outlined. Both specify certain examples of reasonable excuse. Amendment 6 includes instances where publication of the image was not intended to be in support of a proscribed organisation, whereas Amendment 7 makes this category an absolute exemption.
Noble Lords have indicated that their intention is to ensure that the offence does not catch those with a legitimate reason to publish images of items associated with proscribed terrorist organisations, in particular in the context of historical or academic research or family photographs, or who otherwise publish such images without nefarious intent. I am very happy to support both the sentiment and the intention behind these amendments. The Government have no desire to criminalise people for simply going about their legitimate professional activities or their normal family life, but these amendments are not needed to secure that outcome. In fact, the same outcome is already secured by Clause 2.
To explain why that is so, it is important to note that the mere publication of an image associated with a proscribed organisation is not enough on its own to constitute an offence under the existing Section 13 offence or the new offence that will be added to it by Clause 2. The offence will be made out only if the image is published in such circumstances as to arouse reasonable suspicion that the individual is a member or supporter of the proscribed organisation. This provides a clear and effective safeguard. For example, in a case where a journalist features an image of a Daesh flag in a news report on the activities of the group or an academic publishes such an image in a book or research paper, it would be clear from the circumstances that they are not a member or supporter of Daesh. Similarly, where a person publishes, say, an old family photo of an ancestor standing next to an IRA flag, the offence would not bite unless all the circumstances of the publication suggest that that person is a member or supporter of the IRA.
On the point made by the noble Lord, Lord Carlile, about the sensitivity of symbolism, pictures et cetera and Northern Ireland, if he will indulge me, I will move on to the specific Northern Ireland point on the next amendment.
This approach provides no less certainty to such individuals that they will not be caught by the new offence than would the proposed reasonable excuse defence, and it offers the advantage that the same formulation—
Lord Paddick
Will the Minister address the example I gave at Second Reading and again today of somebody who does not realise when taking a selfie that there is an ISIS flag behind them on their friend’s wall? In what way would it be clear that those circumstances are not intended to lead to a reasonable suspicion that the people in the photograph are supporters of ISIS?
Baroness Williams of Trafford
I was going to explain it in my own words, but I think the notes agree with me. On the innocent selfie with the ISIS flag in the background, the offence is clear: it is committed only where all the circumstances in which an image is published give rise to reasonable suspicion that the person is a member or a supporter of a terrorist organisation. The picture in and of itself is not the offence. I hope I have explained that clearly to the noble Lord.
Lord Marks of Henley-on-Thames
I invite the Minister to consider that with her department, particularly in view of her concession that she does not wish to criminalise anyone who would be excused by the two amendments we have been discussing. The difficulty is that the drafting of the clause at the moment introduces an objective test of reasonable suspicion in the viewer of the image without any regard to the purpose in the mind of the person publishing the image. The offence is one of publication. The suspicion does not have to be in the mind of the publisher; the suspicion is in the mind of the observer. That is the difficulty that the Minister’s position does not grapple with.
Lord Kennedy of Southwark
Before the Minister responds, perhaps I could clarify that point. She is saying that in the example of the photograph with a Daesh flag in the background but where the person does not realise what the flag is, the publication of that picture would not in itself be an offence because you would take into account things such as the message that accompanied the Facebook post—for example, a message saying, “I’m here with my friend and having a drink”—so all those things would be considered together. I think that is what the Minister is saying.
Baroness Williams of Trafford
As the noble Lord has just explained, it is about the whole context in which this happens. In any case, it will of course be the police and the Crown Prosecution Service that will determine those normal tests for prosecution, and of course ultimately the courts.
The noble Lord, Lord Marks, made the point about the viewer and the publisher. I had hoped that my words would explain that but they do not. I will take back what he says, and I am sure he will challenge me on it on Report. However, I hope the approach provides no less certainty to such individuals that they will not be caught by the new offence than would the proposed reasonable excuse defence, and it offers the advantage that the same formulation has been in force since 2000 in relation to the existing Section 13 offence, which would already be likely to cover many of the circumstances where the item depicted in the image is situated in a public place. As I have said, it is when the item is not located in a public place that the gap begins.
After 18 years that formulation is well understood by the police and the courts. Proof of its effectiveness lies in the simple fact that during that period we have not seen prosecutions of any journalists or academics who have published reports or books containing such images. That should give us some comfort. Nor have we seen any complaints that such people have been inhibited or discouraged from pursuing their legitimate professional activities by the existence of the Section 13 offence. I have sympathy for the objective behind the amendment but I hope that, for the reasons given, noble Lords will agree that it is not necessary. I hope that having heard the arguments for the Section 12(1A) offence and my assurances about the scope of the offence and the effectiveness of its existing safeguards, the noble Baroness will be content to withdraw the amendment.
Baroness Hamwee
My Lords, I thank the Minister for her response. This is not intended as a criticism, but in introducing her response the numbering of the amendments went a little awry. I suspect that her briefing was written before the Marshalled List was put together. I say that only for people who may be reading Hansard after today.
The noble Lord, Lord Carlile, made the point about consultation that I made in rather a broader way at the beginning of this afternoon’s proceedings: people who have knowledge of particular circumstances have things to contribute to the legislation that we end up with. I agree with his point about consultation. The Minister says she will deal with Northern Ireland under the next grouping. I hope that consultation, as it is considered under the grouping, can go wider than the PSNI and the prosecution service, which were specifically mentioned, because more people will have things to contribute than just those two organisations. The noble Lord makes an important point.
He used the example of scenes of execution. That is not what the amendments here are aimed at but it makes me wonder whether there is something about intention in all this that we might explore afterwards. A scene of execution is a very extreme example—much more so, I think, than a freedom fighter flag.
The Minister used the term “updating”. I wonder whether what we are talking about here is more about prompting an investigation than creating an offence in itself. I can see that one might want to pursue the sort of situations that she has referred to but, like my noble friend Lord Paddick, I think the words “in such a way” and “circumstances” are very wide.
Pretty much the Minister’s final point was that it would be for the police and the CPS to determine. When I moved my amendment, I said that I really do not want to find us continually relying on the public interest test; we ought to be able to do better than that. My noble friend Lord Campbell, who came into this debate and heard the Minister’s comment, did not hear my introduction but I absolutely agree with him that it is for the courts to determine. One should not be looking at the public interest test as a way of getting out of a difficult situation.
Of course, at this point I shall withdraw the amendment, but I am sure we will look again at the detail of this situation. I beg leave to withdraw the amendment.
Lord Rosser
“(5) Before subsection (4) may come into force the Secretary of State must consult the Police Service of Northern Ireland and the Public Prosecution Service of Northern Ireland on the introduction of the power to seize an item of clothing or any other article in Northern Ireland.”
Lord Rosser
Clause 2(4) confers on the police power to seize clothing or any other article, including flags, associated with a proscribed organisation. The Bill would enable the officer in the circumstances to seize items such as flags, provided that the officer was satisfied that it was necessary to seize such an item to prevent the evidence being concealed, lost, altered or destroyed—evidence that could well be crucial in pursuing an investigation and bringing a successful prosecution.
When this matter was discussed during the passage of the Bill through the Commons, the Government were asked what engagement there had been with the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland about the terms of Clause 2 and the difficulties in pursuing such prosecutions. In response, the Government accepted that taking away a flag in certain parts of Northern Ireland had on occasions acted as something of a lightning rod for a riot or a breakdown in civil order, and that in Northern Ireland a flag does not necessarily, in the context of the provisions of this Bill, have pure terrorist content. The Commons Minister said he did not want to see,
“flag protests becoming more and more polarised than they were in the past”.—[Official Report, Commons, 11/9/18; col. 661.]
In view of the potentially sensitive nature of this issue in Northern Ireland, the amendment would ensure that Clause 2(4) on seizures could not come into force until the Secretary of State had consulted the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland on the introduction of the new provisions in the Bill in relation to the power to seize.
It would be helpful if the Minister could say how the Government envisage the power to seize working across the UK generally. Presumably, there will still be the same potential confrontation over seizing an item, whether on arrest or subsequently reporting the person for summons, with an indication of that course of action being given to the individual concerned at the time. On the basis of what evidence do the Government believe that the likelihood of confrontation will be reduced? Presumably, those on marches or demonstrations will soon know that court proceedings are still likely or possible under reporting a person for summons. Or is the purpose of this option of seizure—of, for example, a flag—in reality a reason to do it this way and then not pursue the matter any further through the courts?
Presumably, there will still be a need to obtain an individual’s name and address on the street at the march or demonstration before or after the seizure of the flag or other item in question, and that information may or may not be given. Both issues—namely, trying to seek such details and the seizure of the flag before or afterwards—might still provoke confrontation. It would be helpful if the Minister could address that point in her response, as well as the more specific issue of the application of the clause in Northern Ireland. I beg to move.
Lord Paddick
My Lords, briefly, I support the amendment. Judging from the Minister’s non-verbal reaction to it, the consultation proposed seems extremely sensible given the history in Northern Ireland. On whether or not the police will use these powers in a public order situation, the police are very experienced—I declare an interest as a former advanced public order trained police officer who dealt with such situations—and, clearly, a decision has to be made on the basis of the circumstances at the time whether items can be safely seized without escalating the situation. The police service is very well equipped in deploying professional photographers and others gathering video evidence which can be used instead of, or in addition to, seizing those items. So although I agree with the sentiment behind the amendment concerning Northern Ireland, I do not share the concerns of the noble Lord, Lord Rosser, about the seizure of items potentially escalating a situation.
Baroness Williams of Trafford
My Lords, as the noble Lord, Lord Rosser, has explained, the amendments relate to the new power to seize flags and other articles provided for in Clause 2(4). Under Section 13(1) of the 2000 Act, it is an offence to wear or display in a public place an item of clothing or other article in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. The seizure power in Clause 2 is intended to ensure that the police and the CPS have the best evidence to pursue a prosecution for a Section 13(1) offence.
Of course, the police already have powers to seize evidence following an arrest, but in some circumstances, particularly in the context of policing a march or demonstration, arresting an individual may not always be an option if the legal tests in the Police and Criminal Evidence Act 1984 for making an arrest are not satisfied; or arrest may not be the appropriate policing response at that time if, as the noble Lord, Lord Paddick, pointed out, it is judged that it would provoke further disorder. In such a case, if the police wish to take action against a person displaying an item such as a flag or banner, instead of arresting the individual, the officer may choose to report them for summons on suspicion of committing an offence under Section 13(1) of the 2000 Act.
The new power introduced by Clause 2(4) would enable the officer, in these circumstances, to seize an item such as a flag which they reasonably believe to be evidence of the Section 13(1) offence in the absence of an arrest. The officer must be satisfied that seizure is necessary to prevent the evidence being concealed, lost, altered or destroyed. By preventing the loss or destruction of such items, this power will better support investigations and will provide and better preserve more evidence to help take forward prosecutions.
Baroness Hamwee
I was not so much asking as supporting the noble Lord, Lord Carlile, in his earlier suggestion that there should be consultation regarding works of art and works of historic value in Northern Ireland. I simply referred to the amendment suggesting that those organisations may not be the totality of those who would have views on the points he made.
Baroness Williams of Trafford
After the debate, I shall go back and check, but those are the ones we have consulted on this aspect.
Of course, this will be a discretionary police power like any other, and its application in Northern Ireland will be an operational matter for the PSNI, but we will consult and update those partners further, as necessary, prior to the provision coming into force.
The change that Clause 2(4) makes to Section 13 of the 2000 Act is to confer a power on the police to seize flags or other articles associated with a proscribed terrorist organisation as evidence of an offence under Section 13(1). This is intended to ensure that the police and CPS have the best evidence to pursue a prosecution.
Of course, the police already have powers to seize evidence following an arrest, but in the context of policing a march or demonstration, it might not always be an option if the legal tests in the PACE Act 1984 for making an arrest are not satisfied, or arrest may not be the appropriate policing response at that time.
In such a case, if the police wish to take action against a person displaying such a flag, instead of arresting the individual, the officer may choose to report them for summons on suspicion of committing an offence under Section 13(1) of the 2000 Act.
I think I may have been given papers which are forcing me to repeat what I just said.
Baroness Williams of Trafford
Ignoring what I just said—I am not sure how that happened—I hope that, with the explanation I have given, the noble Lord will feel happy to withdraw the amendment.
Lord Rosser
I thank the Minister for her response and thank other noble Lords who participated in this brief debate. Can she confirm that the reason for changing seizure provisions so that seizure can be dealt with by having a person reporting for summons is not meant to be taken as meaning that, where clothing or flags are seized under these provisions, in reality the matter would not be pursued through the courts?
I probably have not made myself clear. There will now be a procedure where clothing, or a flag in particular, could be seized in circumstances where the person could be reported for summons. I asked whether in reality that procedure meant that, once the flag had been seized, the chances were that the matter would not be pursued any further through the courts or whether it was still likely that matters would be pursued through the courts.
Baroness Williams of Trafford
Generally, the seizure would be with a view to prosecution, yes.
Lord Rosser
I am grateful to the Minister for that clarification, and in thanking her once again for her response, I beg leave to withdraw my amendment.
Lord Rosser
Lord Rosser
Clause 3 provides for a new offence of obtaining or viewing information online of a kind that is likely to be useful for committing or preparing an act of terrorism. Section 58 of the Terrorism Act 2000 already criminalises collecting, recording and downloading such material. The new offence broadens the type of activity that is potentially criminalised from actively downloading to simply having sight of information, and attracts a maximum of 15 years in prison.
The difficulty once again is that while those we want to catch may well fall foul of the new offence, it is a distinct possibility that those we do not may also get caught up when pursuing their legitimate business, or will be deterred from undertaking some of their legitimate business at all by the thought of getting caught up. As with the previous debate, this could include journalists, academics and those engaged in other research activity, as well as those looking by mistake at information online of the kind likely to be useful for committing or preparing an act of terrorism, or without any intent to act on the material in a criminal manner.
Originally, the Government proposed in the Bill that the new offence should be committed after material had been viewed three or more times—the so-called three clicks test. That was subsequently changed to provide instead for a reasonable excuse defence, which would include cases where the person did not know and had no reason to believe that the information was of a kind likely to be useful to a person committing or preparing an act of terrorism. However, the change could also be interpreted as meaning that an offence could be committed after one click or viewing, rather than three.
The purpose of Amendment 11, therefore, is to minimise the possibility of people carrying out their legitimate business being caught by the new offence by providing that a person commits an offence only if they view or otherwise access material,
“as part of a pattern of behaviour”,
in relation to the offence of accessing the material in question online.
As I said in an earlier debate in which the amendment in question added the words,
“as part of a pattern of behaviour”,
if this amendment does not find favour with the Government, I hope the Minister will say what steps they intend to take to ensure that those with legitimate business in relation to material covered by the clause do not find themselves in difficulty under the terms of the new offence. I beg to move.
Baroness Hamwee
My Lords, I have Amendments 12 and 13 in this group. The JCHR accepts that technology has moved on since 2000 but has expressed concern that viewing material online without any associated harm was an unjustified interference with the right to receive information. It was concerned too that the defence of reasonable excuse does not provide an explicit safeguard for legitimate activity. The noble Lord has rehearsed the history of this clause, and the Government’s current position, having excluded the three clicks provision, provides that a reasonable excuse includes but is not limited to situations where,
“the person did not know, and had no reason to believe”,
and so on. We are not reassured that there will be adequate protection for legitimate conduct, so we have proposed Amendment 12, on intention,
“to commit or encourage acts of terrorism”.
At the end of Committee, we will have to collate all the references to intention and recklessness to see whether each of us has been consistent in our arguments, which we may not have been. We want to insert a mens rea of intent.
Amendment 13 adds the phrase,
“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.
If that wording sounds familiar, we have just been through it in Clause 2, so I refer the Minister to my argument then in defence of adding these words.
Lord Paddick
My Lords, I rise to support the amendments in this group. Section 58 of the Terrorism Act 2000 already makes it an offence if a person collects or makes a record of information of the kind likely to be useful to someone committing or preparing an act of terrorism, or possesses a document or record containing such information. Some examples will be of obvious use to terrorist activity—instructions on how to make a bomb, say—but others are not so obvious.
I walk every morning from St James’s to the House around the time of the changing of the guard. It would be useful for me to know which days the ceremony is being mounted so that I could avoid the crowds, but it would also be useful to a person preparing a terrorist attack on the soldiers taking part in the ceremony. The difference between my actions and the terrorist’s actions are simply the purpose to which that information is being put.
Subsection (4) inserts a proposed new subsection (3A) after Clause 58(3) describing a reasonable excuse defence that at the time of the person’s actions, they did not know, or had no reason to believe, that the document or record in question contained or was likely to contain information of a kind likely to be useful to a person committing or preparing an act of terrorism.
I know that the days on which the changing of the guard takes place is information likely to be useful to a person planning a terrorist attack on soldiers taking part in the ceremony, and I know that when I look at it. A reasonable excuse defence would not necessarily stop police being able to arrest and detain me for looking up when the changing of the guard takes place, even if the CPS decided that it was not in the public interest to charge me.
It may be considered to be a trivial excuse but it shows the breadth of this original offence. Indeed, the Independent Reviewer of Terrorism Legislation warned against Clause 3, saying that it risked criminalising those who view material such as bomb-making instructions,
“in disgust, shock and disapproval”.
Amendment 11, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, seeks to ensure that the one click offence is mitigated by providing that it must be,
“part of a pattern of behaviour”.
While I support that amendment, for the reasons I have already given, it does not go far enough. I have therefore added my name to Amendments 12 and 13, in the name of my noble friend Lady Hamwee. The former refers to an intention,
“to commit or encourage acts of terrorism”,
and the latter includes the following phrase:
“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.
Lord Carlile of Berriew
My Lords, I understand that this clause is one of several in the Bill intended to deal with the speedy march of technology. The previous legislation particularly had in mind the downloading of material. There is now no need to download material at all. This is intended to deal with the practice of streaming, which not only has become ubiquitous but can now be done at lightning speed. My own internet system was uprated a couple of days ago and I am almost blinded by the speed at which, in the morning, I can get on my telephone whatever I wish to view on my exercise bike. That gives more detail than is probably welcome in this House, but it happens in moments. It is important to tackle the issue of streaming by updating the legislation.
With deference to the Opposition Front Bench, the phrase “pattern of behaviour” is breathtakingly vague and would never pass muster in any court of law as something which could be judged with any certainty. I urge the Minister to reject that phrase. I cite an example which I have seen of legitimate use being made of the kind of material the Committee is looking at. I do not want to embarrass the university concerned by naming it, but I took part in a seminar in the very good law faculty of a very good university in which second-year undergraduates had been asked to look at material online in order to assess the effect that they thought it would have on people who were looking at it out of curiosity, rather than as part of their study. The professor who was supervising this had, of course, informed the local counterterrorism unit that it was going to be done, because he wished to avoid difficulty. That unit welcomed what he was doing, because it was interested in the reaction of 18, 19 and 20 year-olds to material that is usually judged by people with PhDs, police officers or the security service. It gave a new viewpoint on this material and I was privileged to take part. However, it is an absurd notion that something like that would be prosecuted.
This clause extends the existing reasonable excuse defence under Section 58(3) to the new type of material which is available and which the Committee is considering now. As a result of the decision of your Lordships’ House in R v J and R v G in 2009, it has been made absolutely clear that,
“the defence of reasonable excuse must be an objectively verifiable reasonable excuse to be determined by the jury in the light of the particular facts and circumstances”,
of the case. Also, where the evidential burden is raised by the defence—in other words, the defendant says, “I have a reasonable excuse”—the defendant does not have to prove it. The prosecution then has to make the jury sure that the excuse that the defendant has offered is not reasonable. That in itself is a sufficient existing protection, without these amendments.
Further, and with great respect to as experienced a police officer as the noble Lord, Lord Paddick, I appeal to noble Lords who are looking for theoretical cases in which an arrest or prosecution may take place. The police do occasionally exercise their common sense and not arrest someone where it would be patently absurd to do so. Most of the time they do just that. A two-code test has just been reaffirmed in the publication—by the outgoing DPP on the last day of her period of service—of a new Code for Crown Prosecutors. It emphasises the dual-code test which requires not only that there should be evidence that a jury might accept but also that it is in the public interest to prosecute. The discretion of prosecutors is an important part of our unwritten constitution that is often overlooked but should not be, as is the protection offered by juries, which are plainly not going to convict someone like my friend the university professor who engaged his students in the very valuable exercise that I described. This provision is entirely proportionate and simply updates a piece of law that sometimes causes difficulties because we do not always keep it up to date.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, these amendments seek, in various ways, to raise the threshold for the offence of viewing material over the internet provided for in new Section 58(1)(c) of the Terrorism Act 2000. Amendment 11, in the name of the noble Lord, Lord Rosser, seeks to restore the concept of a pattern of behaviour which was, as he pointed out, inherent in the so-called three clicks version of the offence as originally introduced in the House of Commons. Amendments 12 and 13, in the name of the noble Baroness, Lady Hamwee, would introduce a requirement to prove not just that the material being accessed is likely to be useful to a terrorist but that it was accessed by the individual with the intention of using it for terrorist purposes.
In responding to Amendment 11, it may assist the Committee if I explain that the intention behind the original three clicks provision was to ensure proportionality, and to provide a safeguard for those who might inadvertently access terrorist material by ensuring that there was a pattern of behaviour in accessing such material. However, we recognised the difficulties underlying that approach, and the uncertainty around how it would be implemented. Having reflected on the concerns that were raised about the three clicks provision, we believe that the reasonable excuse defence is the better way of proceeding. Introducing a pattern of behaviour test would recreate many of the same issues we faced with the three clicks provision. I agree with what the noble Lord, Lord Carlile, has just said on that issue. For example, it would beg questions such as how many viewings were required to constitute a pattern of behaviour and over what period such viewings would need to take place. Indeed, a pattern of behaviour test arguably introduces a greater degree of legal uncertainty than the three clicks test and, for that reason, I respectfully suggest that it is best avoided.
Amendments 12 and 13 would very significantly raise the threshold for the offence, and would alter its fundamental purpose. Section 58 of the Terrorism Act 2000, which Clause 3 amends, is a preparatory offence, rather than one aimed at the actual planning or commission of terrorist acts. It has a lower maximum sentence than other offences covering more developed terrorist activity, which can attract up to life imprisonment. I suggest to the noble Baroness that, in that sense, it is not comparable to the offence in Clause 2. The Section 58 offence, as amended by the Bill, is formulated so as to catch people who make a record of, or who view online, information likely to be useful to a terrorist, without requiring them to have actually used that information for a terrorist purpose or to intend to do so. This is in itself harmful behaviour, and such people can pose a very real threat to public safety. I do not agree with the example given by the noble Lord, Lord Paddick, of the changing of the guard. The noble Lord, Lord Carlile, hit the nail on the head again when he spoke about what is reasonable for the authorities to suppose in all the circumstances.
If there is evidence that the individual is preparing or committing an act of terrorism, or is assisting another person to do so, then they would be likely to meet the threshold for a more serious offence, such as Section 5 of the Terrorism Act 2006, which covers the preparation of terrorist acts, and for which the maximum sentence is life imprisonment. As such, a requirement to prove terrorist intent would effectively render unusable the new limb of the Section 58 offence that Clause 3 will insert. This is because the offence would be moved into territory that is already well covered by existing offences and could not be used for its intended purpose so that the police and courts would remain powerless to act against individuals accessing very serious terrorist material online.
The noble Baroness, Lady Hamwee, has suggested that her amendments are intended in part to address her concern that the offence will inappropriately criminalise those who seek out terrorist information through foolishness, inquisitiveness or curiosity, without intending to do harm. I have sympathy for that concern. The Government have been clear that this offence is aimed at those of a terrorist mindset and we do not wish to cast its net unnecessarily widely. However, I cannot agree with the noble Baroness’s suggestion that this is the best way to address the concern.
For the reasons that I have set out, these amendments would fundamentally undermine the purpose of the offence, and would go much further than I believe is intended in narrowing its application. We consider that the existing “reasonable excuse” approach is a better and more appropriate means of doing so, together with the normal CPS tests of whether there is evidence that would provide a reasonable prospect of conviction, and whether prosecution would be in the public interest, as the noble Lord, Lord Carlile, said. This is particularly so, because the question of whether it is legitimate for someone to intentionally seek out serious and potentially very harmful terrorist material, through foolishness or inquisitiveness, will be very fact-specific and particularly prone to grey areas. It needs to be considered on the basis of all the circumstances and all the evidence in any particular case.
While clearly there will be cases of this type, where prosecution will not be appropriate, it will certainly not be responsible to provide a blanket exemption for any person to access any quantity of terrorist information and be able to rely on such an exemption, whatever the potential harm associated with their activities. I hope, having heard my explanation, the noble Lord, Lord Rosser, will be content to withdraw his amendment, and that the noble Baroness, when it comes to her turn, will be content not to press hers.
Lord Paddick
I would like to explain my concerns to the Minister. In order for a police officer to make an arrest, all the police officer will need is a reasonable cause to suspect that the person is committing the offence. Therefore, the “reasonable excuse” defence provided in the Bill does not come into play. I accept that no Crown prosecutor would prosecute something that is clearly an innocent mistake, for example by someone clicking on to information. But my concern is that there is nothing to stop a police officer arresting a person, and the person being detained, until there is detailed consideration about whether this is a grey area, or whether it is reasonable or not.
Can the Minister give me any reassurance, other than what the noble Lord, Lord Carlile, has said about most police officers being reasonable? The particular offence that I am thinking of, which is no longer on the statute book—Section 4 of the Vagrancy Act 1824 —of being a suspected person,
“loitering with intent to commit an indictable offence”,
was routinely abused by the police in order to arrest people who were innocently going about their business. I am concerned that offences like this, which are very widely drawn and rely on a “reasonable excuse” defence, do not protect the innocent person from arrest and detention by the police.
Earl Howe
My Lords, I bring the noble Lord back to the issue that I flagged—that a judgment needs to be made in all the circumstances of the particular case. I turn the question back to the noble Lord. We are dealing with the viewing of material that must have a clear link to terrorism, and must be objectively capable of being useful to a person committing or preparing an act of terrorism.
One has also to bear in mind what the existing offence consists of. How does the noble Lord think the proposed new offence differs in its substance or its degree of seriousness from the offence already established in Section 58 of the Terrorism Act 2000? How does accessing this kind of harmful material by way of a streamed video differ from accessing it by way of a download or a book? Have we seen examples over the last 18 years of people being wrongfully hauled to the police station as a result of innocent activity? I am not aware that we have.
Lord Rosser
I once again thank all noble Lords who have participated in this debate and I thank the Minister for his response. I will be brief. The purpose of the amendment, as I hinted at the end of my contribution, was that, if the Government did not find favour with it, they would say what steps they intended to take to ensure that those with legitimate business in relation to material covered by the clause did not find themselves in difficulty under the terms of the new offence. I accept that the Minister has sought to address that point. The issue between us, if it turns out that there is an issue, will be whether the procedures outlined by the Minister will be sufficient to prevent anybody who is not acting with malice—not engaged in terrorist activity—being caught by this offence. With that, I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
“(a) at the time of the person’s action or possession, the person did not know, and had no reason to believe, that the document or record in question contained, or was likely to contain, information of a kind likely to be useful to a person committing or preparing an act of terrorism,(b) the material in question was collected, recorded, possessed, viewed or otherwise accessed for the purposes of journalism,(c) the material in question was collected, recorded, possessed, viewed or otherwise accessed for the purposes of academic research”
Lord Kennedy of Southwark
My Lords, my Amendment 14 is supported by my noble friend Lord Rosser. Clause 3 seeks to create an offence of viewing material online that is likely to be useful to a person committing or preparing acts of terrorism. That is something we on these Benches can support. Our amendment seeks to build in protections that strengthen the intention of the clause. We seek to make clear in the Bill that no offence is committed if the person had no idea, did not know, or had no reason to believe that the material would be useful to someone committing or preparing for acts of terrorism, and that it could be viewed or collected for journalistic or academic research purposes. My noble friend Lord Davies of Stamford, who is not in his place, raised the important issue about journalism in a previous group of amendments. There is a point to be explored here about what defines a journalist. I am sure we will come back to that point in other debates. Do bloggers count as journalists? I actually think not, but again these are important issues which I am sure will be looked at elsewhere.
Amendments 15 and 16, which are largely the same, seek to put into the Bill the recommendations of the JCHR on page 8 of its report. My amendment would require the Secretary of State to issue guidance so that it is clear what is reasonable; we are talking here about what is and is not reasonable. It seems very sensible that the Secretary of State should issue guidance on that. When the Government respond to this group of amendments, and if they are not minded to accept what we have put forward, it would be useful for them to set out what protections are in place that would cause the amendment not to be approved.
Baroness Hamwee
My Lords, as the noble Lord, Lord Kennedy, has said, Amendments 15 and 16 are the same. What constitutes a reasonable excuse will obviously be a matter for the jury. I accept that one cannot identify reasonable excuses in the abstract without knowing exactly in what circumstances a person undertook a particular action, but citizens should know when it is likely that they will be committing a crime. I think that that is accepted in the ECHR memorandum on this clause, where the Government say:
“There should be some degree of latitude for a person legitimately to explore political, religious or ideological matters, and the criminal law should acknowledge that, without the person actively seeking it, this may lead him to online material that crosses the line into that which is likely to be useful to a terrorist”.
Having some guidance would give a framework for the citizen to assess the matter.
At this stage, I shall not oppose Clause 3 standing part of the Bill—the intention to do so appears in a separate group—because we have covered more ground than I had anticipated. However, I will say now that it occurred to me that there might be a point of comparison between Clause 3 and legislation on child sexual exploitation. The Criminal Justice Act 1988 creates an offence of a person having an indecent photograph or pseudo-photograph of a child in his possession, and possession includes a physical and a mental element. I understand that the CPS guidance states that a person who views an image on a device which is then automatically cached on to the device’s memory would not be in possession of that image unless it could be proved that he or she knew of it. At first blush at any rate, it looks as though Clause 3 goes further than that provision, which requires possession, control or custody of images as opposed to viewing them.
Coming back to Amendment 15, I hope that the Government can give serious consideration to some way of assisting members of the public on this whole matter. Guidance will not override the provisions of the legislation but it can be what it is intended to be—that is, helpful.
Lord Judge
My Lords, I respectfully introduce a note of caution about Amendments 15 and 16. We are dealing with the creation or amplification of criminal offences. The issuing of guidance by the Secretary of State in legislation of this kind would be very unusual and it would not, in the end, add certainty to the situation. Guidance has no statutory force, and someone looking at guidance might nevertheless find himself being prosecuted. Alternatively, someone who could not bring themselves within guidance might be prosecuted.
The real point is this: guidance may be helpful but if it is not statutory, it has no legal effect. If we wish to introduce issues here, we should do as my noble friend Lord Anderson does in the next clause, where he seeks to define, in primary legislation, a number of situations in which an offence is not committed.
My final point—I find this extremely alarming—is the idea that a Secretary of State, using executive powers, should issue guidance about how the law should be implemented. Either the law is clear or it is not, and guidance does not make it any clearer. Such a measure would—I think probably for the first time in criminal justice legislation—give an enormous power to the Secretary of State to say, without any parliamentary control, “This may not come within the ambit of the offence but that may”, and so on. That should not happen.
Lord Paddick
My Lords, I support the amendments in this group, although I have some reservations about all of them now that the noble and learned Lord, Lord Judge, has spoken. However, I have concerns about Amendment 14, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, for the reasons I have expressed in previous groups about having a blanket exemption for journalism and academic research. A terrorist could access information with the intention of committing a terrorist act but could claim that it was for the purposes of journalism or academic research. Surely the acid test should be the intention of that person, not the content of the material.
I have added my name to Amendment 15, in the names of my noble friend Lady Hamwee and the noble Baroness, Lady Lawrence of Clarendon, although I accept what was said by the noble and learned Lord, Lord Judge, with his wisdom and legal background. Obviously the intention of the amendments is to suggest that the law is not clear here about what would amount to a reasonable excuse. Perhaps the mechanism suggested in the amendments is not the right one, and, as the noble and learned Lord, Lord Judge, has alluded to, maybe the approach outlined in amendments that we will consider shortly is the right one. However, there is concern about what would amount to a reasonable excuse under this clause.
Earl Howe
My Lords, there have been calls both in your Lordships’ House and in the House of Commons to place on the face of the Bill a definition of legitimate activity that would not be caught by the Section 58 offence as amended or to specify categories of reasonable excuse. The Government’s position on this issue is well rehearsed, including in our response to the Joint Committee on Human Rights. Noble Lords opposite have clearly been following this debate closely, because Amendment 15 proposes a slightly different approach, and Amendment 16, in the name of the noble Lord, Lord Rosser, follows a similar path.
Rather than seek to write exemptions or examples of reasonable excuses into the Bill, as Amendment 14 seeks to do, Amendments 15 and 16 instead seek to place a requirement on the Government to publish guidance on the same matters. I commend noble Lords for their constructive approach in seeking alternative solutions, and I hope that they will find my response to their suggestions similarly constructive, even if I am not able to support these amendments.
The Government’s starting point on this issue is that Section 58 of the Terrorism Act 2000 already contains a well-established safeguard, in the form of a reasonable excuse defence, for those with a legitimate reason to access terrorist material. As a result of Section 118 of the 2000 Act, if a person raises this defence, the court must assume that it is satisfied unless the prosecution can disprove it beyond reasonable doubt. We will debate the operation of Section 118 when we come to Amendment 18 in a later group.
Where a person has a reasonable excuse, a prosecution should not in fact commence, because the case would not pass the Crown Prosecution Service threshold tests of being in the public interest and of there being a realistic prospect of conviction. This safeguard has operated successfully in relation to Section 58 since that offence was first created in 2000, and it reflects the approach taken across the criminal law, where many other offences with a similar defence also do not list specific categories of reasonable excuse. As such, it is well understood by the police, the CPS and the courts. It will continue to apply equally to the offence as amended by Clause 3, and it will not be narrowed or reduced in any way.
This is an important safeguard, and I understand the intention of the noble Lord and the noble Baroness in seeking to put its effect even further beyond doubt, whether through the amendment of Clause 3 or through guidance to be published under it. However, it is my view that, whichever route is taken, it is simply not necessary. Furthermore, such an approach could in fact have the unintended and unhelpful consequence of unsettling the current position, and of reducing rather than increasing clarity. I hope the Committee will indulge me while I explain why this could be the case.
Baroness Jones of Moulsecoomb
I am sorry, but I am driven to say to the Minister that, as an ex-archaeologist, we have a saying: absence of evidence is not evidence of absence. Just because you do not have the evidence, that does not mean it has not happened. Does that help the Minister?
Earl Howe
I expect it does, but I shall need to get my mind around the point.
Of course, the statement made by the noble Baroness has to be right, but I come back to the fact that, in practice, we have not seen any miscarriages of justice against journalists or academics, or indeed any arrests. It is therefore incumbent upon us to ask why that is so, given the certainty with which some have predicted that exactly these consequences will flow from Clause 3. Could it be because the safeguards I have outlined were operating successfully? My suggestion is that this is the case. Furthermore, as the very same safeguards will continue to apply to Section 58 as amended by Clause 3, and as Clause 3 will neither narrow them in any way nor broaden the types of material caught by Section 58, I suggest that we can take considerable comfort from this.
As well as questioning the practical necessity for these amendments, I also have some concerns about the form of Amendments 15 and 16, which require the Secretary of State to issue guidance. To place such a requirement on the Home Secretary would be novel and arguably inappropriate—the noble and learned Lord, Lord Judge, made the point extremely well. While the Home Office has issued guidance on matters such as the operation of police powers, it is not normal to do so on how to apply investigative and prosecutorial discretion in the context of a specific offence and where there are criminal consequences for individuals affected. If such guidance is to be issued, I therefore question whether this is properly a matter for the Home Secretary. This concern could, of course, be remedied by placing the duty on someone else, such as the Director of Public Prosecutions. However, as I have sought to explain, we remain to be convinced that an amendment to Section 58 of this kind is needed.
Finally, it is worth noting that Section 58 falls within the statutory remit of the Independent Reviewer of Terrorism Legislation, and this will provide a further important safeguard for its operation as amended by the Bill. I am aware that the former independent reviewer, Max Hill QC, does not agree with every aspect of the Government’s approach to Clause 3. He is, of course, an extremely eminent person whose views should be taken into account. But I would point out that successive independent reviewers have never raised a concern that Section 58 in its current form is having a chilling effect, or is otherwise not being used appropriately, despite its application, as I have said, to the bulk of journalistic and academic research into Section 58 material for much of the period it has been in force.
I hope that I have been able clearly to set out the Government’s position on these matters, and to persuade the noble Lord opposite to withdraw his well-intentioned but, in my view, unnecessary amendment.
Baroness Hamwee
My Lords, before the noble Lord responds, I was wondering, as the Minister was speaking, why the Government decided to include new subsection (3A). It applies only to the subsection (3) but, if it is required for that subsection, was there something in the operation of the earlier provisions of Section 58 that has prompted this? New subsection (3A) provides that:
“The cases in which a person has a reasonable excuse ... include (but are not limited to) those in which … the person did not know, and had no reason to believe, that the document or record in question contained … information … likely to be useful to a person committing or preparing an act of terrorism.”
The Minister may not be able to respond to that now, but it goes to the heart of the debate.
Earl Howe
My Lords, I recognise the noble Baroness’s point. I understand that that provision went into the Bill when the three clicks provision came out. It was intended to provide a measure of reassurance in substitution for the three clicks idea that someone who acted in complete ignorance would not be caught. Frankly, one can argue it both ways—to leave it in the Bill or to take it out—but, on balance, we felt that it was right to put it in the Bill for that added measure of reassurance.
Baroness Hamwee
That is an interesting response and I will have to think about it. I share the concern of the noble and learned Lord, Lord Judge, not to involve the Executive where it should not tread. There could be parliamentary scrutiny. We have become possibly too reliant on codes of this and that to flesh out what lies underneath legislation—it is not something I much like, and I have obviously been sucked into it. So we could have parliamentary scrutiny if we had a statutory instrument, but we could also list in the Bill the sorts of examples we have talked about, in the way that the amendment from the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, seeks to do in Clause 4. I think that that is a particularly good way of going about it.
I do not suppose the Minister can answer this, but his reference to the Independent Reviewer of Terrorism Legislation prompts me to ask about progress in appointing the new reviewer. He is indicating that he cannot answer, and I did not expect him to, but it is a point that was worth making at some stage in this debate.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords for their contributions to this debate and the noble Earl, Lord Howe, for outlining the position of the Government on this group of amendments. I appreciate his detailed response, which is beneficial to the Committee.
I will reflect on all the responses and comments—particularly the wise comments from the noble and learned Lord, Lord Judge. Those comments could be interesting for guidance on other legislation before the House on which the Government take a contrary view. However, we shall discuss that in a few weeks’ time. At this stage I beg leave to withdraw the amendment.
Lord Anderson of Ipswich
“(2) A person does not commit an offence under this section if the person entered or remained in the designated area solely for one or more of the following reasons—(a) performing an official duty for the government of any country (including service in the armed forces of that government) where such performance would not otherwise contravene the law of the United Kingdom,(b) performing an official duty for the UN or an agency of the UN,(c) satisfying an obligation to appear before a court or other body exercising judicial power,(d) providing support through a registered charity for humanitarian, peacebuilding or development purposes,(e) making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist,(f) visiting a dependent family member,(g) such other reason as the Secretary of State may by regulations prescribe.”
Lord Anderson of Ipswich
My Lords, in moving Amendment 17, I shall speak also to consequential Amendment 30. In doing so I take comfort from the words of the Security Minister on Report that this clause, introduced late in the day, would benefit from discussion in your Lordships’ House and, in particular, from exploration of what he called the reasonable excuse issue. These amendments do not seek to remove the designated area offence but rather to render it more predictable in its application and, in addition, easier to prosecute.
There are three problems in the context of this offence with the wholly general defence of reasonable excuse. First, those few people with good reason to travel to a terrorist war zone will have no assurance in advance that they will not be prosecuted for doing so. Secondly, this troubles some of them considerably, as other noble Lords will know. Thirdly, attempts to prosecute a person for this offence are likely to be met with an ingenious array of excuses to which the jury will be invited to be sympathetic. Without any outer limits on the doctrine of reasonable excuse, the prosecution—which, as the Minister said, still bears the ultimate burden of proof—is likely in practice to have to demonstrate some malign purpose for travel, which is precisely the state of affairs that this offence is designed to avoid.
Amendment 21 contemplates a pre-authorisation system, as operates in Denmark. The Danish counter-terrorism officials, to whom I had an opportunity recently to speak to in Copenhagen, expressed themselves as broadly content with that system. However, the Australian independent national security legislation monitor—the equivalent of our independent reviewer—stated in his careful and positive review of the equivalent Australian offence that,
“an authorisation regime could only be effective to the extent that individual compliance with the authorisation could be properly monitored”.
In place of the reasonable excuse defence, I propose a series of reasons which, if they constitute the sole reason or reasons for entering or remaining in a designated area, will mean that no offence has been committed. On the method to which the noble and learned Lord, Lord Judge, referred—the method he commended to me—whatever the scope of the law, no sensible prosecutor would wish to proceed against persons who fall into any of those categories. However, by spelling them out, everyone knows where they stand.
It will be said that no one can predict all the reasons why someone may wish legitimately to travel to a designated area. I give three answers to that. First, the categories of such people are limited and relatively easily defined, in contrast to the categories of person who may have a reasonable excuse to download or access material under Section 58. Secondly, my list is closely based on that which appears in the equivalent Australian legislation, which the Security Minister referred to as a model for this clause. The Australian list was introduced in 2014 by the foreign fighters Act, and it has not been found necessary to substantively amend it since then.
I suggest amending it in only a couple of respects. Proposed new subsection (2)(d) expands on its Australian equivalent, which is providing aid of a humanitarian nature, though limits it to activities conducted through a registered charity. Proposed new subsection (2)(f) replaces the Australian formulation of making a bona fide visit to a family member on the basis that visits to brothers or sisters who are fighting are not to be encouraged and that Latin should not be inflicted upon juries more than is necessary. The third answer to the objection lies in the regulation-making power, which I propose should operate by the affirmative resolution procedure. In four years it has not been found necessary to use a similar power in the Australian law, which noble Lords may find encouraging.
The amendment does not aspire to infallibility but offers a degree of certainty appropriate to the criminal law. It will give assurance for those who travel for good reasons and assist the prosecution of those whose reasons are not so creditable. I beg to move.
The Deputy Chairman of Committees (The Countess of Mar) (CB)
I have to tell noble Lords that if Amendment 17 is agreed I cannot call Amendment 18 by reason of pre-emption.
Baroness Jones of Moulsecoomb
My Lords, I speak to my Amendment 19 and support the other amendments in the group. I am aware that Amendment 19 attempts to do exactly what Amendment 17 does but, obviously, in a much inferior way. I have added environmental protection, which is a valid objective when travelling to dangerous zones.
I also support Amendment 20 in the name of the noble Earl, Lord Attlee. I declare an interest because I have daughter who is a journalist and am well aware that journalists perform the most incredible tasks when they go to dangerous areas. I have watched the situation in Syria—about which I know a little because I have worked there—which has been the most dangerous place in the world for journalists for some time. More than 100 have died there because they have tried to report on what Assad has been doing to his own people—atrocities such as gas attacks and so on. We have had a long discussion about what a journalist is and what journalism is, but it is important to remember that they fall into a category which is crucial for our understanding of what goes on—not only in Syria and war zones but in Britain, where journalists often expose wrongdoing of all sorts.
I tried to explain to the Minister about the absence of evidence. I have often been deterred from campaigning on a particular issue in a perfectly peaceful and legitimate way because I know that the policing is going to be over-heavy or for some other factor. There are times when people are deterred from doing the right thing because of legislation like this. In these debates I can offer the House a viewpoint from people who might be affected by it, who might find themselves on the wrong side of these laws. I note that other noble Lords have said that they might be on the wrong side of this law.
The Bill provides for a defence of reasonable excuse but gives nothing more than that. My concern is that too many prosecutions will take place, putting people through lengthy court processes before being acquitted by a jury. This concern is shared by the many humanitarian organisations and journalists who have contacted me regarding the Bill.
The Minister will undoubtedly tell me that these organisations have nothing to worry about—that a jury will find them innocent because they will have a reasonable excuse—but this would be to ignore the real, practical implications that the threat of prosecution has on an organisations. Humanitarian organisations already putting themselves and their people in grave danger will additionally risk being prosecuted for simply trying to help people in need. This risk will increase their insurance premiums or even make it impossible for them to get insurance at all.
Under such circumstances, people may not want to volunteer for these organisations if it risks making them personally liable to prosecution. There is also, of course, the cost of legal advice and representations—thousands of pounds which will have to be spent and will be lost even if they are found not guilty.
Personally, I feel that the Government should not put these innocent people at risk of prosecution. As with Amendments 17 and 19, putting these specific examples in the Bill will help to make it clear to prosecutors that these groups have specific, absolute defences and should not be charged. If the Government reject the amendments, I would ask why. They do nothing to undermine the Government’s intent but would allow humanitarian and environmental protection organisations to do their heroic work without fear of being persecuted and prosecuted when they return to safety in the UK.
Earl Attlee
My Lords, Amendment 20 in the group is in my name. The Committee has looked already at why journalism is vital so there is no need to repeat those arguments in detail. I accept that the amendment moved by the noble Lord, Lord Anderson, may be a better solution than mine, which would create an explicit exemption for journalists travelling to or remaining in a designated area.
Since the new offence does not require a person to have any harmful intent, it risks capturing those who mean no harm at all and are acting in the public interest, even if the Government of the day do not think so. Journalists travelling to an area to cover events and inform the public are one obvious such group. Following our debate on the first amendment, I accept that I will have to go away and consider carefully what I mean by journalism and journalistic purposes, but the same problem arises with the amendment of the noble Lord, Lord Anderson.
Ministers have stated that journalists are not the target of the offence and would qualify for the broad defence of reasonable excuse. I listened very carefully to what my noble friend Lord Howe said about that. However, the same problem that I described when speaking to my Amendment 6 arises, namely that journalists may be unjustly interfered with or arrested. It needs to be clear in the Bill that journalism is exempt. Amendments 21 and 22 would provide for prior authorisation from the Secretary of State. Although that may have its merits for certain sectors, it would be highly undesirable for press freedom as it would allow the Government to whitelist or blacklist journalists and could operate as a de facto licensing system which the press has, rightly, always resisted.
Although there are good reasons for an open-ended reasonable excuse defence, as my noble friend has outlined already, the amendment does not circumscribe it. Given the scope of the offence, the Bill should anticipate the most obvious scenarios where people will have good cause to travel to or remain in a designated country and provide certainty to those people. That is exactly what would be done by the amendment of the noble Lord, Lord Anderson.
The combination of the lack of an intent requirement and the vagueness of the reasonable excuse defence means that whether an offence is committed becomes a matter of prosecutorial discretion entirely. That is undesirable for legal certainty and the rule of law. In practical terms it would delay, even deter, correspondents from travelling to an area where events are unfolding. Civilians suffering humanitarian catastrophes will not be able to tell their stories to the wider world and the British public will not be able to hear them and do whatever they can to help.
Ministers and other noble Lords may push back against my arguments by pointing out how hard it is to define “journalist” or arguing that terrorists might try to pass themselves off as journalists. I argue that where there is doubt over an individual claiming to be a journalist, the police, prosecutors and the courts can test their bona fides. Some people will wrongly claim the defence; that does not mean that it should not exist. The same argument applies to Amendment 17, moved by the noble Lord, Lord Anderson.
Amendment 17 may well meet my concerns but I am slightly worried about its proposed new subsection (2)(d), which would provide an exemption for a “registered charity”. It might be worth considering restricting the exemption to either a UK registered charity or one that is accredited by the United Nations in some way, because I have been aware of some charities in an operational area being rather less than pure.
Lord Garnier (Con)
My Lords, I briefly return to our discussion to Amendment 17, moved so well by the noble Lord, Lord Anderson of Ipswich. He made no claims of infallibility. When we are discussing this sort of subject, he probably comes the closest in this Chamber to infallibility, at least for the moment. I understand his reasons for moving the amendment; I can see that the reasonable excuse provision in the Bill he seeks to amend is somewhat vague. None the less, I want to ask one or two questions relating to the amendment.
I can accept that the genesis of at least some of the new provision comes from other countries’ and jurisdictions’ legislation; the noble Lord mentioned Australia in particular. A few things about the amendment trouble me slightly. I can see that proposed new paragraphs (a) to (e) provide a reason for making a visit to the designated area, but I am a little troubled by the fact that proposed new paragraph (f) states simply that,
“visiting a dependent family member”,
may provide a reasonable excuse. The reason for the visit to the dependent family member needs to be explored fully. The amendment could lead us into difficulty. The purpose of the visit may be to see a bed-ridden grandparent, but it may be to see a rather ill-motivated teenager with terrorist sympathies. As long as that is not made clear, the problem I see in proposed new paragraph (f) remains.
To some extent, although not as greatly, I am troubled by proposed new paragraph (c), which gives the reason of,
“satisfying an obligation to appear before a court or other body exercising judicial power”.
I can see that in an organised state with an organised court system, complying with an obligation to appear in court to give evidence, or whatever it may be, provides one with a reasonable excuse. However, going to a designated area suggests that there may not be such an organised system there. Although one may be under some obligation to appear before it, I hesitate to suggest that in all circumstances one is likely to find in a designated area a recognisable court or other body exercising judicial power in a way that we would find acceptable in this country and this jurisdiction.
Perhaps these are quibbles. The noble Lord, Lord Anderson, expressly stated that he did not claim his amendment to be perfect. I understand where the amendment comes from and where it intends to go. I simply ask my noble friend on the Front Bench not to dismiss the amendment out of hand but perhaps to go away and rewrite it in such a way that it would be acceptable as a government amendment that would pass muster in both this House and the other place.
Lord Carlile of Berriew
My Lords, I rise to support the amendment moved by my noble friend Lord Anderson of Ipswich. It highlights a number of extremely important points, not least that there should be clarity and definition for people who may wish to visit a designated area. I have some reservations, but in relation to proposed new paragraph (c), perhaps I may give an example of the crucial need to attend court or another body exercising judicial power. It may well be that a relative would wish to obtain the custody of a child who is in danger in the designated area and would not be able to do so without entering that designated area. I agree with the noble and learned Lord, Lord Garnier, and the noble Earl, Lord Attlee, that the definition of “journalist” will need attention because it can all too easily be both a benign and a malign term.
I want to raise one other issue not directly connected to this amendment, but to avoid the duplication of speeches I shall refer to it now. I have been approached by some Jewish groups that have expressed concern that designation orders might be made in relation, for example, to the Golan Heights where quite a number of young people go on the Aliyah to kibbutzim or to Sderot, the town that is regularly the recipient of missiles fired from the nearby Gaza Strip. I have been bold enough to reassure those who have raised these issues that it is most unlikely that the Government of the United Kingdom would designate areas such as this because of the international political and diplomatic implications of doing so. However, at some point in the debate I would invite the Minister to reassure the Committee and the people who have made representations that the normal flow of people, albeit to sometimes quite dangerous places such as Israel, will not be interrupted as a result of these provisions because that would cause tremendous difficulties, particularly for families divided between the cities of England and Wales and Israel.
Lord Faulks
My Lords, I accept entirely that it is better, if at all possible, to clarify what constitutes not so much a defence but in which circumstances there will not be an offence, which I think is the way Amendment 17 is framed. If I understand it correctly, the answer to most of the objections lies in the word “solely” because, of course, if there is evidence of mixed reasons for someone being in an area, these provisions would not have a proper ambit at all. However, I share the reservations of my noble and learned friend Lord Garnier about visiting a dependent family member.
I want to raise a more general point about what Clause 4 intends to do. It is concerned with the designated area and the Government are not concerned primarily about protecting people visiting the area and ensuring their safety. Of course, journalists and those working for humanitarian purposes risk their own safety very considerably by going into such areas. The Government are concerned—perhaps my noble friend the Minister will confirm this—to prevent the risk of terrorism, as the Bill is headed. When looking at the risk of terrorism, the Explanatory Notes state:
“Such a risk may arise, in particular, if a conflict in a foreign country, potentially involving a proscribed terrorist organisation, acted as a draw to UK nationals or residents to travel to that country to take part in the conflict or otherwise support those engaged in the conflict”.
In other words, we want to stop people fighting against the United Kingdom. That, I suggest, is what this is really about, although my noble friend may disabuse me of that. If so, this is quite a convoluted way of achieving the aim of preventing an individual or individuals assisting or fighting against the United Kingdom. I shall raise this point again on Wednesday under my own amendment concerning the possible introduction of the offence of treason, because that is what it would be. Although this is a useful provision and I can see what it is driving at, I respectfully wonder whether it is really the answer to the evil it is aimed at in this case.
Baroness Hamwee
My Lords, I tabled Amendments 21 and 22 in this group. I was not surprised, given the authors, to be more attracted to Amendment 17 than to my own amendment, but I have a couple of questions related to points already raised. I too wonder about the word “solely”. If, for one or more of the reasons listed, someone went for a reason authorised by the legislation or in regulations but did something outside them, might that cause a problem? Perhaps more importantly, I also have a question about the registered charity, regarding the jurisdiction in which it would have to be registered. It is important to address the position of charities, not just for charity workers but because the trustees will have a duty of care towards their staff. They will have an important interest in ensuring that what their staff are doing is appropriate within what the law allows.
I turn to the phrase,
“visiting a dependent family member”.
I wonder about the word “dependent”. A sick mother would be unlikely to be dependent if the son or daughter is not there supporting the family member. Perhaps one might look at extending that. However, I like the approach. I do not think it is an alternative to what is set out in Amendment 22. That would provide for regulations for authorisation—not just the grounds for applying for authorisation but also the “procedure for applying”, the “timescales for determining” it, which might be important in particular circumstances, and “rights of appeal”, which should be dealt with by some means or other. As I say, this is not an alternative; rather, there are procedural points in this that should be addressed.
I am grateful to the organisation Bond for briefing me about the position in Australia and Denmark, to which the noble Lord referred. It has put a note at the end of its briefing to remind me that the proposal for the restrictions was promoted at the exact time that nine people were arrested for travelling to Syria to become foreign fighters—proving that the existing legal provisions are “rather effective”, to use its words.
I am aware that in Australia there is an overarching exemption for the International Committee of the Red Cross, but I understand that it can be extended to other humanitarian organisations. I do not know whether any noble Lord taking part in this Committee knows how far that has been extended. I take the points about monitoring and, while putting forward these provisions, I am aware that we must balance that against the administrative burden, to which I suspect the Minister may refer. There will be an administrative burden but the benefits that could be achieved by amendments such as the ones we have been debating outweigh that. I simply wanted to anticipate that argument.
Baroness Manningham-Buller (CB)
My Lords, I support the amendment in the name of the noble Lord, Lord Anderson. We should be grateful to the Parliaments of Australia and Denmark for the prior work they did, which he has refined.
I have only three small points to make arising out of the debate. The first relates to the point from the noble Baroness, Lady Hamwee, on prior authorisation. In addition to the point made by the noble Lord, Lord Anderson, about the difficulty of monitoring compliance, and the point made by the noble Baroness, Lady Hamwee, which I am sure is relevant, of the administrative overheads of doing that, there is a practical problem of the risk of authorising people who travel to a designated area and have no intention at all of meeting any of the criteria in the noble Lord’s list.
To make a minor point on dependent family members, later on in the Bill we will talk about the Prevent strategy. One of its purposes, whatever people think about it—views are divided—is to prevent young people being drawn to terrorism. I can absolutely imagine circumstances where a parent might wish to go to a designated area to try to retrieve a dependent family member or young person who had been drawn into this and rescue them from involvement.
Finally, the view from the noble Lord, Lord Faulks, that we are doing this only to stop them fighting us is an oversimplification. There is much more going on here. There is a real concern that people will not just come back and conduct terrorism here or elsewhere in the world, or fight us or others there, but learn techniques, radicalise and train new generations of people. It is much broader than simply attacking us. We need to bear that in mind when considering what we are trying to do here.
Lord Judge
My Lords, it is lovely to be following somebody who has been described as almost infallible, so I cannot resist the temptation—
Lord Judge
I am sorry. I shall not go through the various arguments. I put my name to this amendment. It is a closed list. Different aspects of it need to be considered and various points have been raised around the Committee. The principle needs be accepted by the Government that we are dealing with the designated areas legislation. The designated areas cannot be considered in relation to just new Section 58B, but to new Section 58C, which will enable the Secretary of State to decide where an area should be designated for the purposes of new Section 58B. Therefore, the imperative is not just to have a vague reasonable excuse defence, but to say that there are certain situations in which, if an individual goes to an area that has been designated by regulation by the Secretary of State, no offence would be committed. That is the end of it. It is not a question of him or her advancing a defence and saying, “This is my reasonable excuse”.
I implore the Government not be put off by the fact that this will take some sorting out. We need to sort it out. An offence will not be committed if you go on, for example, humanitarian grounds. There are plenty of different reasons, but if you are not committing an offence then that is the end of it. Given the nature of the offence that is being created related to designated areas, that is what needs to be achieved.
Lord Rosser
We have Amendment 23 in this group, which is very similar, certainly in intent, to that moved by the noble Lord, Lord Anderson of Ipswich. For that reason, I do not intend to speak at any great length since I support what he said.
We are aware of the reasons why the Government want to create a new offence of entering or remaining in a designated area in connection with the work of containing and combating the threat of terrorism and terrorist-related activity. However, this is once again about ensuring that those who are in a designated area on legitimate—indeed, quite possibly vital and crucial—business do not find themselves committing an offence of being or remaining in that area.
Our amendment, like that moved by the noble Lord, Lord Anderson of Ipswich, specifically provides that an offence of being or remaining in a designated area is not committed under the Bill’s terms by those carrying out specific named activities—in our amendment, journalism, humanitarian work and family visits, for example, and any other activities provided for in the subsequent regulations. Our amendment is also based on the Australian model of including exemptions in the Bill. It also provides that a person might be required to provide evidence as to their purpose in line with what we understand to be in the Australian legislation.
Lord Paddick
My Lords, clearly all the amendments in this group have their merits, but we seem to be rallying to the flag of the noble Lord, Lord Anderson of Ipswich, for very good reason. As the noble and learned Lord, Lord Judge, explained, this appears to be, at least in essence, the way forward. As the noble Lord, Lord Anderson, said, it is based on a tried-and-tested system that operates under Australian law and gives a degree of certainty that the reasonable excuse defence does not give. It covers journalism as well, which could arguably make Amendment 20 unnecessary. On the definition of what journalism means, the noble Lord’s expression,
“working in a professional capacity as a journalist”,
might be an indication of the way forward as far as that definition is concerned. I have added my name to Amendments 21 and 22 in my noble friend Lady Hamwee’s name, but, as I said, perhaps Amendment 17 is a better way forward.
The noble Lord, Lord Faulks, is obviously trailing his amendment on treason, but in addition to what the noble Baroness, Lady Manningham-Buller, said, it is more than just fighting UK forces. It could be that people are going to engage in terrorist activity against allies of the UK, not necessarily against the UK itself. We would want to deter our nationals from travelling to areas for that purpose. People might travel to those areas for a legitimate purpose and then engage in terrorist activity, but there is no way that we could legislate for that. Clearly, they would then commit a substantive offence under different legislation.
Lord Faulks
Can the noble Lord help the Committee by saying what legislation they would be committing an offence under?
Lord Paddick
My understanding is that it is an offence to travel to an area to engage as a foreign fighter. I cannot remember what exactly the legislation is, but reference has been made to it by other noble Lords this evening.
Lord Elystan-Morgan (CB)
Is not the Foreign Enlistment Act 1870 still extant? I think it is.
Lord Faulks
I am not sure about that, and I am grateful to the noble Lord for assisting. There is, of course, a Treason Act of 1351, but that is not often relied on—or not at all relied upon. The noble Lord may be right, but I was genuinely inquiring what legislation the noble Lord was referring to.
Lord Paddick
I am very grateful to noble Lords for their interventions. At the end of the day, the principle that the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, have put forward in this amendment needs to be very seriously considered—and potentially not just for this offence, but perhaps for the other new offences in the Bill that we have already debated.
Earl Howe
My Lords, Clause 4 provides a new offence of entering or remaining in a designated area overseas. The offence includes a reasonable excuse defence, but these amendments seek to augment that defence, either by providing for an exhaustive list of reasonable excuses or by introducing a prior authorisation regime. I make no apology for the fact that the new offence strengthens the powers available to the police and prosecutors to tackle the phenomenon of foreign terrorist fighters: it will underline and support the Government’s travel advice, deter would-be foreign fighters and provide an additional means of prosecuting those who none the less do travel.
In framing the offence, we have sought to achieve clarity and workability alongside proportionality. As the prosecution will simply be for breach of a ban on travel to an area associated with a high level of terrorist risk, we believe we have achieved the right balance. The new measure will alleviate some of the difficulties we have seen in obtaining admissible evidence from conflict zones in unstable or failed states, and in pursuing prosecutions for terrorist offences against returning foreign fighters. The Government of course recognise that in exceptional cases, some individuals will have a legitimate reason—such as journalism, to deliver humanitarian aid or compassionate family circumstances—to enter a designated area. There is no argument about that.
This is, therefore, not a blanket ban on travel, and the offence of entering a designated area is not one of strict liability. In keeping with the long-standing approach to Section 58 of the Terrorism Act 2000, which Clause 3 of this Bill amends, and many other offences in UK criminal law where similar issues arise, the offence includes a reasonable excuse defence. I will not detain the Committee with the full details of how the burden of proof mechanism will operate and why we think it is the right approach, as we will come on to that when we debate Amendment 18 in the next group. However, I will say that we have considered these issues very carefully and listened to the points that have been made in this House and elsewhere. We want to approach this in a constructive way. We consider that our approach strikes the right balance between, on the one hand, ensuring an effective and workable power, both legally and operationally, and on the other ensuring that the power is proportionate and provides adequate safeguards.
As the noble Baroness, Lady Hamwee, explained, her Amendments 21 and 22 would introduce a different approach to dealing with cases in which a person has a legitimate reason to enter a designated area: they would introduce a power for the Secretary of State to preauthorise individuals to enter a designated area and to make regulations setting out the process and criteria for this. I am grateful to the noble Baroness for the constructive approach she has taken, and I understand her wish to ensure that individuals are able to travel for legitimate reasons without facing prosecution. As she explained, her proposal would borrow from the Danish model, which includes a similar preauthorisation scheme. That is a model we considered, and indeed discussed with the Danish Government. We also discussed with the Australian Government the approach taken in their legislation, which adopts a model which includes an exhaustive list of exemptions and a power to add to that list. The amendments of the noble Lord, Lord Anderson, seek to replicate this model.
As I said, following this consideration we concluded that the reasonable excuse approach is the most appropriate one. It already exists elsewhere in this Bill and in the Terrorism Act 2000, into which the designated area offence will be inserted, as well as in a broad range of other offences in UK criminal law. It is well understood and is routinely applied by the police, the CPS and the courts, there is clear case law on its application and it provides a proven, powerful and effective safeguard against inappropriate arrests, prosecutions and convictions. In deciding against a pre-authorisation scheme, we had in mind that any designated area is likely to be one to which the Government are recommending against travelling for any purpose. I hope the noble Baroness will agree, on reflection, that it would be inconsistent with that advice, and indeed would undermine it, if the Government none the less issued permission to travel to the area on application.
Apart from sending out those sorts of mixed messages, a system of that kind would be cumbersome and difficult to operate in a sufficiently effective and agile way to provide adequate assurance to the police and security services about a traveller’s intentions, and to provide the traveller with a sufficiently prompt and clear authorisation. Of course, it could be open to abuse, whether by those who would seek to overload and undermine the system with vexatious applications, or perhaps more particularly by those who would seek authorisation to travel under cover of legitimate purposes, but whose intentions are to engage in terrorism once they enter the area.
The Government recognise that this is a difficult issue, and we have been careful to ensure that this power does not infringe disproportionately on individuals’ rights, or on the valuable humanitarian work done by charities and NGOs. However, we are also deeply mindful of the strategic threat to public safety that can be and has been posed by individuals who travel overseas to join terrorist organisations and participate in conflicts, particularly those who have joined the Syrian conflict. It is right that we provide the police and the courts with the powers they need properly to respond to that threat, and to keep the public safe. Our firm view is that the reasonable excuse approach taken in Clause 4 is the right one. However, I have heard, loud and clear, the calls for greater certainty for humanitarian workers and others.
That said, I am concerned that the approach proposed by the noble Lords, Lord Anderson and Lord Rosser, is too rigid. The legal issue it raises is the age-old problem of the list included in statute. While I recognise that the amendment is modelled on the Australian legislation, I am instinctively uneasy about legislating for an exhaustive list of reasonable excuses—albeit one that could be amended by means of regulations. It is clear from the case law that the question of whether a particular excuse is reasonable will be highly dependent on the facts and circumstances of each individual case. The statute could offer guidance in the form of an indicative list, but it really cannot shut out what might be a legitimate reasonable excuse through an exhaustive list. The regulation-making power in the amendment does not adequately remedy this difficulty, I fear. I am therefore more receptive to the approach proposed by the noble Baroness, Lady Jones, and my noble friend Lord Attlee in their Amendments 19 and 20.
I will of course take away the concerns raised by the noble Lord, Lord Carlile, about the Golan Heights and similar areas in Israel. However, I hope he will forgive me if I do not give him a categorical assurance regarding his particular examples. What I can say is that decisions to designate areas will be based on a careful assessment of all relevant information. This will include sensitive intelligence as well as open source information, and a careful assessment of necessity and proportionality. I agree with him that it seems very unlikely that the UK would seek to designate any area within a well governed liberal democracy such as Israel. That is probably as far as I can or ought to go at the Dispatch Box.
To sum up, I recognise the strength of feeling on this issue in the Committee. I can therefore undertake, together with my Home Office colleagues, to reflect carefully on the debate on these amendments in advance of Report, and with that assurance I ask the noble Lord, Lord Anderson, to withdraw his amendment.
Lord Anderson of Ipswich
My Lords, I am extremely grateful to the Minister for his thorough and courteous response, and indeed to all noble Lords who have contributed to the debate on these amendments. It was intimidating when one noble and distinguished lawyer after another stood up—the noble and learned Lord, Lord Garnier, the noble Lord, Lord Carlile, the noble Lord, Lord Faulks—and rather a relief when most of them had only improvements to offer rather than outright opposition. On the point made by the noble Lord, Lord Faulks, about the ultimate purpose of this clause, with great respect, I prefer the view that the noble Baroness, Lady Manningham-Buller, put forward.
I entirely agree that there is room for discussion about the way some of these elements are phrased, particularly in relation to families and journalists, and perhaps in relation to courts—although it did seem that if there is no recognisable court in a place, then in a sense the issue does not arise of the non-application of the statute. But the fact that the scope of the exceptions is discussable does not mean it should not be done in the way that the noble and learned Lord, Lord Judge, endorsed in his short speech. The principle must surely be to define very tightly the situations in which the Act does not apply, and then allow the prosecutors to exercise their discretion in other cases. To my mind, that is the appropriate area for prosecutorial discretion. We will save the CPS and the courts a lot of trouble if we set out the broad lines now.
But I entirely accept that the Minister, in his helpful speech, has hinted at an alternative way forward, to retain reasonable excuse and perhaps couple that with an indicative list. I give no ground whatever on that, but will certainly reflect hard—and with others—on what he has very constructively suggested. The Minster kindly offered at the end of his intervention to reflect carefully on what had been said. I have not been in this place long enough to be able to decode very expertly what that means. I rather hope it is good news, but it may not be, and in any event I suspect we may be hearing more on this subject. I beg leave to withdraw the amendment.
Baroness Manzoor (Con)
My Lords, I beg to move that the House be resumed. In moving this Motion, I suggest that the Committee begin again not before 8.17 pm.
Baroness Manzoor
My Lords, it has been decided that the break will be 45 minutes.
House resumed. Committee to begin again not before 8.17 pm.
Counter-Terrorism and Border Security Bill
Monday 29th October 2018
(5 years, 5 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 131-II Second marshalled list for Committee (PDF) - (29 Oct 2018)
Lord Rosser
Lord Rosser (Lab)
In Clause 4, new Section 58B, entitled “Entering or remaining in a designated area”, states that:
“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.
Under Clause 4, the burden of proof would appear to be clearly on the person charged with the offence, not on the prosecution to prove the guilt of the individual charged. The Government have said that that is not the case and that once the reasonable excuse defence has been raised, the burden of proof is on the prosecution, as laid down in existing legislation—Section 118 of the Terrorism Act 2000, which would still apply.
Even with that being the case, it nevertheless appears odd that a new section should say something incorrect: that the person charged with the offence of entering or remaining in a designated area has to prove that they had a reasonable excuse for being there, rather than the prosecution having to prove that they did not have a reasonable excuse. Our amendment would rectify this apparent anomaly by removing the Bill’s requirement for the person charged to prove they had a reasonable excuse as their defence, and instead make it a defence for the person charged simply to state that they had a reasonable excuse for entering, or remaining in, the designated area.
If the wording of the amendment does not find favour with the Government, I hope that its intention does and that the Government will agree to come back with an amendment of their own to new Section 58B at Report. We surely cannot agree to a clause which says the opposite of what is intended and is in apparent conflict with the terms of the legislation. I beg to move.
Baroness Hamwee (LD)
Perhaps I can ask both the noble Lord and the Minister a question: first, one to the Minister. Is the requirement for proof found in any other provision for reasonable excuse? I have been looking during the past few minutes; I could not find an example, but I did not get my iPad out to start reading through the whole of the Terrorism Act.
Secondly, I see the attraction of the term “state”. On who has to show what and in what order, we have been referred to Section 118 of the Terrorism Act. The terminology of that is “adducing evidence”. I am not sure whether the term “state” used by the noble Lord, Lord Rosser, is intended to be the equivalent of “adduce evidence”.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, as we have discussed, the offence of entering or remaining in a designated area, which would be inserted as a new Section 58B of the Terrorism Act 2000 by Clause 4, is subject to a reasonable excuse defence. We have already debated the circumstances which might give rise to a reasonable excuse and how these should be catered for within the Bill.
Amendment 18 addresses a different aspect of that provision: the question of how much the evidence is required to establish a defence to the new offence. Related to this is the question of whom the evidential burden is placed on. Section 118 of the 2000 Act sets out how the evidential burden applies to a number of defences to criminal offences within the 2000 Act, including the new designated area offence.
The noble Lord, Lord Rosser, is concerned that the current drafting of new Section 58B(2), which contains the defence to the designated area offence, is out of step with the existing provision in Section 118 of the 2000 Act and will place a greater burden on defendants to make out a reasonable excuse than is envisaged by Section 118.
I understand and respect the noble Lord’s wish to ensure that defendants facing a charge under Section 58B are not placed in a worse position than those charged under other offences with a similar reasonable excuse defence. However, I hope that I can allay that concern and provide a clear assurance that this will not be the case if I explain how Section 118 interacts with the defence to the new Section 58B offence.
The wording used in the defence, which refers to a defendant proving that he or she had a reasonable excuse, is the exact same formulation used elsewhere in various defences to offences contained in the 2000 Act, including the defence to the Section 58 offence amended by Clause 3. It is vital to recognise that this reference in the defence to “prove” should not be read on its own; rather it is subject to the operation of Section 118, which makes further provision on what is required to prove a defence in this context.
Specifically, Section 118 provides that if a defendant,
“adduces evidence which is sufficient to raise an issue with respect to the matter”—
the matter that has to be proved under the wording of the defence—
“the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
This, together with relevant case law, has the effect that if a defendant puts forward sufficient evidence to reasonably support a suggestion that he or she has a reasonable excuse, then the burden of proof shifts to the prosecution to disprove that defence, which it must do to the normal criminal standard—beyond reasonable doubt. If the prosecution fails to do so, then the jury must assume that the defence is made out.
The precise extent and nature of evidence required on the part of the defendant to invoke the defence in the first instance will be a matter for juries to determine in individual cases. Parliament has set a threshold which is not particularly high; all that is needed is,
“evidence which is sufficient to raise an issue with respect to the matter”.
In practice, a trial judge would be cautious to rule out any proposed defence unless it was plainly incapable of being judged by a jury as a reasonable one. In relation to new Section 58B(2), the evidential burden placed on the defendant will not be any greater than that required in relation to any of the other offences to which Section 118 applies. Furthermore, were Section 118 to continue to apply to new Section 58B(2), the amendment would have no impact in practice. Whether new Section 58B(2) refers to the defendant stating or proving the defence, under Section 118, it will still be for the jury to decide whether the prosecution has disproved the defence beyond reasonable doubt.
Lord Judge (CB)
I am extremely troubled by the idea that new Section 58B(2) should have a different form of wording from Section 118. It is a recipe for chaos in the court. Can we not simply address the amendment, take out “prove” and use the words in Section 118?
Lord Judge
That is exactly how it reads. Any judge looking at this will say, “Good heavens, here is a situation in which, under the counterterrorism Act, the defendant has to prove his defence—not adduce evidence so that the matter can be raised for the prosecution to disprove”. When I read this I thought it must be a typing error, but I knew that that could not be the case.
Earl Attlee (Con)
My Lords, did not my noble friend the Minister state that other similar offences were drafted in the same way?
Earl Howe
My Lords, my noble friend is quite right. “Prove” is used in some six other sections of the 2000 Act, including Sections 57, 58 and 58A, so it is not inconsistent with the generality. However, as the noble and learned Lord has picked this out, I can do no other than to take the point very seriously, and I undertake to do so. If he will suspend his scepticism for a moment, I want to make the point that, in addition to creating an inconsistency between the designated area offence and others with a similar reasonable excuse defence, this would also unsettle a well-established legal position with which the courts and prosecutors are very familiar, and on which there is clear case law.
I very much hope that, on this basis, the noble Lord will be content to withdraw his amendment, subject to the undertaking that I have just given.
Baroness Hamwee
Before the noble Lord responds, I am not sure whether I heard the Minister correctly. It sounded as if he said that the requirement for proof elsewhere was proof on behalf of the prosecution. I may well have misheard him, but I am making the point now because that would not be an answer to this point, which is about proof by the defendant.
Earl Howe
My Lords, if I misspoke or misread, I apologise. I was seeking to say that, as long as a defendant puts forward sufficient evidence to reasonably support whatever suggestion he is making—that he has a reasonable excuse—then the burden of proof shifts to the prosecution to disprove that to the criminal standard.
Lord Rosser
I thank the Minister for his response, other noble Lords who have participated in this debate and, not least, the noble and learned Lord, Lord Judge, for his intervention. There is an inconsistency and I think the Minister knows that in his heart of hearts. The defence for continuing with it seems to be that it appears in other places and in other parts of the 2000 Act, which seems a pretty lousy way of trying to defend an inconsistency. It is surely time to seek to put it right. My amendment takes out the reference to “prove” and puts in the word “state”. However, I would have no objection to the Government taking this away and agreeing to come back on Report with an amendment of their own which reflects the intention of this amendment. If the wording was at least the same as in Section 118, with its reference to,
“adduces evidence which is sufficient to raise an issue”,
there would then be a degree of consistency—as has already been said—between what is in the Bill and what is in Section 118 of the Terrorism Act 2000.
The Minister has kindly agreed to reflect further on this matter. I accept this, without commitment, and will await the outcome of that reflection. I hope he accepts that it is not really a defence of a clear anomaly to say that we are going to continue with it because it is repeated on occasion elsewhere. I beg leave to withdraw the amendment.
Lord Anderson of Ipswich
Lord Anderson of Ipswich (CB)
My Lords, Amendments 24 and 25 would recognise the highly exceptional nature of the designated area offence by ensuring that there is an additional limitation on the designation of areas as out of bounds. Their effect is to make the designation of areas dependent on a proscribed organisation being engaged in armed conflict in that area. I understand that in both Australia and Denmark, where similar conditions are in force, the designations actually made have been extremely limited in their scope, confined in Australia to Mosul district and Al-Raqqa province and in Denmark on a similar basis. The Australian independent monitor, to whose report on their law I referred earlier, expressed no objection to the condition that a listed terrorist organisation is engaging in hostile activity in that area of a foreign country, which is how it is phrased there. He translated the Danish law as referring to “armed conflict”.
On Report, the Security Minister referred to the possible use of the Clause 4 power in Syria, parts of Africa and parts of the Philippines. He acknowledged, quite rightly, the importance of full parliamentary scrutiny of any designation. However, Parliament may not be privy to the full security picture and if this highly restrictive offence is to be justified at all, it must surely be to protect British citizens and residents from the physical or psychological consequences of being in war zones where terrorist organisations are operating. I hope that the Minister will consider making this clear on the face of the Bill. I beg to move.
Earl Howe
My Lords, as the noble Lord, Lord Anderson, has helpfully explained, these amendments relate to the legal test for designating an area under Clause 4. That test currently requires that it be necessary for purposes connected with protecting the public from a risk of terrorism to restrict UK nationals or residents from entering or remaining in the area. The noble Lord’s amendments would add a second limb to this test, which would require that a proscribed terrorist organisation is engaging in armed conflict within the area to be designated.
It is clear from the noble Lord’s explanation that the purpose of these amendments is to help ensure that designations are proportionate and that they are made only in circumstances where they are genuinely necessary. As the noble Lord has explained, they would more closely follow the approach taken in Australian and Danish law, where those countries have established similar powers.
I completely understand the sentiment and the intention behind these amendments. Nevertheless, I respectfully disagree that they are necessary to secure this outcome. I also do not consider that the UK is bound to follow the approach taken by other countries, which may have different legal frameworks and may be facing different configurations of terrorist threat, rather than seeking the approach that works best for us. As your Lordships would expect, when drafting Clause 4, we looked carefully at the approaches taken by Australia and Denmark, including the legal test for designating an area. We have concluded that the right approach for the UK, and the one that would provide the greatest flexibility while still providing a proper safeguard for proportionality, is the one currently set out in the Bill.
We have no doubt that in most cases in which it might be appropriate to designate an area in future, it is likely that a proscribed organisation will be engaging in armed conflict. Certainly, that has been the experience with the Syrian conflict, which is the closest analogy we have for the type of scenario in which we might wish to use the power. However, we are keen to ensure that the power is sufficiently flexible to be used in currently unforeseen future scenarios.
It is plausible that in the future, there could be an armed conflict or some other situation in an area which gives rise to a clear terrorism-related risk, on the basis of which it is appropriate to restrict travel by UK nationals or residents, but in which a proscribed terrorist organisation is not currently involved. This might be because a grouping of terrorists operating in the area cannot clearly be defined as an organisation. Or it might be because the situation has evolved rapidly—perhaps with an organisation emerging and quickly becoming involved in fighting—and it is necessary to restrict travel urgently before it has been possible to proscribe the organisation. It is also plausible that we may know from sensitive intelligence about the involvement of a specific proscribed organisation in a conflict, but as such intelligence cannot be revealed in public, it may not be possible to prove the organisation’s involvement on open material alone.
As the noble Lord will be aware, regulations designating an area are subject to the made affirmative procedure. As such, Home Office Ministers will need to come to Parliament to explain the basis for the designation, and it would then be for both Houses to decide whether to approve the regulations based on that explanation. In this regard, I note the recommendation by the Delegated Powers Committee that the Home Secretary should be required to lay before Parliament a Statement setting out the reasons why he considers that the condition for designation is met in the case at hand. We are ready to give that recommendation sympathetic consideration ahead of Report.
Given the considerations I have outlined, and the clear and robust necessity test that is already contained within Clause 4, I hope the noble Lord will be persuaded to withdraw his amendment, at least for the time being.
Lord Anderson of Ipswich
I thank the Minister for his thoughtful response. It made me wish that we had had a full consultation on this novel offence prior to the introduction of the Bill, or at the very least that we had not seen it introduced to the Bill at such a late stage. However, we are where we are. I concede nothing but will consider carefully what the Minister has said.
Baroness Hamwee
Before the noble Lord withdraws his amendment, does he share my concern about the creation of a provision where the boundaries are so woolly and grey? His amendment would have the benefit of being quite clear about proscribed organisations—everyone would know where they were. Essentially we have heard the Minister say that the Executive and the agencies that support them will know things that the rest of us do not know and will stop travel in a situation that they cannot necessarily describe. I am not entirely sure how in that situation Parliament can scrutinise the decision through the procedure to which we have been referred.
Lord Anderson of Ipswich
The noble Baroness makes a very good point. It put me in mind of debates on the proscription of new organisations—which I have often read but never participated in—where Ministers very properly come before Parliament, often only to explain that there is a lot of information that they cannot divulge because it is confidential. What the Minister had to say in that regard perhaps rather strengthened that apprehension on my part. I am grateful to the noble Baroness but I think that at this stage all I can do is beg leave to withdraw the amendment.
Lord Anderson of Ipswich
Lord Anderson of Ipswich
My Lords, the amendments in this group are in the nature of a tightening up. New Section 58C(4) introduced in Clause 4 provides for designations to be kept under review but no time limit is placed on that process. It is unsatisfactory to put no time limit on this in circumstances where designation constitutes a significant and unprecedented legal impediment to freedom of travel and where there might be political factors which, in the absence of a strict statutory requirement, could militate against the removal of designations.
There are precedents for timed reviews in matters of this kind—for example, in the sanctions field and in the former practice of reviewing the basis for the proscription of terrorist organisations on an annual basis. It is precisely because that practice lacked statutory backing that it most unfortunately fell into disuse after 2014—a point to which I propose to return in the context of Amendment 59. I beg to move.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 26, in the names of the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Judge, would put on the face of the Bill that at least once in every year there must be a review of a designation. This would be far more preferable than simply having the rather less clear and less direct wording currently in the Bill, to “keep under review”. As the noble Lord, Lord Anderson, said, these are very much tightening-up amendments.
Amendment 27 would, again, put on the face of the Bill a much clearer process for reviewing a designation, determining whether it still satisfies the condition for designation in the first place. The amendment would also make provision for changes or revocation to take place and would require each decision to be published and a record to be laid before Parliament. Again, I think that this is a much better way to address these issues. It would provide more clarity and leave less room for confusion than could be the case at present.
Amendment 28, in my name and that of my noble friend Lord Rosser, seeks to require the Government to address whether the regulations are still relevant and appropriate through the regulations automatically lapsing three years after coming into force. Amendment 29, again in my name and that of my noble friend Lord Rosser, would place a duty on the Government to bring these regulations to the attention of the Intelligence and Security Committee and for it to lay before Parliament its report on whether or not they should be approved.
Lord Paddick (LD)
My Lords, I support Amendments 26 and 27 in the names of the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Judge. The rigour that these amendments bring is similar to that in the amendments that the noble Lord will attempt to introduce when we get to proscribed organisations. It seems something that he feels, from his experience as a former reviewer of terrorism legislation, is very much lacking.
Amendment 29 appears to be perhaps a way of getting round the problem of there being intelligence that cannot be put into the public domain around decisions made in connection with this clause, in that the Intelligence and Security Committee of Parliament has the necessary clearance to review that evidence. Perhaps the noble Earl could comment on that.
Earl Howe
My Lords, Amendments 26 and 27 would add to the existing requirement in the Bill that the Secretary of State keep under review any designation made under Clause 4 and revoke it if the legal test for designation is no longer met in respect of it. As the noble Lord, Lord Anderson, explained, they would specify that such reviews must take place on an annual basis and would prescribe the options open to the Secretary of State when conducting such a review, as well as requiring the outcome of the review to be published.
I should start by saying that I am in full agreement with the principle that any designation under Clause 4 should not be indefinite, that it should be kept under review and that it should be revoked as soon as it is no longer necessary.
In saying that, perhaps I can take the opportunity to correct something stated by my noble friend Lady Williams when she said earlier that the list of proscribed organisations is subject to regular review. This was an inadvertent slip by my noble friend, for which, on her behalf, I apologise. I understand that she has already approached noble Lords privately to make that correction, but I do so on the record.
Where I depart from the noble Lord’s views, much as I respect them, is that I believe the current drafting of the Bill is the most effective way of delivering the objective. In particular, I cannot agree that a rigid requirement for an annual review is needed or is appropriate. I say that, first, because the type of situation in which this power is expected to be used may be fluid and rapidly evolving, but it may equally be one where there is an obvious and enduring threat. In the former case, an agile review, more frequent than once a year, may be appropriate—I accept that the amendment would not preclude this. In the latter case, an annual review may simply be unnecessary, and may be a poor use of the time and resources of those in government and the security and intelligence agencies tasked with protecting us from the terrorist threat.
I note in this regard that the Australian legislation sunsets a designation after three years, but with the option of an area being redesignated. If we were to go down this road—as the noble Lord, Lord Rosser, seeks to do with his Amendment 28—three years strikes me as more appropriate in this context compared with the annual review provided for in these amendments. Once again I have in mind the Syrian example, where the nature and extent of the threat, and the involvement and intent of UK nationals and residents, is self-evident and has indeed been proactively publicised by its protagonists over an extended period of time.
However, secondly, I say this because, regardless of its frequency, a formal review process at a fixed point is not likely to be appropriate. In all cases where the level of terrorist threat is so high that it is appropriate to designate an area under Clause 4, as your Lordships would expect, the Government and the security and intelligence agencies will keep the situation in that area under extremely close and continuous review.
This will be a comprehensive ongoing assessment across the full spectrum of government. It will involve consideration and ongoing review of every aspect of the Government’s response to the situation, including their use of legal powers and any designation under Clause 4. In reality, this is a closer and more effective consideration than that envisaged by the amendments of the noble Lord, Lord Anderson. It will enable the Government readily to identify if the situation on the ground has changed such that the legal test for designating the area is no longer met, and to take prompt action should this be the case.
I remain to be persuaded that the more elaborate annual process provided for in these amendments would serve the public interest, or would be an effective use of resources, or would lead to any more rigorous or effective a review of whether a designation remains necessary. As I have indicated, I can see more merit in a backstop three-year sunset clause with the option of redesignation. I am ready to consider this option further ahead of Report.
Amendment 29 would require that before a Motion to Approve any designation regulations may be tabled, the regulations must have been reviewed by the Intelligence and Security Committee, and the committee must have laid before both Houses a report providing a recommendation on whether the regulations should be approved.
I recognise and appreciate the constructive spirit in which this amendment is intended and I am happy to make clear that I share the view that Parliament should have as well informed a debate as possible on any regulations made under this power. However, I am not persuaded that involving the Intelligence and Security Committee in this way is the right approach or would be an appropriate extension of the committee’s role, which is what it would amount to. The Intelligence and Security Committee has a specific statutory remit under Section 2 of the Justice and Security Act 2013, which focuses on the administration and operation of the intelligence agencies. This is extended to certain aspects of the Government’s activities in relation to intelligence or security matters by means of a memorandum of understanding agreed under Section 2(2) of the 2013 Act.
Section 2(3) of the 2013 Act specifically excludes from the committee’s remit any matter that is,
“part of any ongoing intelligence or security operation”.
This clearly and intentionally establishes the committee’s role as one of retrospective oversight and review—not one of real-time authorisation, approval or review of operational decisions or the use of powers.
This reflects the long-standing principle that national security and the exercise of executive powers in this area is a matter for the Government of the day. There should of course be effective and robust oversight of decisions the Government have made—including, where appropriate, by the Intelligence and Security Committee and, in the case of this power, through debates in Parliament on any regulations designating an area, as well as by the Independent Reviewer of Terrorism Legislation. However, that is of a very different nature from the role proposed for the Intelligence and Security Committee in this amendment, which would be a significant extension of the committee’s role. I do not know if it is one that the committee would necessarily welcome, and it is not one that the Government consider appropriate.
Setting aside more fundamental questions of principle, I can see the amendment also giving rise to difficult practical issues—for example, around the speed with which the committee would need to prepare reports given the need for regulations to be approved within 40 sitting days; and around the extent of redactions that might be needed in such reports to protect sensitive intelligence, which might have informed the committee’s considerations but which could not be shared more widely to inform the consideration by Parliament.
I am, however, happy to give a clear assurance that the Government will always provide Parliament with as much information as possible about the reasons why any designation under Clause 4 is necessary. This will, of course, be constrained to some extent by the need to protect sensitive intelligence which cannot be revealed in public. However we recognise that this does not mean that Parliament will simply take on trust that a designation is necessary. We will always need to make a clear case for it.
I hope these arguments have reassured noble Lords that the current drafting of the Bill will deliver the outcomes they seek. I hope too that the Committee will take comfort from the fact that we will consider further Amendment 28. In the meantime, I ask the noble Lord, Lord Anderson, to withdraw his amendment.
Lord Anderson of Ipswich
I thank the Minister for his very courteous response. I also thank the noble Baroness, Lady Williams, for her welcome and frank correction. I think we are now agreed that the former practice of annual review of proscribed organisations conducted by the Home Office was discontinued in 2013-14. I am not aware of such a practice ever being adopted by the Northern Ireland Office—but we may come to that in due course.
I thought the Minister might respond to my amendment by suggesting it unthinkable in practice that reviews of area designations would be any less frequent than once a year. He made the point, with which I agree entirely, that one sometimes has to be quite agile. Indeed, my amendment was consistent with reviews taking place, where necessary, on a more than annual basis. With respect, I found it harder to agree with the Minister where he referred to the type of enduring threat which I think he was saying might justify a review as seldom as once every three years. This is a very heavy new power, unprecedented as far as I know in our history, whereby British citizens are simply prohibited from traveling to certain parts of the world. I ask the Minister to consider whether it can really be the case either that no timed review of this power should be required or that, if a time is to be affixed to it, it should be an interval as great as every three years. That seems a very long time for these important rights of travel to be withheld. I hope that I do not sound discourteous, but the Minister will understand that I still have concerns. None the less, I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, we have debated Clause 4 pretty thoroughly. I will make just a couple of points and ask a question to add to the agenda that I suspect we will come back to at the next stage.
I make my two points on behalf of the JCHR. There is concern that Clause 4 criminalises conduct that is not in itself wrongful or inherently criminal in nature. That adds to the previous point made by the noble Lord, Lord Anderson. It attracts a potentially very high penalty. Secondly, the question of boundaries of territory under the control of terrorist organisations—or, more widely, places where there is concern about British citizens going—is one of not just agility but clarity. It may be difficult to designate areas with sufficient clarity for citizens to regulate their conduct accordingly.
My question concerns the exception that no offence is committed if,
“the person is already travelling to, or is already in, the area … and … leaves the area before the end of the period of one month”,
after the notification. The Government have clearly thought hard about this and realised that people may be caught in a difficult situation. Have they thought about how people will be told that if they stay beyond a month they are committing a criminal offence? It may be that the thinking has not gone that far, but given the indication that the Government have tried to put themselves, at any rate in this provision, into the minds and the shoes of those who may be affected, I am interested to know if they have thought through the practicalities.
Earl Attlee
My Lords, the power to designate an area is a significant power, as pointed out by the noble Lord, Lord Anderson. However, I think it is a desirable power, provided that we amend the Bill slightly in the way we have discussed. I am not clear why anyone would want to go to a designated area other than for any of the purposes we have outlined in Amendment 17.
Lord Stunell (LD)
I should like to add to the remarks of my noble friend Lady Hamwee by making two points. First, if one looks at the current situation in Syria, there are clearly many women there who do not have the freedom to leave. Will they have committed an offence simply by virtue of being held as virtual or real captives? These are aspects which need to be looked at quite seriously.
I want also to make the darker point that, at the moment, we are focusing on the Middle East and terrorism as we appreciate it there. However, if this legislation had been in force in 1936 or 1937, I wonder what would have been the realpolitik of designated areas within Spain. We need to understand that legislation passed for one reason can sometimes be adapted and used in a completely unforeseen way or, as I am perhaps suggesting, in a foreseeable way. I would like to hear what the noble Earl might have to say about these two points.
Earl Howe
My Lords, it is probably best if I write to the noble Baroness in response to her specific questions. The broad answer is that we have thought of the practicalities. As regards informing people who are already in the designated area that it has been designated and that they therefore have 28 days to leave, there would be FCO travel advice that would almost certainly have pre-existed the designation. The regulations would be given significant publicity, including as part of the requested debate of the designation regulations. There would be a notice on the government website and we would consider other methods of publicity depending on the area being designated.
On the question of the noble Lord, Lord Stunell, about innocent people who have already been caught up in events and the situation within a designated area, the reasonable excuse defence would kick in. As we said in our earlier debates, where it is perfectly obvious that someone is in a designated area for an innocent reason, it is almost unthinkable that the authorities would spend time trying to make a case against them. Their reasonable excuse would be advanced and the circumstances of the case, if they are innocent, would be obvious from the outset. As I have said, we have had the reasonable excuse defence in place for 18 years and, as far as I am aware, there have been no instances of innocent people being arrested or convicted.
That is as far as I can go at the moment, although I am conscious that I have not completely covered the issues raised. However, I will write and copy my letter to all noble Lords who have taken part in this debate.
Baroness Hamwee
My Lords, when the Minister writes, could he confirm that the “one month” in new Section 58B(3)(b) is 28 days? He said 28 days; the wording is “one month”. I am sure somewhere we are told whether it is a calendar month or 28 days, but perhaps he could let us know.
Counter-Terrorism and Border Security Bill
Wednesday 31st October 2018
(5 years, 5 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 131-II Second marshalled list for Committee (PDF) - (29 Oct 2018)
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, Amendment 31 is grouped with Amendment 33. Both are amendments to Clause 6, which extends the circumstances in which a terrorist offending abroad may be prosecuted in the UK, whether or not the offender is a UK citizen and whether or not the conduct is also an offence in the jurisdiction in which it took place. The overall effect of the amended provisions of the Terrorism Act is that an individual committing one of the offences within the relevant section would be liable under UK law in the same way as if he or she committed the offence in the UK. In practical terms, that person would be prosecuted only if he or she was present in the UK, though that presence could, of course, be achieved through extradition.
The offences which this Bill adds are: the dissemination of terrorist material; the wearing of clothing or displaying an item in public so as to arouse reasonable suspicion the person is a member or supporter of—in view of our debate on Monday, I have written down a query about whether that should be “supportive of”—a proscribed organisation; and making or possessing explosives under suspicious circumstances. Under these provisions, it would also no longer be a requirement that the offence be listed in the Council of Europe Convention on the Prevention of Terrorism.
I very much enjoyed the tutorials, from which we all benefited, from the very senior lawyers who took part on the debate in Monday. I am tempted to let them go first but the amendment is in my name, so that would not be entirely the thing to do. I move these amendments, as I did on Monday, on behalf of the Joint Committee on Human Rights. Our report of 4 July commented on some of the evidence we had received, including that from the Independent Reviewer of Terrorism Legislation Max Hill QC. He said:
“placing an individual … on trial in this jurisdiction in front of judge and jury means that you need to prove a level of awareness as to the offence at the time the person committed it. If there is no equivalent offence abroad it is difficult, at the point of proof, to demonstrate that the offence has been committed”.
We also reported on the evidence of Professor Clive Walker, who talked about creating,
“a potential clash between UK law and the law of the country where the activity occurred”.
He went on to say that,
“foreign law which has chosen not to incriminate or prosecute the display of support suggests that UK law should not intervene”.
Similar points were made about the removal of the requirement for equivalence with the convention.
The committee’s report expressed our concern:
“The extension of extraterritorial jurisdiction to certain offences such as support for a proscribed organisation may be problematic in situations where there is not an equivalent offence in the country concerned”.
We took the view that this would,
“offend the principles of natural justice and sufficient foreseeability of the effect of one’s actions. It would mean a foreign national, with few links to the UK, could be prosecuted in the UK if he/she attended a protest or waved a flag overseas, in support of an organisation that is lawful within that overseas jurisdiction … We recommend that further consideration is given as to whether it is justified to bring domestic prosecutions against those who have no (or very few) links to the UK at the relevant time for conduct overseas that was perfectly lawful in the jurisdiction where it occurred”.
The Government have argued that the oversight of the Director of Public Prosecutions or, in certain cases, the Attorney-General, is a safeguard and that prosecutions would have to be proportionate. We did not regard this as a sufficient answer, nor did we regard as sufficient the Government’s comment that we need to deal with conduct in failed states which do not have the rule of law. All this raises, among other things, the issue of how evidence is found in such a place for use in a prosecution here.
Amendment 31 would delete the extension to the Section 13 offence in respect of uniforms and flags. Amendment 33 would limit the extension to where the relevant conduct is criminal in the country concerned, or where the individual is a British national or has been present in the UK for six months or more over a period of 10 years. That was a way of expressing that the individual has significant links with the UK. I beg to move.
The Lord Speaker (Lord Fowler)
I should notify the Committee that, if Amendment 31 is agreed to, I cannot call Amendment 32 by reason of pre-emption.
Lord Rosser (Lab)
My Lords, as the noble Baroness, Lady Hamwee, said, Amendment 33, to which both my noble friend Lord Kennedy of Southwark and I have added our names, reflects a recommendation of the Joint Committee on Human Rights—a committee whose recommendations are not always music to the ears of this Government, and indeed have not been to previous Governments. I imagine that the committee would take the view that that is just about the highest compliment any Government could pay it.
The Government have also expressed a fairly trenchant view on the extent to which the JCHR, in connection with the Bill, should have taken evidence from the police, intelligence agencies and victims. The noble Baroness, Lady Hamwee, has previously responded to the Government’s comments, but, whatever the Government’s view on that specific point, the committee’s recommendations should be considered and responded to purely on their merits, rather than on the basis of whose evidence has or has not been given.
As the noble Baroness, Lady Hamwee, and the JCHR have said, Clause 6 extends extraterritorial jurisdiction to Section 13 of the Terrorism Act 2000. Section 13 criminalises wearing an item of clothing or wearing, carrying or displaying an article in a public place so as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. The JCHR has expressed concerns over the extension of extraterritorial jurisdiction to certain offences where there is no equivalent offence in the country concerned, which could certainly apply in respect of the offences covered by Section 13 of the Terrorism Act. In such a situation, we could end up in a position under the Bill as it stands where a foreign national with no or very limited links to the UK is prosecuted for conduct that, both in fact and as far as they were concerned, was lawful at the time and in the place it occurred. That surely would not be British justice in action.
The views of the Joint Committee on Human Rights on this issue are shared by the Constitution Committee—whether, in the latter case, that was with or without having heard evidence from the police and intelligence agencies I do not know. The Constitution Committee states that the extraterritorial extension of the offences concerned,
“breaches the requirement, deriving from the principle of legal certainty, that people should have a fair opportunity to know the laws (particularly criminal laws which on conviction carry criminal penalties) which apply to them. We agree with the JCHR’s proposed amendment that extra-territorial jurisdiction should apply only where the relevant conduct is criminal in the country concerned or where the individual has sufficient links to the UK”.
Amendment 33 is designed to address the issue to which both the JCHR and the Constitution Committee have drawn attention by providing that an offence is committed under Section 13 only if the relevant acts were an offence in the country where the acts took place, or the individual was a British national or had been present in the United Kingdom for a continuous period of at least six months in the last 10 years.
Lord Carlile of Berriew (CB)
My Lords, I am somewhat shocked by the implication that there is anything illiberal about the proposed extension of the law in this clause. In November 2017, the Secretary-General of the United Nations, speaking in London at the School of Oriental and African Studies, included in his speech the following sentence:
“While terrorism often starts in conflict zones, it reaches far beyond them, organizing and inspiring attacks and radicalizing people across borders and continents”.
The clause recognises exactly what the Secretary-General described. Those who have been interested in terrorism law for as long as the period since 9/11 will recall that the then Secretary-General of the United Nations, in a speech in Barcelona shortly after 9/11, made the point that the United Nations agrees in principle that terrorism should be prosecuted wherever the defendant is irrespective of where the terrorist act was committed.
If this Bill, as we are told by the Government, is intended at least in major part to modernise the law so that it faces up to the changes that have occurred at an exponential rate in electronic communications since 2001, this is exactly one of those measures that achieves just that. Let us imagine that somebody was in this country with impunity having committed an act somewhere else that is a terrorism offence in this country. We prosecute those who committed the act in this country, but not those who committed exactly the same act, which appeared on exactly the same postings on the internet and in exactly the same YouTube videos, in another country. That makes absolutely no sense.
I say to the noble Baroness—whom I much admire—who proposed the amendments that there is a danger of us losing touch also with the public view on these matters. A set of opinion polls appeared two days ago in which it was revealed that changes in the law of this kind are broadly supported by more than 80% the public. While I do not believe in legislating on the grounds of public opinion, in this instance I regard the public as being right and I urge your Lordships to reject the amendments and not to reject the principle in the clause.
Lord Paddick (LD)
My Lords, I support Amendments 31 and 33, which are in the name of my noble friend Lady Hamwee and to which I have added my name. I remind the Committee that my noble friend raises the amendments as a representative of the Joint Committee on Human Rights. I am putting forward the view of the Liberal Democrat Benches on these issues.
On Amendment 31, concerning extension of extraterritoriality to wearing a uniform and displaying an article in a country other than the UK, while I accept what the noble Lord, Lord Carlile of Berriew, said about an act of terrorism, such as blowing somebody up or that sort of serious offence, to expect somebody who lives in another country—let us say in Syria—to know that it is offence to carry an ISIS flag, and therefore that they would be prosecuted if they came to the UK for doing that in Syria, without having any connection with the UK prior to that occasion, makes, to use the noble Lord’s expression, absolutely no sense. There will be some things that are so clearly a terrorist offence that people should know that they are not acceptable.
Lord Carlile of Berriew
Can the noble Lord identify any individual in Syria who is not aware that supporting ISIS is regarded as a serious offence in most countries, including Syria?
Lord Paddick
I do not think that I can answer that question, and I do not think that the noble Lord can answer it either. This is about offences which if they were committed in the UK could lead to people being radicalised or encouraged to join a particular terrorism organisation. That cannot be said about an offence committed in another country. As for Amendment 33, surely it is only common sense that a person commits an offence overseas only if their actions are an offence in that country, or they have sufficient ties to the UK that they should know that their actions would amount to an offence if committed in the UK. I therefore support these amendments.
Lord Tebbit (Con)
Sitting here trying to cope with this extremely complex Bill and some very important issues, I find myself having to choose between the views of the noble Lords, Lord Paddick and Lord Carlile of Berriew. I, for one, have no hesitation whatever, looking at the records of the two men over the years, in knowing who I support. I support the Bill as it is and not as this amendment would propose.
Lord Judge (CB)
My Lords, before I address Amendment 33 let me go back to the debate on Monday when we were discussing Amendment 18 and new Section 58B(2). I fear that during the discussions I misunderstood something said by the noble Earl, Lord Howe. I understood him to be saying that the Act produced two different ways of approaching the burden of proof. I have reread Hansard and I misunderstood him—it is entirely my fault—and I objected to that. I would go on objecting to it if that was what he said, but it was not. I have studied the Bill and I find on page 83 that he is right and that the burden of proof in relation to any offence created by Section 58B(2) is in fact on the prosecution. I therefore apologise to the noble Earl—I am sorry that I misunderstood him—and to the extent that I misled the House, I apologise to the House. However, I just add that it would be so much more helpful if Acts of Parliament said what they meant, instead of telling us to look at whatever page it is to find the answer.
I want to add a word, in spite of the difference of view expressed here: we have to be careful about this provision. I am not going to take sides in relation to what may be a very serious offence or a very minor offence, but can we just reflect on this? Every citizen is presumed to know the law; every visitor to this country is presumed to know the law that applies in this country. Of course we do not: look at me, I got new Section 58B(2) wrong and I am supposed to know the law. The more serious point is that there is a basis and a quid pro quo for this. The quid pro quo is that the criminal law should be clear. I am expected to know the law and to obey the law: it should, at least, be clear what it is I am expected to obey.
We are all supposed to know the law here; every citizen of every country, applying the same presumption, is presumed to know the law in the country of which he is a citizen or to which he is a visitor. There will be occasions—perhaps I need to be less emphatic: there may be occasions—when something is not unlawful in a different country to our own. We have different rules. Bullfighting is unlawful in this country, but would we prosecute a Spanish toreador coming here for breaking what we would regard as our law which is not unlawful under their law? The Bill risks criminalising a citizen of another country for doing something that is not unlawful in that country.
Of course terrorism is unlawful—it is unlawful everywhere, you do not need a book of law to tell you that—but there may be minor matters, in relative terms, which we criminalise here but are not unlawful by the laws of a different country. We need to be careful not to extend the criminal law further than it should go.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, as we have heard Clause 6 adds a number of further offences to the existing list at Section 17 of the Terrorism Act 2006, which extends extraterritorial jurisdiction over those offences. This will ensure that UK courts are able to prosecute foreign terrorist fighters who travel to the UK, having joined terrorist groups and become involved in conflicts or other terrorist activity overseas. It will also ensure that we are able to prosecute people who base themselves overseas and seek to radicalise people—the general public or targeted individuals—in the UK. It is this latter category of radicalisers, and propagandists on behalf of terrorist organisations, that the noble Baroness’s amendments deal with.
Section 13(1) of the Terrorism Act 2000 contains the offence of displaying in a public place an item of clothing or other article such as a flag, in circumstances which,
“arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”.
As a result of Clause 2, it will also contain, at new subsection (1A), the offence of publishing an image of such an article in the same circumstances.
Extraterritorial jurisdiction is most relevant to Section 13, and in particular to the offence the Bill will add at new subsection (1A), in a case where a person located overseas publishes images of flags or logos associated with a proscribed terrorist organisation. We have seen in the Syrian conflict that Daesh has run a slick and effective online propaganda operation, which has included exactly this type of activity—publishing images on social media and other online platforms, aimed at promoting the group, its ideology and its methods, to individuals around the world, including in the UK. Other terrorist groups, in other parts of the world, do the same.
It has been a recurring theme of the debates on the Bill that this is a downside of the rapid development of online technologies in recent years. Although people have been connected and brought together in myriad positive ways, and the world has been opened up, those who would do us harm have been equally quick to exploit the opportunities of the digital age. Terrorists are no exception, and we need to update our laws to keep pace with the evolving threat. The online world simply does not respect national boundaries in the traditional sense, nor does it pay heed to geographical distance. Where this gifts radicalisers the opportunity to reach across the world to target vulnerable people in the UK, it is absolutely right that the UK Government respond by ensuring that our courts have the ability to deal with that. There is a clear operational case to justify this measure.
The noble Baroness, Lady Hamwee, has explained that her concern is that a person could find themselves prosecuted in the UK, having acted in support of an organisation that is not proscribed in the country where the conduct took place, and therefore having no awareness or expectation that they could be held criminally responsible. I respect the principled stance taken by the noble Baroness but, respectfully, I do not agree that it would be right to either simply remove this provision, as Amendment 31 would do, or limit its application, as Amendment 33 would do. The reality is that there is no universal and internationally agreed list of proscribed organisations, and there is no realistic prospect of one being implemented. Even if there were, the kinds of countries in which terrorist organisations are most likely to be based are those that are the least likely to sign up to and implement such an international rules-based system.
Despite this, terrorists are travelling and communicating across international boundaries, in a way which poses a direct threat to the safety of the public in the UK and elsewhere. Given this, we should not deny our courts the ability to act against such individuals if they return or travel to the UK, pending the adoption of such an international list, and we should ensure that the powers available are flexible and not unduly restricted. To proceed as the noble Baroness advocates would risk sacrificing public safety and justice in the pursuit of a frankly unrealistic ideal.
It is right that we should be able to prosecute those who travel overseas to join terrorist organisations, and who publish propaganda in support of those groups, seeking to radicalise others back in the UK or elsewhere. That is the nub of the matter. The noble Lord, Lord Carlile, was absolutely spot on in the way that he characterised these provisions. Such crimes are most likely to be committed in areas of conflict and instability, within failed states that may not have functioning systems of government with effective jurisdiction over their own territory, or in countries where there may not be clearly defined or well-developed terrorism laws equivalent to those in the UK, or which may simply take a different approach. Those are not good reasons to ignore the threat posed on UK soil by people who have published propaganda in support of terrorist groups while overseas. Simply put, foreign terrorist fighters should not be able to evade justice because the country that they travelled to, or hail from, does not have a proscription system equivalent to that of the UK.
Baroness Hamwee
My Lords, first, I regret the personal attack on my noble friend.
The debate has assumed that the amendment has a wider impact than it does. The two amendments deal with subsection 3, which is about uniform, flags and so on. I accept that displaying a flag may be suggestive of more extreme behaviour, but I still wonder whether someone from a failed state, or a state with a different approach, who displays a flag in that country—where it is not an offence—should, if he comes to this country, be subject to prosecution. The noble Earl referred to the provision about permission from the Attorney-General. I think he said that a test would be whether or not the Attorney-General believes that the behaviour in question affects the affairs of this country. The Minister is nodding at that. I find it quite difficult to make the leap to concluding—without further evidence—that a person behaving in that way would automatically be a risk to this country.
I take the point about losing touch with the public view seriously but my experience on the Joint Committee on Human Rights is that the public really understand the importance of applying the lens of human rights to the legislation that we create. I managed to do a law degree without any module on jurisprudence. The course at Cambridge has improved considerably since then but I wonder whether there is something a bit arrogant in assuming jurisdiction when it involves other countries. I feel uneasy at that notion but, having got that off my chest, I have to beg leave to withdraw the amendment.
“(cza) an offence under section 12(1) or (1A) of that Act (inviting or expressing support for proscribed organisation);”
Earl Howe
My Lords, Clause 6 will add a number of further terrorism offences to the list at Section 17 of the Terrorism Act 2006, as I have already explained, to which extraterritorial jurisdiction—or ETJ—applies. This means that individuals can be prosecuted in the UK courts for conduct that took place outside the UK which would have been unlawful under an offence listed at Section 17 had it taken place here.
Following further consideration, we have identified two additional offences where it would be right to extend ETJ to ensure that the full range of relevant terrorism offences is covered. These are, first, the offence of inviting support for a proscribed organisation at Section 12(1) of the Terrorism Act 2000 and, secondly, the offence of expressing an opinion or belief in support of a proscribed organisation, reckless as to whether another person will be encouraged to support the organisation, which Clause 1 will insert into the 2000 Act as new Section 12(1A). Extending ETJ to these offences will help to tackle radicalisation, particularly by people who have travelled from the UK to join a terrorist organisation and reach back to the UK to spread its propaganda and promote its aims. This will allow prosecution in a case where, for example, someone overseas is in contact with a person in the UK, who may be a vulnerable person such as a child, and is either deliberately or recklessly encouraging them to support a particular proscribed organisation, such as Daesh.
Clause 6 received broad support in the House of Commons and, with the exception of the extension of ETJ to the Section 13 offence which we have just debated, has also been supported in this House. None the less, I hope that your Lordships will be persuaded that it is the right approach to ensure that we have as comprehensive coverage as possible of terrorist offences that might be committed overseas, subject to the normal safeguards, so that we can protect the public in this country. I commend this amendment to the Committee on that basis.
Baroness Hamwee
My Lords, since the Joint Committee on Human Rights is meeting at this moment it has not been possible to take its view on this amendment but I think it must follow from my comments on Clause 1 that it would not be enthusiastic, as these provisions obviously have to be read together. I was amused that the Minister said, as did the noble Baroness’s letter to noble Lords of 24 October, that the Government have identified further offences. They are not quite offences yet, are they? It would perhaps be fairer to say that the amendment is consequential on Clause, but that is a minor point.
Lord Anderson of Ipswich (CB)
My Lords, I oppose this amendment and, in doing so, I will seek to explain why the issues are rather different from those considered under the previous group. If Amendment 32 is passed then Section 12 of the Terrorism Act 2000, as supercharged by Clause 1, will apply to any person anywhere in the world who expresses an opinion or belief that is supportive of an organisation proscribed in the UK and who is reckless as to the consequences. The deficiencies of our deproscription regime, with which I have already wearied your Lordships, are multiplied when coupled with the indiscriminate grant of extraterritorial jurisdiction in this context.
To illustrate the point, I invite your Lordships to look to the Republic of Ireland, whose citizens would be criminalised by a law of this Parliament for expressing supportive opinions about organisations now committed to peace but in which their grandfathers or grandmothers once fought for freedom. I shall give one example: Cumann na mBan, the Irish republican women’s organisation. It was once aligned with the IRA and is still proscribed in this country, despite no evidence of which I am aware that it has been concerned in terrorism during this century at least. The commemoration of its centenary in 2014 in Dublin was a significant national event. The speakers included President Higgins of Ireland, who spoke stirringly and approvingly of the vision that animated the women of Cumann na mBan. The Minister will of course assure us that no one is going to seek extradition of Irish citizens who expressed opinions supportive of this proscribed group but, as noble Lords have done in relation to other clauses of the Bill, I must question whether this repeated heavy reliance on the discretion of our authorities is an adequate substitute for crafting a properly defined law.
This amendment comes in very late and, as the noble Baroness, Lady Hamwee, said, without the benefit of JCHR scrutiny. Whatever view noble Lords may take of Amendments 31 and 33, I strongly question the wisdom of extending extraterritorial jurisdiction unqualified by limitations of citizenship or residence to countries where conduct caught by the expanded Section 12 is not a crime. However it is applied in practice, this amendment might be thought to have a regrettably colonial flavour, not just in Ireland but in other parts of the world. I have no doubt that it is unintended, but it is no less unfortunate for that. This amendment seems to have been an afterthought. I suggest that this is one of those occasions where the first thoughts were the best. I invite the Minister to withdraw the amendment or, at the very least, to qualify it in the ways suggested in Amendment 33.
Lord Rosser
I shall be very brief. I await the Government’s response to the points made by the noble Lord, Lord Anderson of Ipswich, with interest.
I would like to pursue another point he raised in his contribution. Bearing in mind that this amendment, which adds offences, is coming in at a very late stage in proceedings, is this a result of a perceived oversight on the Government’s part or does it represent a significant rethink of policy?
Earl Howe
My Lords, I am grateful to noble Lords who have responded to this proposed amendment. We are very conscious that it is less than ideal to bring in an amendment of this kind at this stage of the Bill’s passage. If we had been able to do so at an earlier stage, it would have been much better.
Having said that, we felt that it was, on balance, right to introduce this change rather than not introduce it. I recognise the reservation expressed by the noble Lord, Lord Anderson, on that score. He also expressed the reservation that we heard on the previous group of amendments about applying extraterritorial jurisdiction to those who are not UK citizens or UK residents. I have already said that as a general rule I respect that point of principle. However, I put it to the noble Lord and the noble Baroness that what we are seeking to do here is not any different in concept from what we sought to do at the beginning of the Bill.
Lord Faulks
“Treason: aiding a hostile State or organisation
(1) A person commits a treason offence if, with intent to aid—(a) a terrorist attack on the United Kingdom by any State or organisation, or(b) any State or organisation that intends to mount a terrorist attack on the United Kingdom or is engaged in a process of planning or preparing for such an attack on the United Kingdom,they engage in conduct falling within subsection (2). (2) A person engages in conduct falling within this subsection if they do an act that is designed to—(a) help carry out a terrorist attack or facilitate the carrying out of a terrorist attack on the United Kingdom, or(b) help the planning of or preparation for a terrorist attack on the United Kingdom, or(c) aid the military or intelligence operations of a State or organisation falling within subsection (1)(b).(3) This section applies—(a) in the United Kingdom, to any person who enjoys the protection of the Crown, and(b) outside the United Kingdom, to any British citizen or any person who is settled in the United Kingdom.(4) A person guilty of a treason offence shall be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.”
Lord Faulks (Con)
My Lords, this amendment in my name and those of my noble friends Lord Hodgson and Lord Bethell is to add an offence of treason to the Bill. The offence of treason, or high treason, has a rather chequered history, I readily admit. The 1351 treason offence remains on the statute book. It focuses significantly on the safety of the sovereign and prohibitions on aiding the sovereign’s enemies. Important though these matters are, it is now generally accepted that that Act is not fit for purpose, and having an offence on the statute book that cannot be used is not satisfactory.
There are now a considerable number of terrorist offences that exist to augment the criminal law. They derive mainly from the Terrorism Acts of 2000 and 2006. This Bill seeks to add to those offences, in recognition of the changing nature of the threat and to provide a nimble response, in legislative terms, to what is happening on the ground. If the nature of terrorism is changing as fast as the noble Baroness, Lady Manningham-Buller, said at Second Reading, there will inevitably be something of a legislative lag, but the Bill seems for the most part to be a sensible response. The reviewers of terrorism legislation have been vigilant in the past—two of them are Members of your Lordships’ House and are present in the Committee today—and this has very much helped the Government to consider what laws need to be updated. Ultimately, though, it is a matter for the Government how they respond to the threats and, in so far as possible, anticipate the nature of terrorist threats in future.
When I first heard the suggestion that we might need a modern law of treason, I was doubtful about either the wisdom of such a move or the need for it. Surely what was required was a much more nuanced response, and I was a little concerned about the potential risk of attracting martyrs if there was seen to be a somewhat heavy-handed response to the various threats from terrorism. I then had the opportunity to read Policy Exchange’s publication Aiding the Enemy, to which I referred at Second Reading. Its distinguished authors make a compelling case. The enthusiastic responses to the study came from a number of important sources, including the former Home Secretary, a former commander at New Scotland Yard and head of Counter Terrorism Command, and a former director-general of the Security Service.
This Bill increases sentences and creates more security at the border, together with some new offences. However, the debates we have already had in Committee illustrate how difficult it will be to satisfy Parliament, and in particular this House, that the various provisions in the Bill adequately reflect the balance between the need to protect citizens from terrorism and the need to preserve civil liberties. After all, the Liberal Democrats have given notice of their intention to oppose each of the first four clauses standing part of the Bill. In particular, I note the debate in relation to Clause 4 two days ago in this House.
It seems important to step back a little. At the heart of this new offence of treason is the question of allegiance or loyalty owed to this country by a subject or citizen of this country, or by someone who is settled here—settlement being a term of art in immigration law. Australia, Canada and New Zealand have responded to this challenge, albeit in slightly different ways. As recently as June, Australia legislated to deal with citizens or relevant others fighting Australian forces abroad. Many other countries have laws in relation to treason.
Let me make it clear that the creation of this new offence is not intended—nor would it act—as any brake on free speech or the right to express dissent or criticism of the Government in relation to any of their activities, and in particular their foreign policy or decision to wage wars. Criticism and overt expressions of dissent are part of a healthy democracy. However, such dissent should not extend, in effect, to waging war against your own country, whether in the United Kingdom or elsewhere, Nor should it include helping, planning or preparing an attack, giving military or other intelligence, or in any way assisting such attacks.
What is the scale of the problem? It is one with multiple dimensions, including British citizens or permanent residents who go abroad to fight with ISIS in Syria or with the Taliban, but also British citizens and others who help those groups or others who intend to attack the UK or fight UK forces in the UK itself. It is estimated that about 900 British terror suspects went to Syria and Iraq during the wars. Those who have not been killed, or who are not currently prisoners, have been described by our senior counterterrorism officer as a “big national security threat”. It is true that when they return they will—or should—face immediate arrest and questioning and will be encouraged to enter deradicalisation schemes. But it is said that prosecution will be difficult, particularly against the many women involved—the so-called brides of Jihad—who will or may claim duress or in other ways try and distance themselves from what others may have done.
What about Anjem Choudary, released from prison on 19 October, half way through his in my view inadequate sentence for supporting ISIS? Now he will be placed on a deradicalisation or anti-extremism course, and a considerable amount of our resources will be spent on monitoring his activities, having regard to the range and scope of his encouragement of so many other terrorists. What he did was undoubtedly a betrayal of his country. He acted as a recruiting agent for a group that intended to cause and has caused attacks on the United Kingdom, and which the UK faces abroad. He would be guilty of treason.
Should the authorities simply wait for a British citizen to commit serious offences—in other words, to wait for a returning traitor, as they seem to have done with Khalid Ali, a British citizen who spent five years serving with the Taliban in Afghanistan before returning to the United Kingdom in late 2016? Apprehended in Whitehall with knives in his possession, he was sentenced on 20 July to life imprisonment for preparing acts of terrorism, but he ought to have been prosecuted for treason as soon as his activities in Afghanistan came to light.
Then there is Rabar Mala, an Iraqi national who had remained in the UK unlawfully after his visa expired in 2008. He became the first person to be convicted for possession of property for the purposes of terrorism. He activated some 360 SIM cards for fighters in Iraq and Syria and co-ordinated ISIS communications. He was also planning possible attacks in the United Kingdom, inviting funds and personnel to be sent to enable an attack on a major civilian target. Being neither British nor a settled non-citizen, had Mala served ISIS outside the UK he would not have breached the offence I propose. But while voluntarily living among us he owed a duty of allegiance to the United Kingdom which he betrayed by serving ISIS, aiding its military and intelligence operations in Iraq and Syria and planning attacks on the United Kingdom. The offence for which he was convicted and sentenced to eight years manifestly fails to recognise the true nature of his wrongdoing or to provide adequate punishment for it.
May I say a bit about the drafting of this amendment? I am, as ever, indebted to the Public Bill Office for its swift and helpful engagement with my proposed amendment, although I was somewhat disappointed at the changes that it insisted I make to it—as I say, it was based on an Australian version of treason—in particular the scattering in the amendment of the word “terrorist”. This apparently was to bring the amendment within scope. If you are fighting or aiding the fight against the United Kingdom outside the United Kingdom or inside it, there does not seem to be a significant distinction.
It would be odd if a British subject assisting the fight abroad was not guilty of a terrorist attack whereas the domestic equivalent constituted one.
Lord Thomas of Gresford (LD)
Could the noble Lord help me? Is he saying that his amendment covers an attack on British forces operating outside the United Kingdom? I do not read it in that way.
Lord Faulks
It does not, which is why I was expressing regret at the final form of the amendment. If we are to return to this amendment, I shall seek perhaps to expand its scope—I hope not having an undue squabble with the authorities—so that it comes squarely within what the noble Lord suggests. If it is necessary to bring the amendment back with further refinements, they may include additional conduct which might be regarded as treason, such as impeding the operation of Her Majesty’s forces or prejudicing the security and defence of the United Kingdom.
Clearly, a prosecution under this offence would be no small thing. It would need the consent of the Attorney-General to bring a prosecution since it is an offence against the state. I also accept that many offences which might be regarded as treason would be caught up in all the many other terrorist offences on the statute book, and thus I would not expect it to make a frequent appearance. Nor would I claim that the existence of this offence would be a panacea, but there is a significant gap and filling it might avoid some of the complications, say, of the designated area offence in Clause 4.
Those who live and benefit from life in the United Kingdom yet involve themselves in attacks against the United Kingdom either here or abroad are surely guilty of treason. Are we too timid to call it that? Is it because allegiance to our country is considered unfashionable? If so, that seems to me to verge on the decadent, or at the very least it shows a country lacking in self-confidence. Those who reject the values of this country have the option of relinquishing their citizenship. But while they remain here or regard it as their home, surely they owe a duty to other citizens, who have their own human rights. This new definition of treason is a way of underlining that duty. I beg to move.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I have added my name to Amendment 34. I begin by apologising to the Committee for not having participated at Second Reading, although I have taken care to read the transcript very carefully.
My noble friend Lord Faulks has given a clear and brilliant explanation of the unsatisfactory nature of the law on treason. Not being a lawyer, I shall not attempt to follow, let alone match, his judicial exposition; I shall come at the issue from a completely different angle. Earlier in the Session, I chaired a one-year Select Committee of your Lordships’ House on citizenship and civic engagement. I am pleased to see at least one member of the committee—the noble and right reverend Lord, Lord Harries—in his place; he will be familiar with quite a lot of what I will say.
Our report was published in March and we have received the Government’s response, although we have yet to hold our concluding debate. An underlying theme of our examination of citizenship and civic engagement in the 21st century was to look at the glue that holds our society together. A major topic debated at length by the committee was values: what is the essence of what this country stands for, which needs to be defended? Of course, it was not for a committee of your Lordships’ House to define irrevocably to which values British citizens should adhere. Indeed, we recommended that the Government should encourage a vigorous debate on this issue, but we offered as a “straw man” of the values we should share,
“democracy, the rule of law, individual liberty, and respect for the inherent worth and autonomy of every person”.
I say in passing that the committee suggested that the Government’s continued use of the term “fundamental British values”, as part of the Prevent strategy, was unfortunate and, in some cases, counterproductive. Since the Government began to use this term, the word “fundamental”—because of its close association with fundamentalism—has assumed greater significance; this issue was raised by my noble friend Lady Warsi at Second Reading. As a result, rightly or wrongly, one section of our population has seen it as directed particularly at them which is an unfortunate development.
Leaving that aside, there are core values; they represent red lines that have to be defended. One of our witnesses, Dame Louise Casey, put it thus:
“You do not pick and choose the laws of this country. The laws that protect religious minorities are the same laws that say I am equal to a man. You do not pick which ones you want. It is not a chocolate box of choice; it is something you have to embrace. If you are uncomfortable with that, I now say that is tough”.
The committee concluded:
“The epithet ‘racist’ has rightly acquired particular force and opprobrium in modern day Britain. Those who seek to continue to promulgate approaches that are not in line with our values, such as the value of equality, have been known to make use of this phrase to rebut criticism of their approach. Where necessary society must be sufficiently strong and confident not to be cowed into silence and must be prepared to speak up. Fear of being labelled ‘racist’ is never a reason for those in authority not to uphold the law, or for citizens not to raise their concerns”.
It is not good enough to look the other way; civic engagement demands more. Whether my noble friend’s amendment is the only—or right—way to help defend these red lines I am not sure. But I am sure that there is an important debate to be had, a debate about the gap—as he referred to it in his remarks a moment ago—and about how we balance our country’s proud record of openness and tolerance with the views of others, often in positions of influence, who openly despise such an approach as weak and wrong and who, given their positions of influence, are able to influence the actions of others and lead them astray. People of influence are able to empower and liberate their followers. This empowerment can be put to good or less good uses. We have seen an example in recent weeks in the United States, with the delivery of letter bombs to prominent citizens whose sole defining characteristic seems to be that they oppose the current Administration.
If there was one key theme from the huge volume of evidence that my committee received, it was that people from all parts of the country and all communities considered that the ground was shifting under their feet, that they increasingly felt rootless and that they wanted to belong. They wondered whether all parts of our society were prepared, in the spirit of compromise and tolerance so essential to the well-being of this country, to subjugate some of their personal preferences and beliefs in the cause of the greater good of society as a whole, or whether, as a result of speeches or actions by those who did not share our values, too many now felt empowered and liberated to attack our society, the state or the Crown and thus, in the broadest sense, commit an act of treason.
To conclude, we took evidence from Cardinal Vincent Nichols, the Cardinal Archbishop of Westminster. He addressed us thus:
“If we keep picking the fruits of tolerance and not attending to the roots of the tree, it disappears … tolerance becomes cynicism, cynicism becomes indifference, indifference hardens and we end up going down the road that leads to hate incidents and hate crimes”.
It is to try to avoid this country going down that very sombre road outlined by the Cardinal Archbishop that I have put my name to my noble friend’s amendment.
Lord Bethell (Con)
My Lords, I too thank my noble friend Lord Faulks for moving this amendment. I also thank my noble friend Lord Hodgson for supporting it, and I am glad to support it myself.
Many Peers spoke at Second Reading about the extraordinary changes to warfare, terrorism and espionage, and the growing risk of home-grown participants and recruiters. There is clearly a need for a modern response to these challenges, and I think the Bill does a huge amount to deal with them, but I wonder whether it goes far enough.
On the legal case for a revival of the treason law, my noble friend Lord Faulks and others have put the arguments much better than I can. I also recommend the paper by Policy Exchange, Aiding the Enemy, which has an enormous amount of support from senior figures in the law and the police. However, my angle is slightly different. I am coming at it from the point of view of cohesion and the need in this country to ensure that there is a really strong sense of trust in our communities.
We are living with a huge amount of immigration—something that I am really proud of and glad to see happen. There is an almost post-modern attitude among many people towards even the concept of a nation state, and a sense of “anywhere-ness” among a lot of people. The noble and learned Lord, Lord Falconer, the former Lord Chancellor, argued in 2010 that the law of treason was no longer appropriate because people might feel their strongest allegiance to be towards their religion or even towards Greenpeace. He said that we live in an era when the freedom of the individual is put above practically everything else.
That thinking, I am afraid, has contributed to our becoming embarrassed when talking about big ideas such as treason, betrayal and allegiance. We have lost a sense of what is acceptable and what is not. It is acceptable to criticise your country and to obey your God or to follow the tenets of your ideology, but it is not acceptable to aid one’s country’s enemies in their attacks. I think this confusion has contributed to 900 people, many of them young and naive, fighting for an enemy, and we are now living with those consequences.
I was greatly struck by the story of Kimberley Miners, who travelled to Syria and recently returned. She said of her experience of living with ISIS:
“People have no idea, but ISIS is actively searching Facebook for vulnerable people. People just like me. These people befriended me, I felt accepted”.
I feel a mixture of enormous compassion for her and enormous anger that she could have been so stupid in this decision. I cannot help feeling that, if our citizens and those who chose to live here had a clearer sense of where the boundaries lay, naive young people would not have made such stupid mistakes. We could then sleep with confidence that our neighbours, whatever their views and beliefs, ultimately have a peaceful intent towards their country, and further damage to trust in our communities could be avoided.
By way of conclusion, a treason law should not become a coercive or reactionary measure, and I pay tribute to the thoughtful briefings on the Bill from Liberty and the Open Rights Group, and to the contributions of my noble friends Lady Warsi and Lord Ahmed during Second Reading. But there is social merit in a narrowly drafted measure that makes clear our duty not to aid one’s country’s enemies in their attacks. That is why I am pleased to support this amendment.
Earl Attlee (Con)
My Lords, I too support the amendment. When I read it, I was surprised that it did not include the words “take up arms against Her Majesty’s forces” or something to the same effect. It is, as my noble friend pointed out, a procedural point. I gently point out, however, that we in this House have great freedoms of manoeuvre and are able to table amendments that you simply would not be able to in the House of Commons. I hope that, in the end, the provision will include the words “taking up arms against Her Majesty’s forces”. We cannot have UK citizens attacking the UK or its forces in an organised way while still enjoying our way of life and the privileges of living in the UK. How do we think our security services and Armed Forces feel when they realise that a member of the enemy was brought up in the UK?
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 34, moved by the noble Lord, Lord Faulks, was the subject of some debate at Second Reading, and the issue has since been referred to several times. I was not persuaded then that this is the right way to proceed and, having listened to a number of noble Lords speak in favour of the amendment, I am not persuaded now.
As we have heard, the Treason Act 1351 is still in force today, although it has been amended. I believe it was last used to prosecute William Joyce in 1945 after the Second World War. As the noble Lord, Lord Faulks, said, it has a somewhat chequered history. There is ample opportunity to prosecute British citizens, and those who are not British citizens, who commit acts of terrorism for a range of offences, using legislation that is already on the statute book.
Lord Elystan-Morgan (CB)
My Lords, on the prosecution of William Joyce, I do not believe that any reliance at all was placed on the Treason Act. The basis of the prosecution against him was that he had left this country holding a British passport and, as such, had relied on the guarantee of safety of this country. There was, therefore, a reciprocal duty on him, which led him of course to commit treason.
Lord Kennedy of Southwark
I bow to the noble Lord’s greater knowledge on the matter and would not attempt to dispute his point.
The Bill gives the Government further powers and increases the sentence for various offences, which deals with the point about adequacy of sentencing. The Bill also gives further powers to the police and the intelligence services, which is important.
Having read the amendment, I see the point noble Lords are making, but it seems rather messy to me. I do not see what it would achieve for us. It is not a question of being timid. I love my country. My family came here as immigrants and this country has been very good to us. I just do not think the amendment is appropriate.
In response to the noble Lord, Lord Hodgson of Astley Abbotts, of course the first duty of the Government is to protect their citizens, and we support the measures they take in that sense and support them in the Bill. We will question them and argue over issues, but we support the Government in their measures to do that. I just do not feel that this amendment, no matter how well intentioned, takes us any further forward.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have spoken in the debate and my noble friend Lord Faulks for moving the amendment. In your Lordships’ House, every day is an education. My noble friend Lord Howe informs me that William Joyce was an Irishman falsely using a British passport, so perhaps the Irish among us should feel—
Lord Thomas of Gresford
He was an American who took a German passport in 1940 but was nevertheless convicted when he was a German citizen.
Baroness Williams of Trafford
That is a very interesting history. I know that many Americans claim to be Irish but it is not every day that we get a chance to discuss a law that goes back to 1351. It has been an interesting debate.
Lord Judge
Perhaps I may ask a serious question. If we are debating an Act that was enacted in 1351, which has absolutely no application to today, through which, among other provisions, the Chancellor doing his job in his place of work is protected but not if he is slain at a party conference, would it not be a good idea for us to get rid of it altogether?
Baroness Williams of Trafford
If the noble and learned Lord will indulge me, I will come on to the point about hostile state activity and the place for this law in due course.
I share my noble friend’s belief that those who do harm to the United Kingdom and the people who live here should face justice. I am not entirely convinced that introducing a new offence of treason, as proposed by Amendment 34, is necessary. However, as my noble friend and the noble Lord, Lord Kennedy, have said, this country has a comprehensive range of terrorism offences and other powers that this Bill will update for the digital age—it is ironic that we are talking about the digital age and 1351 in the same debate—to reflect modern patterns of radicalisation and terrorist offending.
The updated legislation will provide the police and intelligence services with the powers they need to protect the public from terrorism, and we do not consider it necessary also to create a new treason offence for this purpose. For example, the activities covered by subsection 2(a) and (b) of the new clause are likely already to be offences under the Terrorism Acts of 2000 and 2006, in particular the offence of preparation for terrorism in Section 5 of the 2006 Act. This proposed new clause would therefore add little to the existing offences on the statute book. However, it is worth noting that the sentencing guidelines applicable to the Section 5 offence provide that where the conduct was with a view to engaging in combat with UK forces, this is to be treated as an aggravating factor when sentencing.
We are aware of the need to update legislation to keep it relevant for the contemporary and future challenges we face. I do not have to remind noble Lords of the phenomenon we have seen in recent years of people travelling overseas, most notably to Iraq and Syria, to engage in terrorist-related activity. That is why the Bill introduces a new offence of entering or remaining in a designated area: to prevent UK nationals and residents from travelling abroad to take part in or help sustain future foreign conflicts, and to protect the public from the risk of terrorism.
Furthermore, prosecuting terrorists for treason would risk giving their actions a credibility—my noble friend Lord Faulks referred to seeing them as martyrs—glamour and political status that they do not deserve. It would indicate that we recognised terrorists as being in some formal sense at war with the state, rather than merely regarding them as dangerous criminals.
As outlined by the Prime Minister on 14 March in her announcement in response to the Salisbury incident, the Home Office is currently leading a review of all legislation applicable to hostile state activity. It is considering the full scope of hostile state activity and, where relevant, treason offences may be considered as part of this work, which is currently ongoing. My noble friend will recognise the need to get the form of any new offences right. The policy exchange paper published in July was a useful contribution to the debate, but we should not rush it.
I hope that, having had the opportunity to debate this important and interesting issue, my noble friend will be content to withdraw his amendment, in the knowledge that there is ongoing work in the Home Office to examine whether there are further gaps in our law, and in order to help us counter hostile state activity.
Earl Attlee
My Lords, I am sure that the Committee is grateful to my noble friend the Minister for her comprehensive answer. She mentioned engaging Her Majesty’s Armed Forces. Does she not think that engaging them ought to attract a life sentence automatically?
Baroness Williams of Trafford
As I said, it most certainly can be viewed as an aggravating factor when sentencing is taking place.
Lord Faulks
My Lords, I am grateful to all noble Lords who participated in the debate, including those who put their names to the amendment. There were some interesting diversions via the prosecution of William Joyce; whether he was correctly convicted is a matter for considerable debate many years afterwards. In fact, I think that the matter went all the way to the House of Lords, and there were dissenting speeches. There is a view that the only thing he did wrong—that is, that amounted to a criminal offence—was filling in inaccurate information on a passport application, which would normally attract a fine. Having said that, I do not think that anybody felt that the result was in any way unfair.
The question of whether other offences are adequate has been referred to. I accept that a considerable range of different criminal offences can be committed by those involved in terrorist activity. However, I respectfully suggest to the Committee that there is something more. My noble friend the Minister said that such criminals should be regarded not as at war with the state, but simply as criminals. With great respect, they are more than that: they are at war with the state. They may use criminal activities to wage that war but they are more than criminals. For example, there are those who thought that the murder of Lee Rigby was murder on any basis, but those prosecuting felt that there had to be something more by way of marking the seriousness of the attack on not only an individual but the state itself.
Similarly, one thinks of the Skripal poisonings. That was an attack on individuals; it was also an attack on our state. I am afraid that I do not accept my noble friend the Minister’s distinction in that respect. However, I am grateful for her saying that the Government are looking into the question of whether offences that currently appear on the statute book adequately reflect the very real and ever-changing threats that this country faces. Of course, I am conscious that there is always a risk that those charged with treason might elevate themselves to martyr status. That point can be made but it does not sufficiently persuade me that there is no force in the creation of an offence of treason.
I accept entirely what was said by the noble and learned Lord, Lord Judge. It is not a happy state of affairs to have a criminal offence in the 1351 Act that cannot realistically be relied on and should be repealed; indeed, he said that in his introduction to the Policy Exchange paper. However, that does not mean that it ought not to be substituted with something modern that can capture, in rare cases, an offence of sufficient gravity which reflects a total contempt for the state beyond ordinary criminal activity.
I await with interest what the Home Office and the Government decide about the future of offences in this field. Of course, I will consider whether to try to persuade the Public Bill Office that the scope of my amendment could be expanded, perhaps to bring it back on Report. In the meantime, I repeat my gratitude to all noble Lords for taking part and I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 35 takes us to the sentencing provisions in the Bill. My noble friends will raise points about sentence inflation, as my noble friend Lord Marks described it at Second Reading. This is for both general and specific offences, including referring to the current sentencing guidelines, which I believe were issued after the terrorist attacks and the consultation on them.
The Joint Committee on Human Rights commented on Clause 7 and proposed an amendment to leave out subsection (3), which increases the penalty for the collection of information offence from 10 years to 15 years. I regard that to an extent as standing proxy for the other sentence increases, but that is a personal view. The committee reported the Home Office’s comment, saying:
“Increased maximum penalties better reflect the increased risk and the seriousness of these offences”,
in question. The maximum sentences for the offences, which I have mentioned, would increase to 15 years. We were not aware of evidence to suggest that the courts are sentencing to the upper limits of their powers in respect of these offences. Indeed, we took evidence to the contrary. We heard that, recently, the worst Section 58 offenders have received sentences significantly below the 10-year maximum. The Sentencing Council, I understand, reported that between 2011 and 2016, the mean average custodial sentence length, after any reduction for a guilty plea, was three years and four months.
On Monday, we discussed what we regarded as a lack of clarity regarding the defence of reasonable excuse. That, combined with the increased penalty, may have a particularly chilling effect. We recommended that,
“the Home Office provide further evidence as to why they consider the current maximum sentences to be insufficient and how this increase is necessary and proportionate”.
The Government responded that they,
“have seen an increase in low-sophistication terrorist plots which are inspired rather than directed, and in attack operatives who are self-radicalised and self-trained without necessarily having had significant direct contact with terrorist organisations. The division between preliminary terrorist activity and attack planning is increasingly blurred”.
We did not regard this as an explanation for why existing sentencing powers are inadequate.
At Second Reading, I mentioned the risk of creating martyrs and those who project themselves as martyrs. Do the Government have any evidence of the deterrent effect of an increase in these particular sentences? In this context, clearly there is not because the increase has not happened yet. What evidence do they have that increasing a sentence from 10 years to 15 years has a deterrent impact? I beg to move.
Lord Marks of Henley-on-Thames (LD)
My Lords, this group also includes the question as to whether Clause 7 should stand part of the Bill. I speak in favour of the proposition that it should not and in support of my noble friend Lady Hamwee’s amendment, to which she has just spoken.
At Second Reading I mentioned the dangers of sentence inflation. It is not just many of us in this House who, in the course of numerous debates on prisons, have talked about the dangers of overcrowding and the fact that it is caused to a very large extent by sentence inflation, both statutory and as demanded by public opinion and the press. Senior judges, including the Lord Chief Justice, the organisation Justice, the Howard League and many others have spoken about the dangers of a prison system in crisis—overcrowded, understaffed, violent beyond anything we have ever known before, with little opportunity for education and training or reform, and very little success in reforming offenders.
I echo the point made by my noble friend that there is absolutely no evidence of a deterrent effect of longer sentences when long sentences are already passed. That is as true of terrorism as other areas. However, there is plenty of evidence of the effect of prison sentences and the experience of being in prison for terrorist offences in radicalising other prisoners. A collection of studies edited by Andrew Silke, published in 2014 under the title Prisons, Terrorism and Extremism: Critical Issues in Management, Radicalisation and Reform, contains considerable evidence on the risks of imprisonment in this area. The danger, without wishing to overdramatise it, is that our prisons become academies of terrorism.
The problem has been recognised by the Government. They have introduced two so-called separation centres, the first at Frankland, the second at HMP Full Sutton. A third is opening shortly. But there is limited evidence that these centres will do anything but encourage subversive prisoners to draw strength from each other in furthering terrorism elsewhere. The number of inmates involved in the separation centres will be very small; I understand that a figure of 28 is intended. There are very large numbers of those convicted of terrorist offences in prison and a very large population of prisoners who are liable to be converted to terrorism when they might not have those tendencies so far.
The Parole Board has raised particular concern about radicalisation in prisons. I quote the report of the House of Commons Justice Committee of 21 February this year:
“The Board also raises concerns about radicalisation in prisons, a problem that it suggests will remain regardless of whether the Government decides to segregate prisoners or continues to spread them around the prison estate. In the Board’s assessment, there are concerns that increasing the penalties for less serious offenders will result in them becoming more likely to commit terrorist acts when they are released. The Board goes on to observe:
‘Most of the rest of Europe is devising interventions in the community to deradicalise less serious offenders. These programmes are more likely to be successful in the community than in prison where the influence of extremist inmates is likely to be stronger’”.
Before this legislation is introduced one would expect some evidence from the Government to support the case for longer sentences; certainly before the legislation is passed we should look for that evidence. But there is none produced by the Government. Page 14 of the Explanatory Notes merely sets out the new sentences proposed, without a word of justification. I remind your Lordships what they are. For failure to disclose information about acts of terrorism, the maximum sentence would double from five years to 10; for collection of information of a kind likely to be useful to a person committing or preparing an act of terrorism, the increase would be from 10 years to 15; for eliciting, publishing or communicating information about members of the Armed Forces of a kind likely to be useful to a person committing or preparing an act of terrorism, there would be an increase from 10 years to 15; for encouragement of terrorism, an increase from seven years to 15, and for dissemination of terrorist publications, an increase from seven years to 15. The last two represent a more-than-doubling of the existing maximum sentences. As my noble friend Lady Hamwee pointed out, the Joint Committee on Human Rights said simply that,
“the increase in sentences does not appear to be supported by evidence to suggest why it is justified or proportionate. We recommend that the Home Office provide further evidence (if they have such evidence) as to why they consider the current maximum sentences to be insufficient and how this increase is necessary and proportionate”.
We have not had it.
However, there is evidence on this subject which tends the other way. The Sentencing Council produced a definitive guideline in April this year. It considered all these sentences. Perhaps I may take as an example the offence of the encouragement of terrorism. It looked at levels of culpability, which they rated A to C; for instance, if a person was in a position of trust and had intention to provide assistance to terrorism, that would be the highest rating. It rated harm factors from one to three, so that a category 1 example was where others had either acted on or been assisted by the encouragement to carry out activities endangering life, while the lowest, category 3, example was a statement or publication with non-specific content encouraging support for terrorism activity not endangering life. So the range went from a category 3, culpability C, level of sentencing proposed—of a high-level community order to two years’ imprisonment—to, at the top, a category 1, culpability A, sentence range of four to six years, which is well below the maximum allowable at the moment and does not justify any increase. The council listed in detail aggravating factors—it is clear that such factors are always to be taken into account, whether or not they are listed in the statute—as well as mitigating factors.
The definitive guideline followed a statutory consultation under the Coroners and Justice Act 2009 and was considered by the Justice Committee, which produced in February this year the report from which I earlier quoted. There was no suggestion by the Justice Committee of any increase in the level of sentences for the offences with which this clause is concerned. Only at the top of the statutory limits proposed was there even a suggestion that consideration be given to any increase. It stated that the Sentencing Council might consider an approach where the recommended range was up to nine years when the statutory maximum was 10, but of the offences with which this clause is concerned, only failure to disclose information had a guideline range that went up to the five-year limit.
All that information was carefully considered by the Sentencing Council. It issued its definitive guideline in April and nothing has changed. There was no justification for increases in the ranges. The attacks with which we were concerned in considering the introduction of this legislation all happened before the sentencing guidelines were produced. We would be interested to hear any evidence from the Government to support these radically increased sentences in terms of better outcomes, deterrence, reform or the safety of the public. Without such evidence, we cannot support this clause.
Lord Anderson of Ipswich
My Lords, Ministers will know that the equivalent sentences in other European countries for the type of offences that we are talking about tend to be much lower than they are here. Perhaps that is no bad thing.
In light of these issues and the proposed very substantial increases to which the noble Lord has referred, will the Minister say what steps will be taken to address—or at any rate, given the sensitivities, to research—the disparities that have been observed by informed observers between sentencing levels for terrorism offences in England and those in Northern Ireland, where sentences imposed appear to be a great deal lower for conduct that on the face of it looks quite similar?
Lord Rosser
This amendment, moved by the noble Lady Baroness, Lady Hamwee, and to which my name and that of my noble friend Lord Kennedy of Southwark are also attached, is another which reflects a recommendation from the Joint Committee on Human Rights. One of the key aspects of the Bill is the proposed increase in maximum sentences for a number of terrorist offences. This was one—but only one—of our reasons for raising concerns about the prospect of innocent parties falling foul of some offences.
The JCHR said that the increases in sentences do not appear to be supported by evidence to suggest that they are justified or proportionate. The committee was particularly concerned that a sentence of 15 years could be imposed for an offence of viewing terrorist material online—even more so in the light of amendments on Report in the Commons that might make a single viewing sufficient for such an offence to be deemed to have been committed. As has already been said, the committee asked the Home Office for the evidence on which it based its decision that the current maximum sentences were insufficient and why it considered the proposed higher maximum sentences to be necessary and proportionate.
The reply from the Home Office, as set out in the JCHR report, stated, among other things:
“The division between preliminary terrorist activity and attack planning is increasingly blurred”.
It did not, according to the committee, explain why existing sentencing powers were inadequate. I hope, like others, that the Government will address this point on existing sentencing powers in their response, as well as the specific terms of the amendment, reflecting the view of the JCHR, which deletes the increase in the maximum sentence from 10 years to 15 years for the “collection of information” offence provided for in Section 58 of the Terrorism Act 2000.
Earl Howe
My Lords, Clause 7 increases the maximum sentences for a number of terrorism offences to ensure that the available punishment properly reflects the seriousness of the crime. That is the point that I urge noble Lords to focus on in this debate. A key aspect of the review of our terrorism laws announced by the Prime Minister following last year’s attacks, of which the Bill is the product, was looking again at the courts’ sentencing powers to ensure that they are sufficient to respond to the threat and keep the public safe. The clear conclusion was that sentencing needs to be updated and strengthened, and the Bill contains a package of measures to deliver that, including Clause 7. However, I recognise that the noble Lord, Lord Marks, and the noble Baroness, Lady Hamwee, have queried whether these changes need to be made and have suggested that such changes are unnecessary and disproportionate. However, I sincerely hope that in responding to such concerns I can explain why the Government believe that Clause 7 as drafted is a necessary, proportionate and timely response to the contemporary terrorist threat.
Since the offences in question were first introduced, in some cases 12 years ago and in others 18 years ago, the terrorist threat has evolved significantly. Its source has shifted and diversified, its methods have developed and it has been quick to exploit modern online technology. Both its extent and its severity have maintained an upwards trajectory, and the intelligence services consider that in recent years there has been an enduring shift in the nature of the threat, rather than just a spike. We can be under no illusion: the scale of the threat we face today is unprecedented and, sadly, more attacks are likely.
In particular, we have seen increases in the scale of radicalisation and changes in its methodology and patterns. The growth of the internet has brought new and powerful ways for people to connect with each other, and to share ideas and information, which have brought great benefits to the vast majority of the public. But they have also brought new opportunities to those who would do us harm, increasing the ability of terrorists both to access and to disseminate unlawful terrorist information and training material, propaganda, and incitement to hatred and violence—and to do so, potentially, to a wide audience. Indeed, those who seek to recruit and to inspire or direct individuals to carry out attacks have never found it easier to identify and connect with would-be terrorists, often across international borders, and those who are embarking on the path of radicalisation have never found it easier to access material, to communicate with terrorist individuals and organisations, and to receive encouragement or direction which will move them further and more quickly along that path.
Lord Davies of Stamford (Lab)
I think that the noble Earl would carry the whole House in saying that terrorism has become a greater threat to our society in the last 10 years and that Parliament should do something about this serious matter. I, for one, would be open to persuasion—as, I suspect, would many others in this House—that what is required, among other things, is to strengthen the hands of the courts and to give them the ability to increase the sentences that they impose for terrorist or terrorist-related offences.
However, I have noticed that the Minister has not even begun to answer the quite significant questions asked by the noble Lord, Lord Marks, and my noble friend Lord Rosser, about the principle on which this increase in sentences has been decided—if you like, the multiple which is being applied to existing sentences. What is the origin of this? The Minister mentioned the review. Has the review set out exactly what the increased sentences should be, and if so, on what basis has it come to that conclusion? Did it decide on a universal multiple? From the figures of the noble Lord, Lord Marks, it sounded as though it was about 50%. Is that applied across the board, or was it decided that a different multiple should be applied to different types of sentence, and if so, on what principle? I do not sense that we have heard enough about the methodology that the Government have used to come up with the proposals that they have put before the House today.
Earl Howe
I am sorry that the noble Lord did not take one of the central points that I was trying to convey: that the review into this area, instigated by my right honourable friend the Prime Minister, concluded that the kinds of offences that we are considering preparatory to terrorism—which in 2000 and 2006, when the previous Terrorism Acts were passed, were not considered to be as heinous as terrorism offences themselves—were given sentencing structures that reflected that point of view; but that since that time, the intensity and scope of terrorist acts has so increased that it is necessary to treat those former, lesser offences as much more serious and harmful than before. In that context, it is to enable society as a whole, through legislation, to make a more emphatic statement, through sentencing guidelines, of the seriousness of those offences.
Lord Davies of Stamford
I did not ask the noble Earl to repeat what he has said to the House before. The question I asked is very specific: on what principle had these precise multiples been arrived at?
Earl Howe
There is always a judgment to be made. Once one has reached the conclusion that I have just articulated, there is indeed scope for argument about whether the increase should take place at all—we believe that it should—and, if so, to what extent. The Government have taken a view. We are putting it to Parliament and we believe it strikes the right balance in this context.
Lord Thomas of Gresford
The guidelines which came into effect on 27 April this year, a few months ago, were arrived at following consultation and a request for comment. They were considered by the Justice Committee in the House of Commons. What is the review to which the noble Earl is referring? What was its date? Was it not before the Sentencing Council at that time?
I assume that the noble Earl would expect the Sentencing Council to go back to its guidelines in the light of what he has said and the lack of principle to which the noble Lord referred a moment ago, and review the appropriate sentencing. These sentencing guidelines set out six steps for a judge to take before he announces the sentence. They are detailed, categorise the nature of the crime and consider what aggravating or mitigating circumstances there are. There are six steps to getting to a decision. They were all set out on 27 April this year. As the Prime Minister would say, what has changed? Is it the review? If so, what is this review?
Earl Howe
My Lords, it may be helpful to the noble Lord and the Committee if I quote part of a press release which the Sentencing Council issued on 28 March this year when it launched the publication of the new sentencing guidelines for terrorism offences:
“In terms of the impact on sentencing levels, it is likely that in relation to some offences, such as the offences of preparing terrorist acts and building explosive devices, there will be increases in sentence for lower level offences. These are the kinds of situations where preparations might not be as well developed or an offender may be offering a small amount of assistance to others. The Council decided that, when considering these actions in the current climate, where a terrorist act could be planned in a very short time period, using readily available items such as vehicles as weapons, combined with online extremist material providing encouragement and inspiration, these lower-level offences are more serious than they have previously been perceived”.
Max Hill QC, the Independent Reviewer of Terrorism Legislation, when he gave evidence to the Joint Committee on Human Rights, said:
“The other aspect which is partly to do with the passage of time as well is that the sentencing powers of those few experienced senior judges who deal with terrorism cases are capable of helpful review … There are examples where a higher discretionary maximum may be appropriate. It is not my purpose to talk about individual cases, but the Choudary case, which I have mentioned, might be a case in point. Some commentators were surprised at the sentence that he received, given the gravity of his offending, but the judge applied the statutory maximum, discounted in the various ways that he is enjoined to do. It seems to me that there is an argument for a higher discretionary maximum”.
That is the context in which the Government have taken the view that they have. I hope that is helpful.
Lord Thomas of Gresford
The March press statement was an explanation of the guidelines which were to come into effect on 27 April. It was not looking beyond those guidelines to some future date. Indeed, the noble Earl has not referred to the review that he quoted to us a short time ago—what it is, when it was published and whether it was before the Sentencing Council came to its conclusions. Its March justification for an increase in sentencing power was not for something that might happen now, but because it was increasing the level of sentences with its guidelines in April. What has happened since then?
Earl Howe
My Lords, the Sentencing Council’s new guidelines for terrorism offences came into force, as the noble Lord rightly says, on 27 April. In its consultation on the draft guidelines, the council was able to anticipate the proposed increases. Consequently, we believe it will not be a difficult task for the council to modify the guidelines once the Bill is enacted, and the Government will of course work with the council on those increases. Any changes to sentencing will only be made following parliamentary debate and approval.
Lord Rosser
Unless I am getting confused, which is quite possible, as I understand it the Security Minister, when the Bill was in the Commons, said,
“we have kept the Sentencing Council apprised of the provisions in the Bill, and the chairman has indicated that the council plans to revisit the guidelines once the Bill has completed its parliamentary passage”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 3/7/18; col. 105.]
Is that still the Government’s position?
Earl Howe
That is exactly the position. I sense no resistance from the Sentencing Council to that approach and I think it is eminently practicable. To answer the question from the noble Lord, Lord Thomas, about the review, it was announced by my right honourable friend the Prime Minister in June 2017. It is an internal government review and as such was not published, but I have informed the Committee today of some of the conclusions that it reached.
Lord Thomas of Gresford
It follows from that that the review was prior to the Sentencing Council coming to its decision in March and April of this year, so its members must have had that material before them. Nothing has happened between April and now that would justify this increase. From what the Minister says, I assume that he is expecting the Sentencing Council to double the sentences that it proposed in April—that is the basis of the increase in sentences from seven years to 15 years. That gives more scope for the judge to do justice, and consequently the Minister would be expecting the Sentencing Council to double its sentences.
Earl Howe
My Lords, what I had better do is take advice on the timelines that were involved in all this and clarify that to noble Lords who have taken part in this debate; I would not wish to give the wrong impression about the sequence of events. What I am saying is that the Sentencing Council’s new guidelines, which came into force on 27 April, are capable of being updated, and we believe that that is not a difficult task for the council to do once the Bill is enacted. We will consult with the council to that end, as appropriate.
Lord Marks of Henley-on-Thames
I am sorry to keep the Minister on his feet for longer than I am sure he wants. I ask that when the exercise that he has promised is undertaken, he also investigates what evidence there was to justify the sentences. He has mentioned in particular the views of the police and the CPS. Was any evidence taken from any members of the judiciary responsible for sentencing in terrorist cases where they felt that their powers were insufficient under the existing sentences?
Earl Howe
My understanding is that the consultation that took place was a wide one, but I can clarify that point having taken advice on it. It is of course not for the Sentencing Council to comment on or recommend statutory maximums; it issues guidance on the application of currently existing maximums. That clarification is important.
Lord Davies of Stamford
The Minister has been very helpful to the Committee, but would it not solve an awful lot of problems if he were to publish the review on which these revised sentencing guidelines were based so that we could all see what arguments were adduced and how the conclusions were arrived at that are reflected in the draft Bill before us?
Baroness Hamwee
My Lords, I too had written down not just “timelines” but “evidence to the review”. I do not think one can disregard that. The Minister also referred to lower-level offences, which were commented on by the Sentencing Council, but we seem to have slid away from that.
The Minister put great emphasis on the need to—I hope I am quoting him correctly—strengthen the ability of the police and the agencies in the criminal justice system to intervene. I do not think anyone has queried the seriousness of the offences that we are discussing, nor have we queried the powers. That has not been the thrust of the argument.
The Minister has not disputed the mean average of three years and four months. Of course, I appreciate that any average is an average, so there are much higher periods and much lower ones, but 10 years seems to send a pretty clear message, which was the term that he used, and it leaves a lot of headroom above the average. Three years and four months is quite a shortfall from 10 years. Unless there is a big increase in that, there will be an even greater shortfall from 15 years. I would have thought that that sent a rather dangerous message. The message that I take is the one from the very recent sentencing guidelines, whose consideration, as a matter of common sense, must have been taken into account in preparing the Bill—or should have been.
I think we have more discussion to come on this issue. For the moment, I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames
My Lords, I was not proposing to speak to Clause 8 but I do propose to speak to Clauses 9, 10 and 11. The effect of those clauses is, in brief, to introduce a provision for extended sentences for terrorism offences where previously extended sentences were applicable for specified violent or sexual offences. Clause 9 deals with England and Wales, Clause 10 with Scotland and Clause 11 with Northern Ireland.
The provision for extended sentences involves an extension of the conditions set out in the legislation of up to eight years in England, Wales and Northern Ireland and 10 years in Scotland. The sentences have serious consequences: they extend the time for release on licence from half way through the sentence to the two-thirds point. They mean that release on licence will not follow after two-thirds of the sentence has been served unless the Parole Board has in fact recommended release. The extended term will then be served on licence after the custodial period has been served.
This is a probing opposition to the clauses standing part, on the basis that before the Government secure support for extended sentences to be used in this way we say, much as we did in respect of Clause 7, that they need to demonstrate why these very substantial extensions are necessary. Once again the Explanatory Notes explain how the extension works and how the system works, but do not seek to provide any justification. Much as I heralded in my intervention at the end of the noble Earl’s speech on the last group, we would expect to see evidence of cases where judges felt constrained to impose terms that they believed were too short, where they believed their powers were insufficient adequately to protect the public, or where these very long extended terms on licence were necessary. Again, it is not simply enough to rely on the views of the police and the Crown Prosecution Service; one really needs the evidence of judges, to show why they believe they cannot do enough under the existing law. There has been no such evidence.
Lord Carlile of Berriew
My Lords, although I remain largely agnostic on the increase of maximum sentences which was discussed just now, in my view there is a much stronger and clearer argument for applying extended sentences to the offences to which we are referring. The noble Lord, Lord Marks, has just suggested that there should be more evidence from the judges. In my experience, and it includes some experience of sitting as a judge, judges are not in the habit of saying, “I would have passed a much heavier sentence if I had had the opportunity to do so”. Occasionally they do, but most judges feel a great sense of self-restraint from saying that, and I know of no methodological research that has ever existed that seeks to tease out of judges whether in certain specific cases they would have wished to pass longer sentences.
Lord Marks of Henley-on-Thames
I was not suggesting that we were looking for a public statement by judges that in particular cases they would have imposed longer sentences—although one has heard of that. However, surely the Government, in proposing this legislative change, should have sought out the views of the senior judiciary about the changes and whether their powers are sufficient or restricted. That sort of research is frequently done by government when considering changes that affect judicial powers.
Lord Carlile of Berriew
In fact, the Government have a working relationship with the senior judiciary, which is often conducted at a fairly subtle level. The Attorney-General, it is to be hoped, has reasonably frequent conversations with the senior judiciary, but one would not expect the content of those conversations to be published. I apprehend that this matter has been considered fairly carefully in the usual way, and I am sure that we can trust Ministers when they say that there is evidence in their view for extended sentences of this kind.
I was going to add that there seems quite a clear analogy between sexual offences and terrorist offences, save that the evidence for extended sentences in terrorism offences may be much clearer than in sexual offences. When a judge is sentencing someone for a sexual offence, he will often have a clear apprehension drawn, for example, from the probation officer’s pre-sentence report and from the evidence in the case that the person concerned, usually male, represents a serious risk to children for an unknown period. The person is then sent to prison and courses are offered which they may or may not follow. The judge will often have an indication at the time of sentence as to the likely willingness of the individual to follow such a course, and that may influence the judge’s decision on whether to impose an extended sentence, usually for the protection of children.
A terrorism case may come before a court to defend someone like—he is not unique—Anjem Choudary. He has a clear intention, depicted on numerous occasions, to ignore those who criticise what he has been doing and to continue to attempt, in the subtle way that he follows, to radicalise others. There are other cases of a similar kind, but it is not very difficult for the judge to form the conclusion that the person is someone from whom the public needs to be protected by the special measure of an extended sentence. That is not only empirically defensible but meets public concern, which is reflected in the attempt to modernise these provisions in these clauses.
I urge noble Lords to support the spirit behind these clauses and to support the clauses in the knowledge that judges have never been lavish in their passing of extended sentences. In my experience and observation, when it happens it is usually done with great care and much concern by the judges, who start from an impartial standpoint before passing sentence.
Earl Howe
My Lords, Clause 9 amends provisions in the Criminal Justice Act 2003, which, among other things, enables a criminal court in England and Wales to impose extended sentences of imprisonment and sentences for offenders of particular concern. Clause 9 adds further terrorism offences to the list of offences for which the court can impose these sentences. Similarly, Clauses 10 and 11 make analogous changes to the equivalent extended sentences provided for in Scotland and Northern Ireland. I should point out, however, that neither jurisdiction has the equivalent of sentences for offenders of particular concern.
To put the provisions of these clauses in context, it may assist the Committee if I first explain, as briefly and clearly as I can, the nature of these extended sentences as they operate in England and Wales. There are two types of sentence relevant here. The first is the extended sentence of imprisonment, usually known as an extended determinate sentence. The second is a special custodial sentence for certain offenders of particular concern. Taking the extended determinate sentence first, these sentences are available in respect of the sexual and violent offences listed in Schedule 15 to the 2003 Act. The sentence can however be imposed only if certain statutory conditions are met. The court must consider the offender “dangerous”, under a test set out in the 2003 Act. That test requires the court to find that the offender presents a significant risk of causing serious harm to the public through committing further specified offences.
If the offender commits one of the specific offences and is considered dangerous, the court may impose an extended determinate sentence. An extended determinate sentence is a custodial term which has two parts. The first is the appropriate custodial term commensurate with the seriousness of the offence, and the second is an extended licence period on supervision in the community. Under current provisions of the 2003 Act, the court may impose this extended licence for up to five years for a violent offence and up to eight years for a sexual offence.
The 2003 Act also makes particular provision about the release on licence of offenders serving an extended determinate sentence. Offenders will be considered for release on licence by the Parole Board once the offender has served two-thirds of the appropriate custodial term. This should be compared with the automatic release at the halfway point in sentence for standard determinate sentences. The offender will be released automatically at the end of the appropriate custodial term if the Parole Board has not already directed release. On release, the offender will be subject to an extended period of supervision on licence.
If a court does not find that an offender is dangerous to the point where it imposes a life sentence or an extended determinate sentence, it must impose a sentence for offenders of particular concern. This sentence must be imposed if the offender is convicted of an offence listed in Schedule 18A to the 2003 Act. The list of offences in Schedule 18A reflects why sentences for offenders of particular concern were created: to remove automatic release for terrorism and child sex offences, which would have applied to a standard determinate sentence.
A sentence for an offender of particular concern, similar to an extended determinate sentence, has two parts: first, the appropriate custodial term, and secondly, the licence period. The effect of a sentence for an offender of particular concern is that the release point set at half way through the sentence is not automatic, but is at the discretion of the Parole Board. If not released at the halfway point, the offender may serve all of their sentence in custody, and on release must serve a minimum of 12 months on licence. That is a brief but—I hope noble Lords will agree—necessary summary of the current sentences.
I turn now to how Clause 9 amends those sentences. Currently, the list of relevant violent offences for which an extended determinate sentence can be imposed—set out in Part 1 of Schedule 15 to the 2003 Act—includes a number of terrorism offences. Clause 9(5) takes those offences from Part 1 of Schedule 15 to the 2003 Act and places them in a new Part 3, created to deal specifically with terrorism offences.
As well as shifting the existing terrorism offences into a new terrorism category, Clause 9 adds additional terrorism offences to the list. These are:
“membership of a proscribed organisation”,
covered by Section 11 of the 2000 Act;
“inviting support for a proscribed organisation”,
under Section 12 of the 2000 Act; wearing the uniform of or displaying an article associated with a proscribed organisation, under Section 13 of the 2000 Act; collection of information useful to a terrorist, under Section 58 of the 2000 Act;
“publishing information about members of the armed forces etc”,
under Section 58A of the 2000 Act; encouragement of terrorism, under Section 1 of the 2006 Act; dissemination of terrorist publications, under Section 2 of the 2006 Act; and,
“attendance at a place used for terrorist training”,
under Section 8 of the 2006 Act. Clause 9 also applies an eight-year maximum extended licence period for terrorism offences. This is an increase from the five-year maximum available for violent offences but is now in line with the eight-year maximum period for sexual offences.
In summary, for extended determinate sentences, Clause 9 creates a new specific list of applicable terrorism offences, adds new terrorism offences to that list, and increases the maximum extended licence period from five to eight years.
For the sentences of particular concern, Clause 9 adds the same eight additional terrorism offences to the list in Schedule 18A to the 2003 Act, meaning that the court, if it does not impose an extended determinate sentence, must impose a sentence for an offender of particular concern.
Lord Paddick
“( ) For the purposes of this section the right to use a motor vehicle includes the right to use it as a borrower or by renting.”
Lord Paddick
My Lords, Amendment 36 is in my name and that of my noble friend Lord Marks of Henley-on-Thames, and I will also speak to our other amendment in this group, Amendment 38.
Part 4 of the Counter-Terrorism Act 2008 requires those convicted of certain terrorism-related offences to keep the police informed of changes in their circumstances. Clause 12 sets out additional requirements by amending Section 48 (notification of changes) to include a new subsection (4)(c):
“If a person to whom the notification requirements apply becomes the registered keeper of, or acquires a right to use, a motor vehicle the identifying information of which has not previously been notified to the police, the person must notify the police of the identifying information of that motor vehicle”.
Slightly worryingly, they must give notification within three days.
We are reminded of the terrorist attacks in Westminster and London Bridge, where hire vehicles were used and—if I am right—in the case of the London Bridge attack at least, the car was hired within 24 hours of the attack. Amendment 36 adds that the right to use a motor vehicle includes the right to use it as a borrower or by renting. I expect the Minister to say that “the right to use” includes borrowing with the consent of the owner, but it is questionable whether, were the person intending to use the hire vehicle for illegal purposes, the contract with the car hire company would allow it to be used for such a purpose and therefore the person would legally not have the right to use it. In any event, it is clearer and more reassuring to include reference to borrowing and hiring of cars in the Bill. As the noble and learned Lord, Lord Judge, said earlier, it is much better if the law says what it means.
Amendment 38 addresses Schedule 1, and the new Schedule 3A to the Counter-Terrorism Act 2008 in relation to the financial information that those subject to notification requirements must provide. It requires information to be provided about each account that the person holds with a financial institution, but it does not cover accounts held by others to which the person may have access—for example being an authorised signatory to an account held by someone else.
It also does not cover a credit card account held by someone else where a second card may have been issued to the person subject to the notification requirements. We believe these to be omissions to the financial notification requirements. Amendment 38 therefore includes accounts which they are entitled to operate.
Lord Kennedy of Southwark
My Lords, Clause 12, as we have heard, is concerned with the notification requirements in the Counter-Terrorism Act 2008; it inserts additional matters into the Act that have to be reported in respect of motor vehicles. Amendment 36 moved by the noble Lord, Lord Paddick, sets out and includes the issue of borrowing or renting a vehicle. He rightly set out the whole issue about people renting or borrowing vehicles for use in the terrorist attacks that happened in Manchester, London and elsewhere. This is very sensible and proportionate amendment which identifies a potential loophole. I hope the Government will support it.
On Amendment 38, which amends Schedule 1 to the Bill, the noble Lord raised a very important point about the notification requirements for financial information— someone may have access to or may operate a bank account; they do not have to be the account holder. He made an important point about being the authorised signatory or being able to use a credit card. I am worried that, as it stands at present, the Bill could allow people to get around the notification requirements it proposes.
The noble Lord has raised important points on both amendments and I hope the Government can respond positively.
Baroness Williams of Trafford
I thank both noble Lords for their contributions to the debate, and thank the noble Lord, Lord Paddick, for what I believe are helpful amendments. I appreciate that they are intended to ensure more comprehensive coverage of the information to be notified.
Amendment 36 relates to the notification of the details of any motor vehicle which a registered terrorist offender is the registered keeper of, or acquires the right to use. Sadly, we have seen the use of motor vehicles as weapons in a number of recent terror attacks. Here in Parliament we have seen first-hand the devastating impact that such an attack can have, in the Westminster Bridge attack which took place last year. The benefits are obvious, ensuring that convicted terrorists are required to inform the police of any vehicle of which they have use.
I therefore fully recognise and support the intention of Amendment 36. It is essential that the provision should extend properly to vehicles which are borrowed or hired, which is the point the noble Lord, Lord Paddick, made. Hired vehicles were used in both the Westminster Bridge and Finsbury Park attacks last year. The terrorists responsible for the London Bridge attack attempted to hire a much larger vehicle than the van that was eventually used in the attack. This was just in the UK. We have also seen the use of vehicles as weapons in the Nice truck attack in July 2016, the Las Ramblas attack in August 2017 and the Berlin Christmas market attack.
I assure the noble Lord that this issue was carefully considered in the drafting of Clause 12, and that the existing reference to vehicles which the terrorist offender acquires the right to use will fully cover vehicles that are borrowed or rented. The Explanatory Notes to the Bill make this point. I therefore suggest that Amendment 36 is not needed, and I hope the noble Lord will feel content to withdraw it.
Amendment 38 similarly relates to a possible gap in the information to be notified to the police, in this instance relating to financial accounts. As currently drafted, this clause specifies that an offender must provide details of any account that they hold with a financial institution, or that is held by a company through which they run a business. Amendment 38 would expand this to refer also to any financial account which the registered terrorist offender is entitled to operate. The noble Lord has explained that this is intended to cover a scenario where a terrorist seeks to use an account which is not held in their name but over which they have effective control, for example because it is held in the name of their child or a relative for whom they have a power of attorney.
I thank the noble Lord for this amendment, which may have considerable merit in ensuring that the notification requirements cover all accounts which a terrorist offender might be able to use for terrorism purposes. The amendment requires more detailed consideration but, for now, I hope the noble Lord will not press it pending that consideration, and on the assurance that I will let him know the outcome of that consideration ahead of Report.
Lord Paddick
I am very grateful to the noble Lord, Lord Kennedy of Southwark, for his support, and for the comments of the Minister. I welcome the fact that the Government will look carefully at Amendment 38. On Amendment 36, I ask that the Government also look at whether, when somebody hires a car, the contract says effectively that the person does not have the right to use that vehicle for an illegal purpose; that could be a gap in the legislation as drafted. I hope that the Minister will appreciate that we are trying to be helpful and supportive in suggesting these amendments.
Lord Pannick (CB)
I suggest to the noble Lord that the provision in the Bill is concerned with “a right to use”, which must mean any right to use. It is not confined to a right to use the vehicle for the terrorism purpose that we are concerned about. Therefore, it is not necessary to pursue an amendment here, given that there is a notification requirement if there is any right to use the vehicle; clearly the person has a right to use the vehicle.
Lord Paddick
I am very grateful to the noble Lord. I am not sure whether the point I am about to make is contrary to what he has just said but our concern is that that there could be a line in the contract, when somebody hires a car, that says, “You are not entitled to use this car—you have no right to use this car—if you intend to use it for an illegal purpose”. In other words, the contract between the renter and the company will be null and void, and therefore someone has no right to use this vehicle if they intend to use it for an illegal purpose. I am not sure whether words to that effect are part of a vehicle hire contract but it perhaps at least needs to be looked at before we come back to this issue. However, for the moment, I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) After section 53 (period for which notification requirements apply) insert—“53A Review of the necessity and proportionality of notification(1) A person to whom the notification requirements apply may apply to the chief officer of police for the area in which that person resides for a determination that the person should no longer be subject to the notification requirements (“an application for review”).(2) An application for review may be made after a person has been subject to notification requirements for a period of 5 years and every 5 years thereafter, following a determination of the review. (3) The chief officer of police to whom an application for review is made shall review the necessity and proportionality of the notification requirements and shall make a decision as to whether that person should continue to be subject to the notification requirements.(4) Where a determination has been made under subsection (3) that the person should no longer be subject to the notification requirements, then that person is no longer subject to the notification requirements.(5) Where a determination has been made under subsection (3) that the person should continue to be subject to the notification requirements, the applicant has a full right of appeal to the Special Immigration Appeals Commission within 21 days of the date of decision.””
Baroness Hamwee
My Lords, as we have heard, registered terrorist offenders, after release, have to notify the police of certain details and of changes to those details. The periods for which they are required to notify range from 10 to 30 years, depending on the length of the sentence, and the reporting provisions apply automatically without the possibility of review.
In considering the provisions, the Joint Committee on Human Rights commented that this was an interference with the Article 8 right to privacy, which of course does not mean that it is always objectionable. I understand that the domestic courts heard that the current scheme, when applied to 10-year periods, is in accordance with the law, in pursuit of a legitimate aim and proportionate, and so there is not a violation of Article 8. However, the courts have previously held that indefinite reporting requirements do violate Article 8, and, importantly, the European Court of Human Rights held that notification and registration requirements for up to 30 years in very similar circumstances to the UK system were compliant with Article 8 only because a review was possible. The sex offenders register has a review at the 15-year mark. We thought that that was a comparator worth referring to.
We are concerned that the revisions to the current system are likely to be considered as disproportionate and unjustified interference with the Article 8 rights because of the lack of the possibility of a review. In the light of the increased level of intrusion into private life and the lengthy period of time for which the requirements are imposed in some cases, we think that a review should be added to the provisions—that is, a review of the necessity of the notification and registration requirements—and that each individual subject to the requirements should have the right to make representations at that review.
I understand that the Government do not regard a review as necessary to ensure proportionality because the period is not indefinite. Indeed, the requirements are not indefinite but they might last for 30 years, which, if you are the subject of them, must feel close to indefinite. What harm would be done by providing for a review and right of appeal?
We anticipated that the Government might be concerned about matters being dealt with in open court, so, as well as the review involving the police, we provide in proposed new subsection (5) that the right of appeal can be dealt with by the Special Immigration Appeals Commission.
There are very detailed notification requirements in many sections of the 2008 Act, and non-compliance carries penalties. In the Public Bill Committee in the Commons, the Minister described these as providing,
“the necessary but proportionate means to monitor the whereabouts of convicted terrorists”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 3/7/18; col. 106.]
There are two issues: the means and, separately, the period. These are linked but, in my view, are not exactly the same. The amendment deals with both but was prompted in particular by the length of the period. I beg to move.
Lord Paddick
My Lords, as I have added my name to this amendment, I should like to say briefly that we support the principle that there should be the possibility of a review to ensure that these provisions are necessary and proportionate. The appeal process appears to get round any possible issues with matters that cannot be placed in the public domain.
Lord Rosser
My Lords, I shall be very brief. My name and that of my noble friend Lord Kennedy are also attached to this amendment. As has been said, it reflects a recommendation from the Joint Committee on Human Rights. I simply comment that circumstances can change and therefore ask whether it is unreasonable that an individual covered by the enhanced notification requirements should be able to seek a review of the necessity and proportionality of those requirements, as recommended by the JCHR.
Baroness Williams of Trafford
My Lords, as noble Lords have said, Clause 12 strengthens the notification requirements under the Counter-Terrorism Act 2008 which apply to individuals convicted of terrorism offences, or offences with a terrorism connection, to enable the police to better manage the risk posed by such individuals. It does so by increasing the amount of information that registered terrorist offenders must notify to the police, in many respects bringing the requirements into line with those already in place for registered sex offenders.
The length of time that a terrorist offender is subject to the notification requirements varies depending on the length of sentence they receive, up to a maximum of 30 years for a person sentenced to 10 years’ or more imprisonment. The notification requirements are not onerous and do not place restrictions on an offender’s activities, but they do provide a proportionate means for the police to monitor the ongoing risk posed by a person who has been convicted of a terrorism offence and, where appropriate, to take action to mitigate any increased risk that they might pose.
The noble Baroness, Lady Hamwee, has explained that her amendment is motivated by a concern that it is not appropriate for a convicted terrorist to be subject to the requirements for this length of time without the ongoing necessity and proportionality of this being reviewed. I understand the sentiment behind her amendment but I disagree. As I have said, the notification requirements are not disproportionately onerous, and they flow as a direct consequence of a conviction for a terrorism offence—a category of offence which is of a particular level of seriousness. The notification measures provide a real benefit to the police in providing a quite light-touch but effective means of monitoring the ongoing risk posed by such a person over an extended period of time.
There is benefit in this, as individuals who are of a sufficiently terrorist mindset that they have been convicted of a terrorism offence, particularly one serious enough to merit a lengthy sentence of 10 or more years, can retain that mindset and can disengage and then re-engage over such an extended period of time. As such, the notification requirements in their current duration are, I suggest, clearly both necessary and proportionate.
The noble Baroness has suggested that, to ensure proportionality, we should follow the approach taken for registered sex offenders, which, following the Supreme Court’s judgment in the case of R (F) v Secretary of State for the Home Department, includes a review scheme along the lines that she has proposed. However, it is crucial to note that the Supreme Court ruled only that a review scheme was necessary in order to comply with Article 8 of the ECHR for registered sex offenders who are subject to the requirements indefinitely.
Of course, the terrorism notification requirements can apply only for a finite period. The Supreme Court did not find that the sex offender notification scheme, as it applied to individuals subject to the requirements for a finite period, was incompatible with Article 8. As a result, for registered sex offenders subject to the notification requirements for a fixed period, there is no review scheme. Furthermore, and in any event, we should also note that the Court of Appeal found in the case of Irfan that terrorism offending is in a different category to sex offending in terms of ongoing risk. Notwithstanding the particularly serious nature of sex offending, terrorism offences have, in the words of the Court of Appeal,
“unique features which compound concern. A single act can cause untold damage, including loss of life, to a large number of people, by someone motivated by extreme political or religious fanaticism”.
A failed or foiled plot can also still serve to inspire many. If anything calls for a precautionary approach, it is terrorism. I hope that, in the light of this explanation, the noble Baroness feels that she can withdraw her amendment.
Lord Marlesford (Con)
My Lords, just before the noble Baroness responds, does my noble friend feel that perhaps both points could be met if the period were made indefinite but with an appeal allowed after a certain time, so that this is brought into line with sex offences? I take my noble friend’s point that these offences are extremely serious and that there may be cases where indefinite alerting is absolutely necessary.
Baroness Williams of Trafford
I think that my noble friend in fact agrees with my point, if I am not mistaken.
Lord Paddick
Can the Minister just confirm that, even for those terrorism offences that might be considered more minor—not that any terrorism offence is minor— there is no chance at all of rehabilitation for those individuals: that they will for ever, or for a very considerable time, pose a risk and that a complete change of behaviour is not possible?
Baroness Williams of Trafford
I have to say that there is always a chance of rehabilitation, given the deradicalisation programmes that go on, but there will always be an element of risk, I would suggest.
Baroness Hamwee
My Lords, the element of risk to which I was in fact addressing my remarks was the risk to the Government that the provisions may be challenged. I would have thought that the Government might like to think about my amendment, which has come from the JCHR, in that light. I do not think that the Minister has answered my question as to what harm there would be in a review provision. My proposal would be to include such a provision in order to bolster the application of what the Government are proposing. I think I had better just leave that with the noble Baroness. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I will speak also to Amendments 40 and 41. Clause 13 inserts a new power of entry and the power to search the homes of registered terrorist offenders, not to look for something specific but to assess,
“the risks posed by the person to whom the warrant relates”.
This is, in our view, a severe intrusion into the private life of not just the registered terrorist offender but his family. In the days of control orders, I became very aware of the impact of certain restrictions on family members, including spouses, children and extended family. I am not suggesting that these powers are the exact equivalent, but the impact on those family members, as well as that on the object of the order, was something of which I became very aware. Being the subject of a search—with the use of force permitted—is not the same, but I do not think that it is completely unrelated.
In response to the JCHR’s initial report, the Government argued that the power may be exercised only as a last resort. I assume that that is a description of Clause 13(2)(c) and (d) and that it requires a warrant and compliance with the powers of entry code of practice. These are safeguards indeed, but the threshold for exercising the power is low. The government response states that the power is to allow the police,
“to assure themselves that the individual does in fact reside at the address they have notified, and to monitor compliance with other aspects of the notification regime”.
Why does the Bill not reflect this, rather than containing the vague requirement of assessing risks?
We on the Committee considered that there should be a clearer requirement that the power is used when it is necessary and proportionate, and when there are grounds for suspicion that the notification requirements have been breached. That has led to the three amendments in this group, which would narrow the power by requiring a reasonable belief that the registered person had breached the notification requirements and ensure, as I have said, that the exercise of the power is both necessary and proportionate. I beg to move.
Lord Anderson of Ipswich
My Lords, Clause 13 provides for a search power that Professor Clive Walker—who is, without much doubt, our foremost expert on counterterrorism law and not a man given to either naivety or overstatement—described in written evidence to the Joint Committee on Human Rights as “outrageously wide”. As he pointed out, the clause is to be contrasted with paragraph 6(3) of Schedule 5 to the Terrorism Prevention and Investigation Measures Act 2011—the TPIM Act—which confines the purpose of the equivalent search power to that of determining whether there has been any contravention of the measures specified in the TPIM notice. That is essentially the approach that Amendment 39, which I support, adopts.
I echo the noble Baroness’s point that there is a human element to this. The families of convicted terrorists, through their support and influence, are often important factors in turning offenders away from violence. The extreme anxiety experienced by the wife of a control order subject whose house was subject to frequent unannounced searches, and the upset and trauma caused to her young children, were movingly conveyed in an article from which I quoted in my final report on control orders in 2012. I felt justified in doing so, not to give publicity to an unreliable witness—something which, like my predecessor as independent reviewer, the noble Lord, Lord Carlile, I was always astute not to do—but because the woman in question had recently been described in a High Court judgment by the highly experienced Mr Justice Mitting as an impressive witness and a person whose evidence he accepted without reservation.
The risk of upsetting or alienating such people is surely evident. I have never heard it suggested in several years of, I hope, careful oversight that the powers to enter and search premises occupied by potentially extremely dangerous TPIM subjects are insufficient, so I am puzzled as to what prompted this further turn of the ratchet—at least on paper, even if reassuring words are spoken about how it may be used in practice.
It is important that the power of entry and search should not be used as an instrument of harassment and destabilisation. This reasonable amendment would help to ensure that.
Lord Carlile of Berriew
My Lords, I will say just a few words on this. I agree with what my noble friend Lord Anderson said to this extent: I am not convinced that the Government have got the proportionality of this right. I invite Ministers to reflect on what has been said—not so much on the words of the draft amendments but to try to achieve something that is more acceptably proportionate to those of us who have a reasonable amount of knowledge of these issues and are concerned that the law should not go too far.
Baroness Kennedy of The Shaws (Lab)
My Lords, I too support the noble Lord, Lord Anderson, in what he said about the wide nature of what is suggested in the clause. Unlike the two previous speakers, my experience in this field is by acting in cases. I have acted for family members such as wives on a number of different occasions, and it is important that we maintain the trust of families and communities. Drawing legislation too widely will in many ways reduce the effectiveness of the state in seeking to deal with terrorism.
The noble Lord, Lord Anderson, was absolutely right to say that we have to be mindful of the parameters of this. Academics who have analysed what has taken place in the past and what is and is not effective have been our advisers on what is likely to work. So I hope that the Government will listen, look again and agree that Amendment 39 might be an appropriate way of restricting these powers.
Lord Judd (Lab)
My Lords, like the previous amendment, Amendment 39 comes close to the overriding, overarching issue of how we protect our security without changing the nature of our society from the society we want to protect. It is a delicate path which we have to tread carefully. I know that the Minister takes this point seriously, but the last amendment and this one come close to that consideration.
We must always remember that in these situations it is not only the people immediately involved to whom action may convey messages but the wider community. We must bust a gut in difficult situations to ensure that we always demonstrate that we are a different kind of society in which the principles of law matter and we do not lightly undermine them.
Lord Paddick
My Lords, I support the amendments in this group. I have added my name to Amendments 39 and 41 but, for some inexplicable reason, not to Amendment 40. I assure the House that that is a mistake. All I will say is that I am sure that the Minister has listened carefully to the noble Lords, Lord Anderson of Ipswich and Lord Carlile of Berriew.
Lord Pannick
My Lords, perhaps I may add my name to the long list of noble Lords concerned about the width of the provision in the Bill. I too hope that the Minister will say to the Committee that she and the Government will take this matter away, think about it and come back to it on Report.
Lord Rosser
My name and that of my noble friend Lord Kennedy of Southwark are attached to these three amendments. All that needs to be said has already been said and I just wish to indicate my support for the views that have been expressed. I hope that the Government will either accept these amendments or, alternatively, accept the spirit of what has been said, go away and come back with their own proposals on Report.
Baroness Williams of Trafford
I thank all noble Lords who have spoken. On the comments of the noble Lord, Lord Carlile, about reflecting on what the Committee said, I should make the point that the Government do reflect on what is said—that is the importance of the legislative process—and that, as the noble Lord, Lord Judd, said, we always have to balance these matters.
I shall deal with the amendments and explain why, for the moment, the Government do not support them.
Clause 13 confers on the police the power to enter and search the home address of a registered terrorist offender under the authority of a warrant issued by a justice for the purpose of assessing the risk that the offender poses. We have already debated the underlying purpose of the terrorism notification requirements and their importance in helping the police to manage the risk posed by those convicted of serious terrorism offences, so I will not go over that ground again.
However, as the noble Baroness, Lady Hamwee, said, these amendments would have a number of effects. Amendment 39 would narrow the purpose for which the power of entry and search may be operated and confine it to assessing whether the offender is in breach of the notification requirements rather than, as is currently drafted, to assess the risk that they pose.
Amendment 40 would introduce a requirement for the grant of a warrant so that the justice must be satisfied that there are reasonable grounds to believe that the registered offender is in breach of his or her notification requirements. Amendment 41 would provide, in addition to the current requirement, that the justice must be satisfied that it is “necessary” for the officer to enter and search the premises for the purpose of assessing the risk posed by the offender. The justice must also be satisfied that entry and search is “proportionate” to that purpose.
It may assist your Lordships if I begin by setting out the purpose of this power and why it is needed in its current form. The purpose of the power is to assess the risk posed by the offender. The police consider that home visits are an important tool in managing and risk-assessing registered terrorist offenders during their time, subject to the notification regime. This power allows them to ascertain whether the offender does in fact reside at the address they have notified to the police and to check their compliance with other aspects of the notification regime. This is, of course, the purpose that the noble Baroness, Lady Hamwee, envisages in Amendment 39.
However, home visits are also helpful as they allow a broader assessment of risk to be made beyond monitoring compliance with the notification obligations. They allow the police to identify any other factors that might contribute to the overall risk an offender poses to themselves or their community and their risk of reoffending. This might include their general living conditions, as well as any signs of mental health decline or drug or alcohol misuse. They can also allow the police to identify any potential risk that the offender may cease to comply with the notification requirements and, in particular, that they may abscond from their registered address.
It is not an inappropriate purpose for the police to wish to keep in touch with a registered terrorist offender. That actually strikes me as quite responsible, given that the police are charged with protecting us all from such serious offenders. Amendment 39 would mean that the new power could not be used for that purpose, so the police may become aware of an increase in risk and potentially harmful activity only at a later stage when the opportunity to take mitigated action may have been missed.
Baroness Hamwee
My Lords, the Government were asked to reflect. I will reflect but I suspect that when I read the debate I will become more, not less, concerned. I am overwhelmed by noble Lords’ support. I have to ask something, although perhaps it is rhetorical: are the notification requirements in themselves insufficient?
I referred to control orders not because it was a matter discussed by the JCHR but because I remembered, although I may be corrected, that on one occasion a wife attempted suicide during the course of the application of the control order. That was in my mind but the noble Lord, Lord Anderson, and the noble Baroness, Lady Kennedy, were absolutely correct—I am sorry for sounding so patronising; I hope that they understand where I am coming from—to refer to the impact on families and communities, which itself has an impact on society’s security.
On the police, the phrase “keeping in touch” does not feel like that in the way in which it has been described. The copper’s nose applied to this is getting too long. The measure is far too nosey and risks leading to more hostility, not solving a problem. We will certainly have to come back to this issue. Of course, I will read what the Minister has said. At this stage, I beg leave to withdraw the amendment.
Counter-Terrorism and Border Security Bill
Monday 12th November 2018
(5 years, 5 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 131-IV Fourth marshalled list for Committee (PDF) - (12 Nov 2018)
Lord Paddick
“(a) in paragraph 2(4) leave out “whether or not” and insert “if”,(b) in paragraph 3 at end insert “if he has reasonable grounds for suspecting that the person falls within section 40(1)(b),(c) ”
Lord Paddick (LD)
My Lords, Amendment 42 is in my name and that of my noble friend Lord Marks of Henley-on-Thames. I shall also speak to Amendments 46, 64 and 65 in this group. Clause 16 seeks to amend Schedule 7 to the Terrorism Act 2000 on port and border controls, as does our Amendment 42.
Schedule 7 allows a constable, immigration officer or designated customs officer to question anyone entering or leaving the UK at a port in the border area between Northern Ireland and the Republic of Ireland for the purpose of,
“determining whether he appears to be a person falling within section 40(1)(b)”,
that is, a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The person questioned must give the examining officer any information the officer requests, must prove his identity, declare whether he has any documents of any kind specified by the officer and hand them over on request. The officer can stop anyone, remove them from, and search any ship, aircraft or vehicle they are in, detain them for up to six hours, search them and anything that belongs to them, including a strip search if necessary, seize any property for up to seven days, just to examine it, and make a copy of anything, including the contents of mobile phone and computers. In addition:
“An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b)”.
Representations have been made to me that completely innocent people are being detained for hours and missing flights because of powers exercised under Schedule 7, with no compensation payable. Bearing in mind the extent of the powers Schedule 7 confers, our amendment deletes “whether or not” and inserts “if”, so that Schedule 7(2)(4) of the 2000 Act would read: “An examining officer may exercise his powers under this paragraph if he has grounds for suspecting that a person falls with section 40(1)(b)”—that is, that the person is a terrorist.
The amendment similarly amends the schedule by adding to the power of an examining officer to question a person in the border area for the purpose of determining whether his presence in the area is connected with entering or leaving Northern Ireland,
“if he has reasonable grounds for believing the person falls within section 40(1)(b)”—
again, if there are reasonable grounds for believing that the person is a terrorist. Other random stop-and-search powers under counterterrorism legislation which are far less intrusive have been repealed—namely, Section 44 of the Terrorism Act 2000—leaving Section 43 of that Act, which requires reasonable suspicion before an intervention can take place. This amendment brings Schedule 7 into line with the other powers under the Terrorism Act.
Amendment 46 similarly introduces a reasonable suspicion requirement to the powers to stop and search a person or vehicle and detain a person under Schedule 7 of the 2000 Act. We support Amendments 64 and 65, in the name of my noble friend Lady Hamwee. These amend Schedule 3 to the Bill, which reflects Schedule 7 to the 2000 Act but relates to “hostile activity” as distinct from terrorism, again introducing a requirement that there must be reasonable grounds for suspecting that a person is or has been engaged in hostile activity, and where, in Amendment 65, it is necessary and proportionate to do so, although I am not sure whether the “necessary and proportionate” amendment is strictly necessary. I beg to move.
Baroness Hamwee (LD)
My Lords, again on behalf of the Joint Committee on Human Rights, I have Amendments 64 and 65 in this group, as my noble friend Lord Paddick has trailed. The Bill gives powers, as does the Terrorism Act 2000, whether or not there is a suspicion. The JCHR’s amendment would insert a test of reasonableness—that is, a threshold of reasonable suspicion—to stop, search and detain for the purpose of determining whether an individual is involved in the commission of a hostile act, and would allow the exercise of these powers only when it is,
“necessary and proportionate to do so”.
My noble friend said that he was not sure whether the second of those words was necessary, or possibly even proportionate. I find it quite difficult to know when one should articulate those criteria. We are told that they must always apply but sometimes it seems necessary to have the debate.
The committee identified five potential interferences with Article 8 rights in the case of a person subject to the power: he must provide any information or document requested—failure to do so is punishable by a substantial fine and imprisonment; he can be stopped and searched; his personal belongings may be copied and retained; he may have biometric data taken; and he may be detained for questioning. These are of course existing provisions but there are distinctions from the 2000 Act. Under this legislation the purpose of the Schedule 3 power is broader and, we think, more ambiguous than the Schedule 7 power in the 2000 Act, giving a greater risk of arbitrary use of the power.
Professor Clive Walker, whom I have quoted before, has suggested that if the real mischief behind these powers is the Salisbury attack, the purpose should be confined to powers to stop, question and detain without reasonable suspicion on the basis that the person has information or is carrying materials which might relate to crimes under the Official Secrets Act or chemical, biological, radiological, nuclear and explosive crimes. Under the schedule to this Bill, there are also broader powers to retain articles and make copies of materials, including “confidential material”, compared to Schedule 7. Under that schedule to the 2000 Act, material cannot be reviewed or copied unless officers have reasonable grounds to believe that it is confidential.
Under Schedule 3, there will be the oversight of the Investigatory Powers Commissioner, which is of course welcome. The Government also point to the fact that the decisions of the commissioner are subject to judicial review as a safeguard but, as the European court has commented, where statutory powers are wide, applicants can face formidable obstacles in proving that decisions are ultra vires. For that reason, among others, we think it is necessary that the statutory powers are clearly defined and sufficiently circumscribed.
Lord Rosser (Lab)
We have Amendment 65A in this group. I shall speak to it briefly. Paragraph 1(4) of Schedule 3 states:
“An examining officer may exercise the powers under this paragraph whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.
As has already been said, under Schedule 7 to the Terrorism Act 2000, an officer can stop a person without having grounds for suspicion that the individual is involved in terrorist activity. However, the draft guidance published by the Government states that stops under Schedule 3 cannot be arbitrary and must be informed by the threat of hostile activity to the UK. The purpose of Amendment 65A is simply to enshrine the wording in the draft guidance in the Bill. The precise wording in the draft guidance is:
“the decision to select a person for examination must not be arbitrary. An examining officer’s decision to select a person for examination must be informed by the threat from hostile activity to the United Kingdom and its interests posed by foreign States and hostile actors acting for, on behalf of, or otherwise in the interests of, those States, whether active in or outside the United Kingdom”.
The objective of this amendment is simply to put that wording in the draft guidance, which provides some sort of safeguard, into the Bill rather than leaving the Bill with, as it appears to be at the moment, effectively a random stop-and-search power.
Lord Anderson of Ipswich (CB)
I support the Government’s position on Amendments 42 and 46. In a report of July 2013, The Terrorism Acts in 2012, I recorded the result of an extensive inquiry conducted with MI5 and counterterrorism police into the value of no-suspicion stops under Schedule 7 to the Terrorism Act. I started from a position of, I hope, healthy scepticism, but noted three useful functions of the no-suspicion stop: deterring and detecting the use of “clean skins” to transport terrorist material; avoiding alerting travellers that they were the object of surveillance; and enabling the travelling companion of a person suspected of involvement in terrorism to be stopped and questioned. I followed this up with several real-life examples, which I had verified, of no-suspicion stops that had brought significant benefits in terms of disrupting potential terrorists. More to the point, perhaps, in the case of Beghal in 2015 a majority of the Supreme Court held that having regard to the many safeguards on its exercise, the absence of a suspicion requirement was not such as to render the basic Schedule 7 power inconsistent with the principle of legality. That judgment contained a lengthy comparison of Schedule 7 with the former Section 44, to which the noble Lord, Lord Paddick, addressed some remarks.
These few words should not be understood as a rejection of some enhanced threshold for the use of more specialised powers under Schedule 7 to the 2000 Act, or Schedule 3 to this Bill, such as downloading a phone or, indeed, taking a person into detention. Still less should it be understood as support for no-suspicion powers of stop and search in more orthodox areas of policing where threats to national security are not in issue. I hope, however, that it explains why I do not support these amendments.
Baroness Hamwee
The noble Lord reminds us about the draft code of conduct. It spells out considerations that relate to the threat of hostile activity and lists a number of factors, one of which, in the context of the stop not being arbitrary, is to have consideration of “possible current, emerging … hostile activity”, which is understandable, and “future hostile activity”. Can the Minister explain the distinction between emerging and future hostile activity?
Lord Blair of Boughton (CB)
I support the words of the noble Lord, Lord Anderson. As long as these powers are restricted to the extreme circumstances of national security and are not a passport to a widening of stop and search without justification, I think this is about hanging a notice around the UK—particularly, as he said, in relation to clean skins and travelling companions—saying that this is a hostile place for people with deeply malign intent.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank noble Lords who have raised a number of important issues relating to the ports and border powers under Schedule 3 to the Bill and Schedule 7 to the Terrorism Act 2000. While it is incumbent on the Government of the day to keep the people of this country safe and respond to a range of evolving threats—as the noble Lord, Lord Blair, says, that is what it is all about—it is also critical that we are mindful of the wider impact that these measures can have if exercised arbitrarily or without due care.
As noble Lords will be aware, the powers under Schedule 3 have been introduced to address a gap in our capability to tackle the threat posed by hostile state actors. As with the equivalent powers under Schedule 7 for counterterrorism purposes, they will provide the police with the tools that they need to counter the threat from hostile states. I have listened carefully to the points made at Second Reading and today about the powers and the concerns about how they might be used. The Government share the view that the arbitrary use of any police power is objectionable, as the noble Lord, Lord Rosser, says, which is why they will be subject to a number of checks and balances.
Amendment 64 would ensure that an examining officer may exercise examination and detention powers under Schedule 3 only where he or she has reasonable grounds to suspect that a person is or has been engaged in hostile activity. Amendments 42 and 46 would make similar changes to Schedule 7. Noble Lords may recall that in relation to the powers under Schedule 7 the Government have consistently rejected the introduction of such a threshold. We share the view of our operational partners that to amend the legislation in this way would fundamentally undermine the utility of capabilities that the police rely on to keep the public safe.
There are three key reasons for that and they apply to Schedule 3 in equal measure. First, we would risk disclosing to hostile actors the extent of our intelligence coverage and capabilities, as the noble Lord, Lord Anderson, pointed out. These powers are and will be used to examine individuals who have been identified by operational partners as working with or for terrorists or hostile actors, which could also include foreign intelligence operatives or agents of a foreign intelligence service. Any person examined under a power subject to a suspicion threshold could infer that they were of active interest to the police and intelligence agencies and the tradecraft behind that intelligence coverage. Port officers may also be required to explain to these individuals the reasons for stopping them. In such an event, it is likely that terrorists or hostile actors would use this information to reverse-engineer our methods, bypass future security checks and increase their reliance on clean skins, as the noble Lord, Lord Anderson, pointed out.
Secondly, requiring grounds for suspicion would in effect remove a key tool to identify and disrupt previously unknown terrorists or hostile actors. In giving evidence to the Commons Public Bill Committee, Assistant Commissioner Neil Basu explained that the police are often in possession of intelligence that is “fragmented” or “incomplete” and is not always focused on a specific individual. Such intelligence may instead point to trends or patterns of travel, or an active threat linked to a particular destination and timeframe. The introduction of a suspicion threshold would limit the availability of these powers to known individuals, or those who have demonstrated suspicious behaviour at a port. It would prevent port officers from selecting individuals for examination who are potentially exploiting travel routes that have been uncovered by intelligence or are heading to a specific destination within an identified threat window.
Lord Rosser
On Amendment 65A, as I understand it, the Government are not arguing that the amendment in any way compromises the position of the security agencies but it would make clear in the Bill that such considerations need to be taken into account. They have been written into the draft guidance. What is the objection to putting them into the Bill in place of the current wording, which looks a bit like a random stop and search?
Baroness Williams of Trafford
Because they are implicit in the Bill and, I guess, Schedule 7.
Lord Paddick
My Lords, I am grateful to all noble Lords who have contributed to this short debate. Perhaps reasonable suspicion of a particular individual is going too far, but I suggest to the Minister that the nationality of those suspected of coming to the UK to do harm to the UK, their arrival time and where they have come from might be the sort of intelligence that Assistant Commissioner Basu was talking about as fragmented and incomplete, not information about a particular individual. Whether that amounts to reasonable suspicion is arguable.
To give a personal example, every time I tried to go to the United States, I was taken to one side and all my personal property was gone through. This addresses the point about alerting people to the fact that they may be under suspicion. If it happens once, you think it might be random; when it happens every time, you begin to think that there might be some suspicion. There is a redress system where you write to the Department of Homeland Security. It writes back to you some months later saying, “We can’t say whether you were under suspicion or not, whether you are on the list or not, or whether you have been taken off the list or not”. This is not giving away the methodology, or giving some intelligence to terrorists, but insisting that there is something more than simply an arbitrary approach to the situation.
I am getting increasing reports from individuals suggesting that examination might be being used arbitrarily or without due care, which is the other expression used by the noble Baroness. The noble Lord, Lord Rosser, makes a very powerful point. If the guidance says that stop and searches should not be arbitrary, why not have that in the Bill? I understand what the noble Baroness says, but how many people have the time, inclination or means to take civil action against the Border Force in circumstances where they feel that they are being improperly targeted? Surely it would be much better to have it in the Bill.
In summary, I will carefully reflect on what the noble Baroness and other noble Lords have said, and at this point I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, in moving Amendment 43 I shall speak also to Amendments 44 and 45 in my name and that of my noble friend Lord Marks of Henley-on-Thames.
Clause 16 arises out of a recommendation from the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson of Ipswich, that,
“there should be a statutory bar to the introduction of Schedule 7 admissions in a subsequent criminal trial”.
I am looking to the noble Lord for assistance because I find this piece of the legislation somewhat impenetrable—but I will give it a go.
The amendments in this group seek to probe whether the clause does what the noble Lord, Lord Anderson, intended. Amendment 43 would ensure that a Schedule 7 admission can be used in subsequent proceedings for an offence under paragraph 18 only if the admission relates to an offence committed on the occasion to which that questioning relates. For example, if a person wilfully obstructs a Schedule 7 search and makes an admission relevant to that search, the admission will be admissible. If the admission related to a previous Schedule 7 search at a different time or at a different port, it would not be admissible.
Amendments 44 and 45 would ensure that paragraph 5A of Schedule 7 to the Terrorism Act 2000 at sub-paragraph (2)(c) does not thwart the former independent reviewer’s intention. Sub-paragraph (2)(c) seeks to make an exception of admissions made during a Schedule 7 encounter if, on a prosecution for some other offence that is not a paragraph 18 offence, the person makes a statement that is inconsistent with what he said during a Schedule 7 encounter. This, on the face of it, seems to me to counter what the independent reviewer intended.
However—here we are into the realms of the BBC Radio 4 “Today” programme’s puzzle for the day, at least for someone like me who is not legally qualified—sub-paragraph (3) appears to suggest that the admissions under sub-paragraph (2)(c) are admissible only if the defence introduces a Schedule 7 admission or asks a question in relation to a Schedule 7 admission during proceedings arising out of the prosecution. Can the Minister confirm that I am correct, or explain what Schedule 16 actually means? I beg to move.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 43, in the names of the noble Lords, Lord Paddick and Lord Marks of Henley-on-Thames, seeks to add a clarification at the end of the sub-paragraph that would make it clear that when someone is charged with the offence of refusing to co-operate, this must have happened at the same time as when the oral answers were given for it to be admissible. That seems to me to be a fairly sensible clarification. I agree with the noble Lord, Lord Paddick, that for someone who is not legally qualified, the legislation is very detailed and difficult to understand. The amendments are very good in probing the points that the Bill is getting at, so I look forward to the Minister’s response.
Baroness Williams of Trafford
As the third person to be not legally qualified to respond to this, I thank both noble Lords for raising some important issues with respect to Clause 16. As we have heard, the clause provides for how oral answers or information given to examining officers in response to questioning under Schedule 7 to the Terrorism Act 2000 can be used in subsequent criminal proceedings. Noble Lords will be aware that the powers under Schedule 7 are essential to help the police to tackle the threat posed by terrorism. I have listened carefully to the points made today about these powers and the concerns about how they might be used. One important check and balance for port and border powers is the statutory bar that we are introducing in Clause 16, which is also mirrored in Schedule 3. Under Schedule 7 there is a legal duty on those examined to give the examining officer any information that the officer requests. It is an offence under paragraph 18 to wilfully fail to comply with this duty. Unlike where someone has been arrested and has a right of silence, an examinee under Schedule 7 is compelled, under pain of prosecution, to answer questions put to him or her.
By introducing a statutory bar on the admissibility, as evidence at criminal trials, of any answers or information given orally in the course of a Schedule 7 examination—where the suspect will not have been arrested or cautioned—we are providing greater clarity and therefore comfort to the subjects of these examinations, and helping police to exercise their powers under Schedule 7. We are including a corresponding statutory bar in Schedule 3. The bar will provide that reassurance to examinees who might be unwilling to answer questions for fear of incriminating themselves that their oral answers or the information they provide will not be used against them.
The principle of excluding material from criminal proceedings on fairness grounds is reflected in Section 78 of the Police and Criminal Evidence Act 1984, which already provides the courts with the discretion to exclude such evidence if it would have an adverse effect on the fairness of proceedings. In the case of Beghal in 2015, the Supreme Court held that criminal courts would almost inevitably use Section 78 to exclude from criminal trials any answers or information given in Schedule 7 examinations. This clause puts the position beyond doubt and, in doing so, fulfils our commitment to the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson, to legislate in this way.
However, the statutory bar is not absolute—a point that the noble Lord, Lord Anderson, recognised, as did the Supreme Court in the Beghal case. There are three exceptions. First, the bar will not apply where the individual is charged with an offence under Schedule 7 of wilfully obstructing or failing to comply with an examination. Secondly, it will not apply where an individual is prosecuted for perjury. Finally, the bar will not apply for another offence where, in giving evidence in relation to that offence, a defendant makes a statement inconsistent with their oral response to questioning under Schedule 7—provided that the defendant is the party to adduce evidence relating to that information or asks a question relating to it.
Amendment 43 seeks to narrow the first of the three exceptions to that bar that I have just described. The amendment is intended to ensure that oral answers or information given in an examination are used as evidence against the person in criminal proceedings only where they are charged with wilfully obstructing or failing to comply with a duty arising during that particular examination, and not as evidence in proceedings for the obstruction of any earlier or subsequent examination.
We are of the view that this amendment is unnecessary, as what it seeks to provide for is already the case in practice. This is a consequence of the way the paragraph 18 offence is drafted, requiring as it does “wilful”—that is, “knowing”—obstruction or breach of an obligation. It is not possible for a person’s answer or information given in one examination to represent a knowing obstruction of, or non-compliance with, any previous or subsequent examination. At the time the answer or information is given, the person is beyond the point in time at which he or she can knowingly obstruct a past examination—nor can it be known that he or she will be subject to a future examination, so they cannot knowingly obstruct it. The current drafting of the Bill therefore secures the outcome that the noble Lords intend: namely, that answers given in an examination can be used in evidence only in a prosecution for wilful obstruction of that examination, and not any other examination. We believe that this is the right outcome.
Amendments 44 and 45 seek to remove the third exception to the statutory bar in its entirety. This is an important exception, which allows the prosecution to challenge a defendant where they have provided statements to the police in a Schedule 7 examination which are inconsistent with, or contradict, statements made later in criminal proceedings. To accept these amendments would give defendants in such situations the confidence to knowingly mislead the court in the case of another prosecution, as any contradictory statements they made during a Schedule 7 examination would not be admissible.
This third exception to the statutory bar reflects the legal exception that already exists in other legislation—for example, Section 360 of the Proceeds of Crime Act 2002 and, more recently, Section 22C of the Terrorism Act 2000, which was inserted by the Criminal Finances Act of 2017. It is not unique to terrorism legislation and, consequently, I see no case for removing the third exemption.
This clause introduces an unambiguous fair-trial safeguard. But, in putting the almost inevitable application of Section 78 of the Police and Criminal Evidence Act beyond doubt by means of this statutory bar, it is right that we reflect the legitimate exceptions that the Supreme Court has itself contemplated, in confirming that the statutory bar should apply other than,
“in proceedings under paragraph 18 of Schedule 7 or for an offence of which the gist is deliberately giving false information when questioned”.
I hope that that is a clear explanation of what the noble Lord asked and that he will be content to withdraw his amendment.
Baroness Hamwee
Before my noble friend responds, as I recall, the draft code of practice has provisions on giving information to people who are stopped as to their rights. I had some difficulty in opening and reading the draft code and so I have been able to do so only quickly, but the points that have been discussed require hot towels and quite a lot of time. In drafting the explanation of individuals’ rights, has the Home Office subjected, or might it subject, the explanation of how these provisions work to, say, the Plain English society, which comes to mind, or Citizens Advice —in other words, to people who are concerned with clear explanations?
Baroness Williams of Trafford
My Lords, I am always conscious of the Plain English society when I say some of the things that I do during the passage of legislation.
Lord Paddick
My Lords, I am grateful for the explanation that the noble Baroness has given. Obviously, Schedule 7 does not allow a suspect the right to silence that is normally afforded to somebody who is suspected. Safeguards therefore need to be put in place. My query is on new subsection (3), at line 14 on page 20 of the Bill; what does this mean? It says:
“An answer or information may not be used by virtue of sub-paragraph (2)(c) unless … evidence relating to it is adduced, or … a question relating to it is asked, by or on behalf of the person in the proceedings arising out of the prosecution”.
I accept that the Minister read that out very slowly and carefully, but it reminds me of my mother, who, when speaking to somebody who does not speak English, speaks loudly and clearly in English again to try to get them to understand, but unfortunately it does not really help. Perhaps the noble Baroness, together with officials, can see whether there is some way in which that can be deciphered for me.
Baroness Williams of Trafford
I certainly will, although I resent being compared to the noble Lord’s mother.
Lord Paddick
It has nothing to do with age at all. At this point, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Clause 18, which has just been agreed, and Schedule 2 amend existing powers to retain fingerprints and DNA samples for counterterrorism purposes, and the JCHR has proposed a number of amendments.
As regards Amendment 47, currently under the Police and Criminal Evidence Act a person who is arrested but not charged or convicted of a terrorist offence may have his data retained for three years for security purposes with the consent of the Biometrics Commissioner. The Bill removes the requirement for that consent. In the view of the JCHR, the oversight of the commissioner is a matter that gives confidence to the public that the powers are used only where “necessary and proportionate”, and we are not aware that this oversight impedes the ability of the police to undertake counterterrorism work.
The Government responded to our first report, stating that they did not agree that,
“it would be appropriate or responsible to reduce the powers available to the police”,
but we did not propose the removal of those powers. We recognise the logic in harmonising the retention periods for biometric data so that cases are treated in the same way, whether an individual is arrested under PACE or under the Terrorism Act, but we were concerned about removing the requirement for the consent of the Biometrics Commissioner, and I have not seen a response from the Government to that point.
Therefore, the obvious question is: what is the justification for the biometric data of a person unlawfully or mistakenly arrested being exceptionally stored rather than destroyed? If the aim is to align the procedures, why not add to the protection by the commissioner having oversight of both categories of DNA retention under both powers? The JCHR made the comment, and did not make it lightly, that it was concerned about a race to the bottom of human rights protections. I beg to move.
Lord Paddick
My Lords, I support what my noble friend Lady Hamwee has said. The report of the Joint Committee on Human Rights talks about the oversight of the Biometrics Commissioner giving the public greater comfort that such powers are used only where necessary and proportionate, and it would seem that no valid reason has yet been presented by the Government for removing that oversight.
Lord Woolf (CB)
My Lords, I intervene here only because—like the noble Baroness, Lady Hamwee—I am a member of the Joint Committee on Human Rights and, for the reasons she has given, I think the matter requires clarification.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for tabling this amendment and I understand both her concern and that of the Joint Committee on Human Rights. However, I stress, as the Government did in their response to the Joint Committee’s first report on the Bill, that this measure to enable biometric data to be retained when an individual is arrested under the Police and Criminal Evidence Act 1984—PACE—for a qualifying terrorist offence is both proportionate and necessary to help protect the public.
Schedule 2 contains amendments to the laws governing the retention, review and deletion of fingerprints and DNA profiles by the police for counterterrorism purposes. This is a complex area of law, and it may assist the Committee if I first spend a short while explaining the current position. The relevant statutory framework was introduced by the Protection of Freedoms Act 2012, which established the principle that the biometric data of people who have not been convicted of any offence should no longer be kept indefinitely. This means that for the vast majority of people who are arrested and whose fingerprints and DNA are taken by the police, that biometric data will be promptly deleted if they are not convicted. This system is overseen by the independent Biometrics Commissioner, currently Professor Paul Wiles.
When passing the 2012 Act, Parliament recognised that it would be irresponsible, and would put the public at risk, to make this a blanket requirement in every case, regardless of the risk the individual might pose. So it made limited and tightly circumscribed provision for biometrics to be retained for limited periods in certain circumstances in the absence of a conviction. For example, if a person is arrested using the general power of arrest in the Police and Criminal Evidence Act 1984 and is charged with a qualifying sexual, violent or terrorist offence, but is not ultimately convicted, it was recognised that there may be a range of reasons why they were not convicted and that they could still pose a risk of harm to the public, despite the discontinuance of the case.
In these circumstances it would be inappropriate, and indeed complacent, to ignore this risk to public safety and to require the police to immediately and automatically delete the individual’s DNA profile and fingerprints once a case is discontinued or the suspect is acquitted. The 2012 Act in these circumstances provides for a clearly limited three-year retention period before the data must be deleted. Similarly, if a person is arrested on suspicion of being a terrorist under the Terrorism Act 2000, whether or not they are subsequently charged, there is also a three-year retention period. This means that the police are better able to identify whether the individual is involved in terrorism, or other activity that poses a threat to the public, during that period. But it also means that the individual’s biometrics will not simply be held indefinitely.
In counterterrorism cases a person’s biometric data can be retained beyond the point when it would otherwise have to be deleted only if the chief officer of police of the area in which the material was taken personally considers that this is necessary for national security purposes. In these circumstances he or she can make a national security determination—or NSD—authorising retention for a further limited period, subject to a maximum of two years currently, and renewable if retention continues to be necessary. NSDs will, of course, be made only where it is proportionate to do so. This determination must then be reviewed and approved by the independent Biometrics Commissioner, who has the power to order deletion of the data if he is not satisfied that the determination is necessary. An NSD can be renewed for a further period, but only if the legal tests continue to be met and if the commissioner approves the renewed NSD. The assessment is made on the basis of intelligence and other relevant information about the threat the individual poses. We shall, of course, come to national security determinations in the next group of amendments, but it is helpful to provide an overview of these provisions up front to inform the debate on Amendment 47.
The amendments to existing legislation contained in Schedule 2 do not depart from these principles. Rather, they are intended to strike a better balance between on the one hand enabling the police to use fingerprints and DNA in an agile and effective way to support terrorism investigations and protect the public, and on the other ensuring that this continues to be subject to proportionate safeguards, regular case-by-case review and robust independent oversight.
We should not underestimate the value of biometric data in helping to secure convictions in terrorism cases. Such information played a vital role in the conviction in June of this year of Khalid Ali. Noble Lords will recall that Ali was arrested not far from this House and was subsequently convicted of terrorism offences, including his involvement in the use of explosive devices against coalition forces in Afghanistan.
Paragraph 2 of Schedule 2—which Amendment 47 would delete—will harmonise the retention periods for biometric data obtained when an individual is arrested on suspicion of terrorism, but not subsequently charged, under PACE and the Terrorism Act 2000. At present, an individual arrested under the Terrorism Act may have their biometric data automatically retained for three years. However, this automatic retention would not be available if the same individual were arrested in relation to the exact same activity under PACE.
In a terrorism case, retention for national security purposes would require the police to make an NSD with the approval of the Biometrics Commissioner, or would otherwise require the consent of the Biometrics Commissioner under Section 63G of PACE if retention was necessary solely for the prevention or detection of crime generally. However, the noble Baroness’s amendment would mean that this inconsistency between the retention regimes under the Police and Criminal Evidence Act and the Terrorism Act 2000 would remain. This could therefore result in the situation where the police are deprived of information that could prove vital to keep the public safe. The measure as drafted will remove this anomaly and ensure a consistent approach to the retention of biometric data for all those arrested on suspicion of terrorism, by providing for the same retention period regardless of the power of arrest used.
I do not accept the noble Baroness’s argument that this is a race to the bottom in terms of civil liberties. I say that because, as the Committee would expect, we have consulted the Biometrics Commissioner about this and other provisions in Schedule 2. In relation to this particular provision, perhaps I may read out what Professor Wiles has said:
“In my 2017 Annual Report I mentioned several issues that I thought the Government might wish to consider reviewing as part of the CT legislation review ordered by the Prime Minister ... I … noted in my Report my concerns about the police applying for ‘pre-emptive’ NSDs, often where a person has been arrested under PACE on suspicion of a terrorism offence. It is proposed in the CT Bill to allow biometric material taken after a PACE arrest for a terrorism offence to be retained automatically for three years (with the possibility of extending this period by making an NSD), as is already the case for the biometrics of those arrested on suspicion of terrorism offences under TACT”—
that is, the Terrorism Act. He goes on:
“It seems to me to be a sensible approach to bring the retention periods for arrest on suspicion of terrorism offences into line”.
Given that authoritative opinion, which we sought expressly from the Biometrics Commissioner, and his view that this aspect of the Bill adopts a “sensible approach”, I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, the Biometrics Commissioner’s response does not seem to go to the question of oversight. As I have heard and read it, it is about the period of retention. I am not sure, but the Minister may be saying that through this amendment I have produced another failure to make the two regimes consistent, and that would certainly be an oversight on my part. If the commissioner has powers of oversight under PACE, that immediately throws into question the proportionality, and maybe the necessity, of this Bill’s provision in omitting the oversight.
What the Minister has had to say will require careful reading and I will do that. However, there has been a temptation to slide from the issue of oversight into other aspects of the arrangements, and I am not sure that the Committee has quite been answered. We will look at it, and I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendments 48 to 53 would remove the proposed extension of national security determinations, which the Minister has explained, for the retention of biometric material to five years in six existing provisions. The Minister has also explained the role of the chief police officer and the rolling determinations, if necessary, but a review every two years for a fresh determination is required. The Bill will change that to five years. We are not questioning the retention as a legitimate aim, rather we are questioning the period of time and whether five years is proportionate for retaining the biometric data of people who have never been convicted of a crime, particularly in the absence of the possibility of a review. The Government have told us that operational experience has shown that in many cases the two-year period is too short and that cases of national security concern will often pose a more enduring threat. That does not entirely go to answer the point of the initial period.
The retention of biometric data is a significant intrusion on an individual’s right to privacy. It is lawful as long as it is not blanket and indiscriminate, but is it proportionate without the possibility of a review? We think not. I beg to move.
Lord Paddick
My Lords, I rise briefly to support these amendments. Other than for the convenience of senior police officers in having to review these cases every five years as opposed to every three, I do not understand what is to be achieved operationally by extending the period from three years to five when the period of retention can be extended every three years.
Lord Hope of Craighead (CB)
My Lords, it is perhaps worth reflecting on the fact that when the whole issue of retention came up about 10 years ago, the system in place in this country was for indefinite retention. That was regarded as contrary to the convention rights and was quite rightly addressed by the Government. With respect, it seems to me that here we are dealing with a matter of fine detail where what really matters is the operational necessity for retention. To suggest that there is some inconsistency with an individual’s human rights is possibly going too far provided that an operational case can be made for the length of the period that is in issue. That is a broader perspective in order to put this amendment into its overall context.
Earl Howe
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining that the amendments seek to strike out the provisions in Schedule 2 extending the maximum duration of a national security determination from two years to five years. In responding to her previous amendment, I explained to the Committee the circumstances in which such a determination can be made. I will not cover that ground again but I reiterate that all such determinations are reviewed by the independent Biometrics Commissioner, who may order the deletion of a person’s fingerprints and DNA profile if he is not satisfied that a determination is necessary.
Schedule 2 extends the maximum length of a national security determination from two years to five years. In his most recent report, the Biometrics Commissioner commented that in some cases,
“the evidence/intelligence against the relevant individuals is such that they could be granted for longer than two years”,
and suggested that the Government may want to consider legislating on this issue. We have considered the issue carefully and agree that it would be appropriate to introduce a longer maximum period. I am grateful to the noble and learned Lord, Lord Hope, because his comments put this issue in its proper context.
Operational experience has shown that the current two-year length is too short in many cases and that those involved in terrorism—such that it is necessary and proportionate for the police to retain their biometric data—will often pose a more enduring threat than this. The views of those who embrace terrorism can be very entrenched. Individuals who hold such views can disengage and re-engage in terrorism unpredictably and without warning over a period longer than two years, and so can pose an ongoing risk. Individuals who travel overseas to engage in terrorist training or fighting may remain there for more than two years and are likely to pose a particularly high risk to the public on their return. There is a broad range of circumstances in which a person who presents a terrorist risk today may continue to pose a sufficient risk in two years’ time such that it will still be necessary and proportionate for the police to retain their fingerprints and DNA to help them identify if the person continues to engage or re-engages in terrorism.
This provision will therefore ensure that if a chief officer reasonably judges that the case before him or her is such a case, they will be able to authorise retention for a period of up to five years if this is necessary and proportionate. I emphasise that this will be the maximum period; it will be open to the chief officer to specify a shorter period if they consider that more proportionate. In every case, the NSD will need, as now, to be reviewed and approved by the Biometrics Commissioner, who has the power to order deletion of the data if he is not satisfied that its retention is necessary.
This measure will retain the key principle that biometric data should not be retained indefinitely where the individual has not been convicted. It will continue to provide that ongoing retention should be authorised at a senior level on a case-by-case basis, and subject to approval by the independent Biometrics Commissioner. Where ongoing retention is approved, this will not be open-ended but will continue for a finite period, with review and further authorisation needed if it is to be extended beyond the expiry of the NSD. But it will strike a better balance between these important safeguards, on the one hand, and, on the other, enabling the police to use biometrics to support terrorism investigations and identify suspects without placing a disproportionate burden on themselves. The increased maximum length of an NSD will ensure that, in appropriate cases, the police do not have to review cases and reaffirm necessity and proportionality more frequently than is necessary.
I hope that I have been able to explain the operational challenge which this provision is intended to address in a proportionate manner and to reassure the noble Baroness that we are not removing the important oversight of all national security determinations by the Biometrics Commissioner. For that reason and the others that I have advanced, I ask her to consider withdrawing her amendment.
Baroness Hamwee
My Lords, as the Minister said on the previous amendment, these amendments have to be read with that one. NSDs and their oversight are to some extent part and parcel of the same debate. As my noble friend said, it is perhaps a debate about convenience or inconvenience. It would probably be naive of me not to accept that there is an issue of resources here, but balancing how resources are applied and human rights does not always produce immediately obvious answers. This may be a matter of fine detail or where we place the line—that, too, can be a challenge.
Thinking of challenges and listening to what the Minister had to say about the period not necessarily being two years, I wonder how an individual would challenge the period applied and how many times over recent years NSDs have been of less than two years. That may be something that the Minister is able to tell me after today’s debate. For now, looking at these two groups of amendments together, I beg leave to withdraw the amendment.
Lord Rosser
“_(1) A person whose biometric data is retained under the provisions of this Schedule may appeal to the Commissioner for the Retention and Use of Biometric Material (“the Commissioner”) for the destruction of that data when the conditions in sub-paragraph (2) are met.(2) The conditions referred to in sub-paragraph (1) are—(a) that the retention of the biometric data has not been previously authorised by the Commissioner or a court of law; and(b) that the biometric data was taken from the person—(i) in circumstances where the arrest or charging of the person was substantially due to a mistake, whether of identity, place or other material fact; or(ii) the person was arrested but never charged for the relevant offence.(3) On receiving an appeal under sub-paragraph (1), the Commissioner must seek representations from the chief officer of police in the area in which the biometric data was taken as to whether the data should be destroyed or not.(4) The Commissioner must determine an appeal under sub-paragraph (1) within three months of receiving the appeal.”
Lord Rosser
Much of this Bill is about the appropriate balance between liberty and security in the present climate, where acts of terrorism are a reality rather than a distant or remote possibility. The differences of view over some parts of this Bill are in effect over where that appropriate balance between liberty and security should lie, since I presume that we are all in agreement with the principle that there has to be such a balance. Amendment 53A is also about where that balance should lie.
Clause 18 and Schedule 2 amend existing powers to retain fingerprints and DNA samples for counterterrorism purposes. The amendment would enable a person whose fingerprints and DNA profiles are retained under a power amended by Schedule 2 to apply to the Biometrics Commissioner for the data to be deleted.
The amendment highlights and addresses two scenarios. The first is where there has been a mistake, such as over identity, place or any material fact or in the intelligence. The second scenario is where a person has been arrested but not charged for the offence. Under the terms of the amendment, an application can be made to the commissioner for the destruction of data where one of those two scenarios has been met as well as the requirement that the retention of the data has not been previously authorised by the commissioner or a court of law.
On receiving an appeal from the person whose biometric data has been retained, the commissioner would then be required to seek representations from the relevant chief officer of police as to whether the data should be destroyed, with the commissioner having to determine the appeal within three months.
If people’s data are retained in circumstances where a mistake might have been made or where they have not ultimately been charged with an offence, they should be able to appeal to have it destroyed. That right of appeal is surely quite important. At present, the Police and Criminal Evidence Act states that biometric data must be deleted by the police if it was taken where,
“the arrest was unlawful or based on mistaken identity”.
As far as I can see, the Police and Criminal Evidence Act does not provide for a personal right to appeal, which is what this amendment would give. This is surely an important principle. This amendment does not overturn the principle that there should be a period of automatic retention following a lawful and correct arrest on suspicion of terrorism. Indeed, it does not remove anything from Schedule 2.
Under Schedule 2, the time period for national security determination is amended. An NSD allows a chief police officer to determine that it is necessary and proportionate to extend the retention period for biometric data for the purposes of national security for an extra two years to five years, where it would otherwise be destroyed. An increased period of five years is a long time to retain the data of persons who have never been charged with a crime, particularly in the absence of a right of appeal. The amendment seeks to provide such an appeal through the Biometric Commissioner, who would make a decision on retention of data or otherwise based on whether it was necessary and proportionate to do so.
I hope that the Government will feel able to accept that, in the changed circumstances provided for in the Bill, the right of appeal being sought in this amendment should be taken up. I beg to move.
Earl Howe
My Lords, as the noble Lord, Lord Rosser, has explained, this amendment would provide for a person whose fingerprints and DNA profile are retained under a power amended by Schedule 2 to apply to the Biometrics Commissioner for the data to be deleted if the commissioner or a court have not previously authorised its retention.
One of the circumstances in which this new process would apply is where an individual had been arrested or charged as a result of a mistake, such as mistaken identity. I am pleased to be able to tell the noble Lord that existing legislation already addresses such cases of mistaken identity, providing a stronger safeguard, in fact, than the one he is proposing. Section 63D(2) of the Police and Criminal Evidence Act 1984, or PACE, provides that biometric data must be deleted by the police, without the individual needing to appeal, if it was taken as a result of an unlawful arrest, or an arrest based on mistaken identity. Given this existing provision, I believe that this aspect of the amendment is not necessary.
The second limb of the amendment covers cases where a person has been arrested but not charged with an offence. Of course, we touched on this ground in debating Amendment 47, tabled by the noble Baroness, Lady Hamwee. As I indicated in response to that earlier debate, the Government’s view is that where someone has been lawfully arrested for a terrorism offence but not charged with that offence, it is none the less appropriate, necessary and proportionate that their fingerprints and DNA profile are retained by the police for three years. That approach has been firmly established for some years, through the Terrorism Act 2000, and we are now extending it to cover persons arrested for exactly the same terrorism offences under PACE. Consequently, I am not persuaded that we should now introduce a right of appeal to the Biometric Commissioner in such cases.
I stress that the Bill does not depart from the principle established by the Protection of Freedoms Act 2012 that the biometric data of a person who is arrested but not charged should not normally be retained indefinitely, as had previously been the case. In passing this legislation in 2012, Parliament recognised, rightly in my view, that in certain circumstances it is appropriate and in the public interest for biometric data to be retained for limited periods in the absence of a conviction. This includes when an individual is arrested under the Terrorism Act 2000 on suspicion of being a terrorist but is not subsequently charged. The law provides for a three-year automatic retention period in this situation. However, the retention of biometric data for any longer than this would require a national security determination to be made by a chief officer of police and approved by the independent Biometrics Commissioner.
As we have already debated, Schedule 2 makes an equivalent provision for a case where the same person may be arrested on suspicion of the same terrorist activity but under the general power of arrest in PACE. The flexibility to arrest an individual under the Terrorism Act or PACE is a decision to be taken by the police, one which will be based on operational considerations. It is a gap in legislation that the same biometric retention rules do not follow the two powers of arrest in terrorism cases, despite the fact that there may otherwise be no material difference between two such cases. Schedule 2 closes that gap. While I support the principle that biometrics taken following a mistaken or unlawful arrest should be deleted—that is the position at law already—I am afraid I cannot agree that we should remove the equally well-established principle that there should be a limited period of automatic retention following a lawful and correct arrest on suspicion of terrorism.
Lord Rosser
I thank the Minister for that reply. Reference was made to the arrangements under PACE and the fact that biometric data must be deleted by the police if it was taken where the arrest was unlawful or based on mistaken identity, but what happens if it is not deleted in such circumstances?
As I understand it, there is no right of appeal for the individual under PACE, and I am not quite sure whether that is what the Minister was telling does exist as opposed to a duty on the policy to delete it where the arrest was unlawful or based on mistaken identity. There is a distinction between the police having a duty to do it if the arrest was unlawful or based on mistaken identity and the individual having a right to appeal on those grounds because it may be that that individual has information which for some reason or other the police did not have which might change their view on the matter. I am not clear whether the Minister was telling me that under PACE the individual has a right of appeal or whether it is just something that the police should do. I think there is a big difference between something the police should do and an individual having the right to challenge, which is what my amendment provides for, so I do not think that on that issue the Government have provided much of an assurance.
Reference was made to the basis on which the Biometrics Commissioner would consider the matter. I appreciate it is not in the amendment, but I said in my contribution that the decision on the retention or otherwise of data would presumably be on the basis of whether it was necessary and proportionate which, as the Minister said, is the basis on which the security issue and the extension of data would be based in the first place.
On the last point that the Minister made on behalf of the Government about the security issue of not being able to tell an individual the reasons for declining an appeal, which is presumably what we are taking about, in my amendment I am not suggesting that very sensitive and crucial information should be disclosed in announcing a decision. If the Government’s only real objection to the amendment is that if the reasons for the decision have to be declared in full it would cause difficulty, which I can understand, surely the matter could be looked at on the basis that the reasons given for the decision would be such as not to disclose sensitive information related to counterterrorism. I beg leave to withdraw the amendment.
Baroness Howe of Idlicote
“(4A) Section 37 (membership and proceedings of panel) is amended in accordance with subsections (4B) and (4C).(4B) At the end of subsection (1)(b) insert “, unless they are the person who referred the particular identified individual for an assessment under section 36, in which case they must appoint an alternative person to represent them on the panel in accordance with subsections (2) and (2A).”(4C) After subsection (2) insert—“(2A) The representative appointed under subsection (2) must not be the person who referred the particular identified individual for an assessment under section 36.””
Baroness Howe of Idlicote (CB)
My Lords, my amendment proposes that those who refer an individual for assessment under the Channel programme are different from those who assess the individuals once they have been referred. For reasons that I will set out, the amendment constitutes a crucial safeguard to protect the integrity of the programme. Amendment 54 addresses the issue concerning Clause 19 that was identified by myself, the noble Lords, Lord Stunell and Lord McInnes of Kilwinning, and the noble Baroness, Lady Barran, during Second Reading: namely, granting local authorities the additional powers to refer individuals for assessment under the Channel programme, an assessment that they themselves would undertake if Clause 19 were accepted with its current wording.
It is important, moreover, that this concern about Clause 19 is seen in the broader context of the concerns raised by the Joint Committee on Human Rights in commenting on the Counter-Terrorism and Border Security Bill. In relation to Clause 19, the report says that the committee is,
“concerned that any additional responsibility placed on local authorities must be accompanied by adequate training and resources to ensure that the authorities are equipped to identify individuals vulnerable to being drawn into terrorism”.
However, these recommendations cannot address the challenge flowing from the imposition of the extra duty arising from Clause 19, which, for reasons that I will explain, is likely to lead to the creation of perverse incentives.
Clause 19 amends Section 36 of the Counter-Terrorism and Security Act 2015 to impose a duty on local authorities to play an additional role to assess individuals vulnerable to being drawn into terrorism. This is a function that under the current wording of Section 36(3) of the 2015 Act rests with a chief officer of police. In accordance with Clause 19, apart from assessing—by way of a self-established panel—the extent to which identified individuals are vulnerable to being drawn to terrorism, local authorities will also have an extra power to refer individuals to its panel.
Ultimately, the safeguard that currently arises from splitting the responsibilities between a chief officer of police, responsible for referring individuals, and the panel, responsible for assessment, will no longer obtain. While the local authorities should be more involved in countering terrorism, the amendment of Section 36 of the 2015 Act through Clause 19 of this Bill introduces a dangerous model that may be abused where the referral and assessment are conducted by the same person.
My concern about Clause 19 in its current form is that if a person refers an individual for assessment and then sits on the panel assessing that individual, there is a risk that the person, even if unintentionally, may steer the assessment panel in a direction that would help to justify their prior decision to refer the person for the assessment. If an individual is wrongly referred and then wrongly assessed, that could significantly jeopardise the process and lead to its abuse.
Lord Carlile of Berriew (CB)
My Lords, first, I support the basic intention behind my noble friend’s amendment, but I will in a few moments try to put it into a much more contemporary context than, with respect, she did. In any event, I ask the Minister to advise the House whether such an amendment is necessary at all. If somebody makes a reference to a panel and then sits on the panel, to me as a lawyer with quite a lot of experience dealing with judicial review, that would be immediately judicially reviewable as a plain example of apparent bias, and the decision would likely be overturned and have to be reconsidered from the beginning. I hope that we will hear the Minister tell the House that that is indeed the way in which the situation is perceived, and that it is not the practice for people making the recommendation, if they are local authority employees, to sit on the panel, though of course their recommendation is part of the evidence—that is what we will call it—that the panel hears.
I turn to my point about context. I urge your Lordships to regard this as an important change that has taken place over the years. Both before 2011—when I ceased to be the Independent Reviewer of Terrorism Legislation and was succeeded by my noble friend Lord Anderson, who did such a wonderful job in that role—and since, I have visited many Channel projects around the country. In the early part of my time visiting those projects, they were run by the police and their involvement was deeply resented by some local communities. In some areas, the police were very sensitive; in some, they were less so; but they always were seen by many communities, particularly in the West Midlands, as threatening to prosecute people and going outside their role of dealing with reported or suspected crime, investigating it and charging people.
In the best local authorities, where there must be a Prevent co-ordinator, this work has been devolved to ward level. Birmingham, the largest local authority in Europe, I think, is a very good example—despite the Trojan horse issue—of that being done with great success. In Birmingham, local authority staff—often social workers but sometimes those involved in education and sometimes those given offices to act only with the Channel project—identify vulnerable individuals and refer them for consideration by panels. In such cases, the police do not have to be involved at all. Indeed, as I understand it, in the majority of cases they are never involved. This is dealt with as a problem to be handled before any question of crime is considered and, in most cases, there is no need for police involvement because there is no crime. The reference takes place before crime. That is a successful Channel reference, almost by definition.
In the areas I visited, the police have acquiesced in that approach, recognising that their role is to become involved only if a reference is, first, unsuccessful and, secondly, moves into the area of potential crime. I urge your Lordships to take the view that the changes set out in the Bill simply reflect changes in the context of Channel since the 2015 Act was brought into force.
We heard from my noble friend Lady Howe about “false positives”. I think we should be wary about that phrase. I say this with great respect to the noble Lord, Lord Paddick. He was a very distinguished operational police officer for decades. I am sure that during that time, he arrested or authorised the arrest of a fair number of people who were acquitted. That is normal in the world of policing. In the very difficult world of counterterrorism, it is also normal. It would not be right to be hung up on statistics about false positives when one bears in mind the clear evidence of the considerable success of the Channel project.
Lord Stunell (LD)
My Lords, first, I thank the noble Baroness, Lady Howe, for giving me such full attention in her speech: I appreciate that. According to paragraph 3.2 of the Prevent report that the Government published in March this year, the police made 1,946 referrals to the Prevent programme, which was 32% of the nominations made. The education service, by which I think they mean schools and colleges, made an almost identical number of referrals, 1,976, also described in the government publication as 32%. The question that I am happy to hear repeated by the noble Baroness, Lady Howe, is: are those figures appropriate? Is the net catching too many fish? I understand the point made by the noble Lord, Lord Carlile, which is perfectly fair, but the same paragraph of the same report says that 2,199 cases “required no further action”, which is 36% of those referred. The total of those referred to “other services” is 2,748, which is 45%. If one adds those two together, over 80% are referred or require no further action.
Where are they referred to? Thirty per cent are referred to education, 17% to the police, and 29% to local authorities. Exactly what all this means will come up in the debate on the following amendment, as will whether the reporting system is giving us the kind of information and insight that the noble Lord, Lord Carlile, just tried to throw on the subject. I await the Minister’s response with great interest. I certainly support the noble Baroness, Lady Howe, in moving the amendment today.
Lord Kennedy of Southwark
Clause 19 provides for a local authority to have the power to refer a person who is vulnerable to or at risk of being drawn into terrorism to a Channel panel for support. Amendment 54 in the name of the noble Baroness, Lady Howe, would place a requirement in the Bill that the person who previously referred the individual cannot be the representative of the local authority on the panel.
The noble Baroness set out a clear and compelling case for the amendment, and I will be happy to support her. She addressed a number of points that need to be responded to by the Minister in this short debate. The noble Lord, Lord Carlile, also made an important point about the risks to decision-making if you are the person making the referral and you make decisions as well. It may be that the Minister will say that the points made by the noble Lord will be taken into account by the local authority anyway, so it would not get into that situation, but he made a very valid point.
Baroness Williams of Trafford
I thank the noble Baroness, Lady Howe, for explaining her amendment. It might be helpful if I begin by briefly explaining how an individual is referred to a Channel panel, before turning to why it is important that we do not preclude someone who refers an individual from sitting on the panel itself. I apologise to noble Lords who know precisely how someone is referred to a Channel panel.
When talking about referrals to Channel, it is important to recognise that it is a two-stage process, the second of which is covered by the Counter-Terrorism and Security Act 2015. The first stage is the initial raising of a concern that someone might be vulnerable to being drawn into terrorism. I take slight exception to the noble Baroness, Lady Howe, describing the person as the “accused”; they are not accused but are being referred because they are vulnerable.
This referral can be done by anyone at all, such as, but not limited to, a social worker—referred to by the noble Lord, Lord Carlile—a teacher, a police officer, a healthcare worker, a family member or, indeed, a friend. All such concerns will eventually, if they make it that far, be assessed by the police, often using information provided by local partners to help them. The police will decide whether there is a genuine vulnerability that merits the attention of a Channel panel and, if there is, make a referral to the panel. This second-stage referral is covered by the 2015 Act. The purpose of Clause 19 is to allow a good deal of that assessment process and second-stage referral to be carried out by local authority staff.
The chair of the Channel panel can invite local partners to the panel, and this will almost certainly include the professional who has made the second-stage referral, and perhaps the individual who raised the initial concern, particularly if they are both from one of the panel’s statutory partners. Both of these professionals are likely to have important information on the subject of the referral. I mentioned social workers—as did the noble Lord, Lord Carlile—because noble Lords will be able to see that in other contexts where the referring person may be involved, such as safeguarding, it is important and not a conflict.
Baroness Howe of Idlicote
My Lords, I am most grateful to the Minister, and to all noble Lords who have taken part in this short debate. The assessment that has been made will lead one to consider all the comments carefully. As for withdrawing the amendment, I am pretty certain that I will return to this at a later stage, when the issue is looked at in more detail. In the meantime, there is a lot to think about. In particular, the comments of the noble Lord, Lord Carlile of Berriew, set the tone for the debate. I beg leave to withdraw the amendment, at least temporarily.
Lord Stunell
“( ) After subsection (3) insert—“(3A) The Secretary of State must ensure the collection and annual release of statistics on—(a) the religion, and(b) the ethnicity,of identified individuals referred under subsection (2).””
Lord Stunell
Amendment 55 relates to the recording of information about those who are referred into the system and provides that we should collect information on ethnicity and religion. The amendment’s current phrasing of “religion” may not be the most elegant way of putting it, and “what religious belief, if any, the individual professes” might capture the purpose more clearly. In any case, I see the amendment as a ranging shot for the debate on Amendment 57 which will follow. Its purpose is to give some meaningful and useful additional information which would be published in the annual statistical review to which I referred in the debate on the previous amendment.
There are numerous statistics at the moment, some of which have already been quoted. Perhaps the most outstanding is that, in 2016-17—the statistics for 2017-18 have not yet been published—6,093 people were referred to the process. As has already been said, a very much smaller number actually went into a Channel programme: some 6% of those who were referred. There are various staging posts along the way, which meant that some 36% of people were filtered out because nothing needed to be done and 45%—almost half—were referred in a different direction not related to terrorism at all, although they might have had vulnerabilities that needed to be addressed. That left 19% who got as far as serious consideration, of whom approximately one-third were directed into a Channel programme.
All that is in the current summary. The summary also states the gender of those referred, says something about the age profile, and says quite a lot about the region of the country from which they come. However, it says nothing about the ethnicity, culture or religion of those who are referred. As was said earlier and is well known, at a time when there are significant community fears and suspicions about the way that this programme operates, the absence of that information makes it very difficult for anybody, including the Minister, to rebut their fears that the system operates in a discriminatory way, possibly as a result of unconscious bias or as a result of people looking slightly too Muslim. How do people actually get into the programme? We do not know how it works. Are there groups of the population who find themselves disproportionately targeted, or not? Given that 94% of those who are referred do not finish up in the Channel programme, is the ethnicity of the 94% who do not make it into the Channel programme different from that of the 6% who get through all the filters?
At Second Reading I made a number of points about the referral rate and a procedure which I described as producing duds. However, I should qualify that immediately by saying that only 36% of referrals were duds, 45% showed vulnerabilities but had nothing to do with terrorism, and 19% merited further investigation on grounds of potential vulnerability to terrorism. The police made 32% of all the referrals. Therefore, my first question to the Minister is: did they get it more right than schools, universities and colleges, which also referred 32%? In other words, is it stop and search revisited, or did most of the Channel cases which finished up in the Channel programme itself come from the police referrals, indicating that the police were in fact uniquely good at getting it right? We do not know because we do not have the fundamental information needed to assess it.
We therefore do not know whether communities are proportionately or disproportionately referred or which referring agency is better or worse at hitting the target—that is, getting relevant people referred in the first place and through to Channel programmes at the end of the process. Are Asian men disproportionately reported and therefore in the 94% but then not seen as at risk? That would perhaps be evidence of unconscious bias in how referrals are made. Or perhaps that is not the case, in which case the Minister could stand and face community representatives and say that the evidence supports the contention that it is always done fairly and proportionately. There is also a small subset where more information might be useful operationally anyway. The religion and ethnicity crossover is relevant when there are converts and newly radicalised white referrals. How many of those have there been? We do not know the answer to that either.
The Minister might say that to extend the statistical reach in this way is costly and disproportionate and all those kinds of things. However, the public good that would come from being able to answer these questions is substantial, and it is well worth recording something that would be blindingly obvious to the people on the Channel panel, who will automatically take into account the ethnicity and the religious and cultural background of the people they are assessing. In case the Minister goes the other way and says that the amendment is too narrow in the information it would add to the statistical summary, I should add that Amendment 56 is the catch-all that would allow Ministers to tell us what other factors need to be taken into account to make this a meaningful document. I beg to move.
Lord Sheikh (Con)
My Lords, I will talk about the Prevent strategy in greater detail when we discuss Amendment 57. At this stage, I would like to say that there is disquiet among Muslims regarding the application of the Prevent strategy and it is felt that a review is necessary.
The Home Office should gather and publish figures to see whether the strategy is disproportionately affecting any particular ethnic group or religion. I understand that the Government publish data on the age, gender and region of residence of those referred under the Prevent programme, together with the type of concerns raised. It is important that there is complete transparency and people are given all the appropriate information, including details regarding ethnicity and religion. This will enable us not only to have a complete understanding of all the issues but to take appropriate remedial action. As regards Muslims, we need to involve members and leaders of the community, the mosques, the imams, Muslim centres and the media. We can then make arrangements for all the people to get involved and provide the necessary guidance and support.
Islam is indeed a religion of peace and forbids any form of suicidal act or terrorism. We need to explain to people who are misled about the true principles of Islam, once we have examined the total extent of the problem. I therefore support the amendment.
Baroness Hamwee
My Lords, I support my noble friend. I do not know whether he used the words “confidence”, “trust” and “perceptions” but he certainly alluded to them when speaking about the operation of Prevent—that is something we will come to in the next group of amendments. He referred to the public good that comes of transparency. I understand that local authorities that are in receipt of freedom of information requests about the local operation of Prevent are advised by the Home Office to say that they cannot answer, on grounds that include national security, health and safety and—something I was particularly puzzled by—commercial interests.
When questions are asked about the delivery of Prevent projects, the generic answer is apparently that to disclose information could reveal commercial interests and negatively affect the commercial viability of the organisations that deliver the projects. I am sure that the Committee will be interested in how the Home Office suggests that requests for information of this sort should be answered. I do not expect the Minister to disclaim the way in which the Home Office has been advising, if it has been—or at any rate not without taking some advice. But the issue of commercial confidentiality throws a light on this that I had not expected to see.
Baroness Barran (Con)
I just want to clarify one point. I believe that the information about the difference in referrals to Prevent that end up at a Channel panel is in the Home Office information bulletin. So the answer to the noble Lord’s question about whether a police referral is more likely to get through than education or local authority referrals is that it is just over half as likely to get through if it is initially a police referral. Therefore, I think that your Lordships can take some comfort from this being, as the noble Lord, Lord Carlile, suggested, genuinely about safeguarding rather than a criminal justice intervention.
Lord Kennedy of Southwark
My Lords, Amendments 55 and 56 in the names of the noble Lords, Lord Paddick and Lord Stunell, seek to insert amendments to Clause 19. As we have heard, Amendment 55 would require the collection and release of data which details the religion and ethnicity of a person referred to a panel. This could provide valuable and meaningful data to help the Government in dealing with these very difficult matters, and I very much agree with the noble Lord, Lord Stunell, in this respect. When he listed what is included, it was even more interesting to reflect on the fact that these two pieces of information are not collected. I am sure that the noble Baroness, Lady Williams of Trafford, will address that point in her reply.
On the face of it, Amendment 56 seems very sensible—but it may well be that it is not necessary, so I will listen carefully to the Government’s response.
Baroness Williams of Trafford
My Lords, I shall start by addressing Amendment 55. I wholeheartedly agree with the noble Lord, Lord Stunell, that it is very important that both the Prevent programme and the Channel process are open to public scrutiny, and, to this end, we support calls for greater transparency. Indeed, we have already published two years-worth of Channel statistics, covering 2015-16 and 2016-17—the latter in March of this year. We are committed to publishing these statistics on an annual basis, and expect to publish 2017-18 data towards the end of this year.
The data is extensively quality assured before publication to ensure accuracy. However, due to the provisional nature of the dataset and the need to further develop and improve our data collection, it is currently published as “experimental statistics”, indicating that the information is, as I said, at an early stage of development. As such, we look for feedback from users on what information is included, while working to improve training and guidance for those responsible for providing the data and assessing its quality and limitations.
We absolutely appreciate that figures on ethnicity and religion are likely to be of interest to users of these statistics, for all the reasons that noble Lords have outlined. Working through the Home Office Chief Statistician, we are happy to explore the inclusion of such data in future publications. However, I should stress that whether this proves to be possible will depend on a number of factors, including the quality and completeness of the data. To give an example, currently at least half of the records supplied to the Home Office do not include ethnicity or religion, so publication of such variables could be misleading at this stage. However, that is not a no; it is saying that we will work on statistics that will be useful to the public and provide for wider transparency.
Turning to Amendment 56, I am pleased that the noble Lord, Lord Stunell, recognises the significant role that a Channel panel can have in helping to safeguard very vulnerable individuals. Although the Government agree wholeheartedly with the intent of the amendment, I will set out why we do not think it is needed to achieve this end.
Section 36(4) of the Counter-Terrorism and Security Act 2015 requires the Channel panel to prepare a plan for an individual whom the panel considers appropriate to be offered support. Section 36(5) sets out what information must, as a minimum, be included in such a support plan—that is, how consent is to be obtained; the nature of the support to be provided; the people who will provide the support; and how and when the support will be provided.
The current wording of the Act does not preclude other information being included in the support plan, but it should also be recognised that this is not the only place where information about the individual being discussed is recorded. The vulnerability assessment framework, for example, contains relevant information about the particular vulnerabilities of the individual, drawing on all the information from the various panel members. Panel minutes will contain the record of the multiagency discussion and a risk assessment is also completed. All these documents are brought together within the case management file.
The Government agree entirely with the thrust of the amendment, which is that it is essential that the panel is aware of, takes account of, and indeed records, all matters relevant to the safeguarding needs of the individual. As noble Lords will know, that is the bread and butter of what Channel panels are about, and I reassure the Committee that the statutory Channel duty guidance makes it clear that this is the case. Paragraph 71 of the guidance, for example, says:
“The panel must fully consider all the information available to them to make an objective decision on the support provided, without discriminating against the individual’s race, religion or background”.
However, the support plan is not necessarily the right place to record that information. It is intended instead to be a simple, unambiguous document that sets out exactly who will do what and when with regard to the actual support being provided. Requiring panels to include other information here, rather than in other parts of the case management file, would be likely to diminish rather than add to its value within the process.
The noble Lord asked whether Prevent was discriminatory. The statistics reflect the type of extremism being referred and what happens at each stage of the process. It is important to note that one-third of all cases provided with support were actually referred for far-right concerns. He also asked which agencies had the highest and lowest conversion rates from referral to support. I will be happy to look at the underlying statistics and see whether that analysis is actually possible, and I will get back to him on that.
I hope that I have given the noble Lord sufficient information so that he will feel that he can withdraw his amendment, on the understanding that the Home Office Chief Statistician is looking precisely at the issue that he raised in Amendment 55.
Lord Stunell
My Lords, I thank all noble Lords who contributed to the debate, and I particularly thank the Minister. If I may say so, for a ranging shot we seem to have done very well. We look forward very much to seeing the Minister convince the statisticians that the much-needed information can be made available in a timely fashion. On that basis, I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) After section 40 (indemnification), insert—“40A Independent review of preventing people being drawn into terrorism and support for those vulnerable to being drawn into terrorism(1) The Secretary of State must make arrangements for an independent review of the Government’s Prevent strategy for preventing people from being drawn into terrorism and for supporting those vulnerable to being drawn into terrorism within 6 months of this provision entering into force.(2) The Secretary of State must report on the findings of the review. This report must be laid before both Houses of Parliament within 18 months of this provision entering into force.””
Baroness Hamwee
My Lords, Amendment 57 is another amendment that I am moving on behalf of the Joint Committee on Human Rights. The noble Baroness, Lady Jones, my noble friend Lord Stunell and the noble Baroness, Lady Lawrence—who is also a member of the committee—have their names to it as well. This amendment calls for an independent review of Prevent. We are by no means the first to call for such a review.
The Government have said that, in the Bill, extending to local authorities the power to refer to the Prevent programme individuals regarded as vulnerable to being drawn into terrorism is not an expansion of the scope of Prevent but just a sensible measure to streamline the process of referrals. As the Minister may point out again, I proposed that in 2015. It seemed to me then—and in some ways does now—that it is odd that local authorities, which through social services and other services are at the heart of prevention and safeguarding, should be excluded from that part of the process. As I have said before, and will go on saying, the important word here is “safeguarding”. Other important words are “trust” or “mistrust”, “perception” and “independent”.
The committee took evidence earlier in the year on the issue of Prevent. Again perhaps to pre-empt it being pointed out, we reported—because we wanted to report fully on the evidence—that although a number of stakeholders had reiterated the call for an independent review there were concerns. A doctor and academic expressed concerns about local authority involvement. She said that healthcare professionals and local authority processes can mean that people go down the track into,
“incidences of dissent and illiberal political beliefs–rather than vulnerability to abuse in persons with formal care needs … People have a right to their beliefs without them being interpreted and medicalized as ‘vulnerabilities’”.
I agree that beliefs should not be medicalised, but what she describes is not what should be the catalyst for safeguarding.
The noble Lord, Lord Carlile, who I am sure will intervene in this discussion, conducted a one-off independent review of the Prevent strategy in 2011. However, unlike many aspects of counterterrorism law or terrorism law, this is not subject to continuous review or oversight. I hope that the noble Lord, Lord Anderson—I am sure he will—may refer to his work. It is inevitable that I will trail his comments and pray him in aid, but I hope not to pre-empt him. In a submission to the Home Affairs Select Committee of the Commons two years ago, he said that he thought that,
“Prevent could benefit from independent review. It is perverse that Prevent has become a more significant source of grievance in affected communities than the police and ministerial powers”.
Two years ago, the Joint Committee picked up the subject when we expected there to be a counterextremism Bill. The noble Lord, Lord Carlile, said then,
“reviewers can help the Government by challenging them … I cannot see anything being lost by reviewing the Prevent policy”.
I take that as at least not opposition. It may be support. I hope that it was not damning with faint praise.
Lord Carlile of Berriew
The noble Baroness has managed successfully to provoke me on to my feet. Could she give her view on the following? There is about to be appointed a new Independent Reviewer of Terrorism Legislation—the advertisement was on the Cabinet Office job site last week. Can she see any reason why the review, which I and she share the opinion would be sensible, cannot be carried out by the same Independent Reviewer of Terrorism Legislation as is appointed as a result of that advertisement? Does she see any utility in having another reviewer with overlapping responsibility? Also, given that she has taken a great interest and shows great expertise in these matters, can she cite to the Committee by identity any Prevent projects that have given rise to the mistrust—that was the word she used—and can she tell us whether she has visited them in order to make her own assessment?
Baroness Hamwee
I would have denied the expertise in any event. I shall not go into what I have visited but I have not visited any of the projects that would fall into that category. If the people affected tell us—not only me—that they are unhappy and mistrustful, that answers the question in itself.
Lord Carlile of Berriew
I promise to intervene only once more. Has the noble Baroness had cited to her projects—and will she tell us which ones if that is the case—that fall into the mistrust category? I have a sense that Prevent is being demonised as a campaigning route and not on an evidential basis.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have visited several Prevent schemes and I have heard from people who are deeply mistrustful of them. That is set out in various reports from the London Assembly if noble Lords would like to look them up. It is not simply campaigning and I think that is a slur.
Baroness Hamwee
My Lords, I cannot cite schemes but I do not think that undermines my argument because Prevent is wider than individual schemes. As it happens, I agree with the noble Lord on his first point. My amendment does not propose a separate independent reviewer and I have noticed some frustration among past reviewers at their having to be somewhat at arm’s length, or slightly detached, from Prevent because it does not fall within their terms of reference. Perhaps I may say that I hope an appointment is made soon so that there is not too much of a gap in the process.
Where was I? I quoted the noble Lord and I think he still supports the proposition. I have mentioned the comment of the noble Lord, Lord Anderson of Ipswich, about the lack of transparency and we have just debated an amendment on that. Whether it is on individual schemes or as a result of demonisation—if that happens, that is a problem too—there is clearly mistrust of the regime; perhaps I can put it as widely as that. On sensitive issues such as this, in my view, perceptions are fundamentally important.
In evidence to the Joint Committee, the Muslim Council of Britain—I am choosing to quote the council only because it is a convenient quotation; I know it has its fans and its critics—referred to,
“an undermining of trust and human rights and civil liberties in Muslim communities. The resulting self-censorship”—
something I have heard about from others as well—
“the lack of transparency and expansion of ‘Prevent’ risk being a threat to cohesive societies that can effectively respond to terrorism”.
In oral evidence to the committee, Liberty said:
“The Government have ignored calls”—
for an independent review—
“and seek to extend and reinforce the Prevent strategy without looking back at questions like what its interaction is with other legal duties in the criminal law … How is personal information being dealt with in the Prevent programme?”.
Keeping the strategy under review internally, to anticipate what we may hear from the Dispatch Box, or by anyone seen to be close to the programme, is not enough. It needs to be someone who is accepted as being independent. A challenge—that does not mean opposition—to the Government on this is important. We need to know what is working and what is not working. Who knows? The Government could gain a great deal of credit not just from the process of review but from its outcome. However, we do not have the review to reassure us. I beg to move.
Baroness Jones of Moulsecoomb
My Lords, I have attached my name to this amendment because it is an issue that goes to the heart of civil liberties in this country. The Prevent strategy is of great concern to me and to tens of thousands of others, particularly campaigners and those from ethnic minorities. As a Member of the London Assembly and the Metropolitan Police Authority, I visited Prevent projects and heard from local people and the practitioners themselves. I can assure noble Lords that there is mistrust, and even distrust, of Prevent in many places. One project I saw appeared to work well, but many did not.
A person is referred for political re-education through the Prevent strategy for opposition to so-called “fundamental British values”. I think it is the Government who are undermining fundamental British values and I should be referring them to Prevent. The Government are challenging informed debate and transparent government. They cannot continue to justify Prevent with their internal Home Office reviews; it is time to shine the light of public scrutiny on the whole process.
I must ask: why would the Government say no to this amendment? If the Prevent strategy is a success, if it does not discriminate against Muslims, ethnic minorities and campaigners of all sorts, and if it does not infringe too far our rights and freedoms, what is the problem with holding a proper review and what is there to hide? An independent review would surely prove the Government’s case and force all doubters, like me, to back down. The Government would be celebrating Prevent in all its glory, not trying to cover up the facts.
In the absence of reliable assessments of the Prevent strategy, we are forced to conclude the exact opposite. The fears expressed by the Muslim Council of Britain—that Muslims are being disproportionately targeted and are increasingly fearful of unjustified state intrusion in their lives—must therefore be accurate. The concerns of social workers, teachers and academics that they have been conscripted as oppressive counterterrorism officers must be taken seriously, and the idea that the Government are wasting money and scarce police resources on chasing people who pose absolutely no threat of harm must be assumed to be true.
The Prevent definition of “extremism” is,
“vocal or active opposition to fundamental British values”.
Such a broad and meaningless definition means that too many people are getting caught in a trap. I urge the Minister to adopt this amendment and prove to us sceptics that Prevent is operating lawfully and effectively. As is often said in support of the Government whenever they want to curtail our rights, “You have nothing to fear unless you have something to hide”. I therefore have to ask: what are the Government hiding?
Lord Carlile of Berriew
My Lords, with great respect to the noble Baroness who has just spoken, we should put the record straight about what happened in the London Assembly. Its report, Preventing Extremism in London, published in December 2015, at which time I was chairman of the London Policing Ethics Panel, was broadly very supportive of Prevent. I gave evidence to the panel, including to the noble Baroness, who was its deputy chairman at the time. I gave my opinions and the panel took evidence from various sources. The noble Baroness produced a dissenting report, which is to be found on page 38 of the document. It excoriated Prevent, but she was in a minority of one. Since then the new Mayor of London—new since 2015—has produced statements broadly very supportive of Prevent, albeit of course seeking to secure improvements.
My second point concerns something I raised when I interrupted the noble Baroness, Lady Hamwee. I have been involved in many debates in which it has been said as a general proposition that Prevent is dangerous, that it is alienating communities and so on. If you say it often enough, people will start to believe it. But every single time I have challenged in such a setting, as I have this evening—I say this with great respect to the noble Baroness, Lady Hamwee—with the argument that Prevent programmes should be named so as to provide evidence for such criticism, evidence there is none.
I heard the reference to the Muslim Council of Britain; I respect it greatly, although not on this subject, I am afraid, where it generalises as badly as anyone else. If individual programmes in Prevent cause real concern, I urge those who have identified them to take their evidence to the Prevent group at the Home Office, which will deal with their concerns. The Home Office does not want to waste its precious money on Prevent programmes that prove not only unproductive but counterproductive. It is an absurdity to suggest that the Government, or anyone involved in this complicated field, wish to see money wasted in that way.
As somebody who has followed Prevent since it started—as was said, I wrote the review of the coalition Government’s policy on Prevent in 2010-11—I have been approached by people from government sources all over the world saying, “How do you do this? We wish to adopt this kind of policy”. Indeed, at one stage the United States placed in its embassy in London a very distinguished legal academic, Quintan Wiktorowicz, who worked with Waltham Forest London Borough Council in particular on its Prevent strategy. On a couple of occasions, I was present at discussions in Waltham Forest founded on the work done by Professor Wiktorowicz, who was placed in the London embassy to try to create a Prevent policy for the United States of America; he was sent there by the Obama Government. The reason he failed—if he will forgive my using that word—when he went back to America had nothing to do with what he found out in the UK; it was because of the extremely devolved nature of US government, which made it impossible to produce the sort of Prevent policy that exists in Great Britain.
I am not saying that Prevent is perfect, of course. Constructive criticism is always welcome. Those of us who spent our time buried in Prevent and going to see Prevent programmes all over the country—some of which were unbelievably successful—are always prepared to listen to criticism and lobby the Government to change some of the Prevent strategy. However, in this debate, as in many others, I have heard no evidence for that so far. We need to ensure that there is a proper review of Prevent. In my view, the Independent Reviewer of Terrorism Legislation is perfectly capable of spending a few extra days, for which he or she will be paid, carrying out such a review. That would make it part of a holistic review process, which would certainly meet the concerns of the noble Baroness, Lady Hamwee, and most other noble Lords who have put their names to these amendments.
Baroness Manningham-Buller (CB)
My Lords, I will comment briefly on this important subject. I was the director-general of MI5 in 2003 when we produced the terrorism strategy. At that stage, it was not public. Of the four Ps—Prevent, Pursue, Protect and Prepare—Prevent was the one on which we spent the most time. We did not feel qualified to be very helpful on it, although we had established a behavioural science unit in the service to look at why people were drawn into this course.
Whatever the criticism, it seemed noble to go back to what was causing some of this, to stop young people in particular being groomed into the profession of terrorism. If through this channel we have saved a number of young people from that route and diverted them into other, productive lives, that is a very valuable achievement. I note that a substantial number of people who are now in this process are being seduced and drawn into extreme right-wing activity. Again, if we can divert some of those—largely young—people from that course, it is right.
That is not to say that all these things cannot be done better. I do not know about that; I do not have the insight of my noble friend Lord Carlile. However, I know that of the four Ps, Prevent is the most difficult one. It is challenging but, since it was initiated in 2003, a great deal of progress has been made in refining and improving it.
Lord Anderson of Ipswich
My Lords, I support the amendment. The independent review of terrorism law in this country dates back to the 1970s. It offers us in Parliament an assurance that in return for consenting to some exceptionally strong laws, whose operation is often shrouded in secrecy, a security-cleared person will be appointed to report on their application.
More recently, in a development pioneered by the noble Lord, Lord Carlile, the post of reviewer has become a token of good faith to the general public. Successive reviewers have criticised the Government where it is justified but their approval, when offered, has proved most helpful in dispelling myths and reconciling all sections of the public to controversial aspects of these sadly necessary laws, whether or not they are found to have been mistakenly applied in particular instances.
However, as has been said, Prevent has never been subject to the remit of the independent reviewer and is expressly excluded from the remit of the counterextremism commissioner. I would be the first to accept that policies must be decided by Ministers accountable to Parliament, but external review of the operation of a policy can be of particular value when potential conflicts between state power and civil liberties are acute but information about the use of those powers is tightly rationed.
Prevent is a well-intentioned, voluntary strategy that has achieved striking success, without a doubt, but it is handicapped from reaching its full potential by mistrust, in terms of both individuals and organisations that are willing to work with it. Criticism can fairly be aimed at some of the groups that devote themselves to promoting that mistrust. In my experience, such criticism is generally returned with interest, but blaming others is not enough. One has to ask why an anti-Prevent narrative, promoted by a controversial few, has been allowed to become so prevalent, not only in Muslim circles but more generally among the chattering classes of liberal Britain, and why there appears, from what I am told, to be more mistrust of anti-radicalisation programmes in this country than in comparable places, such as the Netherlands and Denmark.
For some years, I have thought that the Government should combat this hostile narrative through more transparency, wider engagement and commissioning a no-holds-barred independent review. On transparency, they have acted; I applaud the personal efforts of the Security Minister, Ben Wallace. The resulting, regularly published figures are a very good start and are now central to any informed debate, as indeed they were in previous debate on amendments to Clause 19.
On the other two fronts, we have further to go. This strategy is too important not to do as well as we can. An independent operational review with comparative reach would provide public reassurance where it is justified and constructive challenge to the Government where improvement is possible. I accept that it would be more useful if the Government wanted it, but the argument for a review does not depend on the prior identification of specific defects. I hope that the Government will agree to work with the amendments in a spirit not of self-harm but of self-help.
Baroness Jones of Moulsecoomb
I am not sure whether the noble Lord includes me among the chattering classes, but I forgive him anyway. Does he accept that those who feel mistrust are not the sort of people to make formal complaints and put their views on record, which is perhaps part of the problem with having cases where we can point a finger and say, “This is a problem and this is where the mistrust comes from”?
Lord Anderson of Ipswich
We have heard echoes of mistrust within this Chamber today from a number of noble Lords, so I do not suggest that it is limited to those who are incapable of expressing themselves or have no outlet by which to do so. Nor, for the sake of emphasis, do I suggest that such mistrust is justified. That would be precisely the point of a security-cleared independent review: to get to the bottom of whether things are as they seem and as they should be.
Lord Sheikh
My Lords, I want to make some comments relating to the Muslim community in the United Kingdom. There are more than 3 million Muslims in the country, who have come here from different parts of the world. The population is youthful in comparison with other communities. Muslims have done well in every walk of life and contributed to the advancement and well-being of the country. Nearly all of them are law-abiding people, but unfortunately a tiny minority has caused problems. They have been radicalised and committed terrorist acts.
What those misguided persons are doing and have done is totally un-Islamic. They have misunderstood our glorious religion and what they have done is not in accordance with Islamic principles. In the Holy Koran it is written: “Whoever kills an innocent person it is though he has killed all mankind, and whoever saves a life it is as though he has saved all mankind”. It is therefore imperative that we guide such people and tell them about the true principles of Islam. The Muslim community has a role to play in this regard, and I shall expand on this point later.
I have been actively involved in combating radicalisation among the community. In this regard, I prepared a report setting out the various problems and suggesting my recommendations. It was sent to the Prime Minister and a number of Muslim centres and mosques. In addition, I have had numerous meetings and conversations with members and leaders of the community, imams, teachers, parents and the media.
I want to emphasise that I support the Prevent strategy in principle but it is necessary for a review to be undertaken. I therefore support the amendment. To deal with issues concerning radicalisation, we need input and participation from local authorities, the police, schools, prisons and members of the community at all levels. I am trying to raise awareness that the onus is on the Muslim community to be honest and to realise that there are problems among a tiny minority and that it is therefore necessary to take positive action to remedy the issues. This means that a holistic approach must be taken by the community in conjunction with others. The involvement of the community is imperative. We must secure its co-operation to make the Prevent strategy work without problems.
I have travelled to various parts of the country and talked to leaders of mosques, imams, heads of community centres and members of the communities. The Prevent strategy has caused concerns and raised objections. Some critics of the strategy have said that there is racial profiling, excessive spying and the removal of basic civil liberties from innocent individuals.
It has also been mentioned to me that Prevent is perhaps a toxic brand. Not everyone in the community is convinced that the strategy is right, and the concept is difficult to sell to them. It has also been said that only self-appointed community leaders have been involved rather than members of groups which represent the community. The community therefore feels that it needs to be a part of the strategy in whatever form it may be constructed.
I said earlier that Islam is a religion of peace and that any form of terrorism is unacceptable in it. It is therefore imperative that Muslim leaders and imams guide people who may have been misled and are confused about Islamic values. The community therefore has a role to play.
At one of its annual conferences, the National Union of Teachers asked the Government to withdraw the Prevent strategy with regard to schools and colleges and to develop an alternative scheme to safeguard children and identify risks posed to young people. Teachers have said that the strategy causes,
“suspicion in the classroom and confusion in the staffroom”.
It has also been mentioned that Prevent is affecting education and undermining trust between teachers and pupils. It appears that about 65% of a total of some 5,000 Prevent referrals are Muslims. Muslims have a one-in-500 chance of being referred, hence the chances are 40 times greater than for someone who is not a Muslim. Furthermore, a very small number of referrals are acted on. These figures indicate that there is perhaps over-referral of Muslims, which needs to be looked into thoroughly. I have been made aware of some unpleasant incidents in schools where it was proven that Muslim children had been picked on for no good reason. This has led to anguish and anger. School authorities may have acted in good faith, but their actions were wrong.
It appears that the total cost of the Prevent strategy is more than £40 million. One needs to examine whether the money is spent effectively and we are getting proper value for our expenditure. The amount spent may be excessive and perhaps lucrative for some people. Furthermore, it is important that we apply suitable criteria before an organisation receives a contract for undertaking the work. We should ensure that proper checks and balances are applied to organisations granted contracts.
Lord Carlile of Berriew
I have been listening with great care to what the noble Lord has said—he obviously has great knowledge. Can he give the Committee some examples, first, of Prevent projects which have given rise specifically to the kinds of mistrust and poor reputation that he has referred to; and, secondly, of Prevent projects which have been, as he describes them, a waste of money?
Lord Sheikh
These comments have been made to me in general. What I am trying to say to your Lordships’ House is what I have been told. When I go up and down the country and talk to people, I find disquiet and unhappiness about the strategy, so I feel that we need to undertake a review of it.
There is to some extent a lack of transparency about the strategy which has led to mistrust and is affecting its effectiveness.
I have identified a number of issues which are relevant and believe that there are good reasons for an independent review to be undertaken. The review must be a thorough examination and it must be undertaken after discussions with everyone involved, including relevant organisations and members of the community. The review must arrive at a conclusion which I hope will have the agreement of everyone, as much as possible. I end by emphasising, as I said at the outset, that I agree with the strategy in principle but it needs to be reviewed and an alternative must be found after appropriate consultation and discussion.
Lord Stunell
My Lords, I support the amendment proposed by my noble friend Lady Hamwee, and I see it as being on behalf of the Joint Committee on Human Rights. That committee’s report set this out very clearly. For most of the last 45 years the noble Lord, Lord Carlile, and I have been on the same side of the enterprises we were jointly engaged on, but on this occasion, not so much. I very much prefer the evidence provided to the Committee by the noble Lord, Lord Anderson, to that of the noble Lord, Lord Carlile, on this occasion. We have the evidence of concern and I personally, if challenged, cannot say that I have seen a project which was not successful or which was delivered with distorted priorities, but the debate in the Committee so far has been about much more than individual projects and how well an individual project does or does not deliver, just as a debate about education in this House is not about how one particular school does or does not deliver. It is about the quality of the product overall, and that is surely what this review should be aiming to assess.
I note that at Second Reading the Minister said in winding up that there was evidence that Prevent was working well, and she cited the Metropolitan Police Commissioner. At the same time, the Government’s Explanatory Note says that the specific changes in Amendment 19 will save police resources. Clearly, there is a need to save police resources, and therefore we had the discussion earlier about whether the amount of effort the police are putting in, capturing fish that are then thrown back into the sea, is the right strategy or tactic to follow. It is clearly appropriate to ask that question in relation to other referring agencies as well.
The fact is that at the moment we do not know the answer. Statistics will be part of the answer, but we also need to look at outcomes. What we have at the moment is not an annual evaluation but an annual tabulation, which is not very useful, in some ways. It is as though an Ofsted report were produced in which the only information was the attendance register, with no attempt to evaluate the curriculum or the attainment level. There is nothing so far available to the Committee or to policymakers about the choices, the content or the outcomes of the programme as a whole and I believe that there certainly should be. I entered the search term “Prevent strategy evaluation” into the GOV.UK website and it brought up two documents. The first was the annual statistical review, which as I pointed out is not actually doing that job, and the second and only other document was a Youth Justice Board report, Preventing Religious Radicalisation and Violent Extremism, published under the imprimatur of the DCLG back in 2010. There may be other evaluations—there may, indeed, be very useful reports drawn up by various other people—but the Government have not seen fit to reference them on the website and in that sense they have certainly failed the transparency test, even if stuff has been going on.
It might be worth while quoting a couple of paragraphs from that Youth Justice Board report of 2012:
“The review found that the evidence base for effective preventing violent extremism interventions is very limited. Despite a prolific output of research, few studies contained empirical data or systematic data analysis”.
Then, after some examination of overseas projects, and the tos and fros of that:
“These programmes provide some potential learning points for future UK programmes, chiefly around the need for those engaging with radicalised individuals to carry authority and legitimacy, and to be equipped with profound ideological knowledge”.
An immediate question arises as to whether, in the subsequent six years, that paragraph’s lessons have been carried through, making sure that those who are delivering the programme or, indeed, carrying out the filtering process that we have been discussing this afternoon are in fact,
“equipped with profound ideological knowledge”.
I have a sense that that may not be true in all cases, although no doubt it is in some.
When one starts a process which, as the noble Lord, Lord Sheikh, and at Second Reading, the noble Baroness, Lady Warsi, very eloquently explained, arouses the concerns of the community that it is supposed to safeguard, and at the other end we see the inability of the Government to demonstrate that they are producing results at the far end of the project, the time for an independent review is clearly now.
Baroness Barran
My Lords, I shall speak very briefly to this amendment. It is an understatement to say that noble Lords feel strongly about Prevent and the need for an independent review. I agree with noble Lords who have talked about a lack of trust in Prevent. My own experience has been of talking to some very successful Prevent projects which, when I suggested that I might refer to them in my speech at Second Reading, asked me not to refer to them in public. Those are ones I wished to cite as doing a fantastic job, so I think that an effort to address some of that mistrust is very well placed.
My reflection is that there is a lot of existing information which, as the noble Lord, Lord Stunell, suggests, might help to fill some of the gaps that noble Lords have talked about. Critical within that is the role of the new Independent Reviewer of Terrorism Legislation, but also, from the police perspective, there is what I used to call HMIC, Her Majesty’s Inspectorate of Constabulary, but now have to remember is called HMICFRS, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. The first annual review of the counterterrorism independent advisory group will be published in June next year. Through a more multiagency lens, which I think is really important in this area, there are the local strategic oversight boards and the scrutiny panels. I confess to the noble Lord, Lord Carlile, that I have not yet attended one—it is clearly in my plan—but I understand that the scrutiny panels are open to the public. There have also been some multiagency peer reviews as well as some more recent independent evaluations, such as that by the University of Huddersfield.
I want to hear the thoughts of my noble friend the Minister about the potential to aggregate and analyse this information. It feels to me like a missed opportunity to bring data transparency to the programme, but also for those who are implementing Prevent on the ground to share learning—and then, of course, potentially to share some much more publicly. I appreciate that this may not address the full range of concerns raised by noble Lords, but I think it could go some way towards a practical solution that can be delivered quite quickly ahead of a more formal independent review.
Baroness Lawrence of Clarendon (Lab)
My Lords, I speak as a member of the Joint Committee on Human Rights. Most of what I was going to say has already been said by the noble Baroness, Lady Hamwee, as we are both on the committee. I want to add to what has been said that the Joint Committee is concerned that the Prevent programme is being developed without first conducting an independent review of how it is currently operating. We are also concerned that any additional responsibility placed on the local authority must be accompanied by adequate training and resources, to ensure that the authorities are equipped to identify individuals who are vulnerable to being drawn into terrorism. We also reiterate our recommendation that the Prevent programme must be subject to an independent review.
Lord Kennedy of Southwark
My Lords, Amendment 57A, tabled by me and my noble friend Lord Rosser, is similar to Amendment 57. However, the amendment in my name seeks to require the Secretary of State to produce a statement to accompany the review, when it has reported to Parliament, which responds to each recommendation made.
First, I place on record my thanks to all those who work to divert people from a life of terrorism and keep them on the path to a constructive life where they contribute positively to the community. We should all recognise the good work that has been done. It is, though, an important part of good governance to review matters regularly to see whether policies are working as intended or improvements can be made. That is in no way intended as a criticism of any particular programme, or of the generality of the programme.
The noble Lord, Lord Anderson of Ipswich, made important points about transparency and the need for a review. I very much agree that this strategy is important and we must make sure that we get it right. The Independent Reviewer of Terrorism Legislation would seem to be the right person to undertake this review when they are appointed. I agree with the noble Lord, Lord Stunell: I have seen no project—the noble Lord, Lord Carlile, intervened on this—that is actually failing. The review should be much more about the programme generally than specific projects.
There is a concern about the programme’s aims. We have to be clear as to those aims and look at whether communities have lost confidence in the programme. If they have, what are we going to do about that? Trying to understand the positives and the successes, as well as the failures, is a good thing to do. Further, the Prevent programme has the aim of community cohesion but concern has been expressed about whether this is deliverable in the light of spending reductions among local authorities, as my noble friend Lady Lawrence of Clarendon make clear in her contribution.
It is necessary to review the programme. As I said, that is not a criticism but it is important to review it to understand whether we are getting the programme right.
Baroness Williams of Trafford
My Lords, perhaps I may start with a statement about our common values. A comment was made at the beginning that I or the Government were against British values. I state for the record that I am in absolutely no way against British values or the common values that we hold in this country, but the Government are committed to doing everything they can to protect communities from the threat of terrorism. That is a noble aim. It is vital that we use all the means at our collective disposal to divert people from terrorist-related activity.
As the noble Baroness, Lady Manningham-Buller, said, Prevent is one of the four pillars that comprise Contest, the UK’s counterterrorism strategy. It is designed to safeguard and support those vulnerable to radicalisation, and to prevent their becoming terrorists or supporting terrorism. To put this into context, it might help if I initially explain Prevent’s aims and the reasons that the Government have maintained the programme. It has three overarching aims. The first is to tackle the causes of radicalisation and respond to the ideological challenge of terrorism. The second is to safeguard and support those most at risk of radicalisation through early intervention, identifying them and offering support. The third is to enable those who have already engaged in terrorism to disengage and rehabilitate. I do not think anyone could disagree with those aims.
Lord Anderson of Ipswich
Since the Minister mentioned Assistant Commissioner Basu and what he had to say about the Prevent strategy, is she familiar with the interview he gave, I think to an American periodical, a few weeks before he was appointed to his current role in relation to counterterrorism in which he made a number of constructive suggestions for changing the Prevent strategy, in particular to make it more, as he put it, community focused and less top down?
Baroness Hamwee
This has been an interesting debate. I do not think anyone other than the Minister has opposed the amendment, even if the routes to support it have been slightly different. The amendment is not about scrapping Prevent, nor is it about particular projects. I am sorry that the Minister felt the need to be so defensive. We have rightly been reminded of the breadth of what underlies terrorism by the noble Baroness, Lady Manningham-Buller. We might not always agree on the means, but of course we agree that the Government’s commitment to do all they can to protect the community and divert people from terrorism is a hugely important objective. The Government assert that a review would not lead to a different outcome. I do not know how one can assert that. I prefer to go down the route that we must not miss opportunities, which is in effect what the noble Baroness, Lady Barran, said, and that the strategy is too important not to do it as well as we can, as the noble Lord, Lord Anderson, said.
The Minister has, perhaps understandably at this point, not responded to the suggestion about extending very slightly the remit of the Independent Reviewer of Terrorism Legislation. I wonder whether after today she might be able to respond to that. It seems a very useful opportunity for the Government to consider it. As several noble Lords said, challenge can be useful. The more the Government oppose the proposition of a review, the more worried I become because I do not know what we do not know. I would prefer the reassurance of a review, which is in the circumstances quite a moderate proposal. We are only in Committee, and no doubt there will be some further discussions. I beg leave to withdraw the amendment.
Lord Marlesford
“Review: national identity numbers
(1) Within the period of 2 years beginning with the day on which this Act is passed, the Secretary of State must lay a report before both Houses of Parliament reviewing the case for the introduction of national identity numbers to assist in countering terrorism and ensuring border security.(2) The review must consider whether unique national identity numbers should be linked to a secure and central database containing biometric data to assist with establishing and verifying the identity of possible terrorism suspects or those engaged in hostile state activity, accessible by the relevant national authorities.”
Lord Marlesford (Con)
My Lords, in moving Amendment 58, which is a very simple and, I hope, practical amendment, I am not putting forward anything original or clever or anything like that. It is a purely practical proposal. In recent days we have all been talking about not just the horrors of war but the need to prevent war. Of course, terrorism is a form of war. I was very encouraged a few minutes ago when the Minister said that the Government will do anything they can to prevent terrorism. This amendment is a simple proposal to help prevent terrorism.
I start with the basic assumption that the state needs to be able to identify its citizens with certainty. I define citizens for this purpose as UK passport holders and those permanently resident in the United Kingdom. Over the years, there has been much discussion about identity cards. The noble Lord, Lord Campbell-Savours, who is in his place, has often talked about them. I was in favour of identity cards at one time, but I will explain why I am not now and why what I want now is something different.
The two big changes over a long period of years are the emergence of new technologies of identification. In the old days, 100 or more years ago, there were just the photograph and the fingerprint, and then more sophisticated things such as blood groups, DNA and all that. The second change is the extent to which we can record all this data electronically and access it electronically in real time, which is not particularly new either.
Lord Campbell-Savours (Lab)
My Lords, the noble Lord’s amendment does not refer to what he described in his speech as the “other uses”. Of course, it is the other uses that make this proposition more saleable. The amendment in its current form, as I read it, would require a national database to be set up with DNA information simply for the purpose of dealing with terrorism and crime. That is what the amendment says. I think that goes over the top. We already have forensics, surveillance, criminal data transfer between enforcement authorities, access to international databases, security services co-operation, diligent policing on the street and immigration and border control—mechanisms to deal with precisely the problem that the noble Lord has identified in his amendment, which, as I say, is confined to crime.
However, I will take this a little further. I was unable to intervene on the Clause 15 stand part debate because of a misunderstanding, so perhaps I can briefly comment at this point with what I would have said, while adjusting it to the context of this amendment. After the landmark judgment in 2008 by the European Court of Human Rights and the subsequent 2012 Act, we now have a far more restrictive regime in terms of DNA. Yet I ask myself constantly, “Why are we so worried about the collection of this data? Why are we so suspicious? Why are we so preoccupied? What great civil liberty is being lost?” In my view, individual identifiers in the form of a signature, a photo on a passport and a DNA sample are all equally important. There is no difference—they identify a person—yet we pick out DNA. We have this huge national argument and legislation introduced to restrict its use as if somehow we are interfering with people’s individual freedom. I dispute that.
I see no difference between the three examples that I have quoted. Indeed, I hope that one day, to get this whole argument off the ground in context, we will set up a voluntary system of DNA collection and registration with a national DNA database. I have nothing to hide. I have no problems. I think millions of people feel like me about these things: they do not mind having their photograph on a passport or signing a document, and they would take exactly the same view on DNA. We are simply going over the top. I hope at some stage in the future the Government will be sane enough to recognise that we need to make changes in this area, because it goes to the heart of the national identity card which many of us have asked for. I do not believe that a national identity card can work unless it carries a DNA sample.
Lord Kennedy of Southwark
That is very kind. It is my fault. I thought that the noble Lord, Lord Paddick, was going to jump up—but obviously he did not in the end. The noble Lord, Lord Marlesford, raises an important point with his amendment and it is important that we have this discussion. We have moved on from identity cards—that was a policy that my party certainly at one time supported—but our data is held by all sorts of organisations. In many cases non-government organisations have more data and know more about us than government organisations. As the noble Lord said, his amendment calls only for the possibility and desirability of a review. In that sense, I hope that he will get a reasonable response from the noble Earl.
Earl Howe
Once again, I thank my noble friend for the amendment. As he will recall, in 2010 the Conservative-Liberal Democrat coalition decided to end the identity card scheme and the associated national identity register because it was expensive and represented a substantial erosion of civil liberties—and I have to tell him that this Government have no plans to revisit that decision. There are good reasons for that. We have not seen any evidence that a national identity number or database would offer greater protection against terrorism or greater control at the border. There is no evidence that it would have prevented the 2017 terrorist attacks in the UK, and it has not prevented the attacks in France and Belgium, where national identity registers are in place. If my noble friend’s concern relates to people entering this country from abroad, I simply say that the UK is not in the Schengen area: we retain full control of our border and can carry out the necessary checks on those entering the UK.
UK citizens’ biometric data that is already held is stored in different government databases for specific purposes, with strict rules on how they can be used and retained. We cannot foresee any benefits that would justify the expense of introducing a national identity number for everyone in the country linked to a centrally held database which, if it were biometric, would presumably hold the biometric data of all of us indefinitely—an idea which, as I mentioned earlier, Parliament has expressly rejected. Protecting the public and keeping citizens safe is a priority for the Government. We are making big investments to those ends. We believe that the investment that we are making in better security, better use of intelligence and cybersecurity is a more effective use of our resources.
Lord Campbell-Savours
The Minister referred to some terror attacks early on in his contribution. Would he accept that, if the United States Government had held DNA material at the time of 9/11, it would have been flagged up when those criminals embarked on the planes, which led to the disaster? If it had been flagged up, they would have been stopped from getting on the plane.
Baroness Manningham-Buller
If the terrorists came from Saudi Arabia, how would the Americans have had their DNA?
Lord Campbell-Savours
I understand that two of the terrorists were known to the American authorities: at the time they were identified following the incidents.
Earl Howe
My Lords, the noble Baroness, Lady Manningham-Buller, has made a very pertinent point in this context. I am not capable of debating that particular terrorist atrocity because I do not know all the circumstances surrounding it. One of the shortcomings I do know of was a distinct lack of process in admitting passengers on to planes in New York, which might still have been the case even if a DNA register had been in operation in the United States. So we can try to particularise this argument, but I have yet to see evidence that the terrorist attacks we have seen recently on these shores, or indeed in France and Belgium, could have been prevented by a system such as the one proposed by my noble friend. So, against that background, I hope that, having again aired this issue, my noble friend will be content, at least at this stage, to withdraw the amendment.
Lord Marlesford
The answer is that at this stage I will withdraw the amendment. It is, I believe, a totally valid point. I know that the Home Office is opposed to it. I know that it does not like these things. I just go back to the example of the 10 years it took to get the firearm thing. This will come. It is inevitable. As the noble Lord, Lord Campbell-Savours, says, basically no legitimate person is frightened of having their identity known. We do not live in a dictatorship. We cannot behave as though apparatus that would be useful for a dictatorship should not be provided in case we have a dictatorship. We are fighting a battle against terrorism. We are fighting on many fronts and this is something that could be useful. I find it extraordinary that the Home Office will not even look at it. However, as I said, for the moment I will withdraw the amendment.
Lord Anderson of Ipswich
“Review of proscription
(1) Section 3 of the Terrorism Act 2000 is amended as follows.(2) After subsection (6), insert—“(6A) In respect of each organisation listed in Schedule 2, the Secretary of State must at least once in every calendar year, starting in the calendar year following its listing—(a) review the activities of that organisation,(b) determine whether that organisation satisfies the conditions for proscription in subsections (5) to (6),(c) decide whether to vary or revoke the listing or to take no action with respect to it,(d) publish each such decision, and(e) lay a record of such decision before Parliament.””
Lord Anderson of Ipswich
My Lords, I am sure that all noble Lords will agree that it is unjust to expose a person to prosecution for supporting a proscribed organisation when that organisation does not meet the statutory condition for proscription. That condition is being “concerned in terrorism”, a phrase defined in the Terrorism Act 2000 and elucidated by the Court of Appeal in the PMOI case—the only case on deproscription to have reached a final judgment. The Bill does not seek to amend that condition. Yet precisely such an injustice exists today and will be worsened by the Bill, and in particular by Clauses 1 and 2, which extend the substantive reach of the proscription offences, and by Clause 6, which extends their geographical reach.
No sensible person would deny that the likes of al-Qaeda, Daesh or indeed National Action, three of whose adherents were convicted this morning, are concerned in terrorism. However, our ever-lengthening list of terrorist groups features quite a few that, to put it bluntly, simply should not be there. In June 2013, as independent reviewer, I reported publicly that a preliminary analysis by the Home Office itself had identified 14 groups, some of them already removed from equivalent lists in other countries, that no longer met—or appeared no longer to meet—the statutory test.
Some of them had not done so before the Terrorism Act 2000 came into force. To the 14 should no doubt be added some Northern Irish groups. I cited the example of the women’s group, Cumann na mBan—any involvement in violence far in the past and its centenary celebrations recently attended by the Irish President—in debate on Amendment 32.
Confronted with this evidence and recognising that there was no track record of deproscription by the Home Office, even in those rare cases when someone was brave enough to ask for it, the then Home Secretary, the current Prime Minister, came up with a principled solution: a programme of deproscription to be completed during the first part of 2014 and to be informed by the internal reviews that were, at the time, still conducted every year, and which a High Court judge had described as,
“certainly a practice that the Secretary of State should continue to adopt”.
But principles were not enough. The solution failed, despite the best efforts of the Home Office, because proscription of international organisations, particularly separatist organisations, is seen in some quarters as a cost-free way to please foreign Governments—although I suggest that it could not be described as cost free for members of the relevant communities in the UK, who are liable to find themselves under enhanced suspicion when an organisation claiming to represent their community is deemed to be a terrorist group. I reported also on that.
Furthermore, in Northern Ireland, where, as far as I know, there has never been a system of annual review, the non-statutory solution was never even attempted. Embarrassed by its failure, the Home Office discontinued even its former practice of annual review, because it was apparent that reviews determining that the statutory condition was not met were simply never acted on.
This sorry state of affairs persists today. I described it in my final report of December 2016—I am sorry if the phrase is strong, but it is the strongest phrase I ever used in six years as independent reviewer—as an,
“affront to the rule of law”.
Fortunately, there is a solution—and by no means a radical one. The amendment would reinstate the internal reviews that the Home Office always used to operate and extend them to Northern Ireland. By placing the Home Secretary and the Northern Ireland Secretary under a statutory duty to publish and act on the conclusions of their reviews, it would allow them to resist those who, for reasons of foreign policy or because the topic is simply too difficult, would frustrate the clear application of the law.
The amendment will do nothing to endanger us. On the contrary, it will preserve us from the unfortunate tendency, born of misplaced expedience, to use anti-terrorism powers in circumstances where Parliament itself has decided that they should not apply. I beg to move.
Lord Judge (CB)
My Lords, it is very simple really, is it not? We spent time in Committee rightly debating the problems of trying to criminalise expressions of opinion or belief and identifying that a proscribed organisation should be one that none of us should support or encourage. Fine. The essence of the problem, however, is this. We should be allowed to express opinions and beliefs about organisations which are not proscribed. That is elementary, and this House will not need a disquisition from me about the importance of being able to do so. The problem is this. We are not in a position to express opinions about organisations which are currently proscribed which should no longer be proscribed or whose proscription should have been removed years ago. That is an affront to the rule of law, and I therefore support the amendment.
Baroness Manningham-Buller
I, too, support the amendment. As the noble Lord, Lord Anderson, said, the criteria for proscription are clear. They are concerned with terrorism commission, promotion, participation and engagement. As the noble and learned Lord, Lord Judge, said, much hangs on proscription because of the offences that follow from it, so it is critical that we get it right.
I was not entirely surprised to hear from the noble Lord, Lord Anderson, that the Home Office had agreed that up to 14 international organisations were wrongly proscribed, not including those in Ireland. From my past experience, I remember pressure from the Foreign Office, in particular, to consider as terrorists groups who were just serious irritations to the conduct of foreign policy. Because I have not kept in touch with these things, I did not imagine that that was still a problem, but it clearly is.
It seems to me that the amendment is pretty easy and patient for the Home Office to follow. It is more than just good housekeeping. If we make decisions in the context of the Bill on the basis of wrong information on who is proscribed, the whole system is drawn into disrepute and natural justice is offended. Looking back through the papers, at one stage the Home Office defended itself by saying that there should be a cautious approach to deproscription. That is indefensible if it itself admits that a number of the organisations proscribed should not be.
Lord Paddick
My Lords, briefly, I support the amendment. If, as other noble Lords have suggested, organisations are proscribed for other than legal reasons but to do with foreign policy, the Government should at least be honest enough to say that that is why organisations that meet the legal criteria are still being proscribed.
Lord Carlile of Berriew
My Lords, I too support the amendment moved by my noble friend Lord Anderson. There is no known system at the moment for reviewing the proscription list. The Peasants’ Revolt would still be proscribed under the current absence of a system, and that is just unacceptable. I could live with it if the Minister were to make a commitment from the Dispatch Box to introduce a system of review of the proscription list. Let us not forget that if a deproscription is found to be mistaken, there can be a reproscription of that organisation in any event, so almost nothing is lost by what is proposed.
Lord Pannick
My Lords, I, too, support the amendment. I find it shocking that the Home Office should be continuing the proscription of organisations which it recognises do not satisfy the statutory criteria. I have only one suggestion to those who tabled the amendment for their consideration for Report. In new paragraph (d), should it not require the Minister to publish not simply each such decision but the basic reasons for such a decision? That would add a further level of accountability and discipline of the Secretary of State in this context.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, support the amendment—looking around, it would be almost eccentric not to. The reasons already given are, I suggest, compelling, but in addition we had a debate in Committee on Clause 1, which is intimately linked with this issue, as the noble Lord, Lord Anderson, made plain at the time. Floating around at the time was Amendment 7 to Clause 1 which provided that it would not be an offence to support the deproscription of an organisation—on the face of it an altogether more compelling argument if the present amendment of the noble Lord, Lord Anderson, is accepted. If one has a defence to Clause 1 supporting deproscription, think what damage—some of us made this point in Committee—that does to the basic objective, which is that you should not be expressing an opinion supporting such an organisation, something which would inevitably be linked with any attempt to have it deproscribed. This is very important also for Clause 1 purposes.
Lord Rosser
I will listen to what the Minister says in response to the amendment, but from what I have heard so far, the case for it appears somewhat compelling.
Baroness Williams of Trafford
My Lords, it is never nice to stand up and feel defeated on a matter. I shall outline the various points on proscription. As noble Lords will know, the effect of proscription is that the organisation is added to Schedule 2 to the 2000 Act, and that a number of offences bite in relation to membership and support for it. In practice, the Home Secretary is responsible for proscriptions relating to international and domestic terrorist groups, and the Northern Ireland Secretary for Northern Ireland-related terrorist groups.
Under Section 4 of the 2000 Act, either a proscribed organisation itself, or a person affected by its proscription, may apply to the Secretary of State for it to be deproscribed. Section 5 establishes the Proscribed Organisations Appeal Commission to consider appeals against refusal of an application under Section 4, and there is a route of appeal on a point of law from the commission to the Court of Appeal.
Amendment 59 would place a duty on the Secretary of State to review every proscribed organisation on an annual basis, to determine whether it continues to meet the legal test for proscription. The Secretary of State would, further, be required to decide whether each organisation should remain proscribed or should be deproscribed, and to publish that decision. As the noble Lord, Lord Anderson, has explained, his amendment reflects recommendations he made in his former role as Independent Reviewer of Terrorism Legislation—a role which he performed with great eminence and authority, and in which he made a great contribution. I do not think that he will agree with me just because I have said that.
The noble Lord will, of course, be familiar with the Government’s long-standing policy on removing terrorist organisations from Schedule 2 to the 2000 Act, from the responses of successive Home Secretaries to his reports as independent reviewer. However, for the wider benefit of your Lordships, I will, if I may, spend a short while setting this out. The Government continue to exercise the proscription power in a proportionate manner, in accordance with the law. We recognise that proscription interferes with individuals’ rights—in particular the rights protected by Articles 10 and 11 of the European Convention on Human Rights: freedom of expression and freedom of association. That is why the power is exercised only where necessary.
We should recall that organisations are proscribed for a reason—because they are concerned in terrorism. Our first priority is to protect the public and support our international partners in the fight against terrorism, and the power to disrupt a proscribed organisation by preventing it from operating or gaining support in the UK is an important one in this struggle. Where the Home Secretary has decided on advice, including from operational partners, that this test is met, with the serious consequences that flow from that, we consider it appropriate to continue to take a cautious approach when considering removing terrorist groups from the list.
While we take extremely seriously our responsibility to protect the public and to prevent terrorist groups from operating in the UK, it is not the Government’s position that once a group has been proscribed that should simply be indefinite, without the prospect of ever being removed from the list. To this end, Parliament provided a clear route for any proscribed organisation, or any person affected by an organisation’s proscription, to submit an application to the Home Secretary for the organisation to be deproscribed. Indeed, three groups have been deproscribed following such applications.
This, I believe, is the most appropriate and balanced way to deal with the question of deproscription. It ensures that any person who believes that any proscription is inappropriate has a clear route to challenge that proscription, so that groups which are not concerned in terrorism and no longer pose a risk to the public can be deproscribed. But it also avoids placing the public at risk, or causing alarm, through precipitate decisions to lift restrictions on organisations with a significant terrorist pedigree but which may have, for example, become less visibly active in recent times. It is an enduring feature of the terrorist threat that both individuals and organisations with a terrorist mindset can disengage and then re-engage in terrorist activity, potentially without warning. Such individuals and groups will continue to pose a threat, and to be properly characterised as terrorist, during both their fallow and active periods, and it would not be responsible for the Government to remove the prohibitions and stigma that apply to proscribed organisations unless we are truly certain that they have changed and no longer pose a threat.
The Government are committed to ensuring that the right groups are proscribed and that the public are protected. But we are not persuaded that introducing regular formal reviews of past proscription decisions would in practice prevent any injustice, particularly given the existence of a review system on application, whereas such a system of formal reviews could lead to perverse outcomes and would have a significant operational impact in terms of diverting investigative and intelligence resource from current threats to public safety in order to carry out the reviews.
Lord Pannick
I am very grateful to the noble Baroness. Her argument appears to be that there is a power to apply for a review. She will be aware that under the Sanctions and Anti-Money Laundering Act 2018, which Parliament approved earlier this year, where a person is subject to sanctions, they can apply for a review, but nevertheless there is an obligation on Ministers to conduct a periodic review to ensure that the process is properly applied, and that sanctions are continued only against those who deserve to continue to be sanctioned. What is the difference in this context?
Baroness Williams of Trafford
My Lords, I am not entirely sure. They are different procedures. I shall write to the noble Lord on the difference because he makes a valid point.
Lord Anderson of Ipswich
I am grateful to the Minister. While she is writing to the noble Lord, Lord Pannick, could she perhaps answer my question? Even if she is correct that the ability to apply to have an organisation deproscribed is a substitute for my amendment—the track record very much suggests that it is not—and assuming that in her favour, could the Minister explain in the letter, or in person if she prefers, what consolation that could be to the innocent member of the community in London who comes under suspicion for alleged links with a proscribed organisation but who has no connection with it and could not in 100 years have been expected to be the person who makes that application?
I am trying to avoid naming specific communities, although I have spent plenty of time in London with Tamils, for example. For them, the fact that the LTTE remains a proscribed organisation—rightly or wrongly; I have no judgment on that—can be a significant impediment on how they go about their everyday life. What consolation could it be for the Tamil greengrocer in London to know that, had they wished to do so, the top brass of the LTTE, or others intimately connected with it, might have made an application for deproscription?
Baroness Williams of Trafford
They could have done. I do not know whether or not it is a consolation, but they could have done.
The point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, does not conflict with Clause 1 because there is no offence to suggest that a group should be deproscribed under Clause 1. Is that what he was referring to?
Lord Brown of Eaton-under-Heywood
Unless you are saying that it should be deproscribed because it is actually doing good work and certainly no harm.
Baroness Williams of Trafford
The first part of that would not conflict with Clause 1, but the second part of that statement would, as you are then promoting it as an organisation. Perhaps we can talk about that subsequently.
I move on to Northern Ireland, because I want to talk about the amendment in that context. Any change to the current regime must be carefully considered, paying particular regard to the unique historical and current security context and challenges in that part of the United Kingdom. Paramilitary activity has a greater impact in Northern Ireland than in any other part of the UK. Because of this complex environment, proscription remains an essential tool in the wider, strategic approach to tackling the continued and widespread existence and impact of paramilitary groups in Northern Ireland.
Terrorism legislation, including the proscription regime, is of course an excepted matter in Northern Ireland—it is reserved to the UK Government—but the impact of this amendment cannot be divorced from what is happening at the devolved level. Any change to the proscription regime would have a significant impact on wider efforts to tackle paramilitary activity currently being undertaken at a devolved level and supported by the UK Government and multiple agencies and bodies through the Tackling Paramilitarism programme. A decision to change the proscription regime in Northern Ireland could not, and should not, be taken in isolation from these other initiatives and without detailed prior consultation with the devolved Administration and security partners.
Given the current suspension of the Northern Ireland Assembly and Executive, the opportunity to undertake such consultation does not present itself at this time. We simply cannot ignore the operational, policy, resourcing and wider political ramifications of this amendment. These implications arise in relation to the proscription of international terrorist organisations, but are particularly acute in relation to Northern Ireland-related terrorist organisations. I know that this is a sensitive area, and that this House is rightly concerned to ensure that we strike the right balance, both in relation to the proposed new clause and to the other clauses in the Bill which amend proscription offences.
Finally, I suggest that noble Lords proceed with great caution in this area, given the considerations which I have just outlined. The learned position which the noble Lord has set out needs to be balanced against the reality that these are serious and, in some cases, unpleasant terrorist groups. They have been proscribed with good reason and the Government are anxious to ensure that they do not pose a resurgent threat to the public. I hope that, at this stage, the noble Lord will be content to withdraw the amendment.
Lord Anderson of Ipswich
My Lords, I am grateful for the flattering words with which the Minister began and overwhelmed by the distinguished support for the amendment from so many noble Lords. With great respect to the noble Lord, Lord Carlile, I hope that the Minister will not only carefully consider the amendment—as improved by the noble Lord, Lord Pannick—but see the benefits to the Government of having it enshrined in law and not just in an undertaking, so that there can be no doubt who wins in any future conflict within the Government of the sort that the noble Baroness, Lady Manningham-Buller, and I have experienced in our different capacities.
In case it was in any doubt, I clarify that the amendment seeks not to change the proscription regime in Northern Ireland but simply to ensure that the existing regime, as written very plainly in law, is applied. I beg leave to withdraw the amendment, but fully expect to return to it on Report.
Lord Rosser
“Continued participation in the European Arrest Warrant
(1) It is an objective of Her Majesty’s Government, in negotiating the withdrawal of the United Kingdom from the European Union, to seek continued United Kingdom participation in the European Arrest Warrant in relation to persons suspected of specified terrorism offences.(2) In this section, “specified terrorism offences” has the same meaning as in Schedule 15 to the Criminal Justice Act 2003.”
Lord Rosser
My Lords, the effect of this amendment is to insert a new clause into the Bill which would make it an objective in the Brexit negotiations to continue participation in the European arrest warrant. European arrest warrants are valid in all member states of the European Union and can be used to ask a state to arrest and transfer a criminal suspect to be put on trial, or to ask for someone who is sentenced to custody to be transferred to the UK to complete their sentence. In the calendar years from 2010 to 2016, the United Kingdom issued 1,773 requests. Of these, 11 related purely to terrorism and a significant further number to organised crime including human trafficking, child sex offences and drugs trafficking.
Extradition outside the European arrest warrant can cost four times as much and take three times as long. It would also mean an end to the significant exchange of data and engagement through Europol. In counterterrorism investigations, speed is of the essence and it is thus vital that we have the objective of continuing to play a key role on the European security scene. Recently the European arrest warrant has been obtained in respect of the two suspects in the Salisbury attacks, which means that if they set foot in the European Union they will be remanded to the UK to face justice.
Lord Paddick
My Lords, although I agree with the amendment in principle, I have a couple of issues with it. First, no country that is not a full member of the European Union participates in the European arrest warrant. It is, therefore, unlikely that the UK would be made an exception. Iceland and Norway, which are both members of the European Economic Area and the Schengen area, applied for membership of the warrant over a decade ago and have still not been granted participation. I understand that there are legal obstacles to a non-EU country’s participation in the European arrest warrant—for example, changes required to the German constitution.
As the noble Lord, Lord Rosser, said, the European arrest warrant clearly has benefits for bringing criminals to justice, in terms of the speed and cost effectiveness with which this can be done. However, on the positive side, the exchange of counterterrorism intelligence tends to be done on a bilateral basis between the UK and one other country, rather than between the UK and the European Union. Our leaving the European Union will, we hope, not impact on the vital exchange of intelligence data in relation to persons suspected of specified offences, which is separate from the European arrest warrant.
Lord Hope of Craighead
My Lords, I am in sympathy with the idea behind the amendment but I fear that the noble Lord, Lord Paddick, is right that one cannot participate in the framework decision which sets up the arrest warrant without being a member state. When you read the framework decision, it is perfectly clear that that is what you must be. The advantage to us of the present system is that it gets over the constitutional problem of Germany, which agreed to the framework decision but is most unlikely to be able to extend the benefit to something else. Having said that, I hope that the Government can achieve, by treaty arrangements, something as close as possible to the present system.
Baroness Williams of Trafford
My Lords, I thank all three noble Lords for their points on the European arrest warrant and our future law enforcement, internal security and criminal justice relationship with the European Union following our exit from it. The Prime Minister has repeatedly made clear that the UK is unconditionally committed to maintaining Europe’s security now and after our withdrawal from the EU. We are proposing a comprehensive security relationship which preserves that mutually important operational capability that enables UK and EU operational partners to work together to combat fast-evolving security threats, including in respect of terrorism and hostile state activity.
In July, the Government published a White Paper on our future relationship with the EU. It sets out how we are seeking a relationship that provides for mechanisms for rapid and secure data exchange, practical measures to support cross-border operational co-operation, and continued UK co-operation with EU law enforcement and criminal justice agencies. We continue to value our co-operation and information sharing on issues such as extradition, and believe that a pragmatic solution is in the interests of EU member states and the UK. Our primary objective is to keep our citizens safe.
While I welcome this opportunity to reiterate the Government’s commitment to maintaining a strong security partnership with the EU after exit, the nature of the future relationship is a matter for negotiations. As such, it would not be appropriate or necessary to include in primary legislation any measure that pre-emptively binds the Government’s hands by setting our negotiating objectives. That point was accepted when this matter was voted on in the House of Commons in September, and was accepted by both Houses when the European Union (Withdrawal) Bill was enacted.
We are clear that we want a security partnership that maintains co-operation in these areas but negotiating objectives are just that, and not a matter for this or any other Bill. Parliament will agree the final form of the withdrawal agreement when legislation to give effect to it is brought forward in due course. Therefore, at this stage, I ask the noble Lord to withdraw his amendment.
Lord Rosser
I thank the Minister for her reply and other noble Lords for their participation in this brief debate. From what has been said in response, I am not entirely clear whether that meant that it was part of our negotiating position that we would continue to participate in the European arrest warrant, or whether the Government are accepting that, under whatever deal is done, it will not be possible to continue to participate, for some of the reasons that have already been voiced in this evening’s debate. I do not know whether the Minister is able to help me on that and say whether it is our negotiating position to try to remain within the European arrest warrant system or whether the Government accept that we cannot, and the hope is that something comparable can be the subject of negotiation.
Baroness Williams of Trafford
I said to the Committee that that aspect of security co-operation was absolutely vital, and therefore some sort of security agreement was being worked on at the time. I cannot pre-empt what that will look like, but all the co-operation we enjoy now should continue, although, as the noble Lord, Lord Paddick, said, it may not be in the form of a European arrest warrant, given that no other non-EU states have been able to avail themselves of it. But it should certainly align closely with what we have now.
Lord Rosser
I thank the Minister for that clarification. This short debate has been useful; one thing it has shown—by the way, I do not suggest that it has only just come to light—is that the future of the European arrest warrant is in doubt at present, which is potentially quite serious from our nation’s point of view. Let us hope that that does not come to pass. I beg leave to withdraw the amendment.
Counter-Terrorism and Border Security Bill
Wednesday 14th November 2018
(5 years, 5 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 131-IV Fourth marshalled list for Committee (PDF) - (12 Nov 2018)
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the government amendments in this group make a number of necessary changes to the provisions in Schedule 3 governing the retention of property and the power to make and retain copies of documents and other items.
The new powers under Schedule 3 have been introduced to strengthen the tools of our law enforcement officers to tackle the harmful activities of hostile actors. Over recent years, we have seen a number of foreign powers demonstrating a significantly increased risk appetite regarding the conduct of their intelligence officers and agents. They seek to acquire and pass on property or information that would damage our national security. This could include highly classified protectively marked UK Government material, prototypes of UK defence infrastructure and hardware, or even the contact details of persons employed by our secret intelligence agencies. The Committee will appreciate that, to assert themselves in this way, foreign intelligence officers or those acting on their behalf are known to actively use the cover of certain professions; this includes journalists, lawyers and others. There is, therefore, a national security imperative for the police to be able to retain, copy and examine articles which may also include confidential journalistic or legally privileged material.
In response, Schedule 3 introduces new powers that would allow an examining officer to retain, examine, copy and potentially destroy a person’s property, including confidential material, where the officer believes it could be used in connection with a hostile act or to prevent death or serious injury. Once a person’s property has been retained under these powers, no further action can be taken without the authorisation of the Investigatory Powers Commissioner. The retention process requires the commissioner to consider representations made by the owner of the article, the police and the Home Secretary before coming to a decision.
Section 3 of the draft Schedule 3 code of practice, which I recently circulated to noble Lords, outlines the steps and timings for this process, which have been designed to strike a balance between affording the examinee an opportunity to defend possession of their property with the operational need to retain, use or potentially destroy it. The entire process from the point at which the property has been retained, to the point at which the commissioner authorises further action may take as long as four weeks but could possibly take longer as a result of delays or appeals.
In the vast majority of cases, this process will be the right one, as there will not be an urgent need to examine the property and the immediate risk will have been mitigated by dispossessing the individual of the article in question. In some cases, however, these timeframes will not be acceptable, in particular where urgent action is needed to prevent death or significant injury or a hostile act. An example of such a situation might be where hostile agents are trying to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In such a case, an expedited process would allow an urgent decision to be taken on whether the property should be returned to the individual, in parallel to examining the property to mitigate the immediate threat.
Amendment 77 would provide for this expedited process by allowing the examining officer, with the approval of a senior officer not below the rank of superintendent, to examine or copy the property, including confidential material, before a decision has been made by the commissioner. This mechanism would require authorisation to be given or withheld by the commissioner, or a delegated judicial commissioner, after the event. Should the commissioner withhold that authorisation, he would have the power to direct that the article be returned to the examinee and the destruction of any information taken from it, including copies. As with the existing process provided for in the Bill, the decision of the commissioner will be taken after consideration of any representations made by affected parties and there will also be an opportunity to appeal that decision where it has been delegated to a judicial commissioner.
This urgency procedure has been modelled on similar provisions in the Investigatory Powers Act in relation to interception warrants and has been set out in further detail in Section 3 of the draft code of practice. We had considered with operational partners and the IPC whether an expedited prior authorisation procedure could be put in place but have concluded that, while the process could be truncated, the requirement to receive and consider representations is such that any fast-track prior authorisation procedure would still take some days. I want to reiterate that these powers would only be used in the most urgent circumstances and subject to the safeguards that I have described. The consequences of misusing the powers are clear—the commissioner may direct the destruction of any information acquired through use of the property.
I now turn to Amendments 78 to 82, which concern similar retention powers for copies that consist of, or include, confidential material. These amendments aim to make two key changes. First, as with Amendment 77, which I have just described, they would provide for an urgent process for the retention and use of copies that consist of, or include, confidential material. Secondly, they will ensure that the non-urgent process for retention of copies works in the same way as the non-urgent retention process for a person’s property.
Baroness Hamwee (LD)
My Lords, I have some small questions for the Minister, and I hope she has been given notice of them in her brief—I contacted the Bill team yesterday. I think she has largely answered one of them, but I will ask it anyway. In her Amendment 73 and elsewhere, there is provision for a cut-off to the period for representations. I understand the need for that. Is there a timetable for the rest of the process? This is likely to be significant to the passenger, the affected party.
Secondly, in Amendment 76 and other amendments—the Minister has just mentioned this—what is an example of what is not “reasonably practicable”? She mentioned the possible difficulty of getting in touch with the individual. Again, I understand that. Does the term “reasonably practicable” go to that sort of thing? In other words, is it on the part of the person trying to get in touch, or is it looked at from the point of view of the passenger? Destruction of an article or conditions as to the use of the article are likely to be significant in this situation.
Thirdly, I have a similar question about the urgency condition in Amendment 77. Who assesses what is urgent? Is it the Home Office or the commissioner, and is it urgency in the eyes of the passenger? If the Minister can help to flesh out some of those queries, I will be grateful.
Lord Rosser (Lab)
Perhaps I may add one further question to those raised by the noble Baroness, Lady Hamwee. It relates to the urgency procedure. The noble Baroness has already asked who makes the decision on what is or is not urgent, but can we also have some feel, presumably based on the experience of the agencies concerned, of how frequently they expect to use this procedure?
Baroness Williams of Trafford
My Lords, the kind of situation in which we can expect the urgency provisions to be used possibly goes to the question asked by the noble Lord, Lord Rosser, about how frequently they are used. It is difficult for me to talk about the average frequency in any week, year or other given timescale, but clearly there is a spike nature to some of these events. Therefore, I hope that the noble Lord will accept that I cannot give a definitive answer to his question. However, basically the provisions will be used to disrupt a live threat—for example, where a hostile agent tries to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In the aftermath of something like the Salisbury event, Schedule 3 powers would provide the police with additional tools to stop and question persons with potential links to a hostile state or its actors who might have knowledge of or involvement in the attack. In such a scenario, it would be critical to analyse their devices and material at speed in order to understand the extent to which they were engaged in hostile activity.
The noble Baroness, Lady Hamwee, talked about the timeframe. Obviously, the urgency procedures would be used only where there was an immediate risk of death or significant injury or of a hostile act being carried out. In such a case, the police must be able to act with immediate effect. However, on the question of whether we could have done it the other way round, with a prior authorisation procedure being put in place, the answer is that that would still take some days. I hope that that answers the question.
The point was made that the timeframe for the urgency process—that is, within 24 hours—makes it very difficult to make representations to the commissioner. I was asked whether that is enough time or whether it should be longer. The timescales for the urgency process aim to strike a balance between giving the property owner enough time to make representations and ensure that the police are not able to use the property without judicial authorisation with the decision having to be taken by the commissioner within three days, and, by the same token, conceding that it is likely the property owner will want a decision to be taken as quickly as possible to prevent the police using their property without a decision by the commissioner. The draft Schedule 3 code of practice, which is available online, makes it clear that the examining officer must provide a notice that will explain to the property owner that they are invited to make representations to the commissioner, including contact details and the associated timescales.
Did the noble Baroness ask me what happens if the property owner cannot be contacted?
Baroness Williams of Trafford
She did, and I have the answer here—as if by magic. Paragraph 63 of the draft Schedule 3 code of practice is clear that, where the examining officer retains a person’s property beyond the period of examination, the officer should ask the person how they would prefer to be contacted regarding the status or return of their property. The officer will typically seek to acquire the phone number, email address or postal address of the examinee. However, under the urgency process, the examining officer would attempt to use the details provided by the examinee to make contact and to provide the information. This would typically include attempting to call the person a number of times, as well as sending them information by recorded post and email. If the person is at the known UK address then the officer from the local force could be tasked to attend the address to deliver the relevant information in person. Obviously, however, it would not be reasonably practicable for the police to take this approach on every occasion or where the person is abroad. It would not be reasonably practicable for the examining officer to make contact with the person where they have provided false contact details. I hope that satisfies the noble Baroness.
Lord Rosser
I appreciate that the Government cannot stand at the Dispatch Box and announce that this will be used X number of times a week, a month or a year—of course I understand that. But is the provision there because of previous experience that there is a gap in the arrangements, for which we have had to pay a price because we have not been able to enact the procedure, or is it there because there is a feeling that there might arise a need for such a procedure in the future?
Baroness Williams of Trafford
There are several answers to that. Obviously, the Terrorism Act 2000 needs updating. The Salisbury attack showed us the need to update our laws in this regard, and clearly the way that technology and other things have moved on creates a gap in our abilities because they have not been provided for in previous legislation.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is my intention to oppose the Questions that Clause 21 and Schedule 3 stand part of the Bill. I will later move specific amendments, but it is my view that Schedule 3 should be entirely removed from the Bill.
Schedule 3 creates a new regime in which anyone who is travelling into or out of the country can be searched, detained, interrogated and forced to hand over confidential documents without any suspicion by the border guards. That means that anyone could have their travel interfered with for no good reason—but of course it could be that people of black, Asian and minority ethnic groups will be disproportionately targeted by these broad powers. These powers already exist for the purposes of establishing whether someone is or has been involved in acts of terrorism. They are contained in Schedule 7 to the Terrorism Act 2000. The Government now seek to extend these powers beyond terrorism, to a very broadly defined set of “hostile acts”, which include threatening national security or threatening the so-called,
“economic well-being of the United Kingdom”.
Border officers could force anyone to hand over documents and information, and it would be a criminal offence to say no. They could detain anyone at the border for up to six hours without needing anything at all to suggest that the person has done anything wrong. A person who is questioned or detained has no right to remain silent and commits a criminal offence if they do so. An individual who is detained under these powers will have a right to speak to a solicitor, but the Bill does not appear to require them to be informed of this right until they have been detained for at least two hours. If a detainee chooses to speak to a solicitor, this can be delayed by officers under paragraph 25 or simply ignored altogether under paragraph 24. Additionally, paragraph 26 allows the police to watch and listen to the private conversations with the solicitor. I cannot believe that this is anything other than a fundamental attack on legal privilege and confidentiality.
These powers are simply too broad and too intrusive. They mean that anyone passing through a port or airport is essentially waiving their basic legal rights. While some people might consider this proportionate when it applies to finding terrorists, it is completely unjustifiable when it is applied to find out whether people are threatening the economic well-being of the United Kingdom. I would therefore like the Minister to clarify some points for me.
What does “threatening the economic well-being of the United Kingdom” mean? Has the phrase been defined anywhere and has it been considered by the courts? Would a business person who moves their business from the UK to another country be threatening the economic well-being of the UK? Why does the Bill allow a person to be detained for up to six hours without a single suspicion that they had done anything wrong? Would any Member of your Lordships’ House be prepared to be detained at the border for six hours without any suspicion that they had done anything wrong? If it were applied to us—as it could well be— we would think it most unfair. How will the Government ensure that these suspicionless powers are not used in racist and discriminatory ways, further entrenching the abuse that black and Asian men face with existing stop and search powers?
Dozens of amendments could be made to Schedule 3, but it is so fundamentally wrong that it must be opposed altogether. I beg to move.
Lord Paddick (LD)
My Lords, I support the noble Baroness, Lady Jones of Moulsecoomb, in opposing the additional powers conferred by Schedule 3, for some of the reasons she has just mentioned. We have already debated whether the powers in Schedule 7 of the Terrorism Act are used appropriately in every case. From complaints made to me, I believe that there is increasing concern that Schedule 7 powers may be being used arbitrarily—particularly against black and other ethnic minority passengers—resulting in missed flights with no compensation.
As the briefing provided by Liberty suggests, Schedule 3 covers a potentially vast and uncertain range of behaviours. Paragraph 1(1) refers to,
“a person who is, or has been, engaged in hostile activity”.
As the noble Baroness said, the Bill defines hostile activity as any act which threatens national security, the economic well-being of the UK or which constitutes a serious crime, where the act is,
“carried out for, or on behalf of, a State other than the United Kingdom or … otherwise in the interests of a State other than the United Kingdom.
However, the person need not be aware that they are engaged in hostile activity, and the state for which the hostile act is being carried out need not even be aware that the hostile act is being carried out. As the Bill is worded, someone from Paris or Frankfurt travelling to the UK to encourage UK businesses to relocate to their city in the face of Brexit will be caught by these provisions, because his mission would threaten the economic well-being of the UK and would be in the interests of another state—France or Germany. In a later group, the noble Lord, Lord Anderson of Ipswich, has an amendment in relation to what the definition of hostile act should be, and we will return to this subject then.
This schedule and the powers it contains, according to the Home Office briefing we were provided with, is supposed to be a response to the attempted assassination of Sergei and Yulia Skripal, yet almost all commentators agree that this was an act of terrorism already adequately covered by Schedule 7 of the Terrorism Act. Perhaps the Minister can give an example of a hostile act that has been committed against the UK that was not an act of terrorism.
The fact sheet provided by the Home Office suggests that these provisions are needed because:
“The UK faces a sustained threat from hostile actors seeking to undermine our national security in a wide variety of ways”.
Can the Minister explain how every and all acts that threaten the economic well-being of the UK are a threat to national security, and why the wording used in the Investigatory Powers Act 2016 is not used here—for example, with regard to the issuing of bulk interception warrants under Section 138(2) of the 2016 Act, where the issue of a warrant has to be,
“in the interests of the economic well-being of the United Kingdom”,
but only so far as those interests are relevant also to the interests of national security?
Baroness Williams of Trafford
My Lords, we have already debated a number of points related to the new ports powers under Schedule 3 to the Bill. Groups of amendments to come will address other aspects of these provisions. That being the case, I will limit my remarks in responding to this stand part debate to explaining the overarching case for these new powers to combat hostile state activity. Schedule 3 will serve to address a current gap in our ability to tackle the threat from hostile state actors by introducing provisions to allow an examining officer to stop, question, search and detain persons at a UK port or the border area in Northern Ireland to determine whether they are or have been engaged in hostile activity.
For the purposes of this legislation, a person is or has been engaged in hostile activity if they are or have been concerned in the commission, preparation or instigation of a “hostile act” that is or may be carried out for or on behalf of a state other than the United Kingdom, or otherwise in the interests of a state other than the United Kingdom. An act is a hostile act if it threatens national security, threatens the economic well-being of the United Kingdom, or is an act of serious crime. The noble Baroness, Lady Jones, asked about the types of activity that would threaten the economic well-being of the UK. Acts of that kind include those which damage the country’s critical infrastructure or disrupt energy supplies. The power absolutely will not be used to target the legitimate activity of foreign businesses, an example of which was given by the noble Lord, Lord Paddick. The noble Baroness also asked whether the power will be used in a discriminatory fashion. The response is an emphatic no, it will not. That is because selection based solely on ethnicity, religion or other protected characteristics is quite clearly unlawful. Selection for examination will be informed by a number of considerations, including available intelligence about hostile activity, as listed in the criteria set out in the draft code.
The events in Salisbury were a stark reminder of the impact that hostile activity can have on the safety and security of our communities. The use of a military grade nerve agent on UK soil demonstrated very clearly the lengths to which hostile actors such as the Russian state will go in order to achieve their illegitimate ends. We should not underestimate this threat. The Director General of MI5, Andrew Parker, set out the position in stark terms in a speech delivered in Berlin in May:
“We are living in a period where Europe faces sustained hostile activity from certain states. Let me be clear, by this I … mean deliberate and targeted malign activity intended to undermine our free, open and democratic societies; to destabilise the international rules-based system that underpins our stability, security and prosperity … Chief protagonist among these hostile actors is the Russian Government”.
It is not often that the general public are so exposed to the work of hostile actors. These actions highlight a contempt for public safety, the rule of law and international norms. However, they are consistent with the activities of the Russian state and others which our operational partners work tirelessly to counter.
In introducing these new powers, the Government are seeking to provide the additional capability needed better to detect, disrupt and deter the threats from these hostile actors. As the noble Lord, Lord Anderson, put it in his evidence to the Home Affairs Select Committee in January, if it is accepted that we need powers to stop and examine people at ports to combat terrorism, should not the police have similar powers to stop people on a similar basis who pose an equal but different threat to national security? In the Government’s view, the answer to the question must be an unequivocal “yes”.
It is worth reiterating that the provisions of Schedule 3 are not entirely novel. They will in many respects mirror existing powers to stop and question persons at the border to determine whether they are terrorists, but will instead be used to determine whether a person is or has been engaged in hostile state activity.
The Government are not saying that, simply because we have these powers for counterterrorism purposes, it justifies expanding them to hostile activity. Rather, we are saying that we have experience in exercising these powers; we already know the vital role that they play in countering the activities of terrorists, and we have taken into account the views of the Independent Reviewer of Terrorism Legislation on the exercise of the powers to ensure that the subject of an examination is appropriately safeguarded.
The noble Lord, Lord Paddick, asked for examples of hostile activity that would not be considered a serious crime or even be captured under current UK law or constitute terrorism. Examples might include unauthorised disclosure under the Official Secrets Act 1989; foreign intelligence officers building relationships with government officials with a view to influencing decision-making or recruiting them as an agent, or foreign intelligence officers receiving protectively marked information or stealing research plans for the UK’s next aircraft carrier. Section 1 of the Theft Act 1968 is applicable to tangible and in-action property, but does not cover information. It may be possible to prosecute a person for theft of the medium on which sensitive information is recorded, but the offence would carry limited sentencing.
The threat to this country from hostile state activity is greater now than it has ever been. It is therefore vital that the police are equipped to disrupt and deter such activity.
Baroness Jones of Moulsecoomb
I have not quite understood. If these stops by border guards are to be based on intelligence, why do they not need reasonable suspicion?
Baroness Williams of Trafford
My Lords, I think we went through this the other day. It is because officers may have fragmented information which does not amount to reasonable suspicion but may show a pattern emerging. That may not reach the “reasonable suspicion” threshold. As the noble Baroness said, we cannot just stop and search black people arbitrarily; there has to be some rationale for stopping that person. It would not be arbitrary but would not meet threshold of reasonable suspicion.
Lord Carlile of Berriew (CB)
I am grateful to the Minister for giving way. If somebody is coming through a port of entry and their passport is examined, and in the moment of examination it becomes apparent that there is something about the passport that does not look quite right—for example, there may be very few entries in it whereas the person concerned looks to be a sophisticated traveller—would not such a situation fall well short of being reasonable suspicion but be a proper exercise of the ability of good officers to use intelligence applied in the moment?
Baroness Williams of Trafford
The noble Lord provides a very good example. It might not amount to reasonable suspicion, but there would certainly be a pattern of activity or information which allowed that officer to stop the individual.
Lord Paddick
Will the Minister answer my question about why the wording from the Investigatory Powers Act 2016 is not used? It attaches to the consideration of the economic well-being of the United Kingdom the further consideration of the interests of national security to differentiate between acts such as I described, of envoys from Paris and Frankfurt trying to steal UK business, and the example given by the Minister of somebody looking to target the electricity infrastructure.
The Minister said that the powers could not be used to target people on the basis of race and religion because it would be illegal. In which case, can she explain why, in one police force area, you are 25 times more likely to be stopped and searched if you are from a black or minority ethnic background than if you are white? Why is that happening when it is illegal?
Baroness Williams of Trafford
Police stop and search is very often intelligence based. There may be areas where there is a higher than average proportion of black people. Quite often, some of the gang activity is black on black, but you cannot be stopped because you are black.
Lord Paddick
The force I am quoting from is Dorset, if that helps the Minister.
Baroness Williams of Trafford
That does help me, and of course it is where the noble Baroness, Lady Jones, lives. The noble Lord makes a very good point in that instance. As for envoys trying to steal business, there is nothing wrong with healthy business competition, but undermining the economy, through critical infrastructure, is entirely different. He also asked about the IP Act and I will write to him on that. The answer just handed to me contains a quotation from the noble Lord, Lord Anderson, who wrote:
“If Schedule 7 is being skilfully used, therefore, one would expect its exercise to be ethnically ‘proportionate’ not to the UK population, nor even to the airport-using population, but rather to the terrorist population that travels through UK ports”.
That is a far more eloquent description of the proportionality. I will write to the noble Lord about the IP Act.
Baroness Manningham-Buller (CB)
It may help the Committee to focus on this as a counterespionage issue. In the years that I have been here we have had, as I said at Second Reading, endless debates and legislation on terrorism. We are now talking about something that was part of my career 30 years ago. The noble Lord, Lord Paddick, rightly suggests that the poisoning of the Skripals was attempted murder and a serious crime, but there is a range of hostile activity, much of which has been mentioned by the Minister, which is potentially seriously damaging to the UK. At one end, obviously, there is the Skripals and coercive repatriation, but before that there is the collection of information, the targeting of dissidents, collecting really important stuff which is sometimes difficult to detect. In answer to the noble Lord, Lord Rosser—which I should not do—I suspect that this will not be a very frequent occurrence, but as we heard from my successor but one in MI5, this is an increasing and serious problem. This is an attempt by the Government to address a counterespionage issue.
I have a commitment this evening which may mean that I cannot stay to the end of this important debate, but I want to say at this stage that there is also the problem that there is quite a lot of this activity which is not serious crime. Under the Official Secrets Act—which, a bit like me and possibly some of your Lordships, is old and creaky—that is not adequately covered. I was encouraged to see that the Prime Minister suggested in the House of Commons on 5 September that some espionage legislation was necessary to bring this subject up to date. I look forward to seeing whether that materialises, and it would be interesting to know whether it is regarded as a patch, temporary or long-term, to some of those other problems. I fear that the later amendments trying to make this all serious crime will not work, because Official Secrets Act offences get only two years’ maximum, whereas serious crime starts at three years. So there is a gap which we have to attempt to fill.
Baroness Williams of Trafford
I thank the noble Baroness for her very experienced and helpful comments. She asked: is this a patch or have we thought further ahead? Obviously, in legislation that we introduce we try to look at future threats, but who is to know what threats may emerge in the future? Clearly, cybercrime is a hugely growing threat to us. But I thank her for those very helpful clarifications. On that note, I beg to move.
Lord Marlesford
“Review: dual passports
(1) Within the period of 12 months beginning with the day on which this Act is passed, the Secretary of State must lay a report before both Houses of Parliament evaluating the case for requiring dual nationality British citizens to declare the nationality of their other passport or passports in order to assist with border security.(2) The review must consider whether information on dual or multiple passport holders should be made available to border security staff and other relevant national authorities via a centralised database.”
Lord Marlesford (Con)
My Lords, in this country we allow, quite rightly, UK passport holders to be in the possession of passports of other countries—not just one but two or three; whatever is needed. When someone applies for a UK passport, they are required to declare what other passports they hold. But, astonishingly, this information is not kept in any sort of central database and still less is it available to border officers whose responsibility it is to examine the passports of those entering or leaving the UK. This is why my noble friend the Minister had to tell me, in a Written Answer on 16 April this year, when I asked about a register of second passports:
“No statistical information is available showing whether British citizens hold another citizenship”.
About five years ago I was tipped off by a member of the Security Service that its operations were made much more difficult by the fact that UK citizens were using their UK passport to travel to one destination and then another passport to get up to mischief, perhaps, in third countries. This was and is particularly relevant to would-be jihadists who travel to Pakistan, for example, and then attend training camps or indeed join al-Qaeda, ISIS or some other terrorist organisation in other countries. I raised this point a couple of years ago with Cressida Dick, the present Commissioner of the Metropolitan Police, who was at that time responsible for anti-terrorist operations. She expressed astonishment that border control officers were not automatically alerted to other passports held when a UK passport was electronically scrutinised at the point of entry.
My Amendment 61 is exceedingly modest. It asks merely that the Government require dual nationals to declare other passports and that this information,
“should be made available to border security staff and other relevant national authorities via a centralised database”.
In fact, it is even more modest because all I am asking them to do is to study whether this is a sensible idea. That is not asking very much.
This would be no more difficult or complicated than many other centralised databases, such as the DVLA for vehicle licences and all the rest of it, and the National Firearms Licensing Management System—the central firearms register—which I caused to be introduced under Section 29 of the Firearms (Amendment) (No. 2) Act 1997, which finally came into operation in September 2007, and is working very well. I checked quite recently with my own county firearms officer.
The Government have previously used three arguments to oppose what I am proposing. The first is that it would be an infringement of civil liberties. My answer to that is that such a concept of civil liberties is wholly outdated in an age when we are all subject to intense and often intrusive surveillance by foreign powers such as Russia and, rather more efficiently, China. The second is that there could be no way of enforcing the declaration of other passports. That of course has a simple remedy, which is—if it is declared to be deliberate and pernicious—the forfeiture of a UK passport when that is discovered. Noble Lords in the Committee might have their own view on this but I am quite sure that the great majority of second passport holders would have not the slightest objection to this being known to the authorities. After all, we all have to put up with a lot of inconvenient baggage examination under existing counterterrorism operations.
Nor should we neglect the possibility of connivance by Home Office staff in committing terrorist or other serious criminal offences, whether in connection with passports or border control. The Minister will be well aware that in the last 12 years no fewer than 54 members of Home Office staff have been sent to prison, sometimes for long periods—nine or 11 years. In a recent case Shamsu Iqbal, an official in the immigration department of the Home Office, was sentenced in April to 15 years for misconduct in public office. Sometimes this connivance involves selling visas or trafficking in passports, assisting illegal immigration, forgery, bribery, money laundering and other serious matters. Only today the newspapers are carrying a report of a Mr Pellett, an officer in the Home Office Border Force, who has just been found guilty of assisting criminal gangs with smuggling in weapons and drugs at Dover. I suggest that the Home Office really cannot argue that we can rely on its existing standards of efficiency, let alone integrity, in the protection of our borders.
The third argument is that we should have confidence in the Home Office’s intelligence-led processes and not concern ourselves with these matters. I am sure that my noble friend does not feel this but I think that Home Office officials regard me as pretty impertinent to be talking about these matters. On that I would simply say: it is now 12 years since the noble Lord, Lord Reid, declared when he was Home Secretary that the Home Office was not fit for purpose, while only this month the House of Commons Select Committee concluded, in the matter of my right honourable friend Amber Rudd, that the Home Office had lost its grip. This simple and modest proposal is necessary for national security. I believe that it will improve the Bill and I hope that the Government will show that they have some inclination to get a grip by adopting it. I beg to move.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I am grateful to my noble friend Lord Marlesford for raising this matter and I acknowledge his long-standing interest in this issue. I share his aim of preventing those who may be of interest on the grounds of terrorism, serious crime or hostile activity from avoiding detection at the border. But before I reply substantively to him, I believe the Home Office to be blessed with many, many committed, honourable and very able civil servants. It is wrong for this Committee to gain the impression that it is somehow shot through with those who would seek to disobey the law. That is not my experience and it is certainly not the experience of my noble friend the Minister or, I dare say, any of your Lordships in this House who have had dealings with the Home Office.
Holding dual national status is perfectly lawful in the UK and it is not a barrier to acquiring British citizenship or obtaining a British passport. When making such applications, dual nationals are required to provide the Home Office with details of any foreign passports or other nationality held. Such information will assist in the assessment of the application, including, in the case of an application for naturalisation, the assessment of any grounds for refusal based upon conduct through past or present activities.
The request for dual national passport information is also necessary in understanding whether a person is using one name for all official purposes. The UK, through the Home Office, has also instituted a policy that a person must have one name for all official purposes and that this is reflected in biometric residence permits, naturalisation and registration documents and passports. This policy is in place not only for travel purposes but to frustrate the use of multiple names for access to goods and services. This, together with other measures in place, minimises the ability of a British citizen to manipulate travel documents to travel into and out of the UK and other countries undetected for terrorism, trafficking and other criminal activities.
Lord Marlesford
My Lords, I have great sympathy with my noble friend for having to read out a Home Office response that completely misses the point of my amendment. The point is that when people hold more than one passport, if their passport is scanned then the fact that they have another passport is automatically revealed. That would be very simple to do, and it is very necessary because that may well give the clue in certain cases—not many, but you do not need many cases for these things to be worth while—of the need for a follow-up. I will of course withdraw the amendment for the moment, but I must ask the Home Office to look at what I am actually proposing because a great deal of what my noble friend read out is wholly irrelevant to the point that I was trying to make. Having said that, I beg leave to withdraw the amendment.
“Consultation on the impact of this Act on the right to protest etc
(1) Within the period of one month beginning with the passing of this Act the Secretary of State must consult on the probable impact of the provisions of this Act on the right to protest and undertake peaceful, non-violent direct action.(2) As part of this consultation, the Secretary of State must consider whether to introduce—(a) a statutory definition of “domestic extremism” and statutory criteria for designating individuals as “domestic extremists”; and(b) independent judicial oversight of counter-terrorist operations relating to domestic extremism, including the designation of individuals as “domestic extremists”.(3) The Secretary of State must lay a report of the outcome of the consultation before both Houses of Parliament.”
Baroness Jones of Moulsecoomb
My Lords, my Amendment 62 would require consultation on the right to protest and undertake peaceful, non-violent direct action. This is a very personal amendment for me because I do go to peaceful protests, and it is possible that some other Members of your Lordships’ House do as well—although, looking round, possibly not.
I am compelled to bring the amendment for personal reasons but also in the knowledge that the Stansted 15 are undergoing a criminal trial for heroically trying to stop deportations in response to the Windrush scandal and the Government’s now discredited hostile environment policy. I also bring the amendment in the name of all environmental protectors who are harassed by armies of police and private security in the fight against fracking. This includes the Fracking Three, who were thrown in jail by a judge who had family ties to the oil and gas supply chain. They were later freed by the Court of Appeal. I also highlight the tree protectors in Sheffield, who spent years trying to stop the council felling thousands of healthy trees. They faced rough tactics by the police, and the council has taken unprecedented steps that risk bankrupting individual protesters.
I pay my respects to all environmental protectors in the UK and around the world who face persecution and prosecution for the crime of protecting our planet. A noble Lord earlier said something about civil liberties being outdated. Not in my world they are not. I argue that if we want to live in a democratic society, civil liberties are a crucial component of it.
A common thread runs through all the cases that I just mentioned. That thread is the use and abuse of laws which stamp out legal, peaceful protest. Whether it is terrorism legislation at Stansted, obstruction of the highway in Lancashire or trade union legislation in Sheffield, we see time and again that the state will use the law creatively to deter and punish those who put their bodies on the line to fight injustice and environmental destruction.
There is an emerging application of civil injunctions, which means that companies and councils can bankrupt people for exercising their right to protest, even when they have not broken the law. Environmental protesters and campaigners have faced persecution in other ways, too. We have often been designated as domestic extremists and put into the same category as far-right neo-Nazis and the man who murdered MP Jo Cox. We have been spied on by the police and had our campaigns infiltrated by police officers. Some of us have even been deceived by police into forming a sexual relationship as part of their cover story. The sense of state intrusion in our lives is difficult to convey, and undoubtedly puts many people off taking part in protests.
We have seen our causes proved right with time. The Intergovernmental Panel on Climate Change has said that even if we meet the targets in the Paris climate agreement, which is unlikely, we will still see catastrophic consequences. The anti-fracking movement, once mocked for its suggestion that fracking would cause earthquakes, has been proven right by Cuadrilla causing dozens of quakes in the vicinity of its fracking site in Lancashire. Those quakes have repeatedly breached the upper limits set by the Government’s “gold-standard fracking regulations”. The Government’s response has been to change their myth-busting fact sheet from stating that fracking does not cause earthquakes to saying that it does not cause “serious earthquakes”.
If the suffragettes were alive today, they would be standing alongside us as domestic extremists facing trumped-up criminal sanctions for doing the right thing. I am sure that in time history will recognise the environmental movement as forcing the same scale of social change as the suffragettes are credited with today.
For these reasons, my amendment would require the Government to conduct a consultation on the impact of the Bill on the right to protest and to consult on a statutory system for designating people as “domestic extremists”. This is an essential first step towards enshrining a true right to protest in the UK, recognising that people should have legal defences when they act in protection of the environment and human rights. The powers in the Bill would add to the already long list of laws which can be used or abused against honest, dedicated campaigners—and that must be opposed. I beg to move.
Lord Kennedy of Southwark (Lab Co-op)
Amendment 62 proposed by the noble Baroness, Lady Jones of Moulsecoomb, seeks to add a new clause to the Bill after Clause 21concerning the right to protest.
The right to protest peacefully is an extremely important right that we should all cherish. I have been on a few marches and protests in my time. I have usually gone with a few friends, standing up for what we believe in. Many of my noble friends have been on marches, and I am sure many other noble Lords have been as well. I do not think any one group can claim that they are the party of protest marches.
I hope that the Government will agree that this is an important issue. The right to protest is an important one that we should all cherish. I have generally agreed with the Bill, and am happy to support it. However, I accept that we are giving the Government some extra powers. I support the Bill because it has a narrow focus, dealing with some very important matters, so I hope to get some assurance from the Government. I would not want to see anything in the Bill to stop people protesting peacefully; it is very important that we do not have that.
The noble Baroness raised a point about domestic extremism, which is an important issue. I like the noble Baroness very much. We get on, and sometimes we agree on things, and sometimes we do not. I do not regard her as a domestic extremist; she is a campaigner and a noble Member of the House who makes a valuable contribution. It is important that people should not be branded or grouped together so that somehow, their rights can be taken away. However, let us be clear: there are dangerous people in this country. People who have been born here can be very dangerous; they can be on the hard right, the hard left, in other groups, or religious extremists. We need to have laws in place to deal with them, but at the same time we need to protect our right to protest and stand up for what we believe in. I look forward to the Government’s response.
Baroness Jones of Moulsecoomb
Can I just say to the noble Lord, Lord Kennedy, that I was not trying to corner the market in protest? I was thinking that perhaps a lot of Members would not have the time to do that sort of thing.
Lord Paddick
I was not going to speak, and perhaps I should declare an interest, in that I have probably been to more protests than any other Member of this House, but mainly in uniform rather than to protest myself.
I am struggling to understand which part of the Bill the noble Baroness is concerned about that would directly impact on peaceful protest. That is why I hesitated to make a contribution.
Baroness Jones of Moulsecoomb
My concern is that this is repressive legislation, and we are already finding that peaceful protest is heavily affected by other parts of terrorism legislation. I therefore think that this would have an impact as well.
Earl Howe
My Lords, I am grateful to the noble Baroness, Lady Jones, for setting out the case for her proposed new clause. I would like to reassure her that the provisions in the Bill will not impact on an individual’s right to peacefully protest. Let me say without ifs or buts that this is a right central to a free and democratic society such as ours, and one which we would all seek to uphold and defend.
The noble Baroness, Lady Manningham-Buller, argued at Second Reading that,
“there is no liberty without security”.—[Official Report, 9/10/18; col. 27.]
With due respect to the noble Baroness, I am inclined to agree.
The measures in the Bill are intended to ensure that the fundamental rights and values held so dearly by the vast majority of individuals in this country are upheld, and that people are able to express their views and stand up for what they believe in in the face of a malign and growing terrorist threat. While we saw the ultimate expression of these hateful views in Finsbury Park, Westminster, London Bridge and Manchester, these attitudes also undermine the cohesion of our communities, restrict our freedoms and diminish our rights, in particular those of women and girls.
I should make it clear that the type of conduct that the Bill’s provisions are aimed at concerns support for proscribed organisations—those which are, by definition, concerned with terrorism. There is a clear public interest in stymieing support for terrorist organisations, since the more support they have, the stronger their capacity to engage in terrorism. The Bill’s provisions, however, would not extend to support for other organisations that are not proscribed, or indeed to expressions of support for causes that are neither terrorism nor otherwise illegal.
Tackling the evil ideology of extremism is one of the greatest challenges of our time, and we need a new approach to identifying, exposing and defeating it. This year, to step up the fight against extremists, we established the independent Commission for Countering Extremism, which will be crucial to bringing new drive and innovative thinking to all our efforts to tackle extremism. Our published charter sets out the commission’s status as a transparent organisation operating independently from government, and provides it with a clear remit to support the Government in identifying and confronting extremist ideology in all its forms, whether Islamist, far and extreme right-wing, violent or non-violent. It also confirms that the commission will have no remit on counterterrorism policies, including Prevent. In its first year, the commission is engaging widely and openly and is undertaking an intensive evidence-gathering phase to inform the advice to government on new policies to counter extremism. This will include revisiting the extremism definition. The commission has now engaged with over 400 experts and activists and, in September, published the terms of reference for its study, which will be informed by an open public consultation, evidence from government and further research. I urge everyone to engage with the commission in this vital effort.
Peaceful protest is a vital part of a democratic society. It is a long-standing tradition in this country that people are free to gather together and to demonstrate their views, however uncomfortable these may be to the majority of us, provided that they do so within the law. Articles 9, 10 and 11 of the ECHR form the basis of an individual’s right to participate in peaceful protest. There is, of course, a balance to be struck. Protesters’ rights need to be balanced with the rights of others to go about their business without fear of intimidation or serious disruption to the community. Rights to peaceful protest do not extend to violent or threatening behaviour and the police have powers to deal with any such acts. However, these powers are not contained within counterterrorism legislation, but in the Public Order Act 1986. Under that Act, chief officers of police may impose conditions on assemblies and public processions to prevent serious public disorder, serious damage to property, or serious disruption to the life of the community. The directions can relate to the duration, location and size of any demonstration. If the police assess that a march will cause serious public disorder, despite conditions being set, they can apply to the local council for an order prohibiting the holding of a public procession for a period of up to three months. The council must obtain the consent of the Home Secretary before making a banning order. In the London area, the Metropolitan Police Commissioner would need to apply to the Home Secretary for consent to ban the march.
The police must not prevent, hinder or restrict peaceful assembly, except to the extent allowed by Article 11(2) of the ECHR. They must not impose unreasonable, indirect restrictions on persons exercising their rights to peaceful assembly, such as imposing a condition on the location of a protest which effectively negates the purpose of the protest. Pre-emptive measures taken by the police which restrict the exercise of the right to peaceful assembly will be subject to particular scrutiny. In certain circumstances, the police have a duty to take reasonable steps to protect those who want to exercise their rights peacefully. This applies where there is a threat of disruption or disorder from others. This does not mean that there is an absolute duty to protect those who want to protest, but the police must take reasonable measures in particular circumstances.
Following debate in Committee in the House of Commons, my colleague the Security Minister undertook to consider amendments designed to prevent charges being levied on the organisers of a public procession or assembly, should an anti-terrorism traffic regulation order be required to protect such an event. The Government brought forward an amendment to Clause 15 to achieve this, so as not to restrict the right to peaceful protest, as we believe that people should not be charged to exercise these fundamental human rights.
Prior to introduction of the Bill in the House of Commons, the Home Secretary made a statement that in his view the provisions of the Bill are compatible with the European Convention on Human Rights—a view which my noble friend shared when the Bill was introduced to this House. Given all this, and the scrutiny the Bill has received during its passage through both Houses and by the Joint Committee on Human Rights and the Constitution Committee, I am not persuaded that the consultation exercise envisaged by Amendment 62 is necessary.
I hope that, with that somewhat lengthy explanation, and having had this opportunity to debate this important topic, the noble Baroness will be content to withdraw her amendment for the time being.
Baroness Jones of Moulsecoomb
I thank the Minister and beg leave to withdraw the amendment.
“Access to a solicitor
(1) Schedule 8 to the Terrorism Act 2000 is amended as follows.(2) In paragraph 7(1) leave out “paragraphs 8 and 9” and insert “paragraph 8”.(3) In paragraph 7A—(a) leave out sub-paragraph (3);(b) in sub-paragraph (6) leave out from second “would” to the end and insert “create an immediate risk of physical injury to any person”;(c) in sub-paragraph (7) at the end insert “provided the consultation is in private”;(d) leave out sub-paragraph (8).(4) Leave out paragraph 9.”
Lord Marks of Henley-on-Thames (LD)
My Lords, this amendment is also in the name of my noble friend Lord Paddick and the noble Lords, Lord Rosser and Lord Kennedy of Southwark. It would amend Schedule 8 to the Terrorism Act to protect the right of a person detained or questioned under Section 41—on suspicion of being a terrorist—or Schedule 7 of that Act, which is concerned with questioning at ports and borders, to consult a solicitor and to do so without delay and in private.
The first and third parts of our amendment, in proposed new subsections (2) and (4), would amend paragraph 7(1) and omit paragraph 9 of Schedule 8. Paragraph 7(1) presently provides, subject to two exceptions to which I will turn in a moment, that a person so detained,
“shall be entitled, if he so requests, to consult a solicitor as soon as is reasonably practicable, privately and at any time”.
The two exceptions to the entitlement under paragraph 7(1) are, first, the power to delay a consultation with a solicitor. Under paragraph 8, an officer of the rank of superintendent or higher may authorise a delay in permitting the detained person to consult a solicitor in certain prescribed circumstances; the second is a restriction on the right to consult in private, which we suggest is central to the right to confidential advice. Under paragraph 9(1), a direction by a police officer of the rank of commander or assistant chief constable or above may in certain circumstances provide that a detained person who wishes to consult a solicitor may only do so,
“in the sight and hearing of a qualified officer”.
The specified circumstances for the application of both exceptions are—I paraphrase—where the lack of such a direction may lead to any of a number of risks. They include damage to evidence of a serious offence, interference with or physical injury to any person, alerting other suspects, hindering the recovery of property obtained as a result of a serious offence, hindering information gathering or investigation, alerting someone to an investigation so as to make it more difficult to prevent an act of terrorism, and alerting someone so as to make it more difficult to apprehend, prosecute or convict a person of the commission, preparation or instigation of an act of terrorism.
Our amendment would, significantly, leave the exception under paragraph 8 relating to the power to delay a consultation in the specified circumstances but would remove the exception under paragraph 9—that is, the denial of the right to a consultation in private. We are clear in our view that it is fundamental to the right to consult a solicitor that the consultation should indeed be in private. The Joint Committee on Human Rights considered this question in its second report. It said in the section on access to a lawyer, in respect of Schedule 3 to this Bill, at paragraph 55 and 56:
“In some cases, the detainee may only consult a solicitor in the sight and hearing of a ‘qualified officer’. The Government explains that this restriction exists to disrupt and deter a detainee who seeks to use their legal privilege to pass on instructions to a third party, either through intimidating their solicitor or passing on a coded message … We recognise these concerns, but consider that there are more proportionate ways of mitigating these risks, such as pre-approval of vetted panels of lawyers. We suggest further consideration be given to alternative options so that timely and confidential legal advice can be given to all persons stopped and detained under these powers”.
Baroness Hamwee
My Lords, my noble friend’s curtain-raiser has covered a great deal of the ground. I will speak to Amendments 83, 84, 85, 87 and 88, which come from the Joint Committee on Human Rights and seek to ensure that, under Schedule 3 to the Bill, detainees are informed of their rights and provided with timely and confidential legal advice in all four jurisdictions. It is because there is more than one jurisdiction that there are a number of amendments.
We are concerned that the safeguard of access to a lawyer is not adequately protected under this Bill. In particular, it is not clear that an individual will even be informed of his right to request access—apparently, this is available only on request. Access to a lawyer may not be available when a person is questioned initially; it may be delayed. In our view, it is not sufficient to rely on a code of practice in this area. The legislation should be adequate in itself and, as regards access, unqualified or very close to unqualified. I will come to that in a moment.
The Government told the committee that a code of practice would make clear that permission to seek legal advice should be permitted when “reasonably practicable” and that the,
“restrictions are to mitigate against the possibility of an examination being obstructed or frustrated as a result of a detainee using his right to a solicitor”.
Leaving aside whether we should accept the second point—and I do not think I do—it is my view that the two statements are barely consistent or compatible.
My noble friend quoted the Government’s response that legal privilege might be used to pass on instructions to a third party through intimidation or a coded message. These powers, or restrictions, unjustifiably interfere with the right to timely and confidential advice and therefore, ultimately, with the right to a fair trial if there is a prosecution. I make that point because the Joint Committee approaches everything from the point of view of human rights, the right to a fair trial being one. There is not in the Bill a sufficient safeguard against the arbitrary exercise of the powers.
The last time I recall there being a question on legal privilege being regarded as a problem by the Government, I sat and listened in a Minister’s office to something like a seminar with the Minister and two very senior lawyers—both Members of this House and both of whom are here this afternoon—who articulated very effectively and authoritatively what I would describe as my own queasiness about the suggestion that access to a solicitor should be restricted. They dealt very effectively with the safeguards that exist against dodgy lawyers, if I may put it like that. After all, this issue is not peculiar to this situation. As my noble friend said, there have been suggestions such as the pre-approval of vetted panels of lawyers.
I am not quite convinced—we will hear from the noble Lord, Lord Rosser—that Amendment 86, tabled by the Labour Benches, meets the Government’s points or deals with the principle, but we urge the Government to consider how a client’s fundamental human rights in this area should be protected, because there are other ways of dealing with this.
Lord Judge (CB)
My Lords, I invite the Government to think rather carefully about this. This provision enables an individual to be stopped, detained and searched—it is true that it is not an intimate search, but it is a strip search—and his or her property to be detained. It really should be elementary that he or she should be able to speak to a lawyer of some kind within the ambit of the amendment of the noble Lord, Lord Marks, if only to be told, “Yes, they do have these powers. It would be rather a good idea for you to comply”.
Lord Pannick (CB)
My Lords, I too am concerned about the subject, and I agree with the comments that have been made. The right to confidential legal advice is fundamental to the rule of law. The right to consult a solicitor is simply pointless if it is not to take place in private—a client will not speak freely in those circumstances. Therefore, any restrictions must be necessary and proportionate. I agree with the noble Lord, Lord Marks, that it is vital to look for more proportionate means of addressing the Government’s legitimate concerns. I also agree with him that a way forward is to adopt the approach that the client ought to be able to speak freely to any solicitor unless there are reasonable grounds to believe that that solicitor will not act in accordance with his or her professional obligations. Regrettably, there have been cases of such solicitors, although they have been very few, and it seems to me entirely disproportionate to prevent access to confidential legal advice because of the misbehaviour of a few rogue solicitors. We can deal with rogue solicitors in other ways.
Lord Rosser
We too are obviously concerned about the right to access a solicitor. My name, and that of my noble friend Lord Kennedy, is attached to all the amendments in this group, but the one I wish to speak to in particular is Amendment 86. As the others do, this amendment refers to legal professional privilege and to a person’s ability to consult a lawyer in private in relation to stops at the border. As has been said, there is a power in the Bill for an officer not only to watch someone receiving legal advice but to hear that legal advice being given.
Concerns were raised by the Government when the matter was discussed in the Commons. The first argument advanced by the Government was that, rather than contacting a lawyer, a person might contact someone they wanted to notify of the fact that they had been stopped. The Government further argued that that person might notify a lawyer who would not adhere to the professional standards that we would expect and who might pass some information on. The third argument advanced was that of a lawyer inadvertently passing on a piece of information. That appears to be the guts of the Government’s argument in favour of what is in the Bill at present.
As the Minister will know, the shadow Minister for Security in the Commons put forward a proposition that there should be a panel of lawyers, properly regulated, he said, by the Solicitors Regulation Authority and the Law Society. I have subsequently found out that not necessarily all lawyers hold those organisations in complete awe, but the principle was one of having a panel of lawyers that was properly regulated. In his response in the Commons, the Minister for Security said he thought that the suggestion was a good one and promised to take it away and look at it.
I hope that, in the light of that, we will be able to make some progress on this issue and that the Minister, on behalf of the Government, will be able to indicate movement—a great deal of movement, I hope—on the Government’s part towards the objective of ensuring a right to legal advice, to access a solicitor and to do so in private.
Lord Anderson of Ipswich (CB)
My Lords, the provisions relating to access to a lawyer, so far as they replicate those in Schedule 7, which I understand they are intended to do, should be seen against the background of three matters.
First, the maximum period under both schedules is six hours’ detention, which was reduced from nine hours a few years ago and from much longer periods during the Troubles, when, as now, these controls could be applied to travellers between Northern Ireland and Great Britain—a long-standing example of a border down the Irish Sea. Secondly, some of these seaports and airports are remote, and stops, let alone detentions, are so unusual that it would be quite impracticable always to have a panel of lawyers on tap. Thirdly, a fact long considered obvious by the courts, and now enshrined in Clause 16, is that answers given under these compulsory powers may not be used in subsequent criminal proceedings save in the special circumstances outlined for Schedule 7 by the Supreme Court in Beghal and echoed in the Bill.
The last of those factors caused Mr Justice Collins, in the case of CC, in 2012, to doubt whether there was any value at all in the presence of a lawyer during Schedule 7 questioning, since no responsible lawyer could advise their client to break the law by remaining silent. That view was rejected by the Divisional Court in the case of Elosta, which held that:
“The solicitor does have a useful, if limited, role to play”.
The fact remains that there are differences between an examination under Schedule 3 or Schedule 7, on the one hand, and a classic police interview under caution, on the other. It is perhaps also relevant to have in mind that, unless I am mistaken—I am sure I will be corrected if I am—these equivalent powers appear not only under Schedule 7 to the Terrorism Act but under Schedule 8, where detention for much longer periods, of up to 14 days, is contemplated.
Before the Minister thinks I have become too tame, let me please make this point. The operation of any powers to delay or impose limitations on access to legal advice, if they are to continue and to be extended, must be subject to effective independent review. This will only be possible if the reasons are recorded, as is correctly provided for in Schedule 3, and if the number of occasions on which they have been used is published, so that concerned citizens are aware and the independent reviewer can investigate individual cases or draw attention to and explore the reasons for any increasing trend in the use of the powers.
The number of occasions on which access to a solicitor has been delayed for those detained under Schedule 8 is logged meticulously in Northern Ireland and published by the NIO in its annual statistics on terrorism legislation. The latest figures tell us that between 2001 and March 2018, only five persons in Northern Ireland were refused immediate access to a solicitor. However, effective review requires the equivalent figures to be available for the whole country.
I was given to understand four years ago by the Home Office—not for the first time—that this was work in progress, at least where Schedule 8 was concerned. Will the Minister undertake that the statistics relating to delayed and conditional access to a solicitor on the part of those detained under the Terrorism Act and the new hostile state activity powers will be published across the country; and will she tell us whether there is anything she can do to speed things up a bit?
Baroness Williams of Trafford
My Lords, I thank noble Lords for their comments on these amendments, particularly the noble Lord, Lord Marks. I hope that by the end of my remarks, your Lordships will be more satisfied about the progress of the Bill in this area.
The amendments in this group raise the important issue of a detainee’s right to access a solicitor when detained under the ports powers in Schedule 3 to the Bill or Schedule 7 to the Terrorism Act 2000. These amendments seek to ensure that where an individual has been detained under these schedules, the examining officer must postpone questioning until the examinee has consulted a solicitor in private.
I am aware that the right to access a solicitor under these ports powers was the subject of much debate as this Bill was scrutinised in the House of Commons, as the noble Lord, Lord Rosser, pointed out. The good speeches at Second Reading in this House served as a fitting reminder that, as new threats emerge, we must continue to be steadfast in our commitment to the principles that our laws and practices are founded on.
The powers under these schedules would afford any person formally detained the right to consult a solicitor, privately, if they request to do so. In the vast majority of cases where an individual has been detained under these powers, there will be no reason to interfere with that right. In exceptional circumstances, however, there may be a need for a more senior police officer to restrict that right where the officer has reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences—for example, interference with evidence or the gathering of information; injury to another person; alerting others that they are suspected of an indictable offence; or hindering the recovery of property obtained by an indictable offence.
I have listened carefully to the debate; it is clear that there are particular concerns about the restrictions under these schedules that would allow an assistant chief constable to require the detainee to consult their solicitor within the sight and hearing of another police officer. Let me explain that the intention behind this restriction is to disrupt a detainee who seeks to exploit their right to consult a solicitor by using the solicitor as a conduit to pass on instructions to a third party, either through intimidation, willing collusion or the use of a coded message, as the noble Lord, Lord Marks, pointed out. Reasonable grounds for belief might develop where prior intelligence indicates that the individual may seek to obstruct an examination, either because they have a history of doing so or they have been trained to evade, frustrate or subvert police examinations. The officer might also witness interactions between the individual and their solicitor that alerts them to the possibility that the detainee is intimidating their solicitor.
Amendments 85, 86 and 88 and the equivalents in the new clause proposed by Amendment 63 would see these restrictions removed from Schedules 3 and 7 in their entirety. I understand the rationale for these amendments and recognise the force of the arguments that have been made in defence of the principle of lawyer-client confidentiality. At the same time, we are all here because we recognise the threat that we face from hostile state actors and terrorists and the risk of leaving loopholes to be exploited.
As alluded to by the noble Lord, Lord Rosser, during the debate on similar amendments on Report in the House of Commons, the Security Minister undertook to consider the proposal of the Opposition Front Bench to allow a senior officer, in such circumstances, to direct that the detainee use a solicitor from an approved panel—a point mentioned by the noble Lord, Lord Marks, and the noble Lord, Lord Rosser, who reiterated this same proposition in today’s debate. Such an approach may offer an acceptable way through this issue and I can undertake to give sympathetic consideration to his amendment in advance of Report.
However, I cannot be so accommodating about Amendment 84 because it would remove the power under Schedule 3 to delay a consultation between the detainee and their solicitor where a senior officer has reasonable grounds to believe that the exercise of this right will result in the consequences I have previously described. Powers for an officer to delay the communication of the fact of a person’s detention to a named person and to delay that detainee’s access to a solicitor have been enshrined in PACE for many years. These powers are therefore not novel but are familiar in the wider policing context and allow the police to delay contact with a third party or consultation with a solicitor where there are reasonably founded concerns that knowledge of the person’s detention may result in serious consequences. Removing this power of delay would undermine the ability to mitigate these risks.
I have already addressed part of Amendment 63 but let me now respond to the proposed changes to the other powers that allow an examining officer to restrict a Schedule 7 detainee’s access to a solicitor. These restrictions under Schedule 8 to the 2000 Act currently allow an examining officer to question a detainee without a consultation having first taken place with a solicitor in person. However, I must point out that this does not preclude the detainee from consulting a solicitor via another means—for example, by telephone.
These powers can be exercised only where the officer reasonably believes that to wait for the solicitor to arrive in person would prejudice the determination of the relevant matters. Amendment 63, however, would limit the availability of these restrictions to a situation where waiting for the solicitor to arrive in person could create an immediate risk of physical injury to any person. This is contrary to the intention of the powers, which were designed to mitigate the risk of a detainee using their right to consult a solicitor to obstruct and frustrate the examination and run down the short detention clock. As noble Lords will be aware and as the noble Lord, Lord Anderson, pointed out, the maximum period of examination is limited to six hours. It would not take a trained terrorist or hostile actor to work out that if they were to insist on speaking to a solicitor, in person, who happens to be located many miles away from the port where they are being examined, they have a means of significantly delaying their examination.
The current powers under Schedule 8 provide a practical solution to mitigate that risk by allowing the person to consult that solicitor over the phone. If the person refuses that alternative, or the solicitor is unavailable, the officer can continue questioning the person while they wait for the solicitor to arrive. Any decision by the officer to apply these restrictions must be clearly recorded.
Before using these restrictions, the examining officer will exhaust all other means to ensure that the detainee has been able to consult a solicitor in private, including directing them to a solicitor of the duty solicitor scheme. The changes proposed in Amendment 63 would resurrect the risks that I have described and undermine key powers for countering terrorism.
The noble Lord, Lord Anderson, asked about recording when restrictions are used in Great Britain and Northern Ireland. We will consider with our operational partners which statistics it would be appropriate to publish with regard to Schedule 3. I hope that the noble Lord is satisfied with that response and I will keep him updated.
Lord Anderson of Ipswich
The noble Baroness has asked whether I am satisfied with the response. As the independent reviewer, I was told four years ago that this was happening, and it was not the first time that I had been told it was happening, in relation to Schedule 8. I am sure that the Minister did not mean to backtrack on that commitment, but I would be very grateful if she felt able to give someone a bit of a push.
Baroness Williams of Trafford
I was going to use the word “shove”, but I will give them a push instead, which is probably more in keeping with your Lordships’ House.
Perhaps I may move on finally to Amendments 83 and 87. I draw the attention of the Committee to the draft Schedule 3 code of practice, which I have already circulated to noble Lords. Like its equivalent for Schedule 7, the draft code is clear that a person detained under either power must be provided with a notice of detention that clarifies their rights and obligations. The examining officer must also explain these rights and obligations to the detainee before continuing with the examination. In addition, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.
The Government are in complete agreement that any person detained under Schedule 3 should be informed of their rights before any further questioning takes place. It has always been the case through the exercise of Schedule 7 powers and it is why we have made it explicit in the equivalent draft code of practice for Schedule 3. While the Government are clear that the intention behind these amendments has already been satisfied through the provision of the draft code, I am now ready to consider further the merits of writing such a requirement into Schedule 3 and Schedule 8 to the Terrorism Act.
With those remarks, I hope that the noble Lord, Lord Marks, will be content to withdraw his amendment.
Lord Marks of Henley-on-Thames
I am grateful to the Minister for the points that she has said she will consider. We will wait to hear the results of that consideration. I also thank all noble Lords who have spoken in the debate. Although I do not necessarily come from the same position as the noble Lord, Lord Anderson, on these amendments, he made an important point about the recording of incidents when the right of consultation with a solicitor is either delayed or restricted. Whether it is a push or a shove that is needed, it would be helpful if that could be clearly achieved.
I also make the point that while it is helpful that, in the vast majority of cases, the Government intend to ensure that the right to consult a solicitor in private in a timely and confidential manner is preserved, they should not underestimate the importance of the confidentiality of advice—a point made eloquently by the noble Lord, Lord Pannick. That is of course particularly relevant in circumstances where answering questions under these powers is compulsory. I therefore invite the Government to consider carefully, over and above the matters that the Minister has said she will consider, how far more proportionate ways of ensuring that detainees do not disrupt the purposes of their examination can be achieved without compromising confidentiality or the fundamental right to consult a solicitor. If we have that assurance—I note that the Minister is nodding in assent—I am happy to withdraw my amendment. However, it is a matter that we may well return to on Report.
Lord Rosser
“(3A) In order to inform a decision on whether to select a person for questioning under this paragraph an officer may approach a person and ask questions for screening purposes. (3B) Screening under sub-paragraph (3A) may include, but is not limited to—(a) asking questions to establish the identity, provenance and destination of a person;(b) asking questions to establish the method of travel and purpose of travel of a person;(c) scrutiny of a person’s travel document;(d) a comparison of the holder against the image contained in the document;(e) requesting additional documents from the person relevant to screening;(f) checking personal information against records where there is no significant additional delay.(3C) It is not an offence for a person to refuse to answer questions asked for screening purposes or to refuse to otherwise engage with officers in the screening process. (3D) An officer must inform any person they approach for screening purposes that they are not obliged to answer questions or engage with the officer on the screening process.(3E) An examining officer must not exercise powers under this Schedule, with the exception of the power to approach a person for screening purposes under sub-paragraph (3A), in respect of any person unless that person has been notified that an examination under this Schedule has commenced.”
Lord Rosser
My Lords, as has been said, the Bill provides for a person to be questioned and detained under Schedule 3 powers and makes it an offence to refuse to answer questions in examinations. The draft code of guidance, which we have now seen, recognises that there may be a preliminary stage of questioning during which people may be screened before an officer chooses to officially question them under the schedule. During screening, a person is not required to answer a question they do not want to and the code of practice states that a person must be told when the screening ends and an official examination begins. The purpose of this amendment is simply to put the screening process, the right of a person not to answer questions and, equally importantly, the right of a person to be told when screening ends and questioning begins on to the face of the Bill.
The screening does not appear to be an insignificant process. The draft code of practice, which we have sought to enshrine in the amendment, sets out the kinds of questions that can be asked and the issues that can be raised during the screening process. It states that there is no requirement for officers to keep a record of a screening interaction unless the person is subsequently selected for a Schedule 3 examination. There will be circumstances in which there is a requirement to make a record of a screening interaction. Indeed, it also says that while the screening of persons should take only a few minutes—I do not know what “a few minutes” is in this context—it states:
“If it appears that this period will take significantly longer, the examining officer must conclude the screening process and either commence a Schedule 3 examination or notify the person that they have no further questions”.
Again, in a situation where they run out of time and decide to commence a Schedule 3 examination, a record of the screening interaction must be made.
It is not clear to us at the moment why no reference to this process has appeared in the Bill. One purpose of the amendment is to get an answer to that question since it would appear to be a part of the process under Schedule 3, which we have been discussing. I beg to move.
Lord Anderson of Ipswich
My Lords, for every person who is subject to a Schedule 7 examination, as I often used to report, some 10 to 20 others are asked light-touch screening questions on a consensual basis, as a result of which it is determined that a Schedule 7 examination is not necessary. The prevalence of screening questions may explain the discrepancy between the low and rapidly declining incidence of Schedule 7 examinations, on the one hand—I think they are running at around a quarter of the level they were when the noble Lord, Lord Carlile, handed over the post of independent reviewer to me—and, on the other hand, the perception of some people that they are stopped on a routine basis when they travel abroad. I reported in 2016 the example of a security-cleared government lawyer with a Muslim-sounding name who had been stopped by police on each of the last five occasions that he had left the country and on the majority of occasions when he re-entered it. On each occasion, as he acknowledged, he was stopped for screening questions only. Because screening questions are not recorded, there was of course no way of alerting ports officers of the previous fruitless stops.
I agree with the noble Lord, Lord Rosser, that the parameters applicable to screening questions need to be clearly set out under Schedule 3 to the Bill, as under Schedule 7. The draft code of practice, which I thank the Minister for providing well in advance, goes a long way towards doing that, although I am not sure that it cracks all the old chestnuts, one of them being how, if at all, one can administer screening questions to a coachload of people who are on their way to a possibly troubled part of the world.
As to whether screening questions should go into statute, the noble Lord is not alone in his provisional view. Senior ports officers have said to me—as I have recorded in the past—that if screening questions appeared in Schedule 7, we would all know where we stood. Against that, one thinks of the provisions in PACE Code C relating to “voluntary interviews”, which are not enshrined in the Police and Criminal Evidence Act 1984, no doubt because of the moral and social duty, as it has been described by the courts, that every citizen has to give voluntary assistance to the police. I approach this issue with an open mind and look forward to hearing what the Minister has to say. In particular, can she tell us whether she has consulted the Investigatory Powers Commissioner, who is to have oversight of Schedule 3 and, if so, what he had to say, because I suspect that his view may help to inform mine?
Lord Carlile of Berriew
My Lords, my noble friend Lord Anderson tempts me to say a few words on this matter. He is absolutely right that the number of Schedule 7 stops declined dramatically over the years, and there was a very good reason for it. When I became Independent Reviewer of Terrorism Legislation, a phrase commonly used with me was “copper’s nose”. I was extremely concerned, because—if the noble Lord, Lord Paddick, will forgive me—coppers do not always have the same-sized noses nor the same air throughput into them. Some officers started to develop them for themselves. The noble Lord, Lord Hogan-Howe, is no longer here, but some officers in Scotland Yard with what is now called SO16 demonstrated to me how they had refined copper’s nose into a series of behavioural analyses that led them to decide whether and how to ask screening questions. A whole behavioural science has built up around this; it is called behavioural analysis. It emanated from America, but it has been well used by police officers here—I have been to a number of lectures about it.
I regret that the formalisation of screening questions, as suggested in the amendment, is completely impractical. My noble friend Lord Anderson referred to a coachload of passengers. One place that I used to visit quite regularly was Dover port, where buses come through at speed. Officers go on to them and ask questions such as, “Where are you going?” or “When did you come to this country?”, usually based on a reason that they have derived from the methodology they use for the people they are questioning. Formalising this process would make it very slow and more oppressive in the minds of those asked simple screening questions. They do not mind being asked a simple question or two, but they would mind if it were done in a way that suggested that it was part of a formal police process.
The police generally do this very well. They should be left to do it as they do it. We should not over-formalise something which has evolved to a point where the people who are stopped, asked a series of questions and detained for a time, and whose attention is demanded for a time, are usually those of whom there are good reasons to ask more detailed questions.
Lord Paddick
My Lords, I accept what the noble Lord has just said, but in my reading of the amendment, which uses the phrase,
“may include, but is not limited to”,
it would not limit the sorts of questions that could be asked, but it would differentiate formally between a Schedule 7 situation and asking the simple questions as indicated in it.
Lord Carlile of Berriew
Does the noble Lord really think that an examining officer getting on to a bus at Dover should walk up to a passenger and say, “I am notifying you that an examination under Schedule 7 to the Terrorism Act has been commenced. You’re not obliged to answer any questions or engage with me during this screening process. It is not an offence to refuse to engage with me in any way during this screening process. Where are you going?”? It sounds an absurdity, and it would be obstructive to the normal work of police officers under Schedule 7. Does the noble Lord not agree that, although the number of Schedule 7 stops has been reduced dramatically, there remains effectiveness in Schedule 7, which was never shown, for example, in Section 44 stop and search, which he will remember well?
Lord Paddick
My reading of the amendment is that it would differentiate between a Schedule 7 encounter, where the person is not entitled to silence and has to answer questions because they commit an offence if they do not, and the informal process that leads up to a Schedule 7 encounter.
Baroness Williams of Trafford
I thank noble Lords for their points on this amendment. I start by saying to the noble Lord, Lord Anderson, that the IPC has been consulted throughout the drafting of the code.
The interactions between noble Lords probably go to the root of the amendment proposed by the noble Lord, Lord Rosser. The section on screening outlined in the Schedule 3 code, which mirrors the existing guidance for the equivalent CT powers, is there to provide ports officers with clarity on the distinction between questions that can be asked by police officers in the ordinary course of their duties with a view to deciding whether to examine someone and questions that are permissible only once a Schedule 3 examination has commenced; that is, those questions designed to elicit information to enable an officer to determine whether the person is or has been concerned in hostile activity.
We have all come across police officers as we go about our daily lives and are used to seeing them on local streets and in tourist hotspots or protecting our national infrastructure. Wherever officers are on the ground, it is reasonable to expect them to interact with the public. It is not only a reasonable expectation but a vital aspect of front-line policing.
Such interactions will vary and depend on the specific purposes. They may range from polite conversation between an officer and a member of the public to a situation where an officer wants to query why a person is acting in a certain way or why they are present in a certain place. In such circumstances, police officers do not rely on specific powers of questioning; rather, they are simply engaging members of the public during their ordinary duties, as the noble Lord, Lord Carlile, pointed out. It is no different when officers are stationed at UK ports.
It would be unusual if officers did not interact with the public in this way. It would be even more unusual if front-line officers were not able to use those interactions to determine whether any further action was needed. It is unfortunate that, in trying to clarify this distinction between what would constitute questioning or interaction during ordinary police duties and questioning that can take place only once a Schedule 3 examination has commenced, the language and intention of the code have somehow been misunderstood.
Let me be clear: what is referred to as “screening” in the draft code is not a prescribed process or procedure that ports officers must adopt before selecting a person for examination. It is a clarification of what questions can be asked, if appropriate, prior to selection for examination, as against the questions that can be asked only during an examination.
It is quite possible that a ports officer will speak to members of the public at a UK port in the course of their duties with no intention of selecting them for an examination of any kind. Of course, the person’s behaviour might lead the officer to consider use of a police power, but Amendment 63A could have the unfortunate implication that, in other contexts and absent specific statutory powers, officers are unable to talk to the public or request to see their documents in the ordinary course of their duties to determine whether they need to take the further step of invoking their legal powers. It would define such questioning as being part of the Schedule 3 examination itself, rather than something that takes place before an examination. All that said, even though I do not agree with the amendment, we will consider whether further clarity is needed in the code before formally laying it before Parliament for a debate and approval by both Houses. I hope that, with that assurance, the noble Lord will be content to withdraw his amendment.
Lord Rosser
I thank the Minister for that response and all other noble Lords who have participated in this brief debate. I am grateful to the Minister for saying, if I understood her correctly, that there will be further reflection on this issue. I accept that she has not, on behalf of the Government, accepted the amendment. I do not know whether it is the listing of potential questions that is the cause of the difficulty. If it is, one solution might simply be to make reference to the fact that there may be a screening process, without laying down specifically what the questions are that may or may not be asked as part of it, since most of the debate seems to have centred on listing the specific questions. These, of course, were lifted straight from the code of practice.
Baroness Williams of Trafford
I think that the noble Lord, Lord Carlile, put it correctly. Rather than prescribe a list of questions, I am seeking to get clarity within the code in due course.
Lord Rosser
I take it from that that the Minister will be coming back to let us know the outcome. On that basis, I thank the Minister for her response and I beg leave to withdraw the amendment.
Lord Anderson of Ipswich
Lord Anderson of Ipswich
My Lords, this amendment goes to the purposes for which the Schedule 3 power can be used. It raises what I believe is an important point of principle, to which there may, however, be a pragmatic solution. Schedule 3, like Schedule 7, contains perhaps the most extensive police powers anywhere in the statute book, extending to questioning, with no right to silence, detention, the taking of fingerprints and DNA samples, and the downloading of mobile devices and the long-term retention of their content, all without the need for any objective or even subjective suspicion of wrongdoing. Those powers are already used under Schedule 7 by police of all ranks, at very short notice, in seaports and airports both large and small, and anywhere within a mile of the Northern Irish border. Their extraordinary strength makes it all the more important that the purpose for which the powers can be used is clearly defined and understood.
Schedule 7 is limited to the purpose of determining whether someone is a terrorist. Having learned from intelligence reports that it was in practice being extensively used also for the purpose of determining whether people were involved in proliferation or espionage, I suggested some years ago, as independent reviewer, that the reach of the power could usefully be extended to these other purposes. This would have put practice in accordance with the law, and it would have avoided the absurdity of having to pretend that David Miranda, stopped under Schedule 7 when carrying documents through Heathrow Airport stolen by Edward Snowden, might have been a terrorist, when more obvious explanations, falling outside the scope of Schedule 7, suggested themselves.
After the Salisbury incident, this suggestion found favour with the Government. Schedule 3 powers, it is proposed, may be used for counterproliferation and counterespionage, and to determine whether persons crossing the border are involved in other forms of hostile activity, such as assassination, whether or not with biological weapons. For myself, I entirely support that objective. Where I part company with the Bill is in the suggestion that these very extensive powers, memorably described by my noble friend Lord Carlile in his regular talks to the police as a Ming vase—precious and to be treated with very great care—should be used in order to determine whether a traveller has been engaged in activity which is perfectly lawful.
That is the consequence of paragraphs 1(6)(a) and 1(6)(b) of Schedule 3. National security, as is well known, is nowhere defined in legislation, or even in the draft code of practice. The concept of threats to the economic well-being of the United Kingdom is more nebulous still and as the noble Lord, Lord Paddick, said, it is not even linked in Schedule 3, as it is in other contexts, to the concept of national security, let alone to a concept as specific as the critical national infra- structure, to which the Minister referred earlier. Acts falling into these categories need not be crimes. Indeed, they need not even be carried out for or on behalf of a foreign state; it is enough that they are judged by the officer on duty to be in the interests of such a state.
It is quite true that MI5 is tasked by Section 1 of the Security Service Act 1989 with the functions of protecting national security and safeguarding the economic well-being of the United Kingdom from foreign threats. No one would quarrel with that. My unease stems from the proposal that the police be given new and very strong coercive powers, powers that intrude into civil liberties and that are not allowed to our intelligence agencies, for the purpose of determining whether persons may have acted in ways that are not contrary to the law.
I am concerned by that. The police are entrusted with executive powers for the purpose of detecting crime and enforcing the criminal law. We have a wide range of offences relating to CBRN materials, espionage, sabotage and other types of hostile state activity. If that range is insufficient, or if the sentences are too short, as the Minister indicated she thought might have been the case with some of the lesser offences under the Official Secrets Act 1989, it is open to the Government to seek change. They could change the law on official secrets or change their own definition of serious crime for the purposes of the Bill, as they apparently had no difficulty in doing in the Data Retention and Acquisition Regulations. I see the noble Lord, Lord Paddick, nodding ruefully: those regulations were considered only very recently by the House. I think that in that case the definition was reduced to 12 months, so if the issue is the sentences of only two years for lesser offences under the Official Secrets Act 1989, that is worth thinking about.
The Bill as it stands would allow these strong coercive powers to be used by any police officer for the purpose of defining whether people have acted in undefined ways that the Government may not like but have not chosen to make unlawful. I am not sure that I can think of any precedent for this, and I would be grateful if the Minister would tell me if she knows of any. In their human rights memorandum, the Government rely heavily, in relation to Schedule 3, on the majority decision of the Supreme Court in the case of Beghal on Schedule 7, but in Schedule 7 the scope of non-consensual police powers is strictly defined and limited to the detection of serious criminal activity. That is certainly not the case here.
My noble friend Lady Manningham-Buller, who I know cannot be in her place at the moment, thought that the current version of the schedule could perhaps be swallowed as a temporary patch—perhaps pending the amendment of the Official Secrets Act or a change to the definition of serious crime. I am not very reassured by that. Temporary patches sometimes have a way of turning into slippery slopes. I shall listen carefully to the Minister, but I wanted to signal by this amendment that I am troubled.
Lord Judge
I support this amendment, as I have supported every one of my noble friend Lord Anderson’s amendments to the Bill. Every time he has spoken during our debates and said things that are agreeable to the Government, he is wise and elegant—I cannot think of all the many complimentary adjectives that have rightly been paid to him. When he raises a point with which the Government do not agree, can they please reflect that he is wise, elegant and so on and so forth, so that his submissions to the Government are taken with the seriousness they merit? I entirely support the noble Lord’s expressions of anxiety about the breadth of this provision. If I may say so, we could make life much easier for everybody who has to administer it, not least the examining officer, if we just reflected on a way of amending it slightly.
I added my name to the noble Lord’s amendment. I support it. But I have listened to the debate this afternoon and I see that there are problems with it, in particular the problem raised by the noble Baroness, Lady Manningham-Buller, who, as has just been said, is not now in her place. But we really could turn sub- paragraphs (6) and (7) into a much simpler piece of legislation by saying that an act is a hostile act if it is an act of serious crime and then at sub-paragraph (7)(d) defining serious crime—I know it is defined differently in different parts of terrorism legislation, but this is a new power, in effect producing a new scheme and a new way of administering it—if on conviction the offender would be liable to a term of imprisonment of two years. That, I think, would cover all the various matters raised earlier by the noble Baroness, Lady Manningham-Buller, and it might make life much easier for everybody.
Lord Pannick
I share the concern about the breadth of the definition of “hostile act” as covering acts which threaten “national security” or,
“the economic well-being of the United Kingdom”.
These concepts are vague to the point of absurdity. No doubt some people would say that the Prime Minister’s Brexit deal threatens the economic well-being of the United Kingdom. I would not share that view, but some people might. Because of the vagueness of these concepts, they would inevitably confer extensive discretionary powers, which are inimical to the rule of law. Because they are so vague, they would inevitably also inhibit perfectly lawful activities.
Lord Paddick
My Lords, I do not want to add to the comments that I made in the debate on whether Clause 21 and Schedule 3 should stand part of the Bill, which echoed the comments of other noble, and noble and learned, Lords.
As the noble Lord, Lord Anderson of Ipswich, has said, regulations that we recently considered that were made under the Investigatory Powers Act radically redefined “serious crime” to mean offences which carry a minimum sentence of 12 months’ imprisonment but also all offences involving communication or the invasion of privacy. The Government are quite capable of redefining—and in fact have redefined—serious crime to fit more precisely the powers referred to in different pieces of legislation, even regulations made under a piece of legislation in which the definition of serious crime is different. So I do not agree with the noble Baroness, Lady Manningham-Buller, who mentioned earlier that it would not capture Official Secrets Act offences, because the Government, as has been suggested, can change, have changed and could change the definition of serious crime in relation to Schedule 3 powers.
Lord Rosser
I will be very brief indeed. We will listen with interest to what the Government have to say in response to the amendment moved by the noble Lord, Lord Anderson of Ipswich, but—obviously, subject to what the Government say—it seems to us to have considerable merit.
Baroness Williams of Trafford
My Lords, I echo the words of the noble and learned Lord, Lord Judge: the noble Lord, Lord Anderson, is indeed wise and elegant in his words. As the noble Lord has explained, this group of amendments deals with the definition of “hostile act” in Schedule 3.
It is important to emphasise that the design of any new power should be specific to the threat it is seeking to mitigate. The scope of this power has been designed to do just that; namely, to mitigate the known threats from hostile state activity. The danger of these amendments, therefore, is that they will limit the scope of the power, thereby limiting the range of threats that it has been designed to combat.
For the benefit of the Committee, the ports powers under Schedule 3 will be used by examining officers at UK ports or the border area,
“for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.
A person is engaged in hostile activity if they are,
“concerned in the commission, preparation or instigation of a hostile act that is or may be … carried out for, or on behalf of, a State other than the United Kingdom, or … otherwise in the interests of a State other than the United Kingdom”.
Under this schedule, a hostile act is defined as an act that,
“threatens national security … threatens the economic well-being of the United Kingdom, or … is an act of serious crime”.
By replacing “hostile act” with “serious crime”, these amendments would significantly narrow the range of hostile activity that these powers are designed to counter. It would undoubtedly limit the ability of our ports officers to detect, disrupt and deter hostile actors. Serious crime is defined in the Bill as being an offence which could reasonably be expected to result in,
“imprisonment for a term of 3 years or more, or … the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”.
Some of the activities which I believe noble Lords would expect to be captured through these new powers would not fall within the scope of the truncated definition of hostile activity. As the noble Baroness, Lady Manningham-Buller, explained earlier, some offences under the Official Secrets Act 1989 attract a maximum penalty of only two years’ imprisonment and may not involve the use of violence, result in financial gain or involve a large number of people acting in pursuit of a common purpose. Consequently, an examining officer would not be able to exercise Schedule 3 powers for the purpose of detecting, disrupting or deterring this type of hostile activity even if the activity threatens national security or could be prosecuted for offences under the Official Secrets Act. This is simply not acceptable.
There may even be occasions when we have intelligence to suggest that a person linked to hostile state activity is travelling to the UK for a hostile purpose but the intelligence we have is incomplete and the nature of the hostile purpose cannot be determined; therefore, we cannot assess whether the purpose is linked to a serious crime. In this circumstance, it would be very important to have a power to stop and examine them at the port to establish the nature of the hostile act.
As noble Lords will know, following the appalling acts in Salisbury, the Government are undertaking a review of legislation to combat hostile state activity. Hostile activity, by its very nature, is often covert and undertaken by foreign intelligence officers or their agents seeking to acquire sensitive information to gain an advantage over the United Kingdom and undermine our national security. On occasions this activity may not be considered criminal under the law as it stands; for example, if a foreign intelligence officer intended to travel to the UK to maintain or build a relationship with employees contracted to work on UK defence projects with the aim of acquiring sensitive information, this may not be a crime but it would be imperative to detect and disrupt this activity at the earliest opportunity, before irreversible damage to our national security occurred.
It is entirely plausible that a hostile actor should want to visit the UK in order to collect classified documents from an agent who had committed acts of espionage on their behalf. It is not a crime for the hostile actor to receive these documents and leave the country but, although the individual has not committed a crime, a Schedule 3 examination would enable an examining officer to make a determination as to whether they have been engaged in a hostile act. An examination would also allow the examining officer to remove the classified documents from the hostile actor, preventing the disclosure of potentially damaging information.
Even though the purpose of a Schedule 3 examination is to make a determination as to whether the actor has been engaged in a hostile act, exercise of the power may provide a number of secondary benefits. In instances such as the example I have just talked about, it would provide the first leads into an investigation to detect who the agent is—if we did not already know—and prevent the documents from ever being disclosed. These investigations may or may not lead to future prosecutions. It is therefore right to give the police the power to investigate hostile state activity, even at a preliminary stage before we have reasonable suspicion that a foreign intelligence officer has committed an offence. I know that noble Lords do not really think that the police should not have the power to stop someone who is from, or acting on behalf of, a foreign intelligence service as they enter or leave the United Kingdom.
If we were to accept these amendments, traditional behaviours undertaken by hostile states which have the potential to have such a detrimental effect would fall out of scope of the power and we would not be able to detect, disrupt or deter them. I put it to noble Lords that such activity should not go unchallenged. The definition of “hostile act” is necessarily broad to ensure that the powers capture the full range of activities which hostile actors engage in. We recognise the concerns that have been raised and I reassure the Committee that these were considered in the drafting of Schedule 3. This is why we have explicitly restricted the definition to an act that is carried out for, or on behalf of, or otherwise in the interests of, a state other than the United Kingdom.
I also recognise the concerns about the term,
“economic well-being of the United Kingdom”.
As has been pointed out, there may be instances where an act undertaken by a hostile state actor threatens that economic well-being yet does not threaten our national security; it is also true for acts of serious crime. Economic well-being, like national security, is a term already used in UK legislation. The intention of this limb of the definition is to ensure that these powers can be used to mitigate hostile acts which could damage the country’s critical infrastructure or disrupt energy supplies to the UK. For example, if an employee in the banking sector of the City of London discovered a serious vulnerability in computer networks and shared this information with a hostile state, it would drastically undermine confidence in the City of London and cost the UK economy millions, if not billions.
I hope that with these explanations, the noble Lord will feel content to withdraw his amendment.
Lord Anderson of Ipswich
My Lords, I am grateful to the Minister and to all noble Lords who contributed to this debate, including the noble Baroness, Lady Manningham-Buller, who made her remarks earlier.
I asked the Minister whether she could give another example of the police being given strong, coercive powers for the purpose of determining whether people are acting in a way which may be undesirable but which is perfectly lawful under the law of the land. I do not think that I had an answer and, if there is no answer, I would suggest that the Bill as written constitutes a new and very dangerous departure. That is the point of principle behind this amendment and, with great respect to the Minister, she did not address it in her reply. I hope that the Minister will consider this carefully because my concerns, as she has heard, are shared by lawyers far more distinguished than I—and not only by lawyers.
As to the pragmatic solution, the Minister has heard suggestions as to how the scope of this power could be reduced in a way that achieves its objectives in a manner more consistent with the principle of legality. I hope that she will deliberate further on those suggestions. I would be more than happy to discuss them with her but, in the meantime, I beg leave to withdraw the amendment.
Lord Rosser
“( ) The Investigatory Powers Commissioner (“the Commissioner”) must be informed when a person is stopped under the provisions of this paragraph.( ) The Commissioner must make an annual report on the use of powers under this paragraph in the border area.”
Lord Rosser
As has been said on more than one occasion, Schedule 3 deals with border security and the power to stop, question and detain and states:
“An examining officer may question a person for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.
It goes on to say:
“An examining officer may exercise the powers … whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.
There does not need to be reasonable suspicion. That is a very considerable power and safeguards are needed to ensure that it is used in a necessary and proportionate manner. Amendment 67ZA seeks to have such a safeguard in relation to this power by providing that the Investigatory Powers Commissioner,
“must be informed when a person is stopped”,
and,
“make an annual report on the use of”,
this power.
In the schedule, there is provision for the Investigatory Powers Commissioner to keep under review the operation of the many provisions in the schedule and make an annual report to the Secretary of State about the outcome of the review. In the Commons, the Government were asked whether in carrying out the review process and producing the report—under Part 6 of Schedule 3 —the commissioner would be aware of every stop that had taken place. Our amendment provides that the commissioner must be informed of such stops. The initial reply from the Minister in the Commons was “Yes”, but he then went on to say:
“Although the commissioner will not be informed every time someone is stopped, the numbers will all be recorded, and he will have the power … to investigate those stops while doing the review”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 5/7/18; col. 190.]
That appears to be a qualification of the initial answer of yes. The information that the commissioner will get is the numbers—perhaps total numbers—but that may apparently be some time after individuals have been stopped.
This amendment provides that the commissioner must be informed when a person is stopped. Will the Investigatory Powers Commissioner be informed when people are stopped, questioned and detained or only given numbers at a frequency that is unstated? Will the commissioner be told why people have been stopped, questioned and detained, or will he or she have to inquire about that when given overall numbers at some later stage?
As I understand it, the Government’s argument appears to have been that the Terrorism Act 2000 powers on counterterrorism have been used to stop, question and detain people where there is an issue of potential hostile activity, and that the Bill simply regularises what is already happening. If I have understood the Government’s argument, does that mean that they expect no increase in the number of people being stopped, questioned and detained at our borders, particularly at the sensitive border in Ireland between north and south? One could put that interpretation on it, if it is correct that the Government are saying that the Bill simply regularises something that has been happening under the powers in the Terrorism Act 2000. But if not, and the Government expect an increase in the numbers of people being stopped as a result of this provision, on what scale is that increase expected to be? I beg to move.
Baroness Hamwee
My Lords, I was not clear whether the noble Lord, Lord Rosser, was using this amendment to seek more information, but we wonder about the operational practicality of its first paragraph. It suggests that if the commissioner is informed of a particular stop, they would have some power or role to respond. More important are the points implicit in what the noble Lord said about keeping records or data. In another context, the noble Lord, Lord Anderson, used the term “meticulous” about keeping records in Northern Ireland, and reference was made to using them as the basis for review of practice. That is very important and although we have hesitations about the amendment’s first paragraph, what has prompted it is important.
Baroness Williams of Trafford
As the noble Lord, Lord Rosser, pointed out, Amendment 67ZA would require an examining officer to notify the IPC each time a person is examined under Schedule 3 and require the commissioner to publish an annual report on the use of the powers in the Northern Ireland border area. In relation to the second part of the amendment, as the noble Lord stated, Part 6 of Schedule 3 already requires the commissioner to review the use of the powers and make an annual report.
The police will make a record of every examination conducted under Schedule 3, as they already do with Schedule 7. I reassure noble Lords that the commissioner will be afforded full access to these records on request, and to information on how the powers have been exercised. It would place an unnecessary burden on the examining officer to have to notify the commissioner each and every time a person has been examined.
Regarding concerns about how these powers will be exercised at the border in Northern Ireland, media and political commentary over the summer sought, wrongly, to conflate the introduction of this legislation with the discussions on the Irish border in the context of Brexit and concerns over the possibility of more stringent measures. The Security Minister wrote to the shadow Secretary of State for Northern Ireland on 4 October to address these concerns. I circulated a copy of that letter after Second Reading, so I will not repeat his response in full here. However, I want to reiterate that it is simply not the case that these powers will be used as an immigration control or to interfere with the right to travel within the CTA. Their application to the border area mirrors that of the analogous counterterrorism powers in Schedule 7 to the 2000 Act, which have been in operation for 18 years. In that time, we have not seen a blanket or large-scale use of these powers in the border area. In fact, the number of examinations in Northern Ireland as a whole during 2017-18 amounted to 6% of the UK total.
The Schedule 3 powers must be used only to determine a person’s involvement in hostile activity. The location and extent of their use will be informed by the threat from hostile activity and any decision to use them will be on a case-by-case basis. While the commissioner’s annual report will not provide a location breakdown of where the powers are exercised, for clear national security reasons, he will review police exercise of the powers, including their use in Northern Ireland.
The noble Lord, Lord Rosser, asked whether the Bill regularises stops that are already taking place under Schedule 7. The answer is no. Schedule 3 powers will be used only to determine whether a person is engaged in hostile activity. We have already discussed the definition of hostile activity. Its broad scope is to mitigate a range of threats. Schedule 7 is about persons engaging in terrorism.
I hope that I have been able to reassure the noble Lord, Lord Rosser, and that he will be content to withdraw his amendment.
Lord Rosser
I thank the Minister for that response and the noble Baroness, Lady Hamwee, for her contribution to this brief debate. The point I was seeking to clarify is that, as I understand it, the Government have maintained that sometimes the powers under Schedule 7 to the Terrorism Act 2000 were being used to stop people who, it might be argued, are involved in hostile activity. The point that I was trying to confirm is whether the Government feel that they are simply regularising what happened under another Act, or whether we are talking about a new group of people who may be stopped and detained. I gather from what the Minister said that we are, and that we are not talking about people who, rightly or wrongly, may have been stopped and detained under the Terrorism Act on the basis that it was counterterrorism.
I assume that the Minister is once again going to say that she is unable to respond, but are we expecting any significant increase in the number of people being stopped and detained? She said that they will be people who are not being stopped and detained at present under other powers when perhaps those powers should not have been used, and that these will be new people. Is that the situation? Is it likely to be an extensive number? She said that it would be very difficult for the commissioner to be advised every time somebody was stopped, which suggests that there will be significant numbers of people.
Baroness Williams of Trafford
Mercifully for the UK public, the number of people involved in hostile state activity is low. The commissioner will have access to all the reports. We are expecting far fewer stops than under Schedule 7. I think I expressed that, but in a different way. We do not expect a plethora of new cases. The IPC can have access to all the records, but he does not have to be informed every time. He will have all the information he needs.
Lord Rosser
I thank the Minister for that response. I want to reflect on what has been said. In the meantime, I beg leave to withdraw the amendment.
Lord Marlesford
“( ) give the examining officer on request a sample of P’s DNA.”
Lord Marlesford
My Lords, in putting down this amendment, I am not particularly concerned with what the power should be for stopping people, nor am I concerned with the way powers are used and the various matters that have been discussed about the retention of information. All I am concerned with is to make it more efficient than it appears to be under the Bill as drafted.
Paragraph 3(b) of Schedule 3 states that a person questioned under paragraph 1 or 2 must,
“give the examining officer on request either a valid passport which includes a photograph or another document which establishes P’s identity”.
It is an incredibly amateur way of doing things. Nowadays we have much better methods of establishing people’s identity. DNA is probably one of the best. It is now wholly unintrusive—you no longer have to take a blood sample or anything like that. You can simply take a swab. All I am suggesting is that the Bill should give those officers who feel it necessary to try to establish or record an identity the means of doing so in a much more certain way. This is a very limited proposal. I am merely suggesting that a tool should be included in this schedule.
Earl Howe
My Lords, I hope I can reassure my noble friend Lord Marlesford at least in part. As he has explained, Amendment 67A would allow an examining officer, during the course of a Schedule 3 ports examination, to require a person to provide a DNA sample. This would be in addition to the powers available to these officers to request information and identity documents.
The ability to establish a person’s identity is undoubtedly an important aspect of an examination to determine whether that individual is or has been engaged in a hostile activity. I therefore highlight to my noble friend that these powers already allow for the taking of fingerprints and samples to help to ascertain a person’s identity. Paragraphs 27 and 35 currently allow for the taking of fingerprints and samples where a person has been detained. This biometric information can also be taken from the detainee without their consent but only at a police station and if authorised by a superintendent who is satisfied that it is necessary in order to assist in determining whether the detainee is or has been engaged in a hostile activity, or to ascertain the detainee’s identity.
Lord Marlesford
My Lords, the only difference with what I seek is that, if it is thought necessary to investigate someone—not necessarily to detain them—and establish their identity, it is sensible to have the power to take a sample that will help to do so. That is my point. Once again, I am not contradicting what the Minister says about the powers that already exist for the taking of samples from persons who have been detained. I am concerned that when, for whatever reason, it is regarded as desirable to establish someone’s identity, at the same time there should be the power to take the biometric samples required, which I am suggesting should be DNA because that is so much more certain and easy now than it ever used to be. I honestly do not quite see what the Minister’s argument is against that. Perhaps he could comment a little further on that before I withdraw the amendment.
Earl Howe
The argument is that the police and the authorities believe they have all the powers that they need already, and that those powers enable them to detain a person, if they think it is necessary and if that decision is confirmed in the way that I described, in order to assist in determining whether the detainee has been engaged in a hostile activity or, as relevant to my noble friend’s amendment, to ascertain the detainee’s identity. If a suspicion arose about the individual’s identity, the detention process could offer a way through to enable the DNA sample to be taken.
Lord Marlesford
I hoped that my noble friend would realise that what I am proposing is the use of the DNA capability in circumstances where it is not necessary—at that stage, at any rate—to detain people. This almost goes back to the point that I made on Monday on the need to have identity numbers with secure biometrics—I never envisaged that the establishment of identity should be able to be done only when someone was detained. Being detained is a much more serious matter than merely asking someone to give a method of establishing their identity. That is where I am sure that not my noble friend but perhaps the Home Office misunderstands what I am trying to say. I do not know whether my noble friend would like to say anything further.
Earl Howe
I am grateful to my noble friend. Possibly the answer is for me to write to him after this Committee sitting. My feeling would be that to require someone who was not detained to supply a DNA sample would cross a civil liberties line that many would find uncomfortable. In my judgment, it should therefore be only for those detained—obviously you are detained only for a good reason—to be required to supply such a sample.
Lord Paddick
I agree with the Minister on the civil liberties issue. The other problem is that taking a DNA sample would assist in identifying who the individual was only if that person’s DNA had already been taken and was on the database. I do not think we have many Russian spies’ DNA that we would then be able to use to identify that they were hostile actors by taking a DNA sample from them. It is only a small proportion of the UK population who have been arrested and convicted and whose DNA would therefore appear on the database. So, in addition to the infringement of civil liberties of completely innocent people having to provide DNA samples, the proposed measure would be of limited benefit because of the limited nature of the existing DNA database against which the DNA sample could be compared.
Baroness Jones of Moulsecoomb
I support the Minister and the noble Lord, Lord Paddick. It is quite rare for me to agree with the noble Earl so I thought I would take this opportunity to do so. More importantly, there would be widespread condemnation of this particular move; it would be deeply unpopular. It would be hard enough getting ID card legislation through without a lot of resistance, and this idea would be even tougher.
Lord Marlesford
I have listened to what people have said. I think the Minister made the important point here: we still have a hang-up about DNA samples. I agree that perception is what matters, and it may be that I am slightly ahead of public perception, but I do not see any difference between being asked to give a DNA sample for identification and almost any other method of doing so. If it involved taking blood or something then that would be another matter, but nowadays DNA can be taken by a simple swab. It is self-evident that if you do not have matching DNA then that does not take you very far, but there would be many circumstances in which, having suspected someone, having their DNA might at some stage be useful. I do not accept the general point that there is something sinister about DNA that means we should not use it; I think it should be used a great deal more than it is. Having said that, I beg leave to withdraw the amendment.
“( ) A person may refuse a request for documents or information under sub-paragraph (1) where—(a) the information or document in question consists of journalistic material within the meaning of either section 13 of the Police and Criminal Evidence Act 1984 or section 264(1) to (4) or (6) and (7) of the Investigatory Powers Act 2016; or(b) the information or document in question is subject to legal privilege.”
Baroness Jones of Moulsecoomb
My Lords, I spoke earlier in Committee about my opposition to the whole of Schedule 3. I shall now speak to my Amendments 68 and 69. I declare an interest: I have a journalist daughter and know many of her friends, and they could be very adversely affected by this part of the Bill because it is about the protection of journalistic material.
Because Schedule 3 of the Bill allows border officials to question, search and detain anyone at the border without any suspicion whatever, people carrying journalistic or legally privileged material might want to refuse to hand over that material without committing a criminal offence. Without Amendment 68, journalists and lawyers could be forced to hand over sensitive and confidential material at the border. This surely cannot be the Government’s intention in drafting the Bill, and it surely will not be Parliament’s will to allow such a scheme to become law.
Without Amendment 69, journalistic material confiscated at the border, including information about confidential sources, could be exposed in open court as evidence. This would be an enormous erosion of press freedom and the sacrosanct duty of journalists to protect their sources. It would have a chilling effect on individuals coming forward with information which is in the public interest. I have myself been approached by whistleblowers who are well aware of the severe consequences that await them. We must not add to the burden that deters people from coming forward with information about corrupt practices or wrongdoing.
As drafted, Schedule 3 would put sources in danger of losing their job, their liberty or even their life. The Government would never allow their confidential intelligence sources to be exposed in this way, and I ask the Minister to explain why journalists’ sources should be treated any differently.
Previously in Committee, the Minister declined to put specific protections in law for journalists on the basis that it was too broad a term. This is why my amendments and Amendment 71 in the name of the noble Earl, Lord Attlee, use the existing definitions in the Police and Criminal Evidence Act and the Investigatory Powers Act. I hope that this approach is more palatable to the Minister and could be adopted at Report.
I omitted to mention that the noble Earl, Lord Attlee, is unable to be here today. I said that I would say a few words on his behalf, and he said that he was sure that I could find the right ones—so let us hope that I have.
My amendments are essential to protect press freedom and the confidentiality of sources. I hope that the Minister will listen to the concerns and bring forward amendments to fix the problems highlighted. I beg to move.
Lord Rosser
We have Amendment 69A in this group. The purpose of our amendment is to provide that, where an examining officer wishes to retain an article which the owner alleges contains confidential material, the examining officer may not examine the article and must immediately send the article to the Investigatory Powers Commissioner. The commissioner must then determine whether the article contains confidential material and may then authorise the examination and retention of the article under the provisions of the Bill or return it to the examining officer if it is not confidential. This would provide for the independent oversight of confidential material, as required by the Miranda judgment.
I appreciate that what the Government propose is not in line with our amendment. However, we now have the code of practice, which states:
“If during the process of examining an article it becomes apparent to the examining officer that there are reasonable grounds for believing that the article consists of or includes items that are confidential material, the examining officer must cease examining”,
the item. It also states:
“An examining officer should take reasonable steps to review the credentials of an examinee to verify any such claim when considering whether there are reasonable grounds to believe that a specific item is confidential material”.
It would be helpful if the Minister could respond to my points, as the purpose of my amendment is primarily to find out how it is intended that the process will operate—although we would obviously be extremely grateful if the Government decided to accept the amendment. If an examining officer who reviews the credentials of an examinee feels that the credentials stand up, will they still be able to examine material which they think may be confidential? If the examinee has said that there is confidential material and the examining officer is satisfied with their credentials, is that enough to prevent the item being examined, or would the officer still be expected or able to examine an item to ascertain for themselves that it contains what appears to be confidential material?
In other words, on checking or reviewing the credentials of the examinee, if the examining officer is satisfied, does that mean that there is no question of the examining officer looking at any material that the examinee maintains is confidential, but instead they have immediately to send it to the commissioner to decide whether it should be retained?
Lord Paddick
My Lords, briefly, I agree in principle with the intention behind the amendments, at least on confidential journalistic material and material that is subject to legal privilege. However, I recognise the dilemma of how you determine whether it is confidential information unless you just take the person’s word for it. Clearly, if you just accepted the person’s word that the matter was confidential, anybody could get away with not handing over documents. I do not think that Amendment 69A could work in practice in real time, but there is a real problem here that needs an explanation and some reassurance.
Baroness Williams of Trafford
My Lords, I hope that I can reassure noble Lords with my explanation, but I thank those who have raised their concerns about the use of Schedule 3 powers to compel a journalist to reveal their material, including confidential material.
In drafting the Bill, we have been alive to such concerns and at pains to ensure that adequate safeguards, which I think noble Lords are talking about, are in place to protect confidential material, including confidential journalistic material. As the noble Lord, Lord Rosser, pointed out, the new retention powers in respect of confidential information require the authorisation of the Investigatory Powers Commissioner, who has to be satisfied that certain conditions are met before granting that authorisation.
In earlier debates on the powers under Schedule 3, I explained that a number of foreign powers and hostile actors are becoming even more bold and inventive in their methods. For example, as I outlined earlier, intelligence officers and their agents actively use the cover of certain professions, including journalism, the law and others. To ensure that our police officers are equipped to detect, disrupt and deter such activity, it is critical that they are able to retain, copy and examine documents or other articles that may include confidential journalistic or legally privileged material. That is why Schedule 3 introduces new powers and mechanisms to allow for such action to be taken where the article, which may include confidential material, could be used in connection with a hostile act or to prevent death or significant injury.
I recognise that the protection of journalistic material held by any individual examined under ports powers is a sensitive matter and one where we clearly need to get the safeguards in the Bill right. I want to be clear that the powers in Schedule 3 are not intended to disrupt or impede the vital work of journalists in any way. Journalistic freedoms of speech and expression are the absolute cornerstone of our democracy, which should be protected in the exercise of any police powers. The provisions in the Bill, however, are aimed at those who seek to abuse our legal frameworks to put our national security at risk and who are often trained to do so.
Amendment 68 would allow a person to refuse a request for documents or information where the information or documents in question consist of journalistic material, as defined by the Police and Criminal Evidence Act and the Investigatory Powers Act, or are subject to legal privilege. In practice, this would prohibit the examining officer from verifying that the material in question was confidential and would require the officer to take the examinee at their word. Amendment 69A is similar and, while it does not quite go as far as allowing a person to refuse to provide requested documents or information, it would prohibit an examining officer from verifying that that material was confidential. Instead, it would be for the IPC to determine the question.
Restricting powers in this way would be problematic, particularly where the examinee is a trained hostile actor. Amendment 68 would provide a ground for a person to refuse to hand over documents or information simply by claiming that the material is journalistic or legally privileged. Furthermore, it would mean that the examining officer could not seek to examine such material, where there was a need, by retaining the material and applying for IPC authorisation. Amendment 69A is also concerning, as it would impose a restriction on the examining officer such that they were unable to establish their own reasonable belief that the article consisted of confidential material. The police have a duty to protect our citizens and prevent crime. They cannot be expected to take at face value the word of someone they are examining who, in some cases, will be motivated to lie.
It is important to note that there are additional safeguards to govern the retention of property under Schedule 3 that consists of, or includes, confidential material. The IPC will authorise the retention and use of the material only if satisfied that arrangements are in place that are sufficient for ensuring that the material is retained securely, and that it will be used only so far as is necessary and proportionate for a relevant purpose—that is, in the interests of national security or the economic well-being of the United Kingdom; for the purposes of preventing or detecting serious crime; or for the purposes of preventing death or significant injury.
The Government are of the view that it is reasonable to expect that an examining officer will need to review material, to conclude one way or the other that specific items are, or include, confidential journalistic or legally privileged material. That being said, the draft Schedule 3 code of practice is clear:
“If during the process of examining an article it becomes apparent to the examining officer that there are reasonable grounds for believing that the article consists of or includes items that are confidential material, the examining officer must cease examining and not copy these items unless he or she believes there are grounds to retain it under either paragraph 11(2)(d) or (e)”.
The provisions in paragraph 11 of Schedule 3 contain the retention powers involving oversight by the IPC and the safeguards that I described earlier. I acknowledge that handling confidential material requires vigilance and discretion to safeguard it against unnecessary examination or retention, which is why the mechanisms under paragraphs 12, 13 and 15 of Schedule 3 in relation to these retention powers require prior authorisation of the IPC to be sought, save in exceptional circumstances, before an examining officer is able to examine such material.
We are therefore confident that the safeguards provided for in Schedule 3 and the associated draft code of practice are sufficient to protect the work and privacy of legitimate journalists and lawyers, and are consistent with the Court of Appeal’s judgment in the Schedule 7 case of Miranda that,
“independent and impartial oversight … is the natural and obvious adequate safeguard”,
in examining cases involving journalistic material.
Amendment 69 would extend this bar to information and documents where the material falls under the definition of journalistic material, as defined by the PACE and IP Acts. Such a position would go much further than safeguarding the examinee against self-incrimination. By extending the statutory bar to cover information or documents that are considered journalistic material, Amendment 69 could prevent evidence of a hostile act being used in criminal proceedings where it had been acquired through the legitimate examination of confidential material on the authorisation of the IPC. This would significantly undermine the ability of the police and the CPS to prosecute hostile actors who have used journalistic cover to disguise their criminal activities and been uncovered through the Schedule 3 examination powers.
In answer to the noble Lord, Lord Rosser, an officer can proceed to verify that material is confidential, subject to IPC authorisation, and look at confidential material, even if satisfied of the credentials of the journalist who might nevertheless be a hostile state actor.
Amendment 71 concerns the definition of “confidential material” in paragraph 12(10) of Schedule 3 and the associated protections. For the purposes of Schedule 3, confidential material adopts the definition of the IP Act. This definition covers, for example, journalistic material and communication that the sender intends the recipient to hold in confidence. As I explained, this material would fall under the definition of confidential material. It cannot be used or retained by an examining officer unless authorised by the IPC.
With those explanations—I am sorry they were so lengthy—I hope that the noble Baroness will feel happy to withdraw her amendment.
Baroness Jones of Moulsecoomb
My Lords, I have listened very carefully and will reread the Minister’s arguments tomorrow. I do not feel entirely comforted. I hope that the Government feel that this has been a useful debate in terms of perhaps adjusting their position. I very much hope that that will happen. While we talk all the time about hostile actors and people who could lie, we also rely so much on the individual who is stopping them, and on their discretion and judgment. When there is so much leeway for these people, there are opportunities for wrong decisions that could impact quite heavily on some people. I beg leave to withdraw my amendment.
“( ) In sub-paragraph (3) “responsible chief officer” means—(a) in a case where the article was taken in connection with an investigation being conducted by a police force in England and Wales, the chief officer of police of that police force;(b) in a case where the article was taken in connection with an investigation being conducted by the Police Service of Scotland, the chief constable of the Police Service of Scotland;(c) in a case where the article was taken in connection with an investigation being conducted by the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland;(d) in any other case—(i) where the examining officer is a constable of a police force in England and Wales, the chief officer of police of that police force,(ii) where the examining officer is a constable of the Police Service of Scotland, the chief constable of the Police Service of Scotland, or(iii) where the examining officer is a constable of the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland.”
“( ) A requirement under this paragraph to invite representations from, or to provide information to, the person from whom an article was taken applies only so far as it is reasonably practicable to do so.”
“13A(1) This paragraph applies where—(a) an article is retained by virtue of paragraph 11(2)(d) or (e), and (b) the examining officer who retained the article considers that the urgency condition is met in relation to the article.(2) The urgency condition is met in relation to an article if—(a) there is an urgent need for the article to be examined or otherwise used for the purpose of preventing—(i) the carrying out of a hostile act, or(ii) death or significant injury,or for the purpose of mitigating the risk of any such act, death or injury occurring, and(b) the time it would take for the requirements of paragraphs 12 and 13 to be complied with in relation to the article would not enable such use to take place with sufficient urgency.(3) The examining officer may apply to a senior officer for authorisation to continue to retain and use the article.(4) An application under sub-paragraph (3) in relation to an article may be made only to a senior officer who has not been directly involved in the exercise of any power under this Part of this Schedule to take the article or to question a person from whom the article was taken.(5) A senior officer may grant an authorisation under this paragraph for the retention and use of the article if satisfied—(a) that there are reasonable grounds for considering that the urgency condition is met in relation to the article, and(b) in the case of an article that consists of or includes confidential material, that— (i) arrangements are in place that are sufficient for ensuring that the material is retained securely, and(ii) the material will be used only so far as necessary and proportionate for a purpose mentioned in sub-paragraph (2)(a).(6) An authorisation under this paragraph—(a) must be recorded in writing;(b) may be granted subject to whatever conditions the senior officer thinks appropriate.(7) Paragraphs 13B and 13C contain further provision about authorisations granted under this paragraph.(8) In this paragraph—“confidential material” has the meaning given by paragraph 12(10) and (11);“senior officer” means—(a) where the examining officer is a constable, another constable of at least the rank of superintendent,(b) where the examining officer is an immigration officer, an immigration officer of a higher grade than the examining officer, and(c) where the examining officer is a customs officer, a customs officer of a higher grade than the examining officer.13B(1) If a senior officer grants an authorisation under paragraph 13A, the examining officer who applied for the authorisation must inform the Investigatory Powers Commissioner and each affected party of its grant.(2) The information required under sub-paragraph (1) must be given as soon as reasonably practicable and in any event within 24 hours after the grant of the authorisation.(3) An affected party may make representations to the Commissioner about how the Commissioner should proceed under paragraph 13C in respect of an authorisation granted under paragraph 13A.(4) Representations under sub-paragraph (3) must be made in writing no later than the end of two working days beginning with the first working day after the day on which the authorisation is granted. (5) The information provided under sub-paragraph (1) must include an explanation of the right to make representations in writing and the time by which they must be made.(6) The Commissioner must have regard to any representations received before the end of the time mentioned in sub-paragraph (4) in determining how to proceed under paragraph 13C.(7) The requirement under this paragraph to provide information to the person from whom an article was taken applies only so far as it is reasonably practicable to do so.(8) In this paragraph and paragraph 13C—“affected party” has the meaning given by paragraph 13(3);“working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom in which the authorisation is granted.13C(1) This paragraph applies after the Investigatory Powers Commissioner has considered any representations made about an authorisation in accordance with paragraph 13B.(2) The Commissioner must—(a) approve the grant of the authorisation, or(b) cancel the authorisation.(3) A decision under sub-paragraph (2) must be made— (a) after the end of the time for making representations referred to in paragraph 13B(4), and(b) before the end of three working days beginning with the first working day after the day on which the authorisation is granted.(4) If the decision under sub-paragraph (2) is to approve the grant of the authorisation, the retention and use of the article may continue in accordance with the conditions on which the authorisation was granted (subject to any further conditions or variation of the existing conditions that the Commissioner specifies).(5) If the decision under sub-paragraph (2) is to cancel the authorisation, any further use of the article must stop as soon as possible.(6) If the Commissioner cancels the authorisation the Commissioner may direct that the article—(a) is destroyed, or(b) is returned to the person from whom it was taken,and the Commissioner may further direct that all reasonable steps are taken to secure that any information derived from the article is destroyed.(7) Sub-paragraphs (5) and (6) do not apply if the article is further retained under a power conferred by paragraph 11(2)(b) or (c).(8) The Commissioner must inform each affected party of the Commissioner’s decision under sub-paragraph (2).(9) The requirement under this paragraph to provide information to the person from whom the article was taken applies only so far as it is reasonably practicable to do so.(10) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under this paragraph in relation to an article, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.(11) Nothing in this paragraph affects the lawfulness of—(a) anything done under an authorisation before it is cancelled; (b) if anything is in the process of being done under an authorisation when it is cancelled—(i) anything done before that thing could be stopped, or(ii) anything done which it is not reasonably practicable to stop.”
“15A(1) Before proceeding under paragraph 15 in relation to a copy, the Commissioner—(a) must invite each affected party to make representations, before the end of whatever period the Commissioner may specify, about how the Commissioner should proceed under that paragraph, and(b) must have regard to any representations made by an affected party before the end of that period. (2) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under paragraph 15 in relation to a copy, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.(3) Each of the following is an “affected party” for the purposes of this paragraph—(a) where the examining officer is a constable, the responsible chief officer,(b) the Secretary of State, and(c) the person from whom the article was taken from which the copy was made.(4) In sub-paragraph (3) “responsible chief officer” means—(a) in a case where the copy was made in connection with an investigation being conducted by a police force in England and Wales, the chief officer of police of that police force;(b) in a case where the copy was made in connection with an investigation being conducted by the Police Service of Scotland, the chief constable of the Police Service of Scotland;(c) in a case where the copy was made in connection with an investigation being conducted by the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland;(d) in any other case—(i) where the examining officer is a constable of a police force in England and Wales, the chief officer of police of that police force,(ii) where the examining officer is a constable of the Police Service of Scotland, the chief constable of the Police Service of Scotland, or(iii) where the examining officer is a constable of the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland.(5) Sub-paragraph (6) applies where—(a) a direction for the destruction of a copy is given under paragraph 15, or (b) authorisation for the retention and use of a copy is granted under that paragraph.(6) The Commissioner must inform the person from whom the article was taken from which the copy was made that—(a) a direction to destroy the copy has been given, or(b) (as the case may be) authorisation to retain and use the copy has been granted (and in this case the Commissioner must provide details of any conditions subject to which that authorisation was granted).(7) A requirement under this paragraph to invite representations from, or to provide information to, the person from whom an article was taken from which a copy was made applies only so far as it is reasonably practicable to do so.(8) Representations under sub-paragraph (1) must be made in writing.15B(1) This paragraph applies where—(a) a copy consisting of or including confidential material is retained by virtue of paragraph 14(3)(d) or (e), and(b) the examining officer who retained the copy considers that the urgency condition is met in relation to the copy.(2) The urgency condition is met in relation to a copy if—(a) there is an urgent need for the copy to be examined or otherwise used for the purpose of preventing—(i) the carrying out of a hostile act, or(ii) death or significant injury, or for the purpose of mitigating the risk of any such act, death or injury occurring, and(b) the time it would take for the requirements of paragraphs 15 and 15A to be complied with in relation to the copy would not enable such use to take place with sufficient urgency.(3) The examining officer may apply to a senior officer for authorisation to continue to retain and use the copy.(4) An application under sub-paragraph (3) in relation to a copy may be made only to a senior officer who has not been directly involved in the exercise of any power under this Part of this Schedule to make the copy or to question a person from whom the article was taken from which the copy was made.(5) A senior officer may grant an authorisation under this paragraph for the retention and use of a copy if satisfied that—(a) there are reasonable grounds for considering that the urgency condition is met in relation to the copy,(b) arrangements are in place that are sufficient for ensuring that confidential material contained in the copy is retained securely, and(c) the material will be used only so far as necessary and proportionate for a purpose mentioned in sub-paragraph (2)(a).(6) An authorisation under this paragraph—(a) must be recorded in writing;(b) may be granted subject to whatever conditions the senior officer thinks appropriate.(7) Paragraphs 15C and 15D contain further provision about authorisations granted under this paragraph.(8) In this paragraph—“confidential material” has the meaning given by paragraph 12(10) and (11);“senior officer” means—(a) where the examining officer is a constable, another constable of at least the rank of superintendent, (b) where the examining officer is an immigration officer, an immigration officer of a higher grade than the examining officer, and(c) where the examining officer is a customs officer, a customs officer of a higher grade than the examining officer.15C(1) If a senior officer grants an authorisation under paragraph 15B, the examining officer who applied for the authorisation must inform the Investigatory Powers Commissioner and each affected party of its grant.(2) The information required under sub-paragraph (1) must be given as soon as reasonably practicable and in any event within 24 hours after the grant of the authorisation.(3) An affected party may make representations to the Commissioner about how the Commissioner should proceed under paragraph 15D in respect of an authorisation granted under paragraph 15B.(4) Representations under sub-paragraph (3) must be made in writing no later than the end of two working days beginning with the first working day after the day on which the authorisation is granted.(5) The information provided under sub-paragraph (1) must include an explanation of the right to make representations in writing and the time by which they must be made.(6) The Commissioner must have regard to any representations made before the end of the time mentioned in sub-paragraph (4) in determining how to proceed under paragraph 15D.(7) The requirement under this paragraph to provide information to the person from whom an article was taken from which the copy was made applies only so far as it is reasonably practicable to do so. (8) In this paragraph and paragraph 15D—“affected party” has the meaning given by paragraph 15A(3);“working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom in which the authorisation is granted.15D(1) This paragraph applies after the Investigatory Powers Commissioner has considered any representations made about an authorisation in accordance with paragraph 15C.(2) The Commissioner must—(a) approve the grant of the authorisation, or(b) cancel the authorisation.(3) A decision under sub-paragraph (2) must be made—(a) after the end of the period for making representations referred to in paragraph 15C(4), and(b) before the end of three working days beginning with the first working day after the day on which the authorisation is granted.(4) If the decision under sub-paragraph (2) is to approve the grant of the authorisation, the retention and use of the copy may continue in accordance with the conditions on which the authorisation was granted (subject to any further conditions or variation of the existing conditions that the Commissioner specifies).(5) If the decision under sub-paragraph (2) is to cancel the authorisation, any further use of the copy must stop as soon as possible.(6) If the Commissioner cancels the authorisation the Commissioner may direct that—(a) the copy is destroyed, and (b) all reasonable steps are taken to secure that any information derived from the copy is also destroyed.(7) Sub-paragraphs (5) and (6) do not apply if the copy is further retained under a power conferred by paragraph 14(3)(b) or (c).(8) The Commissioner must inform each affected party of the Commissioner’s decision under sub-paragraph (2).(9) The requirement under this paragraph to provide information to the person from whom the article was taken from which the copy was made applies only so far as it is reasonably practicable to do so.(10) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under this paragraph in relation to a copy, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.(11) Nothing in this paragraph affects the lawfulness of—(a) anything done under an authorisation before it is cancelled;(b) if anything is in the process of being done under an authorisation when it is cancelled—(i) anything done before that thing could be stopped, or(ii) anything done which it is not reasonably practicable to stop.”
Earl Howe
My Lords, I do not wish to detain the Committee for long on this clause, but I would like to put a couple of points on the record about the devolution implications of this Bill. Counterterrorism and national security are reserved matters in Scotland and Wales and excepted matters in Northern Ireland. Consequently, in the view of the UK Government, none of the provisions in the Bill relates to matters within the legislative competence of the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly. None the less, we recognise that there will be an impact on devolved criminal justice agencies in Scotland and Northern Ireland, and on local authorities in Scotland and Wales. Consequently, we have consulted the devolved Administrations extensively throughout the preparation of the Bill and, subsequently, during its parliamentary passage.
I am very grateful for the collaborative approach adopted by the Scottish Government and Northern Ireland Department of Justice towards this Bill, so that we can ensure that it is fit for purpose in Scotland and Northern Ireland, recognising that those parts of the UK have a criminal justice system distinct from that in England and Wales. There are two provisions in the Bill that impact on the executive competence of the Scottish Ministers, namely those relating to the power to charge for an anti-terrorism traffic regulation order in Clause 15 and the amendment to the Legal Aid (Scotland) Act 1986 in Schedule 4. I am therefore also grateful to the Scottish Government for taking forward a legislative consent Motion in relation to these provisions; the Motion is due to be debated in the Scottish Parliament later this month. With that, I beg to move that Clause 25 stand part of the Bill.
Baroness Howe of Idlicote
Baroness Howe of Idlicote (CB)
My Lords, I rise to speak to Amendments 89 and 91 in my name and, in doing so, I thank the Minister for the letter that she sent to noble Lords before Committee stage began, which responded to a number of different concerns, including the points that I made at Second Reading. I am grateful for that response and will use it as my starting point in moving these amendments today. By way of introduction, it would probably help if I recapitulated my central concern, which I expressed at Second Reading and is the reason that I move these amendments.
It is absolutely right that the Government should do everything in their power to tackle the great evil that is terrorism. The events of last year must cause them to apply themselves, with even greater determination than before, to the development of really effective policy and legislation to deal with the threat that terrorism poses. Part of our response to terrorism is to say that it has no place here and to defend the British commitment to liberty and all the attendant constitutional safeguards that uphold it. In this context, it seems to me that when we cross from terrorism to extremism which is not related to terrorism, we enter very difficult territory. While I have no problem with the state intervening when someone’s values cause them either to commit a terrorist act, to glorify a terrorist act or to encourage others to engage in a terrorist act, I have the greatest difficulty with the idea of censuring extremism without a connection to terrorism.
When we start to engage extremism with no connection to terrorism, it seems to me that we enter entirely different territory. It is all so very subjective. One person’s “extreme views” could be another’s common sense, just as their common sense could seem extreme to another person. Part of the challenge of living in a free society is accommodating differences of opinion, including those that we may find, for want of a better phrase, “nutty and extreme”. I feel uncomfortable about the idea that we should start policing these thoughts.
Having reminded noble Lords of this backdrop, I turn to detailed consideration of my amendments and the Minister’s letter. As things stand, Clause 19 amends Section 36 of the Counter-Terrorism and Security Act 2015, which requires local government to seek to identify those at risk of being drawn into terrorism. Clause 19 broadens the scope of Section 36 and the point that I made at Second Reading is that Clause 19 should not be implemented until such a time as the accompanying guidance is updated to prevent policing people’s views which the state describes as extreme but which do not espouse and celebrate acts of violence. There is no basis for that reach beyond terrorism in the primary legislation.
In her response, the Minister has suggested that the Channel guidance is very clear that the point at which an intervention is made is the point at which the person concerned is indeed deemed at risk of either espousing, celebrating or committing acts of violence. There are, however, two problems. First, while the Channel guidance is clear about the point of intervention to bring someone in, it in fact ranges rather more widely. This is reflected in the references to extremism in that guidance, where there is no need for any reference to terrorism. Paragraph 51, for example, encourages the consideration of,
“indicators that an individual is engaged with an extremist group, cause or ideology”.
It goes on to say that these indicators include things such as,
“spending increasing time in the company of other suspected extremists”,
and
“day-to-day behaviour becoming increasingly centred around an extremist ideology, group or cause”.
It seems to me that, as currently defined, the Channel guidance mandates two forms of intervention: an intervention where there is a perceived risk that someone is in danger of being drawn into terrorism—with which I have no difficulty—and a prior intervention for the purpose of monitoring because the state does not like the views espoused, even though they have nothing to do with espousing, celebrating or committing acts of terrorism. Of course I have no difficulty with the idea of monitoring to identify when someone is at risk of being drawn into terrorism, but that must be because they are coming under the influence of those who are in some sense connected to terrorism, and not simply because they come into contact with those whose views the state deems extreme. That is a key distinction, but it is one that I am not convinced the Channel guidance currently respects.
In expressing this concern, I highlight once again the judgment in the case of Salman Butt. In her letter, the Minister suggested that Mr Justice Ouseley’s judgment in that case merely underlines and indicates the current approach of the Government in being clear that the point of intervention is when there is a risk that the person will be drawn into violence. With respect, however, Mr Justice Ouseley was underlining this distinction in response to a concern that, while on some occasions it is being respected by guidance, on other occasions it is not. Of course I fully understand that Mr Justice Ouseley’s judgment refers specifically to the Prevent guidance, but I think the same principle should be applied with respect to the Channel guidance.
This takes me to the second difficulty with the Government’s response. In her letter, the Minister suggested that the only relevant guidance at this point is the Channel guidance, inferring that other forms of guidance such as the Prevent guidance and the Counter-Extremism Strategy are simply not relevant. I do not find that argument in any way convincing. Quite apart from anything else, paragraphs 6 and 7 of section 1 of the Channel guidance relate it to Prevent and the Prevent guidance. In this context, it seems entirely possible that those discharging their duties under Section 36 of the 2015 Act will feel it entirely appropriate to allow their conduct to be impacted by the broad approaches set out in that document.
Moreover, it seems entirely reasonable to me that someone discharging their duties under Section 36 and wanting a better handle on extremism should turn to the Counter-Extremism Strategy or counterterrorism strategy for additional guidance. However, these documents completely fail to respect the crucial distinction that Mr Justice Ouseley sets out in his judgment. For example, paragraph 74 of the latest version of the counterterrorism strategy states:
“We protect the values of our society – the rule of law, individual liberty, democracy, mutual respect, tolerance and understanding of different faiths and beliefs – by tackling extremism in all its forms”.
Paragraph 124, meanwhile, references the Channel guidance and says:
“Channel is run in every local authority in England and Wales and addresses all types of extremism”.
The Counter-Extremism Strategy, meanwhile, states at paragraph 8:
“We are clear that this strategy will tackle all forms of extremism: violent and non-violent”.
These are just a few of the examples. This means that the guidance that feeds into thinking about the application of the duty to prevent people from being drawn into terrorism, or assessing the extent to which identified individuals are vulnerable to being drawn into terrorism, is broadened to cover a very broad concept of extremism where there is not always a connection to terrorism. I believe that this is simply not acceptable, and the Government need to rein in their focus away from extremism in all its forms to focus very specifically on those who espouse, celebrate or commits acts of violence or who are in danger of doing so. In making that point—and in moving this amendment—that would require the Channel guidance, the Prevent duty guidance, the counterterrorism strategy and Counter-Extremism Strategy to be updated, so that they do not transgress beyond the narrow focus on a necessary connection to violence to extremism in all its forms.
Lord Morrow (DUP)
My Lords, I congratulate the noble Baroness, Lady Howe, on bringing forward Amendments 89 and 91, which I am content to support.
Like the noble Baroness, I scrutinised the Minister’s letter, which I will come back to. The letter makes two key claims with respect to the Channel guidance. First, it states:
“The Channel Duty Guidance is clear that ‘preventing terrorism will mean challenging extremist (and non-violent) ideas that are also part of a terrorist ideology’”.
In this context, the Minister argues that the only point of intervention would be where extremist ideas are used,
“to legitimise terrorism and are shared by terrorist groups”.
In truth, however, as the noble Baroness, Lady Howe, pointed out, the guidance contains some references to extremism that are not rooted in a necessary connection to terrorism, and it thereby effectively mandates two interventions: one quite properly, where there is concern that the individual in question is being drawn into terrorism, whereas the other is effectively a monitoring intervention to monitor people whose views the state considers extreme but in relation to which there is no need for any immediate connection to terrorism. I assume that the thought is that because they have extreme views, there is a chance that they could at some point show signs of interest in terrorism, but in the absence of anything other than a vague definition of extremism, this opens the door for the state to start monitoring any views its officers decide are extreme. I find this second intervention Orwellian and illiberal.
The current legislation in Section 36 of the 2015 Act provides a clear and narrow remit that is confined to terrorism. It is completely inappropriate to issue guidance that strays into undefined views that the state or its representatives happen to find extreme, unless they are connected to espousing or celebrating terrorism.
This problem is clearly underlined by the fact that paragraph 124 of the new Counter-Terrorism Strategy, published in June, comments on the Channel programme and states:
“Channel is run in every local authority in England and Wales and addresses all types of extremism”.
That tells us all we need to know: it addresses extremism in all its forms, and thus there is no necessary connection of any sort with terrorism. I find somewhat disingenuous the suggestion from the Minister that the Channel guidance is the only guidance that will inform the approach of local government officials in discharging their responsibilities under Section 36. I completely accept that the Channel guidance has been specially developed to help local government discharge its responsibilities with respect to Section 36. It is certainly the guidance to which local authorities refer first when considering their Section 36 responsibilities. However, that does not mean that the other guidance documents to which the noble Baroness, Lady Howe, referred will not be consulted.
The fact that the Channel process is part of the Prevent strategy is spelled out for us by the Channel guidance. Paragraph 7 of Section 1 states:
“Channel forms a key part of the Prevent strategy”.
In this context it would not be at all surprising if the Prevent Duty Guidance was consulted in addition to the Channel guidance to provide a broader context as Channel is, by the guidance’s own admission, part of the Prevent strategy. On the same basis, it would not be at all surprising if a local authority in want of a better understanding of extremism also turned to the Counter-Extremism Strategy, or if a local authority in want of a better understanding of terrorism also turned to the Counter-Terrorism Strategy. This is where Justice Ouseley’s judgment becomes so important.
In her letter, the Minister said:
“The High Court in the case of Salman Butt v the Secretary of State for the Home Department, which Baroness Howe also mentioned, was clear that the Government was fully within its powers to include this form of non-violent extremism within the scope of the Prevent Duty Guidance”.
I accept that it is possible to find a good number of statements in the Prevent Duty Guidance that are consistent with this statement. Take paragraph 38, for example, which states:
“We expect local authorities to use the existing counter-terrorism local profiles … produced for every region by the police, to assess the risk of individuals being drawn into terrorism. This includes not just violent extremism but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”.
However, it is also possible to find numerous references to extremism in the Prevent Duty Guidance, where no such distinction applies—for example, in paragraph 106, which states:
“Prisons should perform initial risk assessments on reception, including cell-sharing risk assessments, and initial reception and induction interviews to establish concerns in relation to any form of extremism, be that faith based, animal rights, environmental, far right, far left extremism or any new emerging trends”.
Let us now consider paragraph 109:
“Appropriate information and intelligence sharing should take place, for example with law enforcement partners, to understand whether extremism is an issue and to identify and manage any behaviours of concern”.
Again, there is plainly no necessary link to terrorism here; and let us consider paragraph 131:
“In addition PCTLs should lead the development of, for example, faith awareness or Extremism Risk Screening training of local training and staff development to supplement the Prevent awareness training. This should focus on emerging issues and any new support and interventions that become available”.
I could go on, but in some ways the most damning statement from the guidance is the glossary definition of extremism, which provides the baseline account for the term in the guidance. The glossary in the 2015 guidance, which can be located on page 21, states:
“‘Extremism’ is defined in the 2011 Prevent strategy as vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces, whether in this country or overseas”.
Crucially, this definition does not require any connection with terrorism. The calling for the death of servicemen is not necessary to meet the definition which also does not require any other link to terrorism. It is this glossary definition of extremism that is being used to broaden the scope of the Channel and Prevent duties. The very moment these duties divert from their primary aim of addressing the risk of people being drawn into terrorism to addressing the risk of people being drawn into terrorism and extremism—where the two are contrasted they clearly are not the same—we are at risk of becoming an Orwellian state.
In this context, it is particularly concerning that, as reported by the Joint Committee on Human Rights, Dr Charlotte Heath-Kelly at the University of Warwick has warned about her concerns with local authority involvement in Prevent. She said:
“We have found that this leads healthcare professionals and Local Authority processes to enquire into incidences of dissent and illiberal political beliefs—rather than vulnerability to abuse in persons with formal care needs (the legal definition of safeguarding). For example, during our study of local authority owned Prevent work, we found cases where children had been referred to safeguarding teams for watching Arabic television, and where adults were referred for planning pilgrimage trips. While these incidents did not reach Channel, it is crucial that the select committee investigate the low level, and misguided, monitoring of religiosity and political beliefs. People have a right to their beliefs without them being interpreted and medicalized as ‘vulnerabilities’”.
I very much hope that, when the Minister responds to this debate, she will acknowledge that there are real concerns here; I hope she might be willing to meet concerned Members to discuss the matter between Committee and Report about the way the relevant guidance documents handle extremism.
I should say that there are members of the other place who would also like to attend such a meeting with the Minister. They had wanted to raise this matter through an amendment on Report but were somewhat taken aback by the fact that the day the Government announced the date for Report in another place was the very same day as the deadline for submitting amendments. This meant that the only amendments tabled on Report in another place were from the Front Benches, who knew in advance the date for Report and thus the deadline for tabling amendments to explore these issues. There was not a single Back-Bench amendment.
Baroness Williams of Trafford
My Lords, I thank both the noble Lord, Lord Morrow, and the noble Baroness, Lady Howe, for explaining the amendments at length. I say at the outset that I am happy to meet with both the noble Baroness and the noble Lord in due course.
Both at Second Reading and today, the noble Baroness mentioned a number of guidance documents and strategies which she suggested had informed the decisions made by local authorities about the referral of individuals to a Channel panel. Among them, she referred to the Prevent Duty Guidance. However, this guidance is not the relevant document which will guide local authorities through this process. The Prevent Duty Guidance concerns a separate duty, the wider Prevent duty, containing Section 26 of the Counter-Terrorism and Security Act 2015. The proposal in Clause 19 instead talks of the duty of local authorities to maintain a panel to assess and provide support to people who are vulnerable to being drawn into terrorism; this is commonly known as the Channel panel. The statutory basis for these Channel panels is found in Sections 36 to 41 of the 2015 Act. This is accompanied by its own statutory guidance, issued under the power in Section 36(7), known as Channel duty guidance.
Baroness Howe of Idlicote
My Lords, I thank the Minister for her reply although it was obviously not the one I would have hoped for. I will have to think about it in quite a lot of detail before coming to a conclusion about what should happen on Report. I also thank the noble Lord, Lord Morrow, for his contribution and for backing what I still consider to be a very important range of thoughts. As there is a need for a bit of talk before we come to any full conclusions about this, a look at diaries before Report would be good to fix a convenient time for all concerned. I beg leave to withdraw the amendment.
Counter-Terrorism and Border Security Bill
Monday 3rd December 2018
(5 years, 4 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 142-I Marshalled list for Report (PDF) - (29 Nov 2018)
15:49 - Division on Amendment 1 - Ayes: 93 / Noes: 198 - Amendment 1 disagreed.
18:01 - Division on Amendment 15 - Ayes: 220 / Noes: 191 - Amendment 15 agreed.
Baroness Jones of Moulsecoomb (GP)
My Lords, I will speak at rather more length than I do normally. I thought that my amendment was explained clearly in Committee yet I had to table another amendment for today because the problem still exists. Therefore, I will try to explain it carefully, although I am not a lawyer. This issue depends on clear thinking and some common sense.
As I made clear in Committee, I am completely opposed to people encouraging the membership and support of terrorist organisations. I am also deeply opposed to the terrorism bogeyman being used to justify laws that are disproportionate and which undermine the rights of law-abiding citizens without good justification. The Minister did not adequately address my concerns in Committee, which reinforced my view that Clause 1 is currently far too broad, represents an unacceptable breach of human rights and risks criminalising a range of perfectly innocent speech. Amendments 1 and 2 in my name would make the new criminal offence a reasonable one. I believe that not making significant changes to this clause would be a clear breach of the European Convention on Human Rights. As drafted, the offence is too vague to accord with the law and too broad to be a proportionate way to achieve a legitimate aim.
The Minister confirmed to the Committee that the clause is a direct response to the case of R v Choudary, in which the Court of Appeal considered the existing Section 12 offences. The Explanatory Notes state:
“The Court of Appeal was clear that a central ingredient of the offence was inviting support from third parties for a proscribed organisation and that the offence ‘does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs’ … This clause therefore provides for a new offence which criminalises the expression of an opinion or belief that is supportive of a proscribed organisation”.
I covered the case in some depth in Committee so I will not repeat it in detail here, but the fact that the Government made it clear that the new offence is in response to the difficulties of prosecuting Choudary means that your Lordships’ House must understand Clause 1 in the light of that judgment. Let us not forget that Choudary was found guilty and his conviction was upheld by the Court of Appeal, so it is not as though there is some loophole through which he was able to slip.
I tabled two amendments to Clause 1 with the purpose of tightening this new offence to ensure that only people guilty of some wrongdoing will be guilty of a crime. The purposes of law and justice are not only to convict the guilty but to ensure that the innocent go free. In Committee, it was telling that the Minister, in response to my example of a political activist expressing support for an independent Kurdistan, had only,
“a very high level of confidence that they would not fall foul of the Clause 1 offence”.
Anything short of absolute certainty is proof that the new offence is far too broad and will criminalise perfectly innocent behaviour.
The new subsection is best understood when contrasted against the existing Section 12 offence in the Terrorism Act 2000. There are three key differences between the two offences: there is no requirement to “invite” in the new offence; the expression of an opinion which “is supportive of” rather than “supports”; and the watering down of the guilty mind from intention to recklessness. In my analysis, each of these three changes represents a significant broadening when compared to this existing offence. The proper change is the first: the legal requirement of having to invite support was too tight and allowed people such as Choudary to rigorously support terrorist organisations, as long as they did not invite anyone else to do so. The other two changes make this new offence far too wide, in a way that goes beyond the Government’s stated purpose.
Baroness Hamwee (LD)
My Lords, my noble friend Lord Paddick has added his name to this amendment. I want from these Benches to support the noble Baroness. At the previous stage of the Bill, I tabled a number of amendments, including to this clause, on behalf of the Joint Committee on Human Rights. I am not suggesting that it has in any way abandoned concerns about the Bill, but I do not now speak on its behalf, simply because we have not had an opportunity to consider further where the Bill has got to.
One of those amendments would have imported “supports” rather than “supportive”. “Supportive” seems far more open to interpretation than “supports”, the former being much more subjective than the more active “supports”, which is, as the noble Baroness said, the term used in Section 12 of the Terrorism Act 2000. Like her, I looked back at the debate in Committee and noted that the term used by the Minister during much of it was “supports”.
New paragraph (b), adding recklessness or intention to “supports”, creates a new and separate offence, although it occurred to me only yesterday that we might have amended “a proscribed organisation” to “the proscribed organisation”.
The existing Section 12 offence is very direct, referring to “invites support”, and in the context of a meeting, albeit a small, private meeting. Under new subsection (1A)(a), it will be an offence to express an opinion without mentioning a proscribed organisation. Many people in this Chamber could probably advise me of the answer to the following question. If were to say that I could understand that a 15 year-old girl in London might find herself persuaded or groomed to travel abroad to support freedom fighters in an area where Daesh was active and there had been plenty of press reports of the situation—I refer noble Lords to the splendid novel Home Fire by Kamila Shamsie if they want to be provoked to think further about what might underlie such a situation—would I be committing an offence? The answer is probably not in this Chamber, but if I did so at a meeting at a university with a young audience, I am not sure what my position would be.
Turning to “reckless”, I believe that I would be unable to rely on a defence similar to that in the existing Section 12(4) of the Terrorism Act, allowing a person to prove, with the application of Section 118, that he or she had no reasonable cause to believe that an address to a meeting would support a proscribed organisation. I would be hard put to think of a context—which I think was the term used by the noble Baroness, Lady D’Souza, at the last stage—other than something like this debate, where one could be fairly confident of expressing an opinion and not being reckless. The Minister in Committee focused on recklessness and said little about support or being supportive, so I look forward to hearing the response today.
Like the noble Baroness, we are not happy with how the Government appear to be moving against freedom of speech in this clause, but we have the opportunity here to make it somewhat more proportionate. I thought I should look at Article 10 of the Convention, on freedom of expression. Article 10.2 reminds us that the right is qualified— understandably, of course—in such a way as is,
“necessary in a democratic society”.
That phrase really struck home to me. I would like to think that what we are doing through the Bill is necessary in a democratic society. I am not persuaded by Clause 1 as it stands.
Lord Harris of Haringey (Lab)
My Lords, in considering the amendment of the noble Baroness, Lady Jones, we have to look at the two new paragraphs (a) and (b) together. In the Bill, the Government seek to eliminate various routes by which an ingenious individual who wants, in effect, to incite people to support a terrorist organisation might create a defence. It is a combination of the two new paragraphs that seems to me to be important. An individual might claim that that they are not supporting a terrorist organisation, but merely supportive of its objectives. They might express that supportive nature of the objectives in such graphic and bloodcurdling terms that it might be deemed to have an effect on those listening to those descriptions. But of course, if they then went on to claim that they had no intention of making people act and follow that particular terrorist organisation, they would be permitted to do so.
By including both being “supportive of” the general objectives and at the same time being reckless as to the consequences of that, the Bill seems to attempt to avoid those ingenious individuals proclaiming that in fact they are not encouraging people to join a particular terrorist organisation, but are merely being supportive of the objectives of that organisation and have no intention at all of making people take action on that. The fact remains that that they have been supportive of the organisation and at the same time reckless as to the consequences. My concern with the amendment is that it actually allows two routes by which people can claim a defence when they have clearly, in the most common terms, been trying to persuade people to support a terrorist organisation. That is why I think the combination of “supportive” with the reckless intent makes a degree of sense.
Lord Blair of Boughton (CB)
My Lords, I rise very briefly to say that it is a pleasure to follow the noble Lord, Lord Harris of Haringey, and that I completely agree with him.
Lord Carlile of Berriew (CB)
My Lords, I too agree with the noble Lord, Lord Harris. It seems to me that this clear provision provides four steps which have to be proved before somebody can be convicted of the crime set out in Clause 1. The first step is that they must say something deliberately, whether orally or in writing in some form, including on the internet. That requires them to act purposefully—it is a deliberate expression. Secondly, it must be supportive of something. Thirdly, it must be supportive not of anything at all but of a proscribed organisation—one that is forbidden by law to join in any event. Fourthly, they must consciously disregard the risks flowing from their action. That is the component of recklessness. So, with great respect to the noble Baroness who moved the amendment, I fear that she may have misunderstood what is provided by assuming that some vague general expression might be taken as committing the offence.
Lord Paddick (LD)
My Lords, I will not go over the arguments again. The noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lady Hamwee made clear the points that the Supreme Court had concerns about in the case of Choudhary and that the Joint Committee on Human Rights expressed regarding the provisions in the Bill.
Of course, these are two separate amendments. They propose either something more definitive than “is supportive of”, or, if you keep “is supportive of”, that there should be a degree of intention. I saw the Minister nodding vigorously when the noble Baroness, Lady Jones, suggested that Amendment 2 would actually be no change from the status quo and therefore would in effect nullify the provision, and I have some sympathy with that, but these are two separate amendments and therefore can be taken separately.
In response to the noble Lord, Lord Harris of Haringey, yes, one can see how this is constructed so that an ingenious speaker might wheedle their way through and evade justice, but the problem that my noble friend has identified is that a naive 13 year-old who innocently makes a remark would be caught by this. I accept what the noble Lord, Lord Carlile of Berriew, says about the CPS code of charging but that would not stop that 13 year-old being arrested and detained by the police. I will come back to this theme when we debate the next group of amendments. I do not want to develop that argument now.
Lord Carlile of Berriew
I say this with great deference to a former senior police officer, but surely the arrest conditions would not apply to that 13 year-old and the arrest would therefore be unlawful. The police cannot arrest unless the arrest conditions apply, and one is necessity.
Lord Paddick
I am grateful for the noble Lord’s intervention but, as I say, I am not going to address that point now but in the next group. However, we feel that it is necessary for one or other of these amendments to be adopted. Therefore, if the noble Baroness, Lady Jones, decides to divide the House, we will support her.
Lord Judge (CB)
My Lords, I cannot agree with everybody. The noble Lord, Lord Harris, made the crucial point that both these provisions have to be read together. This is a single policy decision. We have talked about 13 year-old boys but let us try a different example: the ANC when Mr Nelson Mandela, one of the heroic figures of the last century, was a member of that organisation. Undoubtedly it did, and was minded to, use what we would all call terrorism in the cause of defeating apartheid. There is no problem about arresting him. I consider it perfectly possible for an individual to say, “I entirely agree with the aims of the ANC—the idea that a man or woman should be distinguished against because of the colour of his or her skin is simply unacceptable. But I disagree with using bombs to achieve that objective”. They would therefore, using perfectly ordinary English language, not be supporting the ANC. But in saying, “I find that its objectives are entirely admirable and I agree with them”, they would be supportive of it. The distinction between these two words is rather significant and merits consideration. I respectfully suggest that we should go to either “supports” and “reckless”, or “supportive of” and “intent”. Either way, those alternatives would have identified a significant piece of conduct which ought to be criminalised.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendments 1 and 2, in the names of the noble Baroness, Lady Jones, and the noble Lord, Lord Paddick, concern issues that we discussed in Committee. I listened carefully to the debate then and have listened carefully to the debate this afternoon. I have great respect for the noble Baroness but I want to make it clear that if she puts her amendment to the vote today and divides the House, we will not be with her. For me, the crucial word is “and”, which links new subsections (1A)(a) and (1A)(b). My noble friend Lord Harris of Haringey made the point that we need to read and consider both paragraphs together.
In Committee, the noble Lord, Lord Carlile, put it much more eloquently and succinctly than I can and he has done so again today. In Committee, he said:
“First, it recognises that even in this relatively gun-free”,
society,
“if someone expresses support in a certain way for a proscribed organisation, it may put some of our fellow citizens in mortal danger of their lives.”.
He went on:
“It does not criminalise the expression of support, rather it forbids and criminalises the expression of support on certain terms as set out in proposed new Section 1A(b), and that is the test of recklessness. Recklessness requires awareness of the risk that is being taken by the speaker”.—[Official Report, 29/10/18; cols. 1130-31.]
I agree very much with that position and, on the basis of it and what I have heard today, we will not support the noble Baroness in the Lobbies today. I did not accept at all her point that you can be supportive of an organisation but not support it. I think that if you are supportive of it, you do support an organisation. The clause as drafted is reasonable and, for me, it strikes the right balance.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
I thank noble Lords who have spoken in this debate and particularly the noble Baroness, Lady Jones, for moving her amendment. She has set out her position on this clearly and consistently, but I hope that your Lordships will indulge me if I rehearse the reasons why the Government cannot support the amendments.
As the noble Baroness said, Clause 1 amends Section 12(1)(a) of the Terrorism Act 2000, under which it is currently an offence to invite another person to support a proscribed terrorist organisation. An invitation in this context may be explicit or indirect, and may be implicit or opaque, but for a conviction to be secured the prosecution must be able to prove that the person intended to influence others to support the terrorist organisation. I recognise that, when considered in the abstract, this may appear to be the right threshold for the offence. However, in its operation it has been shown to leave a significant gap in the ability of the police, the CPS and the courts to act against hate preachers and radicalisers, as noble Lords have pointed out. This is because such individuals will often be careful to err on just the right side of the law. They will express opinions and beliefs which, in the judgment of a reasonable person, would be likely to have the effect of encouraging others to support proscribed terrorist groups but will stop short of statements which would go far enough to allow the CPS to prove that they intended such encouragement. This is despite them clearly and unambiguously risking harm to the public by virtue of their expressions.
This gap is illustrated by some of the cases to which I have previously drawn the House’s attention, and which were described by Assistant Commissioner Neil Basu in his evidence to the Public Bill Committee in the House of Commons. I urge noble Lords to examine that evidence carefully. In those cases, it was not possible to prosecute prolific and high-profile preachers of hate who had made highly inflammatory public speeches which were very clear about the speaker’s own support for terrorist organisations and methodology and which were on any reasonable assessment likely to cause their audience to be influenced to support a proscribed organisation. They included open admiration for Daesh and other terrorist groups and praise for their methods, ideology and activities.
However, I hope I will reflect the views of many noble Lords when I say that the current position strikes the wrong balance if it allows such obviously harmful behaviour to go unchallenged. This is behaviour that can have a powerful effect in initiating or moving along the process of radicalisation. There are radicalisers and hate preachers who have, time and again, been shown to have played a prominent and influential role in the backgrounds of those who have been convicted of planning or carrying out terrorist attacks.
Clause 1 is intended to close the gap I have described by bringing within the ambit of the Section 12(1)(a) offence individuals who are reckless as to whether they will cause this harm to arise. We have previously debated what is meant by “reckless”, but I think it is worth briefly setting this out again, before I turn to my concerns with the noble Baroness’s proposed amendments to Clause 1.
To answer the noble Baroness’s question, the term “reckless” is a well-established and well-understood concept in the criminal law, and one with which the courts are familiar, in particular as a result of clear case law established by the then Appellate Committee of this House in 2003 in the case of R v G and another. A person acts recklessly where he or she is aware that in the circumstances there is a risk that their conduct will result in the proscribed outcome, and they none the less engage in that conduct in circumstances where a reasonable person would not.
So, under Clause 1, a person might act recklessly if, in the course of addressing an audience consisting primarily of individuals whom he believes are of an Islamist extremist mindset, he speaks of his own support for Daesh, believing he has a degree of influence over the audience and being aware of the risk that members of the audience will be influenced by him to support Daesh. I hope noble Lords will not disagree when I say that a reasonable person would not, and should not, proceed to make that speech in those circumstances. A person who none the less does so would therefore be doing so recklessly. It may not be possible to prove beyond reasonable doubt an intention to influence their audience to support Daesh, but I consider it appropriate and proportionate that the courts can hold them to account if they are reckless in this way. Clause 1 will ensure that this is the case.
Turning now to Amendment 1, the noble Baroness, Lady Jones, set out a concern that the reference to a statement that is “supportive” of a proscribed organisation might risk a person being found guilty of a terrorism offence having tweeted their support for a legitimate political objective which happens to be shared by a proscribed terrorist organisation. She gave the examples of support for an independent Kurdistan and for the withdrawal of Israeli troops from the Occupied Territories, both of which are entirely legitimate standpoints but which are also objectives of, respectively, the PKK and the military wings of Hamas and Hezbollah. I have previously assured her, and I am happy to repeat those assurances, that this is not the case. In her example, there would be no suggestion that the person supported terrorist methods to achieve the political objectives to which they aspired or that they supported any proscribed terrorist organisation. There would, therefore, be no basis on which a reasonable person might equate such a statement with support for the PKK or for the proscribed wings of Hamas or Hezbollah or might anticipate that a listener would be influenced to support those organisations. As such, the statements would not meet the recklessness test and would clearly not be caught by Clause 1.
The noble Baroness further highlighted in Committee that the existing Section 12(1)(a) offence refers to,
“inviting support for a proscribed organisation”,
whereas Clause 1 refers to,
“opinion or belief that is supportive of a proscribed organisation”.
She suggested that “supportive” is, intentionally, a broader wording, which will cast the net of the offence more widely than would be the case if the word “supports” were used instead.
I think we are all clear that there is no difference in meaning in the context of the drafting. The existing Section 12(1) offence criminalises those who invite others to support a terrorist group. That word has the wider meaning that the noble Baroness described, repeating what the court said in Choudary, but in the new offence, we are talking about an opinion or belief. As a matter of syntax, an opinion or belief cannot support an issue; a person supports something. That is why parliamentary counsel has used the word “supportive” here. There is no intention to introduce a wider concept than the existing offence. Crucially, new Section 12(1)(b) requires that a person will be encouraged to support a proscribed group by the expression.
However, I can offer the noble Baroness a clear assurance that it would in any event have no meaningful impact on the effect of the clause, the scope of the offence or the range of causes that would be caught by it. This would be exactly the same whichever formulation were used.
Amendment 2 would remove the recklessness test and replace it with one that effectively repeats the existing position in the Section 12(1)(a) offence, so it would still be necessary to prove the same deliberate act of invitation to support.
The noble Baroness has made it clear that she does not support the purpose of Clause 1, and I respect that view, even if I do not agree with it, but I should make it clear to noble Lords that the amendment would entirely nullify the utility of this clause and, as such, were it to be made, we might as well simply strike the whole clause from the Bill.
I hope that with that explanation, noble Lords are satisfied and the noble Baroness will feel able to withdraw her amendment.
Lord Paddick
Before the noble Baroness sits down, perhaps she might address the remarks of the noble and learned Lord, Lord Judge.
Baroness Williams of Trafford
I heard what the noble and learned Lord, Lord Judge, had to say, but I do not agree. I hope that the reasons I set out explained why I do not agree.
Baroness Jones of Moulsecoomb
I thank the Minister for her assurances. I do not accept that Amendment 1 nullifies Clause 1; that is not true. I thank the other noble Lords who have spoken this afternoon.
I feel that I represent in this House someone against whom the law has been used illegally on other occasions. I am very law-abiding, I am extremely respectful of the law, but, at the same time, I have been targeted by the police. Therefore, I come from a particular perspective, which is that if definitions are not tight enough, they can be used against the innocent. This is personal. I have been in your Lordships’ House for five years and feel passionately about a lot of issues and have moved amendments to many Bills, but this is the first time that I am moved to divide the House.
Lord Paddick
Lord Paddick
My Lords, Amendment 3 is in my name and that of my noble friend Lady Hamwee. I will speak also to our other amendments in the group, Amendments 4, 5, 8 and 9.
It is a little confusing, but Amendment 15, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, was initially in this group, because it deals with it not being an offence to go to a designated area if you have good reason to do so. However, because Amendment 15 also contains a list of reasons that would make it legitimate for you to go to a designated area, it conflicts with the government amendment in group five and has therefore been placed in that group. However, with the leave of the House, I will address in this group the element of Amendment 15 that relates to something not being an offence.
I will start with the offence of being in a designated area, which is the subject of Amendments 8, 9 and 15. Noble Lords are rightly exercised about humanitarian aid workers, journalists and others going to a designated area and committing an offence—to which charge there is a defence, but apparently the defence cannot be mounted unless and until somebody has been charged. This means that those wishing to see a seriously or terminally ill relative, to use another example, may well be deterred from making the journey as, in the way the law is currently drafted, they will commit an offence whatever reasonable excuse they may have.
Our Amendments 8 and 9, and Labour’s Amendment 15, which we will debate in group five, effectively seek to put the reasonable excuse up front so that people are able to travel to a designated area with good reason, safe in the knowledge that, provided that the purpose of their visit is reasonable and legitimate, they will not be committing an offence. The wording we have used is similar to that in the Prevention of Crime Act 1953: the offence of possessing an offensive weapon in a public place,
“without lawful authority or reasonable excuse”.
In the case of offensive weapons—there is a precedent for this approach—a person does not commit an offence if they have lawful authority or reasonable excuse. This is instead of committing an offence and being able to use a reasonable excuse defence if and only if charged.
As the Bill is drafted, the person charged with an offence can tell the court that they have a reasonable excuse and the prosecution would have to prove that this was not the case. Section 118 of the Terrorism Act 2000 states that if the accused,
“adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
What then would be the drawback of saying that someone does not commit an offence, if they have evidence that is sufficient to raise an issue that amounts to a reasonable excuse with respect to entering or remaining in a designated area? If the police have evidence that the person is not intending to travel for the purpose for which there is a reasonable excuse, or that they did not engage in the activity that they said was the purpose of their visit, when they return to the UK the person can be arrested on the grounds that the police have reasonable cause to suspect that they may be about to commit, or have committed, an offence: that is, travelling to or remaining in a designated area without reasonable excuse.
At this point, I will address an issue raised by the noble Lord, Lord Carlile, on a previous group. The fact is that the grounds on which a police officer can make an arrest are very low. A constable can, for example, arrest somebody whom they have reasonable cause to suspect may be about to commit an offence. That is a very, very low threshold, and much lower than in the CPS charging guidelines. I give way.
Lord Carlile of Berriew
The noble Lord has read out only part of the grounds for arrest. There has to be a necessity for arrest. If he is going to read out the arrest conditions to your Lordships’ House, he should read them all, because necessity is essential.
Lord Paddick
I know that I am taking my life in my hands by arguing with a lawyer, but I believe that the noble Lord is referring to the Human Rights Act, which requires necessity and proportionality before the officer exercises the power of arrest. However, under the Police and Criminal Evidence Act, the constable can arrest somebody if they have reasonable cause to suspect that they may be about to commit an offence—which is what I have just said.
The advantage of legislating this way round, as proposed in the amendments, is that, if people are visiting sick or dying relatives, or are aid workers or journalists and have a genuine reason for travelling, they will not be committing an offence and will not be unreasonably deterred by the fear that they may be arrested, either on their way to or their return from a designated area.
Lord Carlile of Berriew
I am sorry; I cannot let this pass. If the noble Lord were to look at Section 110 of the Serious Organised Crime and Police Act 2005, he would find that one of the arrest conditions is that there has to be a necessity. Section 110(4) includes the words,
“exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question”.
That is why reasonable suspicion is not a sufficient ground for arrest—and we need to be clear about that.
Lord Paddick
Sadly, I do not have the legislation in front of me, so I cannot comment. No, I will not accept the noble Lord’s offer of taking his iPad to look at the legislation. I do not think that that is reasonable in all the circumstances.
If we accept that this is a reasonable way to approach the issue—that someone does not commit an offence if they have a reasonable excuse—what, then, is the difference between that and a journalist or academic being able to access material on the internet? They would be safe in the knowledge that, provided the purpose for visiting a website containing information that might be of use to a terrorist was reasonable and legitimate, they would not commit an offence.
I argue that the only difference is that here someone is entering into or remaining on a designated website rather than a designated area. Websites that contain information that might be of use to a terrorist are, if you will, designated areas of the internet, so entering or remaining on that website is an offence. Our Amendment 4 would ensure that it would be an offence only if a person collected, made a record of, possessed a document relating to, viewed or otherwise accessed by means of the internet information of use to a terrorist and they did not have a reasonable excuse for having or accessing that information.
Amendment 5 is consequential in that it would remove the “defence if charged” provision, which would be redundant were Amendment 4 accepted.
Turning to Amendment 3, similar arguments apply to the innocent or inadvertent publication of an image of a uniform or a flag. The ISIS flag on a friend’s bedroom wall that goes unnoticed when a selfie is posted on Facebook, which may well arouse reasonable suspicion that those in the picture support a proscribed organisation, could very well be an innocent or stupid mistake. Should the young person responsible be able to provide a simple and compelling excuse for his actions to the police officer on the doorstep rather than in an interview under caution, would that not be a better outcome?
There is nothing to be lost in having offences that are offences only if there is no reasonable excuse for the suspect’s actions. Police officers who fail to be convinced that the excuse is reasonable at the time they decide to make the arrest or who feel that the excuse might sound reasonable but needs to be verified would still have reasonable cause to suspect that the person might have committed an offence and arrest the person if it is necessary and proportionate to do so. However, it also provides the person accused of committing the offence with a legal remedy, and the police with a good reason to act reasonably, if there is clearly a reasonable excuse that is blatantly obvious and easily verifiable at the time of the arrest, yet the person is still deprived of their liberty.
I admit that the designated area offence and the obtaining or viewing of material offences have a more compelling claim for a “reasonable excuse means no offence” modification but there are circumstances where there might be a reasonable excuse for publishing an image in such a way or in such circumstances as to arouse suspicion that the person is a member or supporter of a proscribed organisation when they are neither of those things, and this will be immediately apparent to the officer sent to investigate. In my view, it is too late in the chain of events that could ensue for the reasonable excuse to be available only as a defence once charged.
No doubt the Government will say that the police can be trusted not to arrest in circumstances where a reasonable excuse is immediately apparent. With over 30 years of police experience and having witnessed at first hand the devastating consequences of innocent people being arrested and detained on the flimsiest of evidence, I am very concerned about the potential for abuse that this legislation as currently drafted provides.
Unless the Government can provide compelling reasons as to why the “reasonable excuse” defence should not engage at the beginning of the investigative process rather than at the end, I suggest that they might want to consider these arguments and undertake to discuss them further with interested Peers before Third Reading. If, however, when we come to debate his amendment in the fifth group, the noble Lord, Lord Rosser, decides that in the case of designated areas the arguments are compelling and the Minister’s response is inadequate, we will support him if he decides to divide the House on that issue. I beg to move.
Lord Rosser (Lab)
We support the concerns that have been expressed by the noble Lord, Lord Paddick, that, under the wording of this Bill, a person could potentially be deemed to have committed an offence even though they were pursuing a legitimate business or activity, or, in the case of a designated area, simply by entering the area itself. That specific issue is addressed in Amendment 15, to which the noble Lord, Lord Paddick, referred. As I say, we support the concerns expressed about the extent to which people with legitimate business or activity could potentially find that they have committed an offence under the provisions of this Bill.
Lord Judd (Lab)
My Lords, I declare an interest because of my professional and voluntary past, as recorded in the register. We are touching on immensely significant issues. I have great respect for those responsible for the grouping of amendments, and have seen its effectiveness over many years, but there are occasions when the overlap between two different groups becomes particularly significant.
I note that the amendment from the noble Lord, Lord Paddick, which deals with the matter that I am about to raise in specific terms, is equally significant and perhaps more controversial in this area. I am talking about the invaluable and courageous contribution made by dedicated people to the long-term task of peacebuilding. They go into an area for a long period of time and become what might be referred to in other spheres as embedded—they become part of the local population by the very nature of their work. They are trying to build the reconciliation and understanding which is necessary for a long-term solution.
Unfortunately, we are limited by the grouping of the amendments. I have had a certain amount of discussion with those responsible and very much value, as I always do, their advice. However, it is fair to say that I am uneasy. It seems to me that by the very nature of the work of peacebuilding—sometimes having to get close to people who are not necessarily very attractive or who are controversial—people could give a police officer grounds for arrest on the basis that we have heard explained.
It is therefore absolutely essential that at every moment in our relevant discussion of this part of the Bill, the Minister is at pains to spell out that bona fide peacebuilders are exempt and protected. Otherwise, this could have terrible dumbing-down effects on those who would be anxious to do such work. It would put great strain on them in terms of what could happen to them and would therefore hamper their work considerably. If that were to happen, it would be a great loss. No matter how important the humanitarian dimensions—humanitarian aid and the rest, to which I will take second place to nobody in terms of my support—it is very often in this area of peacebuilding that the really significant work for the future is undertaken. I therefore hope that the Minister will take this point seriously and perhaps take the opportunity to pay tribute to those who sometimes undertake this work, and that we can be sure that exemptions in any other sphere, in all aspects of the operation of the Bill, apply in this case.
Baroness Williams of Trafford
My Lords, I thank the noble Lord, Lord Paddick, for taking us through an explanation of his amendment and explaining it with reference to Amendment 15 and his point about people who have a reasonable excuse.
In relation to viewing terrorist information in Clause 3 and entering or remaining in a designated area in Clause 4, the amendments would reconfigure the offences. Rather than the person who committed the offence of engaging in prohibited conduct being acquitted because they use the defence of having a reasonable excuse, there would instead be an exception—they would not be capable of committing the offence in the first place in circumstances where they have a reasonable excuse.
In relation to the offence of publishing images under Clause 2, there is currently no “reasonable excuse” defence. Rather, the offence is committed only if an image of an article is published in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. Amendment 3 would insert the same reasonable excuse exception that I have just described, which would operate in addition to the reasonable suspicion requirement concerning the circumstances in which the image is published.
Noble Lords have set out their arguments that there should be, at the outset, no question that a person might be guilty of an offence if they have a reasonable excuse for engaging in the activity covered by these offences. It has been argued that that approach will prevent the CPS from charging a person in these circumstances rather than the person potentially being charged and then having to invoke a “reasonable excuse” defence. I recognise that the approach of structurally rearranging the legislation may seemingly provide a greater degree of comfort to a person who finds themselves under suspicion in respect of one of these offences despite having a reasonable excuse, but I am not persuaded that these amendments would secure the outcome sought in relation to Clauses 3 and 4.
Amendments 4, 5, 8 and 9 are unnecessary as they would, in practice, make no material difference to the position of subjects of investigations and of defendants facing a charge under these clauses or on the matters that the prosecution will need to prove and that the court will need to resolve.
We have debated how the existing safeguards influence investigative and prosecutorial discretion, and how they prevent cases from proceeding where there is evidence that the person has a reasonable excuse. The amendments in my name which expand on these provisions in Clauses 3 and 4, and which we will shortly come to, will strengthen these safeguards further by providing indicative lists of reasonable excuses.
I shall go briefly over this ground again. Charges may be brought only if the CPS determines that the full code test is met. This is met only if there is evidence to provide a reasonable prospect of conviction, and if so, whether a prosecution would be in the public interest. Those are very important points. If there is evidence to suggest that the person has a reasonable excuse for engaging in the otherwise prohibited conduct, there will not be a reasonable prospect of conviction because they will be able to successfully invoke the “reasonable excuse” defence. Furthermore, it would not be in the public interest and would be fundamentally inappropriate for prosecutors to charge a person who they believe is likely to be innocent of any criminal conduct as a result of having such a defence. The effect of this is the same as that envisaged by the noble Lord’s amendments. In either case, the CPS will not bring a prosecution if there is evidence that the person has a reasonable excuse which the CPS considers could not be disproved by the prosecution beyond reasonable doubt.
Furthermore, neither the existing model nor that proposed by the noble Lord provide immunity from either investigation or prosecution purely on the basis that the person states that they have a reasonable excuse. Under either model, the police will need to investigate the person to establish what activity they have been involved in and whether they may have a reasonable excuse for it, and to gather evidence.
It will rightly remain open to the CPS to prosecute if it believes, following the investigation by the police and on the basis of the evidence gathered, that the person does not have a reasonable excuse, despite any assertion that the person might make to the contrary. Under either model it would then be for the person to advance their reasonable excuse, for the prosecution to disprove it beyond reasonable doubt, and ultimately for the jury to determine whether or not it is a reasonable excuse. Unless we were to introduce a unilateral immunity from prosecution for any person who declares themselves to be innocent, this must always be the position and the noble Lord’s amendments would not change it.
Although these amendments would not make a significant change to the practical operation of the law in this area, they would depart from the commonly taken approach in the criminal law where offences provide a “reasonable excuse” defence. In particular, they would overturn what is a well understood and settled position, with clear case law, in relation to Section 58 of the Terrorism Act, which Clause 3 amends. I do not think that it would be wise to do so unless there was a very persuasive case for it, which I do not think is being made here.
I turn finally to Amendment 3. Clause 2 in its current form does not make any provision in relation to reasonable excuses. But it is not an offence of strict liability and it cannot be committed by the mere fact of publishing an image. Rather, it is committed only in particular circumstances which the prosecution is required to prove beyond reasonable doubt. These are where the image is published in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation.
We have previously debated the operation of this aspect of Clause 2, and I am happy to reiterate the Government’s clear position that it will provide both certainty and protection for those who have a legitimate reason to publish images of flags or other articles associated with proscribed organisations, and who are not themselves members or supporters of the organisation. This clear limitation on the scope of the offence is the best way to provide a safeguard for individuals such as journalists or historians, and the addition of a reasonable excuse provision is not necessary in addition. Indeed, it would be likely to overcomplicate and undermine the operation of the offence.
The Government do not consider that a person should in fact have a reasonable excuse for publishing such an image in circumstances which do not meet the criteria of the offence; that is to say, where a court is satisfied that the circumstances give rise to a reasonable suspicion that the person is a member or supporter of a terrorist organisation. Indeed, I would query whether there is a scenario which would not be covered by the existing safeguard but which should be considered a reasonable excuse. I cannot think of one. For those reasons, I invite the noble Lord to withdraw his amendment.
Lord Paddick
I am grateful to the Minister for her explanation. The Government seem to be relying on the CPS charging decision, which is very different from the decision that an operational police officer in an uncontrolled environment makes at the time about whether to arrest or not to arrest. The Minister said that there was no material difference, which there is not in terms of successful prosecution. However, it makes a difference to the likelihood of a person being arrested or people being deterred from engaging in completely legitimate activity for fear that they may be arrested, whether they have confidence in the police making the right decision or not.
The Minister talked about a commonly taken approach in law, yet I gave the example of the Prevention of Crime Act 1953, where a person does not commit an offense of possessing an offensive weapon if they have “lawful authority” or “reasonable excuse”; that is determined by the operational officer on the street at the time. I am afraid that I find few of the Minister’s arguments compelling. However, we will return to this issue, particularly in relation to designated areas, when we come to the fifth group of amendments. I beg leave to withdraw the amendment.
(b) the person’s action or possession was for the purposes of—(i) carrying out work as a journalist, or(ii) academic research.”
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, we have had detailed and insightful debates on Clause 3, particularly on the operation of the “reasonable excuse” defence in Section 58 of the Terrorism Act 2000, which Clause 3 amends. Amendment 6 responds to arguments made in both Houses that we should provide greater certainty that particular categories of legitimate activity will constitute a reasonable excuse.
As I explained previously—and as my right honourable friend the Minister for Security and Economic Crime explained in the House of Commons—it is clear that those engaged in legitimate journalism and academic research have been able to rely on the “reasonable excuse” defence provided by the Section 58 offence in its present form since it was passed in 2000. The Government have been equally clear that this will continue to be the case under Section 58 as it will be amended by Clause 3.
We have also set out the longstanding legal position, codified by the Appellate Committee of this House in a 2008 judgment, that it is for the jury to determine whether a particular excuse in a particular case is reasonable on the basis of all the evidence in that case. Such a determination will always be highly fact-specific; it is not possible to prescribe particular exemptions or reasonable excuses in advance and in the abstract. The Government have therefore taken the approach until now that it has not been necessary to write these categories of reasonable excuse into the Bill.
However, we have heard the points made by your Lordships and reflected on the concerns raised. We recognise that the Government’s assurances have not satisfied noble Lords thus far as to the protection afforded to journalists and academics by Section 58, and which will apply following Section 58 as amended by the Bill. It is clear that the Government need to go further and provide greater assurance. In that spirit, we tabled Amendment 6.
The amendment will make it clear in the Bill that it will be a reasonable excuse for a person to access terrorist material falling under Section 58 for the purposes of academic research and carrying out work as a journalist. This will apply both to the existing limbs of Section 58—that is, the collection, possession or making a record of such material—and the new limb of viewing material online, which Clause 3 will insert. The amendment will underline and put beyond doubt the position already set out by the Government. I hope that it will be welcomed by your Lordships as providing the necessary assurance to those working in the fields of journalism and academia who have a legitimate reason to access terrorist material.
The amendment has been carefully drafted so as to complement, rather than overturn, the existing legal position relating to reasonable excuses. Clause 3(4) already provides one example of a case that may constitute a reasonable excuse, which is where the defendant did not know and had no reason to believe that the material in question contained information likely to be useful to a terrorist. The amendment expands on that to additionally provide the two examples I mentioned.
I stress that this is an indicative rather than exhaustive list of cases that may constitute a reasonable excuse, and it will remain open to defendants to advance other types of reasonable excuse. This will ensure that we retain the flexibility to cover other unforeseen circumstances that may arise, and that we do not inadvertently close off the “reasonable excuse” defence to those who may have an equally reasonable excuse of a different nature. I appreciate this construction is not self-evident from the Government’s amendment, so I understand why the noble Lord, Lord Paddick, tabled Amendment 7. But key here are the words,
“but are not limited to”,
in new subsection (3A) of Section 58 of the Terrorism Act 2000. That qualification will apply to the new paragraph (b) inserted by the Government’s amendment. All will become clear once the Bill is reprinted after Report.
Amendment 6 does not provide an absolute and automatic exemption for any person who states that they are a journalist or academic. That would not be appropriate, and it would move away from the position established in case law by this House. In Committee, a number of your Lordships highlighted the difficulties in legislating to differentiate legitimate journalism from that which may be carried out by a person with more nefarious intentions, whether as a cover for their true activities or as a platform to propagate their terrorist views. The approach we are taking will ensure that juries will be able to make such distinctions in individual cases, based on the particular facts.
I hope that Amendment 6 will be welcomed as addressing the concerns that have been raised, and as offering a meaningful compromise to those noble Lords who have raised them. I commend it to the House and I beg to move.
Amendment 7 (to Amendment 6)
Baroness Hamwee
Baroness Hamwee
My Lords, the noble Earl says that all will become clear. I am afraid that I have another question for him that occurred to me quite close to the debate: where do you put paragraph (a) in new subsection (3A)? I can see three places where it might go. Depending on the answer I will be even more welcoming of the Government’s amendment. It could go after the words “subsection (3)”, after,
“but are not limited to”,
or after “action or possession”. There might be other places as well. The noble Earl might want an opportunity to consider that.
We welcome the explicit safeguard, but our concern is that streaming by someone through,
“foolishness, inquisitiveness or curiosity, without intending to do harm”,—[Official Report, 29/10/18; col. 1168.]
were actions for which the Minister expressed “sympathy”. He went on to say that the offence was,
“aimed at those of a terrorist mindset”.—[Official Report, 29/10/18; col. 1167.]
Journalism, academia and, no doubt, other appropriate applications of inquisitiveness are relatively limited. If you are inquisitive, you will very probably have had reason to believe that the record is likely to contain information useful to someone preparing an act of terrorism. I do not ignore the CPS code test, but I am left with an uncomfortable feeling that the government amendment might narrow the offence and that Clause 3 remains rather wide.
Baroness Jones of Moulsecoomb
My Lords, I want to put on record my thanks to the Government for listening to the concerns expressed in Committee on this issue and welcome the amendment with the caveats that we have just heard from the noble Baroness, Lady Hamwee.
The Marquess of Lothian (Con)
My Lords, as my noble friend the Minister will know, the committee which I have the honour to serve on behalf of this House along with the noble Lord, Lord Janvrin, produced a report 10 days ago on the lessons to be learned from terrorism incidents last year. One of the points that we made was that in most of, if not all, those incidents, the perpetrators had had access to the type of extreme material covered by this Bill and clause. We therefore support the way in which the Bill is being amended and developed today, because it provides another safeguard against one area where radicalisation can take place leading to terrorism incidents in due course. That is the position of my committee—I am sure that the noble Lord, Lord Janvrin, would accept that.
Can we have a definition of “academic”? I presume that it is not limited just to professional academics, because that would be very restrictive. There is a lot to be said for learning lessons from terrorism incidents, with those doing that type of work, including the committee of which I am a member, having access in order to see what type of material is leading to the radicalisation taking place. I hope that the Minister will be able to reassure me that “academic” would cover that area.
My other point relates to “journalist”. I may be behind the times and not know how it is defined in law, but “journalist” seems a very broad definition. There are professional journalists—I quite accept that this amendment should cover them—but there are in my experience other journalists, some of whom call themselves bloggers and others who call themselves contributors to particular types of publications. It might not be in the interests of security that those people have access to such material. Can the Minister respond to those two points?
Earl Attlee (Con)
My Lords, I thank the Minister for tabling the amendment. It is hard to think of any reason other than journalism or academic research, but it is good that the legislation as it will be drafted allows for that possibility. As for my noble friend’s point about journalism, it has never been accurately defined. Other terrorism legislation refers to journalism, but the drafting of my noble friend’s amendment makes it quite clear that it has to be journalistic work.
Lord Kennedy of Southwark
We fully support government Amendment 6 in the name of the noble Baroness, Lady Williams of Trafford, and moved by the noble Earl, Lord Howe. As we have heard, it responds to concerns raised during consideration of the Bill in Committee in this House and the other place. It is a helpful amendment, as it puts in the Bill a specific provision making it clear that a person has a reasonable excuse for possession of certain material where it is for the purpose of carrying out journalistic or academic research.
Amendment 7 is an amendment to Amendment 6. I have considered it carefully and can see the point being made the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, but the amendment is unnecessary and would add nothing to the clause as amended by Amendment 6. As the noble Earl said, “but … not limited to” covers the other points made. As amended the clause is fine; I do not think that we need the other amendment. The noble Marquess, Lord Lothian, made some important points which I hope the Minister will respond to, but we support the government amendment.
Earl Howe
My Lords, I am grateful to all noble Lords who have spoken, especially for the supportive comments from the noble Baroness, Lady Jones, and my noble friend Lord Attlee, but also for the very helpful remarks from the noble Lord, Lord Kennedy. I shall endeavour to cover all questions that have been put.
The noble Baroness, Lady Hamwee, asked a drafting question. She asked where paragraph (a) will actually fall in the text. I can tell her that paragraph (a) will begin with the words after line 40 on page 2, so I hope that it will run in the broad way rather than the narrow way in which she hoped it would.
Baroness Hamwee
The last words of line 40 read,
“in which at the time”
and the next line starts, “of the person’s action”. As I said, I identified two places in line 40 where paragraph (a) might be inserted. It is a drafting point but also a point of substance, because where paragraph (a) starts actually affects the whole of the point. Can the Minister give a little more assistance?
Earl Attlee
My Lords, perhaps if my noble friend the Minister is not absolutely certain on this point we could return to it at Third Reading to clarify the drafting amendment.
Earl Howe
My Lords, I was not as precise as I should have been. The words after,
“(but are not limited to) those in which”,
will become paragraph (a). So it will read,
“(but are not limited to) those in which (a) at the time of the person’s action or possession, the person did not know”,
et cetera. Paragraph (b) will follow after line 44. I hope that that clarifies the point.
My noble friend Lord Lothian asked a series of very reasonable questions about the meaning of the words “journalist” and “academic”. The distinction between journalism that constitutes a reasonable excuse and that which does not, for the purpose of this offence, will inevitably be highly fact-specific. As several noble Lords commented in earlier debates on the Bill, it is just not possible to provide in advance an exhaustive definition of a journalist or of a legitimate journalist. This is something that we are clear needs to be determined by a jury in particular cases on the basis of all the evidence. We have made it clear that our amendment adds an indicative list of categories of reasonable excuse and does not provide either an exhaustive list or an absolute exemption. It is important to remember that juries will retain their existing discretion to decide whether a particular excuse is reasonable on a case-by-case basis. The same logic would apply to the meaning of the word “academic”. The category of person that my noble friend described might or might not be considered by a jury to be an academic: it would depend on the facts of the case. The jury might consider that there was still a reasonable excuse for a particular individual. I hope that that is helpful.
Baroness Hamwee
My Lords, I am grateful to the Minister for that explanation because it answers my point and deals with my amendment. I am sorry to have been tedious and to have consolidated my reputation for pedantry—the noble Lord, Lord Harris, says that is impossible—but I think it was a substantive point. I beg leave to withdraw the amendment.
Lord Rosser
“( ) If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.”
Lord Rosser
Clause 4 inserts, in new Section 58B of the Terrorism Act 2000:
“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.
We have been told by the Government that the wording in this new section does not mean exactly what it says and that the burden of proof that they had a reasonable excuse will not rest with the person entering or remaining in the designated area. However, the Government have so far resisted the idea that, if that is the case, it would be better that this new section actually said what it apparently means—which, I understand from the Government, is that the person concerned would have to provide only some evidence that they had a legitimate reason for being in the designated area and it would then be for the prosecution to prove beyond reasonable doubt that that was not the case for the defence to fail.
Our amendment intends to set that out as the position and puts in the Bill wording used in the Terrorism Act 2000, which the Government say is what would apply, rather than the wording on its own in new Section 58B, which I quoted earlier. The amendment would add to new Section 58B the following words:
“If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
The wording in our amendment clarifies what the proposed wording currently in the Bill actually means when it refers to the person charged having to prove that they had a reasonable excuse for entering or remaining in the designated area. I hope that the Government will feel able to accept the amendment—or, if they cannot, will agree to bring forward their own wording at Third Reading. Surely it is in everyone’s interests to make legislation as clear as possible to all in its meaning. I beg to move.
Lord Anderson of Ipswich (CB)
My Lords, the burden of proof should be on the prosecution and should be seen to be on the prosecution. Lawyers who know where to find Section 118 of the Terrorism Act 2000 may be untroubled by the point made by the noble Lord, Lord Rosser. However, the existence of that section is not widely known. Indeed, only last week I found myself in that great deliberative assembly, Twitter, correcting the damaging and widespread misapprehension, advanced in good faith, that the Terrorism Acts reverse the burden of proof. I support the idea behind the amendment, although—as I am sure the noble Lord, Lord Rosser, would accept—if it is to produce clarity, it would have to be applied a little more widely to a variety of existing offences under the Terrorism Act, including Sections 57 and 58.
Lord Paddick
My Lords, I agree with both noble Lords. The amendment seems to be common sense. As the noble Lord, Lord Anderson of Ipswich, said, while Section 118(2) places the burden of proof on the prosecution to disprove the reasonable excuse, you have to hunt pretty far to find it. Currently it does appear, if one takes an ordinary, common-sense meaning from what the legislation says, that the burden is actually reversed.
Lord Judge
My Lords, Section 118 got somewhat lost in the discussions earlier. I support this amendment but I wonder whether, when the Minister comes to reflect on it, we would need the words,
“the court or jury shall assume that”.
It is a straightforward point of drafting but, with respect to the matter, “the defence is satisfied unless” would seem adequately to cover the amendment.
Lord Carlile of Berriew
My Lords, with great respect to my noble friend, and indeed to my noble and learned friend on my right, I wonder why one needs to say something twice in the same statute.
Earl Howe
My Lords, Amendment 10 returns us to an area on which we have previously had helpful and extensive debates: namely, the question of how much evidence is required to establish a reasonable excuse defence under Clause 4, on whom the burden of proof falls and how this is set out in the legislation. As the noble Lord, Lord Rosser, rightly said, these issues have previously caused some uncertainty as they require Clause 4 to be read in conjunction with Section 118 of the Terrorism Act 2000, which sets out how the burden of proof applies to a number of defences to criminal offences within the 2000 Act including, but not limited to, the new designated area offence. It may therefore be helpful if I remind your Lordships of how these provisions operate.
The approach taken in relation to proving a reasonable excuse defence under Clause 4, which inserts the designated area offence into the Terrorism Act 2000, is the exact same formulation that is used elsewhere in various defences to offences contained in the 2000 Act, including the defence to the Section 58 offence which is amended by Clause 3. Clause 4 refers to a defendant proving that they have “a reasonable excuse”. We must then turn to Section 118, which makes further provision on what is required to “prove” a defence in this context. The noble Lord, Lord Rosser, has previously raised a concern that the wording of the two provisions might be out of step, and that Clause 4 might place a greater burden on defendants to make out a reasonable excuse than is envisaged by Section 118. I have addressed this in previous debates and have written to him following our most recent debate in Committee. I hope that I have been able to reassure him that this is definitely not the case.
Section 118 provides that if a defendant,
“adduces evidence which is sufficient to raise an issue with respect to the matter”—
that is to say, the matter has to be proved under the wording of the defence—
“the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
This, together with relevant case law, has the effect that if a defendant puts forward sufficient evidence to reasonably support a suggestion that he or she has a reasonable excuse, the burden of proof shifts to the prosecution to disprove that defence, which it must do to the normal criminal standard of “beyond reasonable doubt”. If the prosecution fails to do so, the jury must assume that the defence is made out.
Amendment 10 would insert this wording from Section 118 into Clause 4. The noble Lord has suggested that this would make the operation of Clause 4 clearer and would put beyond doubt what is required of a defendant to establish a reasonable excuse defence. I have every sympathy with the noble Lord’s desire for clarity. This is not the most straightforward of the Bill’s provisions, requiring as it does two different provisions in the 2000 Act to be read in conjunction, but I can assure him that there was a good reason for drafting it in this way. It is very simply that, as the noble Lord, Lord Anderson, said, Section 118 makes the same provision in relation to eight other provisions in the 2000 Act which include similar defences. Each of those defences points back to the same single place—Section 118—rather than including eight repetitions of the same wording in eight different places. This is a standard drafting practice where a common principle governs the operation of multiple provisions. It is considered to be the best way of providing clarity and consistency, and of not unnecessarily adding to the length and complexity of legislation.
In practice, the noble Lord’s amendment would have little or no impact on the operation of the reasonable excuse defence as it would simply duplicate the wording of Section 118, which already has effect. However, I must respectfully say that I am unable to support the amendment. As I have set out, the formulation used in the Bill as drafted, and in the 2000 Act, reflects normal drafting practice, and I do not see that there is sufficient reason to depart from this in relation to Clause 4. The courts have successfully operated Section 118 for 18 years in respect of the eight existing offences in the 2000 Act to which it also applies without anyone complaining that its effect is unclear or uncertain. There is clear case law and a settled and well-understood position.
Lord Rosser
I am obviously disappointed by the Government’s response, although it would be wrong of me to suggest that I am entirely surprised by it, since they have defended the position stoutly ever since we started discussing it. I probably do the noble Earl a disservice, but it seems to me that the Government’s argument is that we have made this error eight times and now we are going to make it a ninth, because apparently it is too big a problem to rectify the previous eight.
I do not intend to push this to a vote, but I will conclude by saying once again that surely we need legislation to be clear not just to lawyers but to all. I think somebody who reads this will not put the interpretation on it that they have to turn to another piece of legislation to find out that what new Section 58B says is not meant but that there was another intention and that the burden of proof in reality rests with the prosecution. I shall not pursue the matter any further. I am just sorry that the Government have not been prepared to take the bull by the horns and rectify it on this occasion—even if it means rectifying it in relation to the other eight instances at the same time. I beg leave to withdraw the amendment.
“(3A) The cases in which a person has a reasonable excuse for the purposes of subsection (2) include (but are not limited to) those where—(a) the person enters, or remains in, a designated area involuntarily, or (b) the person enters, or remains in, a designated area for or in connection with one or more of the purposes mentioned in subsection (3B).(3B) The purposes are—(a) providing aid of a humanitarian nature;(b) satisfying an obligation to appear before a court or other body exercising judicial power;(c) carrying out work for the government of a country other than the United Kingdom (including service in or with the country’s armed forces);(d) carrying out work for the United Nations or an agency of the United Nations;(e) carrying out work as a journalist;(f) attending the funeral of a relative or visiting a relative who is terminally ill;(g) providing care for a relative who is unable to care for themselves without such assistance.(3C) But a person has a reasonable excuse for entering or remaining in a designated area by virtue of subsection (3A)(b) only if—(a) the person enters or remains in the area exclusively for or in connection with one or more of the purposes mentioned in subsection (3B), or(b) in a case where the person enters or remains in the area for or in connection with any other purpose or purposes (in addition to one or more of the purposes mentioned in subsection (3B)), the other purpose or purposes also provide a reasonable excuse for doing so.(3D) For the purposes of subsection (3B)—(a) the reference to the provision of aid of a humanitarian nature does not include the provision of aid in contravention of internationally recognised principles and standards applicable to the provision of humanitarian aid;(b) references to the carrying out of work do not include the carrying out of any act which constitutes an offence in a part of the United Kingdom or would do so if the act occurred in a part of the United Kingdom.”
Earl Howe
My Lords, the government amendments in this group will make a number of changes to Clause 4. Clause 4 provides a power for the Secretary of State to designate an area outside the UK which he may exercise if it is necessary, for the purpose of protecting members of the public from a risk of terrorism, to restrict UK nationals and residents from entering or remaining in that area. It will be a criminal offence for a UK national or resident to enter or remain in a designated area without a reasonable excuse.
Much of the debate on Clause 4 has, of course, focused on that reasonable excuse defence, both on its application in various scenarios where a person might have a legitimate reason to enter or remain in a designated area, and on the certainty which will be provided to such a person that they will not subsequently be prosecuted.
The points of principle here and the legal position are very similar to those which we have already debated on the reasonable excuse defence in relation to Clause 3. I will therefore not detain your Lordships by repeating myself, save to say that the Government are equally clear that, under Clause 4, individuals with a legitimate reason to enter a designated area of the kind we have been discussing will have a reasonable excuse.
However, I undertook at the conclusion of Committee to reflect on the concerns that had been raised that the existing approach might not provide adequate certainty and assurance. We have also engaged with representatives of the charitable sector, who have made points similar to those made in this House. Following this reflection, we have concluded that we should bring forward amendments to provide further assurance that those with a legitimate reason to enter a designated area will have a reasonable excuse. I trust that this will be welcome news to your Lordships.
Amendment 11 therefore introduces an indicative list of cases which may give rise to a reasonable excuse. Similarly to that which we have introduced to Clause 3 through Amendment 6, which we have just debated, it is not an exhaustive list, and it will be open to defendants to advance other categories of reasonable excuse. It will ultimately be up to the jury to determine whether a particular excuse is reasonable, on the basis of all the evidence in that case.
This will provide significantly greater assurance to legitimate travellers, but it will not preclude those who travel to designated areas for terrorist purposes under cover of, for example, journalism or charitable work from being prosecuted. Defendants will also not be able to rely on a reasonable excuse defence if they travel for a legitimate purpose and then engage in other activity which is not legitimate while within the designated area.
The categories of reasonable excuse provided by the amendment are: where the person enters or remains in the designated area involuntarily because, for example, they are detained; to carry out work as a journalist; to provide humanitarian aid; to attend the funeral of a relative or to visit a terminally ill relative; to provide care to a relative who is unable to care for themselves without such assistance; to satisfy an obligation to appear before a court; or to work for a foreign Government, the UN or an agency of the UN. This indicative list of reasonable excuses adds to the existing automatic exception for those who are working for or on behalf of the Crown. Where this list refers to a relative, Amendment 16 defines this as a spouse or civil partner, sibling, ancestor or lineal descendant.
A further area on which greater assurance has been sought is reviews of designations. As drafted, the Bill requires the Secretary of State to keep under review whether the condition for designating an area continues to be met, and to revoke the designation if he considers that it is no longer met. The Government have been clear that this will be a meaningful and ongoing review. I reiterate the point that in the kind of exceptional scenario in which this power is likely to be used, the Government will invariably pay very close attention to the circumstances on the ground, and will keep their response across every aspect of the system under continuous review and subject to recalibration as necessary.
Several noble Lords tabled amendments for Committee which would have tightened this further by introducing either a requirement for annual reviews of designations, as proposed by the noble Lord, Lord Anderson, or a sunsetting provision so that regulations designating an area would cease to have effect after three years, as suggested by the noble Lord, Lord Rosser. This latter approach would mirror the equivalent Australian legislation. I indicated in those debates that I considered an annual review to be unnecessary to ensure rigorous and effective review of designations, and that this would not serve the public interest or be an effective use of resources. I have reflected further and, with all respect to the noble Lord, Lord Anderson, I remain of that opinion.
However, I also indicated that I could see merit in the suggestion of a three-year backstop sunset period, with the option to make new regulations designating the same area if that is appropriate. I undertook to consider this ahead of Report. Following that consideration, I find myself persuaded that this would be a sensible and helpful addition to the Bill, and Amendment 18 therefore introduces such a provision. As a result, regulations designating an area will automatically cease to have effect and will fall away after three years. The amendment makes it clear that this is without prejudice to further regulations being made designating the same or a similar area. Any new regulations would of course then be subject to approval by Parliament. This will provide a powerful extra safeguard to ensure that the designation of an area cannot be indefinite, and that this power will be used to manage risk only in exceptional circumstances. While regulations remain in force, they will also be subject to the existing requirement that they be kept under review and that they be revoked sooner than after three years if the condition for designating the area is no longer met.
Amendments 20 and 21 implement recommendations made by the Delegated Powers and Regulatory Reform Committee of your Lordships’ House in their report on the Bill. Amendment 20 requires the Secretary of State, when laying regulations before Parliament designating an area, to issue a statement setting out the reasons why he considers that the legal test for designation is met in relation to that area. The Government have always been clear that we will provide an explanation to Parliament of why we seek to designate any area under this power, and we are happy to place a requirement to do this in the Bill.
Amendment 21 makes any regulations revoking a designation subject to the negative resolution procedure. Under the Bill as drafted, regulations that purely revoke an existing designation would not be subject to any parliamentary approval and would simply come into force immediately upon being laid. The Government took that approach on the basis that lifting the designation of an area, and therefore also the operation of the criminal offence in relation to entering it, would have no adverse impact on any person. The committee wisely identified that lifting a designation could in fact have an impact on those for whose protection the area was designated—that is to say, the public. On that basis the committee recommended that such regulations should actually be subject to negative resolution in both Houses. The Government are persuaded of the committee’s view on this matter and are happy to implement its recommendation. I am grateful to your Lordships’ Delegated Powers and Regulatory Reform Committee for its scrutiny of the Bill and for its assistance in improving it in these two respects.
I am also most grateful to noble Lords, and to the noble and learned Lord, Lord Judge, for their contributions to the debates on this important but sensitive new power and for their assistance in identifying the sensible improvements that the Government are bringing forward today in response to those debates. I hope your Lordships will be happy to support these government amendments.
There are a number of other amendments in this group, including amendments to the government amendments. I will wait to hear what noble Lords have to say about Amendments 12, 13, 14, 17 and 19 before responding. For now, I beg to move Amendment 11.
Amendment 12 (to Amendment 11)
Baroness Hamwee
Baroness Hamwee
My Lords, we also have Amendments 13, 14 and 17 in this group as amendments to the government amendment. We welcome the indicative non-exclusive list that the Minister has put before your Lordships. At the last stage the noble and learned Lord, Lord Judge, made the point that we should not rely on guidance or some other executive action in this connection, and that must be right. However, we must also be confident in the list. The more examples are given, the less easy it may be to argue for additions which are not spelled out. I was going to refer to the array of lawyers opposite me, but their numbers have been reduced by half in the last few minutes. Nevertheless, I am sure they can tell me whether I am wrong to be worrying about the sui generis rule, because I am.
The Government’s amendment refers to,
“internationally recognised principles and standards”.
Will the Minister give an explanation or example of those? Alternatively, what might contravene that criterion—in other words, not meet the standard? Humanitarian aid is referred to. Peacebuilding was talked about in Committee. We are not confident that humanitarian work includes peacebuilding and would like an assurance or acceptance of our amendment on that. Humanitarian work probably covers development and cultural purposes, which were also referred to during the last stage. Will the Minister comment on that?
We have added “for connected purposes”, which is a little wider than “in connection with”, which is limited to the stated purposes—we would be adding a purpose. It is appropriate to mention concerns expressed before these amendments were tabled, not just about the “reasonable excuse” defence which the House has been debating. There are also concerns on the part of banks and other companies which provide services to organisations which provide aid, such as insurance—I am amazed that insurance might be available in some of these connections—and travel companies. Apparently they are concerned that the measure will exacerbate the diminishing of their appetite to support humanitarian activity, due to the increased legal ambiguity around travel to designated areas. They are also concerned about a possible chilling effect on humanitarian aid surrounding those areas. The list which the Government propose includes visiting a terminally ill relative. It is not always clear when an illness is terminal. In this context, it might be particularly difficult to get medical support for that proposition. We suggest adding “very seriously ill”, as a matter of common sense.
Amendment 14 was an excess of zeal on my part. I shall not be pursuing it, as I realise that the point is already there. On Amendment 17, the House has heard the assurances about the designations being kept under review. We welcome the sunset provision in Amendment 18 and support Amendment 19, which would shorten it. However, this does not mean that reporting to Parliament is not necessary. The noble Earl has just referred to a “meaningful and ongoing review”, but we must be aware that when a finite period is referred to there comes a temptation to address the point thoroughly only every three or two years, depending on that period. The proposal to report formally to Parliament is a matter of transparency and accountability. I hesitate to say so, but it might give the independent reviewer something to bite on. That amendment is certainly not a backstop.
The Earl of Sandwich (CB)
My Lords, I offer my support for Amendment 15. I will speak on behalf of humanitarian aid workers following the remarks made by the noble Lord, Lord Judd, and I do so because it seems to me profoundly wrong that aid workers should potentially come under suspicion and be bracketed with potential criminals simply because they are travelling to and from a sensitive area. Of course, I realise that the Government understand in principle they are not in that category, so they have put down their own amendment with an indicative list, which the JCHR acknowledges is a step forward. Nevertheless, the Bill still potentially subjects aid workers and journalists to every sort of interference, which can only mean that aid will inevitably be held up and that people living in distressed conditions will suffer more. If aid workers in government programmes, including those of Governments in the designated areas, are protected, why on earth should non-governmental organisations and their beneficiaries suffer? What is the logic of that?
This clause has to be amended. Imagine what would happen in a country like the DRC today if people monitoring the Ebola virus had to consider the prospect of being arrested for having dealings with the Mai Mai or the Interahamwe militia. The noble Lord, Lord Judd, and the noble Baroness, Lady Hamwee, have already mentioned peacebuilding, which often involves the Red Cross and the Churches. What would be the climate of suspicion surrounding not only them but the whole aid programme? The noble Lord, Lord Paddick, quite rightly mentioned the “deterrent effect”.
I speak with feeling, having worked with several aid agencies over the years, and knowing the conditions in which they already have to work. No wonder that 21 organisations are protesting. These are in many cases the front line of our aid programme, whether they work with government or not. I will repeat two sentences of what they said in a signed letter:
“Unless urgently amended, the bill … will make it impossible for civil society organisations to deliver much needed humanitarian, development and peacebuilding support to people desperately in need … it is vital that the government and peers amend the bill so that it exempts aid workers and others with a legitimate reason to travel to designated areas”.
Let us not forget the cost of this exercise. We do not of course know the parameters of the designated regions, but we know that, for obvious reasons, many aid workers tend to be in sensitive areas of the world, so the overlap between political sensitivity and humanitarian commitment will be vast.
The noble Earl mentioned the possibility of the terrorist who intends to assume the disguise of an aid worker and become a wolf in sheep’s clothing. Obviously, that is quite different; he or she must be stopped on the grounds laid down in the Bill, and will not ultimately pass the test of reasonable excuse. I realise the difficulty the Government are in here, having to act on behalf of society. But it is quite irresponsible to risk the professional lives of all aid workers leaving those areas, with all the consequences for the programmes concerned, as a means towards that end.
Earl Attlee
My Lords, I am grateful to the Minister for these amendments, and in particular for his response to my amendments moved in Committee on journalism. When we are trying to convince people like President Erdoğan of Turkey not to persecute his journalists, it would be a complete disaster if we accidentally arrested a legitimate journalist in the UK.
I have worked overseas on international aid—in theatres unlikely to have been designated—but I think the noble Earl, Lord Sandwich, has slightly misinterpreted the Minister’s amendment. New Clause 3B(a) excludes providing aid “of a humanitarian nature”, so his concerns are absolutely met by the Minister. I believe the Minister has the balance right, both in principle and in the drafting of his amendment.
Lord Judd
My Lords, I strongly support the amendment; indeed I welcome the moves the Government have already made. Looking back on my life outside this House, it is impossible to express strongly enough my respect for the courage and dedication of some of those working on the front line. We ought to be ensuring that they have all possible support, rather than being put through greater anxiety about their own futures. The point about de-risking by banks and other relevant authorities is, of course, very important. Development assistance is crucial and sometimes—if not more often than not—the most important development assistance is long term, because it builds human and institutional resources that will be essential for the future.
Alongside that, the point I made in my earlier intervention is crucial: peacebuilding is vital. Are we just going to have industries and charities whose activities are dependent on failure, or are we supporting charities, voluntary organisations and others who say we have to understand the causes of the problems that confront us and tackle those causes at root? That means sometimes dangerous, controversial work with a wide cross-section of people. I hope that the Minister will be able to respond positively to the amendment and underline in specific terms the Government’s commitment to the support and well-being of the bona fide, responsible organisations that engage in the crucial task of peacebuilding.
I said that I had a range of interests in the register, and I should specifically say that I have been an adviser to International Alert and subsequently a trustee. International Alert is respected by a great number of Peers across the House for the work it does. It is deeply concerned about the need to make explicitly clear that peacebuilding is high on our list of considerations.
Lord Hylton (CB)
My Lords, I am happy to follow my noble friend Lord Sandwich. I welcome the Government’s amendments but suggest that the additional amendments in this group are needed for the avoidance of doubt. The Bill may make it necessary for an accused person to prove his innocence, which is nearly always undesirable. I should add that I have in the past travelled to Iraq, Syria and Gaza, disregarding Foreign Office travel advice. However, in those days there were no designated areas—one could take one’s chance.
I support the amendments—in particular, Amendment 19, which calls for frequent review of areas—and I look forward to the Government’s reply.
Lord Anderson of Ipswich
My Lords, although, I hope, properly grateful for Amendment 11, I support Amendment 15. Also in this group, I support Amendment 12 on peacebuilding, and the Government’s Amendment 18 on the sunset period, subject to Amendment 19 in my name. I shall take them in that order.
Amendment 15 tracks the Government’s Amendment 11 with one important difference—the carving out of conduct rather than the provision of a reasonable excuse—in that it echoes the amendment that I tabled in Committee with the support of the noble and learned Lord, Lord Judge. I do not believe that Amendment 15 makes the job of the police or the CPS any more difficult. Where it is not clear whether the reason advanced for travel is true, there should be no more obstacle to a suspected person being questioned and, if necessary, prosecuted under this scheme than there is under the Government’s Amendment 11. However, the listed grounds are reasons to travel to dangerous areas, not excuses. The Australian law recognises this and so should ours. The only fault in Amendment 15, if I may say so, is that it makes no reference to peacebuilding, which brings me to Amendment 12, which I support and to which I would have put my name had I been alert enough to see it in time.
As the noble Lord, Lord Judd, and others have said, there are charitable groups based in this country with a remarkable track record in peacebuilding and conflict resolution, which might include talking to or negotiating with active terrorist groups in areas where conflict is never far away. I should like to share the conviction of the noble Baroness, Lady Hamwee, and the noble Earl, Lord Attlee, that their work can be described as humanitarian, but this should surely be put beyond doubt, as the noble Lord, Lord Hylton, said. Their efforts and even their successes are not always well publicised but they are no less useful and important for that.
I had the privilege of speaking for such groups for several years—notably the group Conciliation Resources—and helped them to initiate a dialogue with the Home Office, the purpose of which, perhaps partially achieved, was to allay some of their fears of contravening the existing anti-terrorism law. However, the new designated area offence could hit some of their most sensitive and valuable work if they are not exempted from its scope or at least, as a second best, brought expressly within the scope of reasonable excuse. That is why my amendment in Committee, now overtaken by Amendments 11 and 15, made express reference to peacebuilding.
It is hard enough for charitable trustees to manage the physical risks to their staff of this kind of work, and it would be wrong to add to those risks the possibility of being convicted or imprisoned in the UK for doing it. Surely no one engaged in such work would really be prosecuted for it, so why not acknowledge that in the law?
I turn to Amendments 18 and 19. Once an area has been designated, it will be a brave Secretary of State who gives priority to its dedesignation. It is important to acknowledge the freedom of travellers, including adventurous ones, to go to places that are still at least moderately dangerous, but one can imagine how aversion to risk might in practice be given priority.
For that reason, in Committee I tabled an amendment that would have provided for annual review. It was a little more elaborate than Amendment 17 but with the same aim in mind. Although that way of doing it did not find favour with the Government, I welcome the sunset provision in Amendment 18, as well as the Minister’s words regarding the rigour of the review that will take place under new Section 58C(4). My reservation, which I have expressed in Amendment 19, is that three years seems too long to wait for the sunset.
It is hard to believe that annual review would be unduly onerous, as the experience of Australia and Denmark has been that very few areas are designated and as one would hope that, if the Government were doing their job, the degree or risk attached to those areas at any given moment would be well known. However, Amendment 19 goes for the very moderate option, as I hope your Lordships will see it, of two years.
I am sure that the Minister will respond that the provision is modelled on the Australian criminal code, which provides at Section 119.3(4) for a three-year sunset. However, the Australian law has other protections that are not present in Clause 4: a ban on designating an entire country; an express duty on the Minister to revoke a designation if he ceases to be satisfied that a listed terrorist organisation is engaging in hostile activity there; and provision for Australia’s Parliamentary Joint Committee on Intelligence and Security—the equivalent of the Intelligence and Security Committee of this Parliament—to conduct its own review of declarations.
Therefore, I invite the Minster, whether today or subsequently, to look kindly on what I venture to call an improvement to the welcome Amendment 18.
Lord Judge
My Lords, I support Amendment 19. I cannot think of anything I can say that would improve on what the noble Lord, Lord Anderson, has said, so I shall not say it. However, when the Government look at their own amendment and the very helpful way in which they have reconsidered this rather urgently introduced provision in the House of Commons, they should consider whether new subsections (1), (2) and (3) run in the right order. New Section 58B(1) sets out the offence; new subsection (3), or proposed new subsections (3A), (3B), (3C) and (3D) are not offences; and new subsection (2) sets out the defence. Logically, it might be better and easier—and it might deal with the sui generis point raised by the noble Baroness, Lady Hamwee—if the order ran new subsection (1), the current new subsection (3) and then new subsection (2).
Lord Rosser
I have two amendments in this group. One is Amendment 15 and I have added my name to Amendment 19 in the name of the noble Lord, Lord Anderson. As I am sure the noble Earl will remind me, if it is he who is to respond, in Committee we moved an amendment based on the Australian model that provided for a sunset clause after three years, so it would be wrong of me not to thank the Government for having taken heed of what we said.
If the Minister is wondering why I attached my name to the amendment of the noble Lord, Lord Anderson, reducing the three-year sunset period to two years, it was because we thought that his case for doing it every year, which he proposed in Committee, was quite powerful in relation to the quite exceptional powers that the Bill provides over travel for UK residents and citizens to designated countries. That power would rest with the Secretary of State. The noble Lord, Lord Anderson, has not come back with an amendment proposing a sunset period of one year but he has come back with a proposal to change the sunset provision to two years, and we have a lot of sympathy with that in the light of the arguments that he advanced in Committee in favour of one year.
I think that the noble Lord, Lord Anderson, ended up by saying that he hoped that the Government might reflect on his amendment if they did not feel able to agree to it, as well as reflecting on the frequency and reality of which Parliament should be required to give its approval if the Government wished to continue to exercise this power over the movement of UK citizens. I too hope that that is something that the Minister might feel able to reflect on further.
With regard to Amendment 15, to which a number of noble Lords have already made reference, the amended reasonable excuse defence, with its indicative list tabled by the Government, still does not really provide adequate protection either to those with a legitimate reason for being in a designated area or indeed, in some aspects, to some organisations that employ them. For example, an aid worker or news reporter can invoke the reasonable excuse defence only once they have been accused of or charged with an offence. The onus is then on the individual and organisation to provide evidence or proof to the authorities that they were in a designated area for a legitimate reason. Prior to being charged—if that is what happened—the individual could have been questioned by the police on their return from the designated area and they might conceivably have been placed under arrest. For a law-abiding citizen, that would potentially be an unnerving experience, and likewise for their employer or organisation, which could face a degree of reputational damage as a result.
It is correct that anyone returning from a country—for example, Syria—can already be questioned or investigated by police and asked for justification for their travel. However, at the moment, that person will not have committed an offence simply by having entered an area or country such as Syria. If the provisions of this Bill become law, the risk of investigation, and the perception of that risk faced by individuals and their employer, will be much higher. It is not clear either what will count as proof of a legitimate reason for being in a designated area. Would it be a letter on headed paper from an employer or more substantive evidence? Carrying such evidence in and out of a war zone could pose security risks for the individual and those in the conflict area. If the risks of going to a particular area are increased for UK nationals or residents, then their organisation, national or international, is less likely to want to send them. After all, those organisations have a duty of care towards their staff. Creating further potential threats and obstacles for UK nationals and residents to travel would put a greater onus on local staff or staff of other nationalities, and would add an extra provision to life-saving humanitarian support for those in a designated area and for work to address the root causes and drivers of conflict.
Further difficulties may arise as well. The legal position around entering designated areas, created by the new offence of simply being in such an area, may, as has already been said, further reduce the willingness of banks to provide financial services for activity, including humanitarian activity, in high-risk areas. That is a potential consequence that could also extend to the services provided by travel and insurance companies. If an organisation—one is talking here about primarily, but not solely, a humanitarian organisation—cannot get travel insurance for its employees or transfer funds into a designated area, it will be less able to deliver support in a safe and effective manner, even if it is prepared to take the risk of sending a UK national or resident to the designated area concerned, in the knowledge that just being in that area is an offence for which that UK national or resident could be charged.
The Government must surely be aware of the impact their intentions would have on travel to a designated area in the absence of clear exemptions from committing an offence simply by being in those areas for those on legitimate, and in some cases life-saving, business or activity. Amendment 15, in my name, minimises these potential difficulties and unintended consequences by stating that individuals undertaking the activities listed in the amendment, which are the same as the Government have set out in their amendment in respect of which a reasonable excuse defence can be argued, would not be committing an offence of being in a designated area without legitimate cause, and would not have to provide a defence after the fact.
As the noble Earl said, the Bill already contains an exemption for those working for or on behalf of the Crown. That would extend to the small number of NGO staff working on UK government contracts, but many more such staff will be working on projects supported by grants from other bilateral, multilateral or private donors, or by funds donated by the British public, who will not be covered by any exemption from the provisions of Clause 4.
As the noble Earl will know, our amendment goes down the road of the Australian model of providing exemptions. However, an alternative method operates in Denmark, providing for prior authorisation to be given for those with legitimate business to be in a designated area. There is obviously a need for a procedure that enables an application for an authorisation to be dealt with quickly under that alternative method, since clearly some of those with legitimate business in a designated area, such as humanitarian aid workers or news reporters, need to get out there at short notice. However, under this Bill, such a procedure would mean that those returning from a designated area without being able to show prior authorisation would potentially face investigation and action for an offence, as would those for whom there was a suspicion that they had not been to the designated area solely for the purpose claimed and for which they had been given prior authorisation.
The Government should surely accept that their proposals as they stand on designated areas, and the new offence of simply being there, risk having significant unintended consequences, which may result in individuals and organisations we would accept as having legitimate business in a designated area not going or being represented at all, to the detriment of potentially life-saving aid activity and of providing transparency over what is happening, as in the case of aid workers and news reporters respectively.
I hope that the Government will be prepared to at least reflect further on this issue prior to Third Reading or the matter being considered further in the Commons, and look at either exemptions from the new offence of being in a designated area as provided for in my amendment, or, if they prefer, at a system of prior authorisation for travelling to such a designated area, or a combination of both.
Lord Paddick
My Lords, very briefly, I completely agree with my noble friend Lady Hamwee, who has addressed all the amendments in this group other than Amendment 15. I have added my name to Amendment 15 and made clear my reasons for supporting it during our debate on the second group of amendments. I do not wish to add further to my comments.
Earl Howe
My Lords, the noble Baroness, Lady Hamwee, has argued for the expansion of the Government’s list of indicative reasonable excuses to include peacekeeping and visiting a very seriously ill relative. I understood her not to have spoken to her Amendment 14, which proposed that we include in Clause 4 a power to further add to the list of reasonable excuses by regulations—I hope I was right in understanding that.
The first point I make is to stress again that this is an indicative and not an exhaustive list. I am not suggesting that the amendments from the noble Baroness are without merit, but, in a phrase, we need to draw the line somewhere. I firmly believe that Amendment 11 draws it in the right place. In this regard, we have taken into account the Australian precedent. Trying to put more and more situations beyond doubt—the argument put forward by the noble Lord, Lord Hylton—is simply unnecessary in this context. As I have argued before, we are consciously not creating an exhaustive list of reasonable excuses; it would be quite wrong to try. Juries will be able to make up their own minds on the reasonableness of particular excuses in the light of the circumstances of the case.
I entirely accept the importance of peacebuilding activity, and I am sure noble Lords would agree with me that it is vital that such activity continues. However, as I have explained, the government amendment does not preclude a person advancing this or any other category of reasonable excuse. I am of the view that legitimate peacebuilding activity could very well be a reasonable excuse. However, I must say again that it will ultimately be up to the jury to determine whether a particular excuse is reasonable on the basis of all the evidence.
Much the same arguments apply to Amendment 13, which would add visiting a seriously ill relative to the list of reasonable excuses. I am not sure how fruitful it would be to get into a debate about the difference between being “seriously ill” and “terminally ill”. Again, the line has to be drawn somewhere. Given that the Foreign Office would inevitably advise against any travel to a designated area, it is right that we set the bar at a high level. But I say again that it would be open to any person to advance as a reasonable excuse the fact that he or she was visiting a seriously ill relative.
Amendment 17 seeks to place on the Home Secretary a duty to lay before Parliament an annual report on the outcome of the review of a designation. This amendment misunderstands the nature of the duty on the Home Secretary to keep a designation under review. The requirement does not imply a set piece review with a beginning and an end, culminating in a report which can then be published.
Rather, the ongoing duty to keep a designation under review will ensure that, as the situation on the ground changes, the Government can react and make a judgment, as and when required, as to whether to alter any designation to reflect a change in the threat. However, I reassure the noble Baroness that, should the Government need to amend a designation, that will require a new regulation to be made, which in turn, by virtue of Amendment 20, would require the Secretary of State to issue a statement setting out the reasons why he considers that the legal test for designation is met.
The noble Baroness referred to international humanitarian standards. As she said, there are various commonly recognised international humanitarian standards. The point to appreciate is that the government amendment provides flexibility and future-proofs against developments in this area. She may know, for example, that the UN Office for the Coordination of Humanitarian Affairs provides guidance on principles and standards relating to humanity, neutrality, impartiality and independence. I say to the noble Earl, Lord Sandwich, that the concerns he expressed are satisfactorily addressed by government Amendment 11 as well as by the explanations that I have already given for the provisions of Clause 4 in Committee.
Amendment 15 in the name of the noble Lord, Lord Rosser, is in many ways similar to government Amendment 11. There is, however, a key difference, as he carefully explained. This is not an indicative list of reasonable excuses, but an exhaustive list of exclusions from the offence. We have already debated the difference between these two approaches when we considered Amendment 3 in the name of the noble Lord, Lord Paddick, in an earlier group, but it may be helpful to remind ourselves of the issues in play.
I reiterate that under either approach a person returning to the UK from a designated area abroad would not have immunity from investigation and possible prosecution. The police would still need to investigate to determine whether, under one approach, an offence had been committed or, under the other approach, whether the person has a reasonable excuse such that the investigation can be discontinued. It is worth noting that the police have been extremely clear for some time—since well before this new power was introduced—that any person returning from Syria who has travelled there for any reason can expect to be investigated to establish what risk, if any, they may pose. That is simply common sense given the level of risk associated with such areas.
That would likely also be the approach in any future scenario analogous to the Syrian example in which an area might be designated under Clause 4, whether or not an area is in fact designated. While I appreciate that the intention of the noble Lord’s amendment is to provide greater comfort and assurance to legitimate travellers so that humanitarian aid workers, for example, would not have the prospect of police investigation hanging over them, that would not in fact be the result. The only circumstances in which it could be achieved would be if we were to go further still and provide for any person who travels to a designated area simply to declare that they did so for a specified legitimate purpose, thus unilaterally providing themselves with immunity from any investigation or prosecution. However, that would be wide open to abuse by those who travel for terrorist purposes and would render the new power in the offence entirely unusable.
That leads on to my second point. I have explained that the noble Lord’s amendment would make little difference from the perspective of a potential defendant, and I appreciate that that may beg the question why we should not then accept it. That is simply because the Government’s preferred approach in providing for a reasonable excuse defence fits better with the grain of the Terrorism Act 2000. That approach has been in place for 18 years in Section 58 of the Terrorism Act 2000, which Clause 3 of the Bill amends as well as other provisions in the 2000 Act. As I previously said on the noble Lord’s closely related suggestions for changes to the burden of proof for these offences, which we have already debated today, that approach is well understood by the police, prosecutors and the courts, and clear case law on it is provided by the then Appellate Committee of this House, no less. It has not resulted in judicial concerns, inappropriate prosecutions, upheld appeals or any credible complaints that it has been unfair or inappropriate in its operation. I therefore reiterate that we are not approaching these matters from a neutral starting position. Rather, if we were to adopt the noble Lord’s amendment, we would be choosing to depart from the settled, long-standing position in relation to the Terrorism Act 2000, and I am simply not persuaded that there is any need or good reason to do so.
Furthermore, I am concerned that in unsettling that existing position we could create more uncertainty for defendants and judges in relation to Clause 4, not less, and we could also call into question the currently settled approach that the courts take to Section 58 of the 2000 Act as well as other provisions for similar offences, creating instability and uncertainty in our ability to prosecute serious terrorists. Those strike me as quite undesirable outcomes and risks that we should not run.
The noble Lord, Lord Rosser, asked me what would count as proof that an aid worker was employed by a legitimate NGO. The police have been clear that they will investigate any person returning from Syria to establish what risk they may pose. That would likely be the case in relation to any area designated under Clause 4, including investigating whether an offence has been committed under Clause 4. It will be an operational decision for the police as to how they would conduct that investigation and what proof they would seek. It is not possible for me to set out those considerations in advance.
Finally, Amendment 19, in the name of the noble Lord, Lord Anderson, would provide for the sunsetting of any regulations after two years rather than three. He seeks to split the difference between the one year he advocated in Committee and the three years proposed by the noble Lord, Lord Rosser. Again, this comes down to judgment. There is clearly no absolute right or wrong in this case; it is just that, on balance, the Government consider that three years is the right timeframe. Again, I pray in aid the Australian criminal code and, as I have already indicated, if the situation changes after six months, a year or two years, the Government would inevitably want to review the regulations well before the three-year period was up. The Government agree with the amendment put forward by the noble Lord, Lord Rosser, in Committee that three years is the appropriate period and I hope that other noble Lords are similarly persuaded. I realise that he has shifted his position since Committee, but I hope that on reflection he will feel content to revert to his original view.
I invite the House to agree with the government amendments in this group and I hope that I have been able to persuade the noble Lord, Lord Rosser, not to move his Amendment 15. If he is minded to do so, I invite the House to reject it.
Lord Rosser
“(3A) A person does not commit an offence under this section of entering, or remaining in, a designated area where—(a) the person enters, or remains in, a designated area involuntarily, or(b) the person enters, or remains in, a designated area for or in connection with one or more of the purposes mentioned in subsection (3B).(3B) The purposes are—(a) providing aid of a humanitarian nature;(b) satisfying an obligation to appear before a court or other body exercising judicial power;(c) carrying out work for the government of a country other than the United Kingdom (including service in or with the country’s armed forces);(d) carrying out work for the United Nations or an agency of the United Nations;(e) carrying out work as a journalist;(f) attending the funeral of a relative or visiting a relative who is terminally ill;(g) providing care for a relative who is unable to care for themselves without such assistance.(3C) But a person does not commit an offence of entering or remaining in a designated area by virtue of subsection (3A)(b) only if—(a) the person enters or remains in the area exclusively for or in connection with one or more of the purposes mentioned in subsection (3B), or(b) in a case where the person enters or remains in the area for or in connection with any other purpose or purposes (in addition to one or more of the purposes mentioned in subsection (3B)), the other purpose or purposes provide a reasonable excuse for doing so under subsection (2).(3D) The Secretary of State may by regulations add a purpose to or remove a purpose from subsection (3B).(3E) Regulations under subsection (3D) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(3F) For the purposes of subsection (3B)—(a) the reference to the provision of aid of a humanitarian nature does not include the provision of aid in contravention of internationally recognised principles and standards applicable to the provision of humanitarian aid;(b) references to the carrying out of work do not include the carrying out of any act which constitutes an offence in a part of the United Kingdom or would do so if the act occurred in a part of the United Kingdom.”
Lord Rosser
I thank the Minister for his response, but obviously there is a difference of opinion. We feel that there should be certain situations in which an individual who goes to an area designated by the Secretary of State should not by that very act of going there commit an offence. They would commit an offence for which they would have to provide evidence of a reasonable excuse if charged on their return to this country. I think I heard him say that one of the Government’s arguments for their stance with their indicative list was that it fits better with the grain of the Terrorism Act 2000. Perhaps if I was a lawyer I would be moved by that argument, but I am not.
I think that this was a comment made earlier by the noble Lord, Lord Anderson of Ipswich, but if I am misrepresenting him I hope that he will correct me. He said basically that we should have reasons for travelling to designated areas which mean that you do not commit an offence, rather than excuses—that is what we have, reasonable excuses—under the Government’s proposal. I therefore wish to test the opinion of the House.
““relative” means spouse or civil partner, brother, sister, ancestor or lineal descendant;”
“(4A) Regulations under this section cease to have effect at the end of the period of 3 years beginning with the day on which they are made (unless they cease to have effect at an earlier time as a result of their revocation or by virtue of section 123(6ZA)(b)).(4B) Subsection (4A) does not prevent the making of new regulations to the same or similar effect.”
“(6ZAA) Regulations laid before Parliament under subsection (6ZA) designating an area outside the United Kingdom must be accompanied by a statement setting out the grounds on which the Secretary of State has determined that the condition for making the regulations referred to in section 58C(2) is met in relation to that area.”
“(6ZD) Regulations under section 58C that only revoke previous regulations under that section are subject to annulment in pursuance of a resolution of either House of Parliament.”
Counter-Terrorism and Border Security Bill
Monday 3rd December 2018
(5 years, 4 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 142-I Marshalled list for Report (PDF) - (29 Nov 2018)
Lord Alderdice
Lord Alderdice (LD)
My Lords, my noble friends Lord Paddick, Lady Hamwee and I have put down this amendment not so much for the purpose of tweaking the detailed wording of the Bill, but to raise a wider question about how much preparedness there is on the part of government and the authorities to seriously consider the rationale on which this Bill and counterterrorist policy as a whole is based. There is often a lack of welcome in general terms when people ask questions of a serious order about the whole direction of government policy, but in the area of terrorism it has been in my own experience quite regularly the case that when questions on it are raised, people are accused of being fellow travellers with terrorists. I frequently had that experience myself in Northern Ireland when I raised questions about the Government’s approach. I would be accused, not particularly by government Ministers but by leading political figures in the unionist community, of being sympathetic to the IRA.
There are positive things about this Bill. There has been progress and developments in technology which mean that elements of it are necessary, and I do not argue about that. But in some other ways the Bill is regressive because it is sliding away from the traditional commitment in this country, as distinct from other parts of Europe, that things are legal unless there is a very good reason for them to be illegal. Particularly when it comes to freedom of expression and people being able to look at the other side of the question, it is absolutely critical that we should be able to do that with freedom. That is why I was so supportive of and glad to see that we have passed Amendment 15. There is huge concern on the part of the many NGOs that are working not only on humanitarian and peacebuilding efforts but on trying to understand why it is that people commit themselves to terrorist activities.
We had to do that in Northern Ireland. For many years the received wisdom in this House and the other place and indeed in government generally was that the only way to deal with terrorism was through suppression—to put it down. That is all very well if it works, but it did not work. When the noble Earl the Minister responded in an earlier debate on this Bill by saying, “We are going with the grain of the Terrorism Act 2000”, the question for me was: yes, and has the 2000 Act worked? I do not mean has it worked in terms of the courts and there not being any adverse decisions, but has it worked in terms of terrorism being less of a threat to us now than it was when that Bill was passed in 2000? Terrorism has changed enormously over the period since 2000. At the time many things were happening that we are familiar with in this part of the world, but since then there have been two major developments in terrorism. Most terrorism in the world now is either Islamist of various kinds in its background or it is right-wing white terrorism, which is getting worse and is much less reported. The concern we are trying to express in this amendment is that we should be able to ask the difficult questions without being accused or in danger of questions being asked about our commitment to deal with the problem of terrorism.
When I listened to the noble Earl talking about “going with the grain of the Act”, I could not help but think of the phrase for which I am afraid Lord Denning will always be remembered in Ireland. He said that if it was the case that the Birmingham Six and the Guildford Four were not guilty, then it was because the West Midlands police had been lying, and that was too appalling a vista to contemplate. It may have been a vista too appalling to contemplate, but eventually it had to be contemplated because the truth is that they had lied. Eventually Lord Denning himself accepted that.
The problem is this: there is a real danger that the whole direction of policy, which is about the suppression of terrorism, is based on a complete misunderstanding. The misunderstanding is that people behave in an extreme way because they think in an extreme way. That is not the case. People act in an extreme way because they have extreme feelings, not extreme thoughts. I know lots of people with all sorts of extreme thoughts who would not dream of acting on them. I often say that many people believe in heaven but if you say to them, “Would you like to go there this afternoon?” they say, “Actually, I’m not in any great hurry”. People can have a lot of thoughts, but the question is whether they have the emotional motivation to act on them. I do not believe for a minute that the beliefs of people such as Gerry Adams and the late, lamented Martin McGuinness about a united Ireland, or even the strategy that they followed, changed but their feelings changed because they no longer felt that they, their people and their culture were being humiliated, disrespected and kept from making changes through democratic politics. The feelings about things changed. If we do not understand and address that, we will head into terrible trouble.
Some time ago, I had a long conversation with an old friend who ran the CIA for years. I asked him why America is making the same mistakes over and over again. It made the same mistakes in Afghanistan as it did in Vietnam. It made the same mistakes in Iraq as we did. When we went into Libya, we did not have to deal with things in the way we did. We made a right mess of it. The question of Syria has been spoken about. None of these things are getting better. They are all getting worse. At what point do we start asking serious questions about a rationale that says that stronger security measures are the way to deal with this issue? My friend said, “We no longer engage with people in the Middle East and listen to what they have to say so we don’t really know what’s going on with them. What’s being done is completely counterproductive. Years ago, I used to spend my time going to meet the leadership of Hamas, Hezbollah, Israeli settlers and others”. By the way, No. 10 was very happy to hear the results of those conversations at that time. Why did he have those meetings? It gave an insight into what is going on.
The Bill’s approach says, “Don’t engage with people. Ban everything they’re saying. Stop everything that anybody is doing to engage with them. Isolate them more”. There is no evidence that this works. In fact, I fear that the approach that has been taken is the kind that would be taken by a bad doctor who says, “If the medication is not working, double the dose”. What usually happens there is that you end up poisoning the patient. There is a real danger in the Bill, which my colleagues and I felt it necessary to mark out—not because we expect the Government suddenly to say that they got it all wrong and should stop the Bill. That is not the purpose of the amendment. We are trying to see whether there is an understanding that we need to question the rationale for the approach to terrorism in the Bill and in other ways. Otherwise, we will find ourselves locked into a kind of groupthink, which will produce a negative outcome that none of us in this Chamber wants.
There is also a danger of not just illegality but a chill factor for people speaking and thinking about these things. For example, phrases such as “giving reasonable excuse” for some of the work done by NGOs and others are used. What kind of language is that? Should we tell people that they need to give reasonable excuse to the authorities or should we encourage them to go into dangerous situations and risk their lives because it benefits us and the global community? We should not expect them to provide that excuse. The chill factor is quite clear. What do I do with students who ask, “Should we go and do some research in the Middle East to try to find out what’s going on?” After not just a Bill such as this one but recent events there, it is clear that this will be very discouraging, even for people at a post-doctoral level. That will mean that our approach will not be based on real evidence, understanding or appreciation of the problems.
We tabled the amendment to say, not just in the context of the Bill, that we can change some of the approaches, such as those in Amendment 15. We are also asking whether we can think more seriously about an alternative way of understanding what is going on when people engage in terrorism, rather than simply believing in suppression. Suppression did not work out in my part of the United Kingdom. Eventually, the Government had to do all sorts of things that they said they would never do because it was the only way to deal with what was ultimately a political problem, not merely one of law and order. I beg to move.
Lord Paddick (LD)
My Lords, I support my noble friend’s comments. We on these Benches have for some time had a concern about the so-called conveyor belt theory that radical, non-violent, extreme views necessarily lead to radicalisation and violence. Many groups in this country hold what most of us would consider to be extreme views, such as fundamentalist Christian groups and ultra-Orthodox Jewish groups, where we have no concerns at all that their extreme views will lead to radicalisation and violence.
There are other factors at play that receive no consideration as far as the Bill’s measures are concerned. We also express our concern that the Bill would tend to put people off debating extreme views, during which the counternarrative can be expressed, peoples’ dangerous views can be openly debated and their ideas shown to be false. The Bill and other measures like it are likely to close down that debate. Ultimately, a battle of ideas is the way to address the underlying issues rather than the approach the Bill takes.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
I thank both noble Lords for their explanation of these amendments. One of the things that the noble Lord, Lord Alderdice, challenged the Government on was the rationale behind our counter- terrorism work. Perhaps it would be useful to set out some of that for him.
As stated in Contest, government and academic research has consistently indicated that there is no single sociodemographic profile of a terrorist in the UK, and no single pathway or, indeed, “conveyor belt” leading to involvement in terrorism. Terrorists come from a broad range of backgrounds and appear to become involved in different ways and for differing reasons. Few of those who are drawn into Islamist terrorism, for example, have a deep knowledge of the faith.
While no single factor will cause someone to become involved in terrorism, several factors can converge to create certain conditions under which radicalisation can flourish. These include background factors such as aspects of someone’s personal circumstances that might make them vulnerable to radicalisers, such as being involved in criminal activity; initial influences such as people, ideas or experiences that influence an individual towards supporting a terrorist movement; and an ideological opening or receptiveness to extremist ideology.
Most individuals who experience this combination of factors will not go on to become involved in terrorism because there are protective factors that safeguard against their doing so. These range from having no opportunity to develop extremist contacts to having other, more important priorities in their lives, such as their family, career or community. A small number of people who lack these protective factors may become radicalised. In these circumstances, a range of social and ideological influences can combine to intensify commitment to a terrorist cause and provide opportunities for them to act.
The process of radicalisation is driven by universal psychological needs for identity and belonging—those words are very important in this context—meaning and purpose, and, of course, self-esteem. Where these are met by constructive sources radicalisation will not flourish, but we also know that as a person deepens their involvement in terrorism this process will typically include voracious consumption of online propaganda. When in a group, further engagement in terrorism is also likely to include the individual isolating themselves from non-extremists and participating in low-level activity such as the radicalisation of others, or facilitation, fundraising, et cetera. There is some research to indicate that lone-actor terrorists have a higher incidence of certain mental and developmental health conditions than the general population, but I must stress that no one should assume that a terrorist suffers from a mental health condition or that a person with a mental health condition is a terrorist.
Lord Alderdice
My Lords, I am grateful to the Minister for explaining the Government’s rationale, none of which is particularly new to me. The disappointing thing about it is the limited perspective, on two or three fronts. First, terrorism is described almost exclusively as an individual phenomenon—individual people, this, that and the other thing. I started off in that position 30 or more years ago. What became clear to me in working with these situations was that it was a group phenomenon and not simply one of individuals.
The second thing is that the Minister emphasised again that a great deal of the Government’s approach is towards effectively suppressing or limiting terrorism, rather than trying to understand why communities feel—for genuine reasons, on occasion—a disenchantment that leads them to respond in such a way. I make the appeal again for the Government to be prepared to engage in an exploration of the questions, because it is clear that the approach we have taken for the last 20 years has not worked. We are not safer, globally, than we were 20 years ago—on the contrary. However, I am grateful to her because, by making the explanation, she is in a way continuing a process of conversation and exploration. That was the purpose of the amendment and of the general appeal that we do not simply depend on something we do not believe is working well, as there are alternative ways. I regard her explanation as a positive thing and I hope that it is part of an ongoing conversation that will take us to a better understanding and a better way of dealing with the problem with which we are all struggling. On that basis, I beg leave to withdraw the amendment.
“(1) Section 17 of the Terrorism Act 2006 (commission of offences abroad) is amended as follows.(1A) Subsection (2) is amended in accordance with subsections (2) to (4) below.”
Earl Howe
My Lords, I shall also speak to Amendment 25. Clause 6 will add a number of further terrorism offences to the list at Section 17 of the Terrorism Act 2006, to which extraterritorial jurisdiction, or ETJ, applies. This means that individuals can be prosecuted in UK courts for conduct that took place outside the UK which would have been unlawful under an offence listed at Section 17 had it taken place here. This will ensure that UK courts are able to prosecute terrorist fighters who travel to or return to the UK having joined terrorist groups and become involved in conflicts or other terrorist activity overseas. It will also ensure that we are able to prosecute people who base themselves overseas and seek to radicalise people in the UK.
In relation to this latter category of radicalisers, Section 13(1) of the Terrorism Act 2000 contains the offence of displaying in a public place an item of clothing or other article, such as a flag, in circumstances which arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. As a result of Clause 2 it will also contain, at new subsection (1A), the offence of publishing an image of such an article in the same circumstances. As currently drafted, the effect of Clause 6 is that a person could potentially be prosecuted under Section 13 in the UK, having displayed while in another country the flag of a terrorist organisation that is proscribed in the UK but not in that country. This is something about which the Joint Committee on Human Rights has raised concerns, and the noble Baroness, Lady Hamwee, tabled amendments on behalf of the JCHR in Committee which would have removed the Section 13 offence from the ETJ provisions entirely, or alternatively would have limited ETJ in relation to Section 13 to UK nationals and residents only.
These amendments return to issues on which we have had extensive and helpful debates. I have set out very clearly and at some length the Government’s position on why this power is needed, but it is worth reminding ourselves of two key points. First, we have seen modern terrorist groups, such as Daesh, use slick and effective online propaganda, including activity covered by the Section 12 and 13 offences, which has been aimed at radicalising people in the UK, building support for terrorist organisations and ideology, and encouraging terrorist attacks in the name of such organisations. This activity is not currently within the jurisdiction of the UK courts where it occurs in another country, but as we have seen in the Syrian context, it can give rise to a very real and immediate threat within the UK. For this reason it is imperative that we extend ETJ to these offences, and that we do so in an effective and workable way which does not unduly limit the ability of UK courts to deal with serious terrorist activity. This is the effect of Clause 6.
However, I have considered and reflected carefully on the points raised previously by the noble Baroness, Lady Hamwee, on behalf of the JCHR, and by other noble Lords, about the breadth of Clause 6 as currently drafted, and I have recognised the strength of feeling on this issue. While I remain of the view that the safeguards I outlined in Committee will ensure that the power is used in a proportionate way, I accept that this has not provided sufficient assurance to your Lordships. I have therefore concluded that the extension of ETJ to the Section 12 and 13 proscription offences should be limited to cases where the individual is a UK national or resident, in line with the amendment proposed in Committee by the noble Baroness, Lady Hamwee.
Amendments 24 and 25 in my noble friend’s name deliver this. Although the noble Baroness’s earlier amendment focused on Section 13, the same principle arises in relation to Section 12 of the 2000 Act, which criminalises invitations of support for a proscribed organisation, and as a result of Clause 2 will also cover reckless statements of support. The government amendments therefore extend this limitation to both Sections 12 and 13. This will ensure that it will still be possible to prosecute in the UK courts a person who has travelled from the UK to join a terrorist organisation, and who has become involved in propaganda on behalf of the organisation while they are overseas. But it will exclude the type of case about which the noble Baroness has raised concerns, where a foreign national acts in support of an organisation which is not proscribed in his or her country—for example, if a Lebanese national living in Lebanon displays a flag associated with the military wing of Hezbollah or invites support for that wing of the organisation. These amendments will put beyond doubt that such a person will not be liable to be arrested or prosecuted should they subsequently travel to the UK.
I hope that these are welcome amendments and will answer the concerns that have been raised by a number of your Lordships. I beg to move.
Baroness Hamwee (LD)
My Lords, I am indeed very grateful for the Government’s amendments and their consideration of the points that have been made in Committee as well as by the committee, and at previous stages. They are very significant indeed. Amendment 26 is attributed to the Government on the groupings list but I will put that right. It would provide that, in connection with what we dealt with earlier today, the offences under paragraphs (ca) and (cb) will be relevant only where the actions are an offence in the country where they took place.
In Committee the noble and learned Lord, Lord Judge, who was very careful to be neutral about this, cautioned the Committee to take care:
“The Bill risks criminalising a citizen of another country for doing something that is not unlawful in that country … there may be minor matters, in relative terms, which we criminalise here but are not unlawful by the laws of a different country. We need to be careful not to extend the criminal law further than it should go”.—[Official Report, 31/10/18; col. 1368.]
The government amendments have indeed dealt with one aspect—the “who”, if I can put it that way—but not with the “what”.
Earl Howe
Amendment 26 seeks to place a different limitation on the ETJ power in relation to the proscription offences at Sections 12 and 13 of the 2000 Act which would limit it to cases where the offending activity would also constitute an offence in the country where it occurred. I mentioned earlier one key rationale for the new powers we are seeking, which is that terrorist groups use propaganda as a means of radicalising people in this country while basing themselves abroad.
Additionally, it is a fact that terrorist groups are by their nature most likely to be based in areas of conflict and instability where there may not be functioning systems of government or criminal justice, or clearly defined and well-developed terrorism laws equivalent to those in the UK. This means that it is entirely possible for a person to act in support of a potentially very serious terrorist organisation outside the UK and for the laws in that part of the world to criminalise that activity in a different way from the UK, or potentially not at all. This is not a reason to take no action against that person if they travel or return to the UK, if prosecution would otherwise be possible and appropriate. We must engage with the world and the terrorist threat as it is, rather than as we would ideally like it to be, and it would simply not be responsible to tie the hands of the police and the courts in this way. I share the noble Baroness’s wish that those who return to this country should repent, be reformed and form part of the society in which we all live and which we enjoy, but I say that without prejudice to the point I have just made that if they have acted in a way that profoundly harmed the people of this country, they should be brought to book.
I am afraid Amendment 26 would run a coach and horses through the idea that I have put forward, and it would most likely mean that it would not be possible to prosecute at all people who have engaged in such activity in places such as Syria. We might as well simply strike this provision from the Bill in its entirety if we are going to go down that road. For this reason I am unable to support the noble Baroness’s Amendment 26.
“( ) In subsection (3), after “citizen” insert “(subject to subsection (3A))”.( ) After subsection (3) insert— “(3A) Subsection (1) applies in the case of an offence falling within subsection (2)(ca) or (cb) only if at the time of committing the offence the person is a United Kingdom national or a United Kingdom resident.(3B) In subsection (3A)—“United Kingdom national” means an individual who is—(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,(b) a person who under the British Nationality Act 1981 is a British subject, or(c) a British protected person within the meaning of that Act;“United Kingdom resident” means an individual who is resident in the United Kingdom.””
“(ca) the cases in which a person “holds” an account include those where the person is entitled to operate the account;”
Baroness Williams of Trafford
My Lords, the noble Lord, Lord Paddick, helpfully proposed an amendment in Committee to close a gap he had identified on accounts which a terrorist offender is entitled to operate but does not hold in their own name—for example, because they are an authorised signatory to the account of the relative or employer. I recognised then that there might well be merit in the amendment and committed to take it away to consider it further. I have just done that and find myself in agreement with the noble Lord that this is indeed a gap in the current Bill and that his suggestion will close it and improve the Bill.
Amendment 27 therefore implements his suggestion, for which I am very grateful, and I commend the amendment to the House.
Lord Paddick
My Lords, I am very grateful to the Minister, but I cannot possibly claim credit for the amendment: it is actually the work of my noble friend Lady Hamwee. That having been said, we are very grateful that she listened to our arguments. We hope that noble Lords will realise that we on these Benches look to be hopeful, not necessarily negative about legislation. We hope that closing this loophole shows that we are working together to try to improve legislation.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 28 repeats an amendment I proposed in Committee on behalf of the JCHR, which gathered considerable support from the noble Lords, Lord Anderson, Lord Judd and Lord Pannick, and the noble Baroness, Lady Kennedy, as well as my Front Bench and the Labour Front Bench. The noble Lord, Lord Carlile, said that he was,
“not convinced that the Government have got the proportionality of this right”.— [Official Report, 31/10/18, col. 1409.]
That has encouraged me to raise the issue again.
This amendment is in connection with the search and entry provisions. It would provide that, rather than allowing search and entry to assess risk, it would be far more specifically to assess whether the subject of a warrant was in breach of the notification requirements applying to him.
The Minister said that the provision was proportional. The terminology used in Committee included “home visits” and the police “keeping in touch”, which sounds much gentler than a power to enter and search under a warrant. I talked about what the noble Lord, Lord Anderson, called the human element—the impact on an individual’s family—but, as other noble Lords pointed out, the impact is often much wider in such a situation.
We will consider the Prevent policy on the next day of Report and no doubt noble Lords will raise the importance of how a policy is perceived by the community affected. The infringement of the privacy of the individual and of the individual’s family, who I think are at risk of considerable distress, which is part of the Government’s proposals, is not just a matter of a lack of proportion. It also carries a significant risk of damaging, if not destroying, the trust of the community, which in turn impacts on everyone’s security.
I acknowledge that there has to be a warrant. I am sorry if this sounds cynical, but can we be confident that a magistrate will always ask for details of compliance or otherwise with the notification requirements on the part of the subject of a requested warrant? Will a magistrate ignore the police’s wish to go on a fishing expedition, if you like?
The Minister drew a comparison with registered sex offenders. As the noble Lord, Lord Anderson, is here, perhaps I should let him speak for himself if he wishes and intends to do so, having pursued this with Professor Clive Walker. I am looking to see whether he is going to because if not then I am going to quote Professor Walker—I am being told to go ahead. I am grateful to him for pursuing this matter. Professor Walker looked at the comparison with people on the sex offender register and distinguishes this situation from that one because of the additional ways of mitigating the risk where terrorist offenders are concerned. He also made the point that if he had realised what the provisions applying to sex offenders were, he would have been critical then. As he says,
“a bad precedent should not be used as a basis for more bad law … I still argue that it is unwarranted to treat terrorism offenders in this way in comparison to sex offenders because of the different designs now being applied to terrorism offenders … in terms of their periods of endurance and also possibilities of review”.
He refers particularly to the extent of the respective orders—currently scrutiny over identity, residence, travel— and to the fact that the Bill imposes requirements as to mobile phone details, email addresses, vehicles, banks and identification documents. He says:
“If such information is provided, all of which can be checked against external records, should this not reduce the residual risk and so reduce the need for entry in order to check ‘risk’? … If these extra demands do not adequately reduce risk, what is their value?”
That is another way of asking the question that I asked in Committee on whether the notification requirements in themselves were insufficient. If the answer is no, they are sufficient—and I would expect the Government to say that—then what is the justification for this, as I say, potentially damaging provision? I beg to move.
Lord Anderson of Ipswich (CB)
My Lords, I support the amendment for the reasons that the noble Baroness has given. The only additional point that I would make, and I made it in Committee as well, is whether the person to whom the warrant relates being in breach of notification requirements constitutes a sufficient ground for the entry and search of the home of a TPIM subject—among, one must assume, the most dangerous of terrorists or suspected terrorists in this country. It is a little hard, at least for me, to see why it should not be sufficient in relation to the prisoners and those remanded in custody who are dealt with under this part of the Bill.
Baroness Williams of Trafford
My Lords, as the noble Baroness pointed out, Clause 13 confers on police the power to enter and search the home address of a registered terrorist offender, under the authority of a warrant issued by a justice, for the purpose of assessing the risk the offender poses. Amendment 28 would narrow the purpose for which the power of entry and search may be operated, limiting it to assessing whether the offender is in breach of the notification requirements. There was a good debate on this in Committee, so I will not detain the House by setting out again the underlying purpose of the terrorism notification requirements, and their importance in helping the police to manage the risk posed by those convicted of serious terrorism offences. However, it may assist your Lordships if I briefly rehearse the purpose of this power, and why it is needed in its current form.
The purpose of the power of entry and search, as currently drafted and as intended by the Government, is to allow the police to assess the risk posed by a convicted terrorist who is subject to the notification requirements. The police consider that home visits are an important tool in managing and risk-assessing registered terrorist offenders during the time they are subject to the notification regime. Such visits allow them to ascertain whether the offender does in fact reside at the address they have notified to the police, and to check their compliance with other aspects of the notification regime. Home visits are also helpful, as they allow a broader assessment of risk to be made. They allow the police to identify any other factors that might contribute to the overall risk an offender poses to themselves or their community, and their risk of reoffending. This might include their general living conditions, as well as any signs of mental health decline, or of drug or alcohol misuse.
It seems an entirely appropriate purpose for the police to wish to keep in touch with a registered terrorist offender. Indeed, given that the police are charged with protecting us all from such serious offenders, it would surely be irresponsible to do otherwise. However, Amendment 28 would mean that the new power could not be used for that purpose. The police will, of course, always seek to conduct such visits on a voluntary basis and the clause requires that this approach must be attempted at least twice before a warrant is sought. A positive and co-operative relationship is always preferable, and leads to more effective management of risk. However, a power of entry and search is needed because this is not always the reality, and registered terrorist offenders will often not comply with such home visits voluntarily. They will often be generally unco-operative and refuse to engage constructively with the police in conducting necessary checks.
In previous debates, I have highlighted that an identical power exists in relation to registered sex offenders. It was introduced by the Violent Crime Reduction Act 2006, by the then Labour Government. Indeed, the then Home Office Minister, the noble Lord, Lord Bassam, said at the time in reference to sex offenders that,
“we are now of the view that further powers are required to enable the police to gather all the information they need about a small but, it has to be said, determined group of offenders who, while in apparent compliance with the notification requirements, do all they can to frustrate the risk assessment process”.—[Official Report, Commons, 22/5/06; col. 678.)
I can only echo the noble Lord’s words.
The police report that their experience with registered sex offenders, as a result of this power being available, is that the offenders will normally comply voluntarily and that they are able to build a far more constructive relationship with them. This is simply because those offenders know that if they refuse to engage on a voluntary basis the police will be able to return with a warrant. We anticipate this power bringing similar benefits in the management of registered terrorist offenders, who are equally in a particular category of risk, such that monitoring of this kind is appropriate following a conviction. I cannot see that there is a rational argument for why the police should have less effective powers to monitor the risk posed by registered terrorist offenders than they do for registered sex offenders. I hope that the noble Baroness will withdraw her amendment in light of this explanation.
Lord Anderson of Ipswich
Before the Minister sits down, perhaps she can explain whether she is saying that, if there is no rational basis for providing this power in a different way from the way it was done in the case of sex offenders, the TPIM Act 2011 was not rational in how it approached the issue, and what does she say about that parallel with the TPIM Act?
Baroness Williams of Trafford
I would not like to say that the TPIM Act was not rational. I can write to the noble Lord to outline the significant differences here, but I think that the parallel with sex offenders that I posed is pertinent.
Baroness Hamwee
My Lords, as I said, two bad laws are twice as bad as one. The Minister said that the experience is that terrorist offenders are likely to be unco-operative when they are asked to host a home visit—and I wonder why they are unco-operative. This seems a very intrusive power. We are talking not only about entering a person’s home but, to take just one of the purposes mentioned by the Minister, assessing their mental health. What is done when that visit, or entry, is made, to undertake that assessment? The power is much broader and deeper than it may appear on the surface. I will not repeat the debate that we had last time but I do not feel that I am any more enlightened or, I have to say, any more persuaded. However, I accept that we are where we are for tonight, and I beg leave to withdraw the amendment.
“Persons detained under port and border control powers
(1) Schedule 8 to the Terrorism Act 2000 (detention) is amended as follows.(2) In paragraph 6, after sub-paragraph (3) insert—“(4) A detained person must be informed of the right under this paragraph on first being detained.”(3) In paragraph 7, after sub-paragraph (2) insert—“(3) A detained person must be informed of the right under this paragraph on first being detained.”(4) In paragraph 9—(a) for sub-paragraphs (1) and (2) substitute—“(1) This paragraph applies where a detained person exercises the right under paragraph 7 to consult a solicitor.(2) A police officer of at least the rank of superintendent may direct that the right—(a) may not be exercised (or further exercised) by consulting the solicitor who attends for the purpose of the consultation or who would so attend but for the giving of the direction, but(b) may instead be exercised by consulting a different solicitor of the detained person’s choosing.(2A) A direction under this paragraph may be given before or after a detained person’s consultation with a solicitor has started (and if given after it has started the right to further consult that solicitor ceases on the giving of the direction).”, and(b) omit sub-paragraphs (4) and (5).(5) In paragraph 16—(a) in sub-paragraph (8), omit “Subject to paragraph 17,”, and(b) after sub-paragraph (9) insert—“(10) A detained person must be informed of the rights under sub-paragraphs (1) and (6) on first being detained.”(6) In paragraph 17—(a) for sub-paragraphs (1) and (2) substitute—“(1) This paragraph applies where a detained person exercises the right under paragraph 16(6) to consult a solicitor.(2) A police officer not below the rank of superintendent may, if it appears to the officer to be necessary on one of the grounds mentioned in sub-paragraph (3), direct that the right— (a) may not be exercised (or further exercised) by consulting the solicitor who attends for the purpose of the consultation or who would so attend but for the giving of the direction, but(b) may instead be exercised by consulting a different solicitor of the detained person’s choosing.(2A) A direction under this paragraph may be given before or after a detained person’s consultation with a solicitor has started (and if given after it has started the right to further consult that solicitor ceases on the giving of the direction).”, and(b) in sub-paragraph (3), in the opening words for “(1)” substitute “(2)”.”
Baroness Williams of Trafford
My Lords, the government amendments in this group make a number of changes in response to the debates in both Houses regarding the ports powers under Schedule 3 to the Bill and Schedule 7 to the Terrorism Act 2000. They also respond to the reports of the Joint Committee on Human Rights, the Constitution Committee and the Delegated Powers Committee, and to representations from the Law Society and others.
During the course of the previous debates, there has been much focus on the important topic of a detainee’s right to consult a solicitor in private, and on the exceptional power that would allow an officer to overhear that consultation to mitigate concerns that the detainee might pass on a message to a third party. While this power was not without safeguards—for example, it could only be authorised by an assistant chief constable where the officer had reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences—the Government have heard the concerns raised and are prepared to take a different approach.
Amendments 37 to 39, 41 and 42, would replace that power and instead allow an officer, in the situation that I have just described, to require the detainee to choose a different solicitor. The detainee will then be reminded of the right to free legal counsel from an approved duty solicitor who has met the standards and competence of the Law Society’s criminal litigation accreditation scheme. This approach, which will apply to both Schedule 7 and Schedule 3 ports powers, will mitigate the concerns regarding the detainee’s first-choice solicitor but will still allow the detainee to receive private legal counsel—in all likelihood, with a trusted solicitor from the duty solicitor scheme. It mirrors the provisions in PACE Code H with regard to the detention of terrorist suspects as proposed by the Law Society in its evidence to the Public Bill Committee in the House of Commons, and aligns with the proposals of the shadow Security Minister and noble Lords in this House.
The new power will also be subject to important safeguards. For example, it can only be directed by a superintendent and only where the officer has reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences: for example, interference with evidence or gathering of information; injury to another person; alerting others that they are suspected of an indictable offence; or hindering the recovery of a property obtained by an indictable offence.
Amendments 35, 36 and 40 concern the points raised in Committee by the noble Baroness, Lady Hamwee, regarding the information provided to a detainee about their right to access a solicitor. During that debate, I drew the House’s attention to the draft Schedule 3 code of practice which, like its equivalent for Schedule 7, is clear that a person who has been detained under either power must be provided with a “notice of detention” that clarifies their rights and obligations. The examining officer must also explain these rights and obligations to the detainee before continuing with the examination. Furthermore, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.
While the Government are satisfied that all the safeguards that the noble Baroness asked for are already in place through the codes of practice, Amendments 35, 36 and 40 will make it explicit in the primary legislation that a detainee has to be made aware of his or her right to access a lawyer at the moment of detention. We are in complete agreement that any person who is detained under these ports powers should be informed of their rights before any further questioning takes place.
Amendments 43 and 44 will address concerns raised by the Delegated Powers and Regulatory Reform Committee with respect to the scope of the regulation-making power in what is now paragraph 60 of Schedule 3. This power would allow the Secretary of State to specify additional persons who may be supplied with information acquired by an examining officer. The power mirrors an equivalent in Schedule 14 to the Terrorism Act 2000 relating to information acquired through a Schedule 7 examination. These regulation-making powers are an important means of future-proofing the mechanisms to share information with government bodies and operational partners. Currently this information can be shared, if needed, with the Secretary of State, HMRC, a constable or the National Crime Agency.
We recognise the concerns raised by the Delegated Powers and Regulatory Reform Committee that the powers as drafted could allow sensitive information to be passed to any organisations, including those in the private sector. That is not our intention. The Government are clear that such information should be held and managed responsibly and should not be made available to any person or organisation. Amendments 43 and 44 would ensure that the Secretary of State, in relation to either power, could specify a person to be supplied with this information only if the person exercised a public function, whether or not in the United Kingdom.
I hope that noble Lords are reassured that the Government have listened to a number of concerns raised during the debates and have acted to improve this legislation. I beg to move.
Lord Rosser (Lab)
The shadow Security Minister in the Commons, it has been said, proposed that a list should be drawn up of lawyers properly regulated through the Law Society and the Solicitors Regulation Authority, who would be available to give legal advice and thus overcome the Government’s concern that a person detained under the hostile activity ports powers might seek the service of a rogue solicitor to give legal advice but, in reality, use that person to pass on information to a third party with potentially damaging consequences.
The Government in the Commons said they would consider this proposition and, as the Minister has just said, they have now tabled an amendment that takes out the reference in the Bill to consulting a solicitor,
“in the sight and hearing of a qualified officer”,
and instead provides for a senior officer to be able to require a detainee to consult a different solicitor of the detainee’s choosing. In her letter of 27 November setting out the Government’s amendment, the Minister has said that in practice a different solicitor of the detainee’s choosing is likely to be the duty solicitor. Can she say what will happen if the further different solicitor of the detainee’s choosing is also deemed unacceptable? Will, in effect, the detainee be told either that they choose the duty solicitor or they will not have a solicitor to consult? It would be helpful if this point could be clarified in respect of persons detained under the port and border control powers.
We support the amendments and recognise that the Government have endeavoured to address the concerns expressed in the Commons by the shadow Minister, as well as the similar concerns expressed by noble Lords in this House.
Baroness Hamwee
My Lords, we too support these amendments and recognise the steps that the Government have taken. Perhaps I may put on the record a couple of comments made by the Law Society on this general area. Unfortunately, its briefing arrived too late for us to build on it by way of amendment, but it comments on legally privileged material being retained for use as evidence or for deportation proceedings. It gives the view that:
“Legally privileged material should not be retained for any purpose other than a potentially urgent need to prevent death, injury or a hostile act”.
It also comments on:
“The process by which material can be identified as constituting legally privileged material”,
and asks who is responsible for making the determination, as that is not,
“explicitly clear in the Bill as drafted”.
It continues:
“It is important that this determination is made by a legally qualified person who is capable of accurately assessing whether a given article is subject to legal professional privilege”.
As I said, I thought that it was worth putting those comments on the record.
My noble friend Lord Marks is sorry not to be able to be here this evening and asks that his thanks to the Minister for building on the indication given at the last stage is recorded. He too asks about what he calls an “unacceptable, dodgy solicitor”. I think that any dodgy solicitor is unacceptable—you do not have to fill two criteria. If an unacceptable dodgy solicitor is selected for a second time, he and I assume that the senior officer might give a further objection. My noble friend also asks whether the Government intend to issue a further draft code of practice relating to the considerations that senior officers should take into account when considering making these directions.
Baroness Williams of Trafford
I thank the noble Baroness for those questions. The noble Lord, Lord Rosser, asked what happens if the detainee chooses another solicitor, who is then of concern. I am trying to read the writing here. If concerns still exist, the superintendent is within his or her right to direct that the detainee should choose a different solicitor, and that applies not just to the first-choice solicitor. The point about confidential material—
Lord Rosser
I appreciate the difficulty with reading writing. I cannot read my own, let alone somebody else’s. Does it mean that if the detainee chooses an unacceptable second solicitor, they will then be told, “It’s the duty solicitor or you don’t have a solicitor at all”?
Baroness Williams of Trafford
From what I understand, a panel of approved solicitors is available to detainees—I am sure that the Box will fly over with a piece of paper if I am wrong about that. However, if, for whatever reason, the first solicitor from the panel is given to the detainee—
Lord Carlile of Berriew (CB)
May I make an effort to help out the noble Baroness? There was a time in my professional life when I used to be instructed by duty solicitors at London Heathrow Airport and London Gatwick Airport. The fact is that the duty solicitors at ports of entry are accustomed to dealing with all kinds of issues that arise there. Indeed, the quality of work that emanates from being a duty solicitor in significant ports of entry is high. Therefore, one can reasonably assume that one is getting not any old solicitor but a solicitor who has some understanding of the kind of work that can arise in that setting. There is also some training available, and it is usually done very co-operatively. Has that given the Minister enough time to be able to read the writing—or she may wish to just agree with me?
Baroness Williams of Trafford
I do agree with the noble Lord; that is absolutely brilliant. But I have just received another piece of information: if the detainee is still not satisfied, they can consult a solicitor by phone, so that is a third arm of the options for detainees. Between us, we have got there.
As for who approves the access to confidential material, it would be the Investigatory Powers Commissioner.
Lord Rosser
The reason for my asking the question is that, as I understand it, sub-paragraph (2)(b) of Amendment 41 states that the right of the detainee,
“may instead be exercised by consulting a different solicitor of the detainee’s choosing”.
I have nothing at all against duty solicitors and hold them in high regard. However, if the detainee then chooses another solicitor who is unacceptable—presumably not one of the duty solicitors—we are fairly clear that the detainee will then be told to use the duty solicitor or have no solicitor at all.
Baroness Williams of Trafford
He or she will be perfectly entitled to consult a solicitor by phone.
Baroness Hamwee
(c) the Commissioner for the Retention and Use of Biometric Material has consented under section 63G to the retention of the material.”
Baroness Hamwee
My Lords, the JCHR proposed a number of amendments on the subject of biometrics for the last stage. The Minister gave a long reply, quoting the Biometrics Commissioner’s support for bringing the periods for retention of data for arrest on suspicion of terrorism offences into line with arrests under the Police and Criminal Evidence Act. At that stage, it seemed to me that this did not go to the question of oversight by the commissioner, and I still do not think that has really been dealt with.
I confess that I had to go by way of Beachy Head and along the byways of PACE to arrive at Amendment 30, so I am well prepared for criticisms of the drafting. However, it is intended to ensure that the retention of biometric data for a terrorism offence has consent from the commissioner. I am entirely open to a different way of achieving that end, but I am certain in my own mind that, whatever the basis of arrest, the retention of data should require this consent. I beg to move.
Earl Howe
My Lords, as the noble Baroness, Lady Hamwee, has made clear, this amendment returns to one of the issues raised in the reports on the Bill by the Joint Committee on Human Rights: the rules governing the retention of biometric data in national security cases. I am sorry that the noble Baroness remains unpersuaded by my previous response. I will do my best to be more persuasive today.
Without going over too much ground, it may be helpful if I briefly reiterate that Schedule 2 amends the laws that govern the retention, review and deletion of fingerprints and DNA profiles by the police for national security purposes. The intention of these provisions is to strike a better balance between on the one hand enabling the police to use fingerprints and DNA in an agile and effective way to support terrorism investigations and protect the public, and on the other ensuring that the retention of DNA and fingerprints continues to be proportionate and subject to appropriate safeguards. Schedule 2 delivers this and, importantly, it retains proportionate safeguards, including regular case-by-case review and the robust independent oversight provided by the Biometrics Commissioner.
The noble Baroness’s amendment would amend paragraph 2 of Schedule 2, which harmonises the retention periods for biometric data obtained when an individual is arrested on suspicion of terrorism, but not subsequently charged, under the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000. Paragraph 2 does so by providing for biometric data to be retained for an automatic period of three years when an individual is arrested under PACE for a qualifying terrorist offence.
As the noble Baroness is aware, currently an individual arrested under the Terrorism Act 2000 may have their biometric data automatically retained for three years. But the same automatic retention would not be available if the same individual were arrested in relation to the exact same activity under PACE. Rather, in that case, ongoing retention for national security purposes would require the police to make a national security determination with the approval of the Biometrics Commissioner, or would otherwise require the consent of the Biometrics Commissioner under Section 63G of PACE if retention were solely for the prevention or detection of crime generally.
Our position on this is that having two different retention regimes in such cases is quite simply anomalous. The Bill will provide for a more consistent approach to the retention of biometric data for all those arrested on suspicion of terrorism by providing for the same retention period in otherwise identical terrorism cases regardless of the power of arrest used. This is a proportionate and logical change.
The noble Baroness’s amendment would mean that this inconsistency between the two retention regimes would persist. Particularly against the backdrop of the heightened threat picture we face today, I am clear that it is important that the police are not deprived of information that could prove vital to keeping the public safe. That is what underlies a lot of what we seek without removing, as I emphasised earlier, the safeguards that are in place.
As noble Lords would expect, we consulted the Biometrics Commissioner on this provision. He is clear that he supports the measure, and I quoted his words last time. The noble Baroness’s amendment would have the effect not of modifying or improving this aspect of Schedule 2 but of effectively nullifying the provision and preserving the current anomaly. That disparity is not sustainable and I see no good reason for continuing it.
I sense that I have not persuaded the noble Baroness in what I have said, but I hope that she can at least see the logic of the Government’s position and perhaps, on reflection, will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I think we want the same thing, but I confess that I do not understand how the Government have got here. The noble Earl did indeed quote the commissioner last time, but it seemed to me that that was on a different point. Perhaps I may check this. I think he is saying that the oversight through an NSD is equivalent to the oversight applied by PACE. I do not know whether he is able to answer that, but I am finding it difficult to understand how they are in fact exactly equivalent in the way that he is telling the House.
Earl Howe
The strict answer to the question put by the noble Baroness is that the two Acts provide for different kinds of retention regimes, one where it is automatic for three years under certain conditions and the other where the Biometrics Commissioner has to give his permission; namely, under PACE. The point I was making was that that applies in cases which are otherwise identical and that it is simply anomalous to have that difference. The Biometrics Commissioner has actually said that it would be,
“a sensible approach to bring the retention periods for arrest on suspicion of terrorism offences in line”.
If he is relaxed about it, I cannot see that we should not be either.
Baroness Hamwee
I have the Official Report of when the noble Earl quoted that last time, and it seemed to me then that that was about the retention period, not quite about the role of the commissioner. I do not think that we are going to make further progress and at this time of night it would be inappropriate for me to labour the point. It may be my fault for failing to follow the details. As I say, I have had to go by way of Beachy Head to get to the amendment that I put down. I beg leave to withdraw it.
Counter-Terrorism and Border Security Bill
Monday 17th December 2018
(5 years, 4 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 142-II Second marshalled list for Report (PDF) - (13 Dec 2018)
18:14 - Division on Amendment 32 - Ayes: 214 / Noes: 196 - Amendment 32 agreed.
Lord Stunell
“( ) After subsection (3) insert— “(3A) The Secretary of State must ensure the collection and annual release of statistics on—(a) the religion, and(b) the ethnicity,of identified individuals referred under subsection (2).””
Lord Stunell (LD)
My Lords, my noble friend Lord Paddick and I tabled Amendment 31 because of the serious concerns expressed on all sides about the impact of the Prevent strategy on minority—particularly Muslim—communities. The noble Baroness, Lady Warsi, has been among the most eloquent in putting that view to the House. This has emphasised the fact that Prevent risks becoming counterproductive rather than counterterrorist. It is really important for the House to consider that critique and to respond to it and make sure that the legislation does as well.
There are concerns from within some of those communities themselves. At Second Reading the noble Lord, Lord Ahmed, spoke about that very eloquently. I have been approached by a number of organisations which work in the field of deradicalisation and minimising radical risks for those in minority communities; they have passed on their concerns as well. There are also concerns from the professional associations which represent some of those professionals who are required to be reporters and are drawn into the Prevent strategy. A senior clinician from my own area of Stockport has made the point that it undermines patients’ trust in the conversations they might have with their GP because they fear they might be reported. The professional teaching associations have some of the same concerns about the burden being placed on schools to deliver the Prevent strategy.
The fact is that there is a cost. It is our job to ask: is it worth it? Is the value worth the cost? We need to look at what measures Prevent is subject to. How is Prevent evaluated? How does anybody decide that it is effective? Can it be shown that unconscious bias is not present when people are selected for potential referral? In view of the debate we have just had, that question of unconscious bias might need to be nearer the top of our minds than we might otherwise have thought. Can the Minister really expect to get away with the argument that she deployed last time round that it was in part justified because there was a valuable by-catch, as it were, of other people who, although not being radicalised or in need of Channel support, in fact showed other, non-terrorist vulnerabilities? The question, then, is: how do we make Prevent more transparent? How can we make it so that, on the one hand, those who have fears and criticisms about it can be satisfied and, on the other, the Government can satisfy themselves that they are not in the same position that they were a few years ago about stop and search, where they actually did not know the answer to the criticism that was being levelled at police services?
Lord Carlile of Berriew (CB)
My Lords, first, I draw the noble Lord’s attention to the existence of the Prevent oversight board, which last met a few days ago. It has not been meeting as often as it should, but I heard the Home Secretary personally giving an undertaking that it would meet again in six months’ time. The board was established during the coalition Government, and was accepted by the coalition Government, in response to the review that I conducted —on behalf of the coalition Government—of the Prevent strand of counterterrorism policy. Its purpose was to do exactly the sorts of things set out in this amendment, which I regard as unnecessary.
Secondly, the noble Lord referred, in what I suppose was an argumentum ad maiorem, to the noble Baroness, Lady Warsi. I note with regret that she is not here in her place; indeed, as I recall, she has not been in her place for any part of the Committee or Report stages of the Bill. I draw his attention to the fact that she is not a unifying force in dealing with extremism and Prevent. She has accused the excellent new counter- extremism commissioner, Sara Khan, of being,
“neither connected to, nor listened to, nor respected by, nor trusted by, nor considered independent by most British Muslims—so”,
the extremism commission,
“has no ability to influence and affect change in its ‘target audience’”,
despite Ms Khan’s efforts to deal with the problem of attaining a range for a definition of extremism. I say to the noble Baroness, who I now see approaching the Chamber for the first time in these Committee and Report debates, that I regret that she takes a somewhat monolithic view of Islam in this country, whereas Islam is—if I can use my Welsh experience from being a Member of the other place—as diverse as Christianity in Wales, which is about as diverse as it comes.
With great respect to the noble Lord, if he is to criticise Prevent then he should be specific about which of its programmes he is criticising. I have spent a great deal of time watching Prevent; going to programmes in its field, listening to those who conduct them and talking to people in the communities in which they operate. I have observed that Prevent is, on the whole, regarded pretty positively, as achieving a great deal. Above all, it achieves the deradicalisation of children who might otherwise spend most of their lives in prison if they were to fulfil the ideation which led them into Prevent.
I know that there are figures, which I accept completely, showing that many—even the majority—of those who are referred into Prevent are not, in the end, shown to be appropriate for its programmes. But what do the police do? They stop people in the street; they arrest them; they question them in an aggressive way; and they are often wrong in their suspicions. Finding the people who commit offences involves talking to an awful lot of other people. Prevent actually does achieve considerable success in finding those young people who are being radicalised, often in private, in their rooms, over the internet—a very difficult area in which to operate.
It is unfair to criticise Prevent in the way in which the noble Lord, Lord Stunell, did. It has been suggested that it could be replaced by something else, but that would look awfully like Prevent, whatever you called it. If you called it “Cuddles” it would still receive exactly the criticisms which are made of it as Prevent. It would achieve nothing. If we abandoned Prevent, then terrorist acts which we have been able to avoid as a result of that policy would happen. I admit I played a part in it, so I may be somewhat biased towards it. Noble Lords have been talking about bias this afternoon and I accept the accusation of apparent bias as a possibility. However, I believe that Prevent has demonstrated that it has been successful, since it was adopted by the Government in which the noble Lord was a Minister. If it had not been, why did they not abandon it before 2015?
Lord West of Spithead (Lab)
My Lords, I have been involved in the Prevent programme since 2007. It is like the curate’s egg: some parts of it have been successful, some not. It is almost impossible to imagine that we would not have had such a programme. It was absolutely necessary to do it because, in the final analysis, terrorism is a generational thing and the only way to defeat it is by attacking those areas of belief and behaviour. It is, therefore, probably the most important strand, but we found it the most difficult one and there is no doubt that some areas of it failed and did not do well. We therefore need to improve it. The amendment is unnecessary because, as the noble Lord, Lord Carlile, said, if the Prevent oversight board is doing its job it should do these things. However, we need to look at how we can make Prevent better.
Lord Hylton (CB)
My Lords, I agree with the noble Lord, Lord Carlile, that Muslim communities in this country are extremely diverse. They come from many different countries and backgrounds. Within them, there are many points of view, theological opinions and so on. Having said that, I can give some indirect evidence on this matter. I am a trustee of an English charity which, for the last 12 to 13 years, has been working with Muslim communities up and down this country. It has helped them to build bridges with all levels of authority, from local authorities up to the Home Office. It has tried to give them greater self-confidence in dealing with authority. However, the evidence is that, over this period, the Prevent programme has made relationships much more difficult. I think that it is a question of perception. The existence of the programme and the way in which it has been administered have led many Muslims to feel that they are being discriminated against and that the weight of government is falling on them disproportionately.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
Does the noble Lord agree that it would possibly be better to talk about this in the next amendment? This amendment is about transparency of data. If he wants to talk about it now, I am perfectly happy to hear what he has to say, but it is actually the subject of the next amendment.
Lord Hylton
I will conclude what I was saying. I believe that this amendment is modest and necessary and will be helpful. It will provide statistics with which future judgments can be made, so I support it.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, this issue was raised by the noble Lord, Lord Stunell, in Committee and again today on Report. As he told the House previously, in 2016-17, 6,093 people were referred to the process, but only 6% of them were referred to a Channel programme. The ethnicity and religion of those who are referred are missing from the data. That omission denies the Minister, officials and others important and valuable data.
The noble Baroness, Lady Williams of Trafford, was clear in Committee that the Government wholeheartedly agreed with the intent of the amendment, but she was not convinced that it was needed to achieve the intention. When she responds, will she update the House on the work that is being done by the Home Office chief statistician, who, we are told, is looking at this issue?
To conclude, I support the aims of the amendment. It will provide valuable information for the Government. It would be welcome if the Minister could update the House on whether what has been asked for could be done through other means.
Baroness Williams of Trafford
My Lords, I thank noble Lords who have spoken to this amendment, particularly the noble Lord, Lord Stunell. I will be happy to update the House on some of the work that is going on. The Government agree wholeheartedly with the principle that activities under the Prevent strategy are made as transparent as possible.
The noble Lord, Lord Carlile, mentioned the Prevent oversight board. I am pleased to hear that it met just the other day. However, there is great interest in the operation of the Channel programme, and the publication of statistics on it has already added to that transparency, dispelled some of the myths which surrounded its operation, and provided useful substance to debates in this House. We have so far published data on referrals to Prevent, and the progress through the Channel system of those referrals, covering in detail 2015-16 and 2016-17 and, in lesser detail, the previous years from April 2012. The latest set of statistics, covering 2017-18, was published last week.
The published data covers the numbers at different stages of the process from initial referral, through discussion at Channel panel, to the provision of support. It includes, among other things, the type of extremism which led to the referral; the age, gender and regional location of the person referred, and the sector which made the referral. It also looks at how successful the programme is.
The data is still at a relatively early stage in its development and is therefore classed as experimental statistics. Feedback from users is very important as the dataset develops, and it is clear from noble Lords’ comments that additional categories of data, such as the religion and ethnicity of those who are referred—as the noble Lord, Lord Stunell, said—would be a welcome addition to the current set. As I indicated in Committee, working through the Home Office chief statistician, we would be happy to explore including this data in future publications. At this stage, that would depend on the quality and completeness of the data.
I mentioned in Committee that currently at least half of the records supplied to the Home Office do not include ethnicity or religion. The publication of such variables could therefore be misleading at this stage. There will clearly be more work which officials can do to ensure that this data is captured and recorded in an accurate and nationally consistent manner.
I return briefly to a point raised by the noble Lord, Lord Stunell, in Committee. He was interested in whether referrals made by the police were more or less likely than others to end up being discussed on Channel panels and offered support. I promised at the time to look at the underlying data to see if such an analysis were possible, and I am happy to confirm what my noble friend Lady Barran said on that occasion—that this data already forms part of the published data set and can be found in accompanying tables available on the GOV.UK website.
On the understanding that the Home Office chief statistician is looking at the issue raised in this amendment, I hope the noble Lord will be happy to withdraw it.
Lord Stunell
I thank the Minister and other noble Lords who have contributed to the debate. I am glad that neither she nor I believe that Prevent is beyond improvement after the magic year of 2015, despite what the noble Lord, Lord Carlile, imputed to me. I am very grateful for her words of encouragement. The key issue here is the perception referred to by the noble Lord, Lord Hylton, and the widespread misapprehension, as the Government see it, by the minority community of what Prevent is and does. The best way to overcome that is to have more transparency and information. I welcome what the Minister has said today and therefore beg leave to withdraw the amendment.
Lord Kennedy of Southwark
“(8) The Secretary of State must, within the period of 6 months beginning with the day on which this Act is passed, make arrangements for an independent review and report on the Government strategy for supporting people vulnerable to being drawn into terrorism.(9) The report and any recommendations of the review under subsection (8) must be laid before both Houses of Parliament within the period of 18 months beginning with the day on which this Act is passed.(10) The laying of the report and recommendations under subsection (9) must be accompanied by a statement by the Secretary of State responding to each recommendation made as part of the independent review.”
Lord Kennedy of Southwark
My Lords, this is an issue that we debated in Committee when an independent review of Prevent was called for. The Prevent programme introduced by the Labour Government in 2003 has undoubtedly done much valuable work. My moving of this amendment should in no way be seen as not recognising that fact. As when we last debated this issue, I pay tribute to all those who work to keep us safe, to divert people away from a life of terrorism and to support people who contribute positively to the community. We should all recognise the good work that has been done. I am not aware of any specific problems that give rise to concern, but that does not in itself negate the fact that it is good practice to review matters.
The amendment does not specify who should carry out the review. I would be happy for it to be placed under the remit of the Independent Reviewer of Terrorism Legislation. It seems preferable to do that rather than appoint another person to carry out the review. Prevent has not been the subject of an independent review; I very much believe that the programme would benefit from that sort of oversight.
Clearly, questions have been raised over the programme’s operation and effectiveness. Some are justified, but other criticisms have been stirred up deliberately to undermine the programme. I see my amendment calling for review not as seeking to undermine the good work that has been done but as a sound, sensible, careful look at an area of policy and a programme that deals with matters of the utmost concern to the country as a whole and to individual communities.
In addition to the review, my amendment calls for a report to be laid before Parliament within 18 months of the Bill becoming an Act, and for the Secretary of State to produce a statement to accompany the report. I beg to move.
Lord Anderson of Ipswich (CB)
My Lords, we should have pride in the achievements of the many excellent people who work locally in Prevent, and in the increased transparency that has been a notable feature of the past few years. I have in mind not only the helpful publication of statistics but recent initiatives such as the staging in the West Midlands of simulated Channel panel meetings through which outsiders have been brought in to witness the process of decision-making.
As the noble Lord, Lord West, has indicated, triumphalism about the successes of Prevent would be quite out of place. In its report last month, the Intelligence and Security Committee noted that the failure to pick up attack planning by the Parsons Green tube bomber, Ahmed Hassan, despite him having been an active Channel case, highlighted what the committee called,
“deep-rooted issues in the administration”,
of Prevent. Assistant Commissioner Neil Basu described Prevent in an interview this February, when he was senior national co-ordinator for counterterrorism, as “hugely controversial”. He went on to say:
“Prevent, at the moment, is owned by the Government, but I think it should be outside central government altogether ... Rather than the Government handing over a sum of money and then it becoming state-sponsored with accusations of demonising communities, it should be locally generated. We have gotten all of that messaging the wrong way around, it should be grassroots up”.
I mention this to encourage noble Lords to avoid complacency on this subject and because the Minister quite rightly expressed in Committee her strong respect for Mr Basu’s views. Perhaps it shows that the best of us are not monolithic in our views; with great respect to my noble friend Lord Carlile, that is true also of the noble Baroness, Lady Warsi, whose recent book is both nuanced and constructive in its approach.
The legitimate questions raised by Mr Basu could be multiplied: how should Prevent relate to other safeguarding mechanisms on the one hand and to the Government’s Counter-Extremism Strategy on the other? How robust are the mechanisms for measuring success? To what extent should concerns derived from Prevent contacts be shared with counterterrorism police and others? Decisions as to the future direction of Prevent are of course for Ministers. It was encouraging to hear from my noble friend Lord Carlile that the Prevent oversight board might be showing signs of renewed life. But independent review of the operation of Prevent by a security-cleared person, based on the widest possible engagement with those affected, could help to inform those decisions. It could also provide much-needed public reassurance about an initiative which is so hotly debated that it has been described as “5% of the budget and 85% of the conversation”.
As Mr Basu said in February:
“Government will not thank me for saying this, but an independent reviewer of Prevent … would be a healthy thing”.
I agree, and I hope your Lordships will too.
Lord Carlile of Berriew
My Lords, I do not disagree with much of what has been said by my noble friend Lord Anderson. However, I have some concerns about a proliferation of independent reviewers. My suggestion to the Government is that, if there is to be an independent review of Prevent, it should be done by the new Independent Reviewer of Terrorism Legislation who I understand is about to be appointed. After all, Prevent is part of the four-strand counterterrorism policy; it seems logical that the independent reviewer should be able to consider all strands of that policy. My only reservation would be if there were serious national security implications of any such review. That said, all independent reviewers have had to be “subtle and nuanced”, to adopt a phrase from my noble friend, about national security issues. This has been taken into account in the production of all reviews.
Of course I accept that Prevent is not a perfect policy. All policies can be improved, particularly in counterterrorism. If it would give greater confidence to the public, or rather—as I suspect the public are not too worried about this—if it would give greater confidence to those who spend a lot of time in the Palace of Westminster and the couple of square miles around it, then I see no disadvantage in an independent review being carried out by somebody already vetted and expert on counterterrorism policy as a whole.
Lord Harris of Haringey (Lab)
My Lords, it is a pleasure to follow two distinguished reviewers of counterterrorism legislation, who more or less agreed with each other. My first realisation of how pivotal the Prevent strand is came when I chaired a focus group with mothers who were concerned that their children were being lured into radicalised behaviour. They were pleading for there to be somewhere where their children, mainly male in that group, could be referred to be helped through the process and not end up as radicalised and potential terrorists. They had huge concerns that if they raised their fears about their sons with the police, the next thing that would happen is that their doors would be kicked in at four in the morning and the young person would be taken away and interrogated, and goodness only knows what would happen after that. Those mothers were also concerned about whether there were routes within their own communities for dealing with such cases and they felt quite strongly that there were none. They did not have a solution: they simply pleaded for something to be found to help them in that situation. That is one of the strongest cases that I have heard as to why this work is so important.
Having said that, there was a desire for alliteration to have four Ps when the Contest strategy was created and, in hindsight, that the Prevent strand was included was not entirely helpful. The core of Prevent is safeguarding. We have no qualms about safeguarding young people from sexual abuse, about safeguarding those who are vulnerable or have mental health issues, nor of finding ways to steer young people away from gang-related activities—we do not necessarily know how to do it but we know that it is a good thing to do—and we have no qualms about trying to steer people away from becoming addicted to dangerous drugs. Why should we have any qualms about steering young people—or indeed anyone—away from engagement in radicalisation and in terrorism? The problem has been that it is seen as too closely linked to the counterterrorism policy and the alliteration of the four Ps.
We should be quite clear that counterterrorism is important. It has to be addressed in this way and the Prevent programme has not always been as effective as it might have been in individual cases. Again, I remember 12 years ago—I cannot recall exactly when: I would have to check my diary—visiting two Prevent projects in London in adjacent London boroughs. They had similar mixes but took completely different approaches, for no obvious reason. In one, it appeared that if someone was referred to the programme, a large, burly police officer would go around and try to talk them out of it, which, frankly, will not produce the most effective results. There was an issue, particularly at the beginning and perhaps less so now, of quality control in the way in which some Prevent activities have been taking place.
We should also recognise that the fact that Prevent has such a difficult reputation is not entirely accidental. It is not entirely the consequence of that variability in the style but because some organisations and individuals have desperately tried to traduce it and make it appear more sinister than it is—for whatever reasons we can only speculate, but that is what has happened.
My noble friend’s amendment is important not necessarily because we will end up with something very different, but we need to look at those quality control issues, to establish that it is being done as well as possible, and we need to emphasise that the mission is safeguarding and protection of the individual rather than being part of the counterterrorism machinery which necessarily leads people to conviction and imprisonment.
Baroness Jones of Moulsecoomb (GP)
My Lords, we are coming at this from slightly different directions, which is very healthy in a debate. My concern is twofold. Prevent sometimes has a corrosive impact on communities; I am also extremely concerned about its impact on civil liberties and the right to freedom of speech.
The principle of Prevent is good but it is a curate’s egg. If we did not have it, we would have to find something similar. Getting early intervention and helping people to avoid going down dangerous paths is an excellent idea, but there have been too many horror stories. I am sure noble Lords have heard many of them. There is a video on social media about an eight year-old boy who was quizzed by police about whether his father taught him about the Koran. He was terrified and could not understand. When the police asked a direct question—“What does your dad teach you?”—he responded, “Maths”.
Then was a Guardian report that a teenage anti-fracking campaigner had been referred to the Prevent strategy to check on whether they had been radicalised. In fact, the person had nothing to do with anti-fracking, but that description had been used to cover up the real group that had tried to influence him, so valid protests against fracking were linked with dangerous terrorism, which again is a real problem for civil liberties. A Green Party member in Doncaster had a friendly visit from the police citing Prevent because they had submitted online criticism of British foreign policy in the Middle East.
Those events are state intrusion into people’s thought processes and freedom of expression, and are deeply wrong. Therefore, an investigation or inquiry to see where Prevent has gone wrong and where it can be put right is the only way forward. I put the question to the Government in Committee and I ask it again now: what do they have to hide? If Prevent really is as fair and effective as the Government claim, a thorough, independent review would prove that point once and for all.
Lord West of Spithead
My Lords, it is interesting that eight years ago today, Mohamed Bouazizi set fire to himself in Tunisia kicking off the Arab spring, which brought devastation to the whole of the Middle East and dramatically increased the number of terrorists. It is appropriate that we are discussing a counterterrorism Bill, because this is such an important issue.
I have some sympathy for my noble friend Lord Harris’s safeguarding comments. There is no doubt that the alliteration was very useful. I found the four Ps a useful reminder when talking to the media at the time, and there is no doubt that there is a strong element of safeguarding within the Prevent strategy. But as I have said, Prevent is a curate’s egg. Some bits have done very well and some bits have not. It has not hit the right places. There is no doubt that there has been traducing of it by some people, which is unfortunate, but of the four strands, the reality is that Prevent is probably the most important in the final analysis. I had the other three firmly under my control when I was in the Home Office, but not Prevent. It was separate, which is unfortunate because it is such an important strand. The way that I believe we will finally defeat terrorism is by getting this right.
Therefore, it is important that we review what is going on. I strongly support the amendment. It is absolutely appropriate that we have a review and I agree with the noble Lord, Lord Carlile; I am not quite sure how the review should be undertaken and by whom, but the Government should consider it. I am certain, however, that we should have a thorough review to look at this before we move forward.
Lord Stunell
My Lords, I support the amendment. We have rehearsed this issue at each stage of the Bill and I remind the House that a wide range of external organisations share the view that there should be a review. We heard from the noble Lord, Lord Anderson, and now from the noble Lord, Lord Carlile, that such a thing might add value. The Government have struggled to resist the reasoning put forward. The bottom line seems to be that the Government do not want a review and it is extremely difficult to penetrate why that might be when one looks at the advantages that flow from having one.
It is important to understand that activity is no guarantee of effectiveness. A lot of work goes on, but how effective is it? We heard evidence from the noble Lords, Lord West and Lord Harris, that it is not uniformly good. Certainly, the impression of those who believe themselves to be the targets of Prevent is that it is not uniformly good. The Minister needs to answer in detail what the Government’s reservations are about any sort of review along the lines of the amendment.
I noted carefully what the noble Lord, Lord Carlile, had to say about the Prevent oversight board. He said that it had not met often enough. Providentially for his case, it had met in the last week, but he did not disclose how long before that it last met. If the next meeting is in six months and he thinks that is soon enough, I presume the gap was quite extensive.
I notice that my supposition was, to some extent, supported by the noble Lord, Lord Anderson, who said of last week’s meeting that he was glad the Prevent oversight board was at last showing some signs of life. I hope I am not putting words into his mouth; I think that is what he said. Bearing in mind the qualified support that has come for the Prevent oversight board’s activity and effectiveness, I wonder whether the Government are really satisfied it is the right vehicle for a review, a substitute for a review or gives all the answers that a review would. It seems likely that that is not the case.
Other specific concerns have come to light since our previous debate. I have been approached by an outside organisation that, until this year, was a provider of Prevent projects to those who had been referred. It pointed out to me that it has now been superseded, at short notice in its opinion, by a private provider. It alleges that there is no effective procurement policy for those programmes. Far too often, it appears to depend on the knowledge and contacts of a Prevent co-ordinator, rather than a rigorous management process. I hope the Minister will be able, at least in principle, to give some reassurance on that. To help her in giving that reassurance, could she say something about the proportion of projects that are delivered through NGOs, the proportion delivered through private companies and the proportion delivered through local authorities or other public services directly? Have those proportions changed over the last four or five years, as my informant alleges? If there has been a change, was it cost-driven or based on an evaluation of whether particular projects were the wrong part of the curate’s egg, and were therefore dropped, or were too expensive for the results?
All of this raises the question of what results and criteria are being used in allocating, renewing or discontinuing such contracts. Surely evaluation is a key part of that; therefore, review of the process seems all the more necessary. I hope, for all the reasons that have been rehearsed, not least that one, that the Minister is able to accept this amendment today.
Lord Marlesford (Con)
My Lords, Prevent is an important part of the Government’s anti-terrorism strategy. We have heard about a number of problems relating to it, which have been there for a while. I am persuaded that it is therefore sensible to review the policy and see whether it should be changed, replaced or whatever.
The noble Lord, Lord Stunell, said he could not understand why the Government were resisting this idea. I can tell him exactly why. It is because the Home Office ploughs on regardless. Even when the tractor’s wheels are stuck in the mud, they go on spinning. That is why the Home Office needs constant help in knowing when things should be reviewed. I strongly suggest that my noble friend tears up the brief that says “Don’t review” and says, “Yes, we’ll look at it”.
Baroness Warsi (Con)
My Lords, with the leave of the House—and I have spoken to both our Front Bench and the clerk—I will refer slightly to the last amendment, which does actually refer to the current amendment. I was in the Chamber when this amendment was called.
I want to put a couple of things on record—first, my views on Prevent. I have written about this extensively. I will not plug the book, but it is available on Amazon. In that book, I talk about Prevent in detail. I talk about how, when the policy was started in 2003 and first published in this iteration in 2006, I supported it. It was effectively an upstream intervention into areas where we felt we could intervene, predominantly with young people and British Muslims at that time, although we are increasingly dealing with far-right extremism now. We were predominantly intervening with young people who may be attracted into terrorism. How could anybody disagree with that principle?
In my book—and this is the issue that I raised with the noble Lord, Lord Carlile—I work through the various iterations of Prevent. It has changed from what it was in 2003 to what it is now in 2018. It started as a policy specifically designed to be run as an internal discussion within communities of what could be considered to be extremist views. It was supposed to be a genuine, non-criminalised safe space and a battle of ideas—something I fundamentally supported—but it became a policy that was done not by the community but to the community. This is an issue I have consistently raised: what the policy became and the way it was then implemented; the level and quality of training, the material being used, the way it was implemented in different schools and differently across different communities. All of this—with 100 pages of citations if that helps the noble Lord—is detailed in the book, because it was important to say clearly that a principle of policy that I supported has, over time, become fundamentally flawed in its implementation and lost the trust of the communities we were trying to influence.
As a British Muslim parent whose children are likely to be vulnerable and to be approached by those who want to lead them astray, whether into extremism, terrorism or elsewhere, I would be the first in line to say this policy needs to be supported. But I do not want a policy on our books, which has statutory basis, which is badly implemented.
Lord Carlile of Berriew
I read the noble Baroness’s book with great interest and I am glad to see that she is now taking part in our debate. Does she not agree that the iterations she describes in her book show the progress from a Prevent strategy run by the police to one now not run by the police? All the best examples of Prevent are run by NGOs, private sector groups or local authorities. The police are involved in Prevent only when there is evidence of an offence having been committed. Is that not real progress, which we ought to laud and welcome, in the changes to Prevent? I expect to agree with the noble Baroness on this point.
Baroness Warsi
As the noble Lord is aware, I took part in the Bill’s Second Reading debate and made my views clear to the Minister and to many colleagues in the House, publicly and privately. My views on this are on record and, when we vote, I will make them clear.
As I have said, it is not so much a question of who delivers Prevent—the police or third-sector organisations —but that it is delivered so that the communities trust the policy. It is clear that, as it stands, British Muslim communities do not trust Prevent. Therefore, as somebody who supports the principles behind it, I feel it is appropriate and entirely right to have an independent review. We are not asking for Prevent to be forgone completely. Many Members of this House are saying we should keep the good bits.
Lord West of Spithead
Perhaps I may say to the noble Baroness that it is not that every part of the Muslim community has no trust in Prevent. I am not aware of that, and I have been involved in it for quite a long time. Certainly, there are sections which have real problems with it and that needs to be addressed, but there are also sections which are pleased that this work is being done. Does she agree that that is correct?
Baroness Warsi
That is the point. When Prevent has been applied correctly and has been led by and with the community, it has made real progress. When you speak to practitioners on the ground—those who have ignored much of national policy; those who have ignored the rules on engagement and disengagement with British Muslim communities and have spoken to whom they want, when they want and how they want—you find that they have built really strong relationships which have allowed sections of the policy to be implemented properly.
Even if you speak to officers like Mr Neil Basu, who was referred to earlier, he himself will say that the biggest challenge for the police has been operating Prevent within a policy of disengagement with British Muslim communities whereby more and more individuals and organisations are simply seen as beyond the pale and are not engaged with. There is a challenge when large sections of the British Muslim community are disengaged and distrustful of a policy that will not be independently reviewed. I can tell my colleagues in government that if it were independently reviewed, it would enjoy more support and therefore would be more effective.
The noble Lord suggested that I believe that the British Muslim community is monolithic. I say to him as someone who is a Muslim and now 47 years of age that I am acutely aware that the British Muslim community is not monolithic. If he would care to read the first four pages of chapter one of my book, he will see that I explain that British Muslim communities are black and brown and Asian and Persian. They come from all over the world and have different theological beliefs and practices. They dress, eat and behave differently. He would then realise that I am a huge advocate of a diverse British Muslim community from many backgrounds. It is therefore wrong of him to attribute to me on the Floor of this House something which I have simply not said.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who have spoken in this debate. As the noble Lord, Lord West, has said, the Prevent programme is one of the core pillars of the strengthened Contest strategy which was published in June of this year. The strategy was developed taking into account views across the breadth of delivery. The Prevent programme serves as a key pillar in our response to the heightened terrorist threat we face now and in the coming years.
The programme is designed to safeguard and support those vulnerable to radicalisation, both on the far right and Islamist, as my noble friend Lady Warsi said. It is designed to stop them becoming terrorists or supporting terrorism. As the noble Lord, Lord Harris of Haringey, said, we should have no qualms about doing so, just as we should safeguard them from sexual exploitation. That point is often forgotten but it is very pertinent. The noble Baroness, Lady Jones, expressed her concern about freedom of speech and civil liberties, but terrorism is an infringement of civil liberties of the severest type. I am also sorry to disappoint my noble friend Lord Marlesford, but the Government remain firmly of the view that an independent review of Prevent of the kind envisaged in this amendment is not necessary at this time. Perhaps I may take a few moments to explain why.
As has been said, Prevent is a safeguarding programme that works. The Mayor of London, Sadiq Khan, has described how Prevent is the only show in town and the intention is to help those who are vulnerable and are being targeted and exploited by radicalisers. Sir Rob Wainwright, the former head of Europol, has described Prevent as the,
“best practice model in Europe”,
for tackling extremism.
In Committee I outlined how Prevent was not the beginnings of state surveillance, as it has been portrayed sometimes; rather, it is a locally driven programme that works with communities to deliver resilience-building activity and prevent some of the most vulnerable in our society becoming terrorists or supporting terrorism. In Committee the noble Lord, Lord Carlile, challenged a number of noble Lords to identify a specific local Prevent project which had given rise to concerns. It was very telling then, as it is now, that no noble Lord has yet identified such a project. The noble Lord talked about how private and public NGOs are now working on Prevent projects. Moreover, to answer the question put by the noble Lord, Lord Stunell, about the proportions being delivered by each, while I do not have the exact numbers, perhaps I may write to him.
While Prevent is successful at safeguarding individuals from becoming radicalised, it is not always well understood. I agree with the point made by the noble Lord, Lord West, about promoting the safeguarding aspect of Prevent. It also supports partners to run a programme of engagement events with their communities. These events seek to engage members of the public and provide opportunities to hear at first hand from practitioners and community organisations about Prevent delivery, as well as acting as an open forum for discussion about its implementation. Further, Prevent does not target any one group, as is often said. It helps to address the growing and pernicious threat from the far right and to provide support for those referred due to concerns about Islamist extremism, among a range of other extremist beliefs. Indeed, the latest statistics, published just last week, show that of those individuals who received Channel support in 2017-18, near equal numbers were referred for concerns relating to far right extremism and to Islamist extremism.
On the positive impact of Prevent, I would remind the House of what Cressida Dick, the Commissioner of the Met police, said in June in evidence to the Home Affairs Select Committee.
Lord West of Spithead
Everything the noble Baroness is saying supports the importance of Prevent, which I think all noble Lords would agree with. That is not really the issue. What we are saying is that, given that it is really important, does it not make sense to have a review to look at whether we can make it even better?
Baroness Williams of Trafford
If the noble Lord will indulge me, I was about to explain how the Prevent programme is evolving and being scrutinised, including through Contest. Perhaps I may go back to the comments made by the Commissioner of the Met:
“There is an awful lot of very, very good work that has gone on under Prevent in relation to all forms of extremism, not forgetting extreme right-wing, which takes up a big part of it. There have been hundreds of people who have been turned away from violent extremism by their engagement with Channel and other aspects of Prevent, and that is all positive”.
Prevent is not about restricting debate or free speech, as the noble Baroness, Lady Jones, might suggest. On the contrary: as the Government have said previously, schools ought to be safe spaces in which children and young people can understand and discuss sensitive topics, including terrorism and extremist ideologies. An independent study of education professionals found that almost three-quarters of them believe that the Prevent duty has not stifled classroom discussions of extremism, intolerance and inequality.
Since it was launched in 2011, Prevent training has been completed more than 1.1 million times to enable front-line practitioners, including teachers, to recognise the signs of radicalisation so that they know what steps to take, including, where appropriate, how to make a referral to Channel. This has positively supported teachers in discussing the risks of radicalisation with those in their classes. To our knowledge, no event or speaker has ever been cancelled or banned as a result of the Prevent duty. It is about upskilling individuals, not curtailing them. The Government believe that it is imperative that young people learn how to challenge dangerous beliefs which are all too easily accessible online. Since February 2010, some 300,000 pieces of illegal terrorist material have been removed from the internet.
In addition to the examples of increased transparency that I outlined in Committee, which included the annual publication of Prevent and Channel data and increasing the number and geographical reach of community round tables, there is increased cross-party engagement, led by the security Minister. Also, as mentioned earlier by the noble Lord, Lord Carlile, on 28 November the Home Secretary chaired the latest meeting of the Prevent oversight board, which brings together other Secretaries of State, operational partners and independent members to review delivery and to provide the strategic challenge noble Lords have talked about. I therefore understand the concerns of noble Lords.
Lord Stunell
Is the Minister able to tell us when the preceding meeting of the oversight board was held, and what the gap was?
Baroness Williams of Trafford
I am not, but I suspect the noble Lord, Lord Carlile, can.
Lord Carlile of Berriew
I can. The previous meeting—and the noble Lord is making a fair point—took place 18 months previously. During that period, I for one requested meetings take place on a regular basis. At least two meetings were cancelled during that time, dates having been set and put in diaries. I happen to be a member of the Prevent oversight board, so I am aware of the calendar. One of the points made at the most recent meeting was that, if the board is to be effective, it must meet more frequently. One of the reasons why there was such a long delay—and the noble Baroness may confirm this—was because it had been established that the Prevent oversight board should be chaired by the Home Secretary. That has been a difficulty, but on the most recent occasion, if I remember rightly, the Home Secretary and the Lord Chancellor were present, along with a number of other Ministers.
Baroness Williams of Trafford
I thank the noble Lord, Lord Carlile, and I think that is right. If this debate has done nothing else, it has probably given the impetus to ensure the oversight board meets more regularly, and I shall take that back.
There needs to be evidence of systemic failures to justify a review. I will take back the point about the oversight board meeting more often. Prevent should be subject to proper scrutiny, but I hope I have already outlined a number of mechanisms for this. It is also open to the Home Affairs Select Committee to conduct an inquiry into Prevent, should it wish to do so. Furthermore, the fifth anniversary of the passage of the Counter-Terrorism and Security Act 2015 does offer the opportunity to undertake the normal pre-legislative review of the provisions in Part 5 of that Act, providing the legislative framework for Prevent.
I hope my explanation has provided some comfort to noble Lords. I suspect by the gathering crowds it has not.
Lord Carlile of Berriew
I am sorry to interrupt again, but can the Minister also deal with the point made by the noble Lord, Lord Marlesford? It was suggested that the Home Office contains officials who do not really focus on Prevent. Could she confirm there is a strong Prevent group within the Home Office, chaired by an experienced and competent person who does a great deal of conceptual thinking in this area and is open to discussion with any Member of your Lordships’ House who shows some understanding of this issue and cares to discuss it with him or his team, which is now frighteningly large?
Baroness Williams of Trafford
The noble Lord is absolutely right, and that team is growing. I think my noble friend Lord Marlesford is concerned about the Home Office in general, but I can confirm what the noble Lord, Lord Carlile, says.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords for their contributions to the debate today, in particular the noble Lord, Lord Anderson of Ipswich, my noble friend Lord Harris of Haringey, my noble friend Lord West of Spithead, and the noble Baroness, Lady Warsi. These are serious matters, and counterterrorism work in all its strands is important to keep us safe, and we support the Government to do that. It is also important that these things are looked at independently, and as I said in my opening contribution, I am happy for this review to be undertaken by the independent reviewer.
I note what the noble Baroness said about the amendment as drafted, but other than saying there should be a review, it is fairly open on how it takes place. I did not see why that caused the Government particular problems. I have listened carefully to all of the contributions, and to the response of the noble Baroness. Although I have great respect for her, I am not persuaded by her response, and so I wish to test the opinion of the House.
Lord Anderson of Ipswich
“Amendment to the criteria for proscription
For section 3(4) of the Terrorism Act 2000, substitute—“(4) The Secretary of State may exercise the power under subsection (3)(a) in respect of an organisation only if—(a) he or she is satisfied, on the balance of probabilities, that it is or has been concerned in terrorism; and(b) he or she reasonably believes that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for the organisation to be proscribed.(4A) For the purpose of subsection (4), the public includes the public of a country other than the United Kingdom.””
Lord Anderson of Ipswich
My Lords, the amendments in this group have their origins in a fact admitted by the Government, published in more than one of my reports as Independent Reviewer of Terrorism Legislation and, I am afraid, mentioned more than once to your Lordships: at least 14 of the 74 organisations proscribed under the Terrorism Act 2000, not including the 14 Northern Irish groups, are not concerned in terrorism and therefore do not meet the minimum statutory condition for proscription.
The question is: what do we do about that mismatch between law and practice? The pertinence of that question is greatly increased by the fact that a major theme of the Bill is to widen the scope, both substantive and geographical, of the proscription offences—membership, inviting support and so on.
Amendment 32B was designed to apply the law we have, by providing for an annual review of the activities of proscribed organisations—as happened routinely until four years ago—and the de-proscription of those lacking a statutory basis for continued listing. That principled course was chosen by Theresa May, as Home Secretary in 2013, when the irregularity was brought to her attention. With Amendment 32B, action on the conclusion of such reviews would be required by statute and could not be defeated by Foreign Office policy priorities, as was the case on that occasion, and indeed previous ones, judging from my noble friend Lady Manningham-Buller’s speech in Committee.
Since that seemed not to be enough, I tabled Amendment 32A in an attempt to make things easier. This would allow organisations to be proscribed if they are or have been concerned in terrorism, so long as the Secretary of State reasonably believes it necessary for purposes connected with protecting members of the public from a risk of terrorism.
That two-stage formulation is tried and tested. It was used in the Terrorist Asset-Freezing etc. Act 2010 and the Terrorism Prevention and Investigation Measures Act 2011. It would allow the continued proscription of groups which have a powerful history and terrorist brand, but in respect of which ongoing terrorist activity cannot be demonstrated. This could be particularly useful in Northern Ireland, where groups that have laid down their arms do not satisfy the current test but, depending on the Secretary of State’s assessment, could satisfy the new one. More fundamentally, it would have the merit of ensuring that the Government’s actions in relation to proscription are in accordance with the law; currently, they are not. This would be a useful example to set the rest of us.
I convey to the House the apologies of the noble and learned Lord, Lord Judge, who has had to leave his place and I beg to move.
Lord Paddick (LD)
My Lords, I rise to support the amendments in the name of the noble Lord, Lord Anderson of Ipswich, to which I have added my name. I really am intrigued to hear what the Minister will say about the fact raised by the noble Lord that at least 14 organisations still proscribed by the Government are not involved in terrorism and are therefore effectively proscribed illegally. The noble Lord’s amendments are designed to rectify that situation, requiring the Government to take action once a review has determined whether organisations currently proscribed should be proscribed or not.
It is not just a question of the organisations themselves; going back to previous measures in the Bill, anybody who supports these organisations could be convicted of a criminal offence, even though they are supporting an organisation that should not legally be proscribed. I am also very interested to hear from my colleagues on the Labour Front Bench why they would not support these amendments were the noble Lord to divide the House. We certainly would support him were he to test the opinion of the House.
Lord Carlile of Berriew
My Lords, the first thing to say is that organisations can apply to be de-proscribed; that should be on the record in this part of our debate. As I understand it, only one organisation has applied to be de-proscribed in recent years: the People’s Mujahedin of Iran. It was de-proscribed. The decision before the Proscribed Organisations Appeal Commission, or POAC, was contested on appeal by—
Lord Anderson of Ipswich
I did not mean to interrupt the noble Lord mid-sentence but, on a point of information, the Minister may like to confirm that at least two other organisations have applied to be de-proscribed: the International Sikh Youth Federation and the Red Hand Commando in Northern Ireland. De-proscription of the International Sikh Youth Federation was achieved when the Home Secretary failed to defend the legal proceedings. I know nothing about the progress of the application from the Red Hand Commando and it would be helpful if the Minister could enlighten us.
Lord Carlile of Berriew
I am very grateful to my noble friend, who is more up to date than I am. My understanding is that the only fully contested application was from the People’s Mujahedin of Iran, which won in front of POAC. The Government appealed and the Court of Appeal issued a judgment comprehensively disagreeing with the Government. The People’s Mujahedin of Iran—or the NCRI, which includes the PMOI—now functions openly throughout Europe, although its leader, Mrs Rajavi, is not allowed by the Home Office to enter the United Kingdom. My noble friend Lord Pannick and I remember this to our cost, because we were involved in a Supreme Court case on that very subject.
There is a method of seeking de-proscription. It is expensive and quite clunky, it has to be accepted. Secondly, I absolutely agree with my noble friend that there may be some organisations that have almost no membership, which do not have the resources to apply for de-proscription, and which individuals would not wish to expose themselves as being interested in by applying for de-proscription on their behalf.
However, there is another point I wanted to mention. This is a very subtle matter, particularly in Northern Ireland. It is very difficult to read the minds of some former paramilitaries, both big and small. For all we know, they may have reasons for wishing to remain proscribed. My concern about Amendments 32A and 32B relates to the wording of proposed new subsection (6A)(d), which requires the Government to “publish each such decision”. Having been involved from time to time in the area we are talking about, I believe that would potentially raise compromises for national security and undermine the stability of Northern Ireland, if that part of the amendment was required. That said, the addition of the words,
“that it is or has been concerned in terrorism”,
in Amendment 32A, which I understand from my noble friend was tabled in the last fortnight or so, provides some welcome clarity. I will give way, and then I will continue briefly.
Lord Harris of Haringey
I may have misunderstood the noble Lord and I am grateful to him for giving way. If he is objecting to the idea that the decision should not be published, how will somebody know whether an organisation is proscribed or not?
Lord Carlile of Berriew
The last paragraph would remain: a record would have to be placed before Parliament. What I am concerned about is the giving of reasons.
Lord Carlile of Berriew
In my view, it is implicit in the publication of each such decision that decisions have to be reasonable and therefore subject to reasons. I would not want issues that might affect national security to be included. That is the point I am seeking to make.
I conclude by suggesting that the whole problem raised by Amendments 32A and 32B could be resolved if we were to hear from whichever Minister replies to the debate—I think the noble Baroness, Lady Williams—that the Government accept the principles set out in these amendments and that there is a need for them to be more methodical than they have been in reviewing proscription, and undertake that Ministers will be more methodical and apply the principles broadly set out in these amendments, which in principle I see as unexceptionable.
Lord Garnier (Con)
My Lords, it might encourage my noble friends on the Front Bench to do as the noble Lord, Lord Carlile, has indicated. I find the principles behind the amendments in the name of the noble Lord, Lord Anderson, very attractive. No doubt some practical points need to be sorted out. I am much encouraged by the wording,
“it is or has been”,
in proposed new subsection (4)(a) in Amendment 32A. I fully take on board the concerns a Government might have relating to the publication of the reasons for making a decision under the review of proscription provisions in Amendment 32B. That said, there seems to be, at least as a matter of theory, a lot to commend the amendments from the noble Lord, Lord Anderson. I encourage the Government to see whether something can be crafted that will enable something similar to this to come on to the statute book, not least for the reasons of departmental policy squabbles that those of us who have been in government know so much about.
Lord Kennedy of Southwark
My Lords, this issue was also looked at in detail in Committee. The noble Lord, Lord Anderson of Ipswich, raises an important issue concerning groups that have been added to the list of proscribed organisations and that have, to all intents and purposes, stopped engaging in the activity or activities that led to them being added to the list in the first place and the risk to individuals getting caught up in that.
I have listened carefully to the issues raised in that previous debate and in today’s debate and reflected on them, but I have come to the conclusion that I am not persuaded that the change proposed by these amendments is necessary or right at this time. The first duty of government is to protect the public. As we have heard, the 2000 Act already provides a mechanism for an organisation to seek deproscription: there is detailed in Section 4 and further in Section 5 an appeals process to the Proscribed Organisations Appeals Commission. Further, on a point of law, organisations can go to the Court of Appeal.
I say in response to the noble Lord, Lord Paddick, that there is a process already in place and further, on the points that the noble Lord, Lord Carlile, made regarding Northern Ireland, I am not persuaded that these amendments are right today. That is not to say that the points raised by the noble Lord, Lord Anderson, could not be considered to be introduced at some point in the future, but I am not convinced on the merits of the case at this time.
Baroness Williams of Trafford
My Lords, these amendments return to an issue raised with some force by the noble Lord, Lord Anderson, in our earlier debates. I am conscious that I was unable to persuade him of my view that the well-intentioned amendment he tabled in Committee would not be in the public interest. I am grateful to him for the further amendment which he has tabled, which would operate in parallel to his original proposal for annual reviews, and which he has explained is intended to address some of the concerns the Government have with that proposal. On careful consideration, regretfully, I cannot agree that it does do so and the Government are not able to support it for reasons I will come to shortly.
Before I come to the detail of the amendments, I should be clear that the Government consider proscription to be a necessary power that plays an important role in protecting the public. Organisations are proscribed for a good reason: because they are terrorist in nature, and because it is in the public interest to prevent them being able to operate or to gain support in the UK. This plays an important role in protecting the public from potentially very dangerous organisations, as well as more generally in maintaining public confidence and, where relevant, supporting our international partners in the struggle against terrorism. The Government also consider that the power’s impact is proportionate to that purpose.
In forming this view I have in mind that, beyond restricting the ability of an individual to engage in the specific activities covered by the proscription offences relating to the particular organisation which has been proscribed, the power does not otherwise impact on their ability to conduct a normal day-to-day life. The impact of proscribing an organisation is not, therefore, overly intrusive or unavoidable from the individual’s perspective.
Lord Anderson of Ipswich
I am grateful to the noble Lords, Lord Paddick, Lord Carlile, and Lord Kennedy of Southwark, and the noble and learned Lord, Lord Garnier, for their interventions, and to the Minister for her response, although its content was disappointing. I will respond briefly to the principal points that she made.
The Minister undertook or indicated that, if it came to light through fresh information that a proscription was inappropriate, then it would be reviewed. She said a lot about balance, discretion and appropriateness, but this really is not the area we are in. We are in the area of a hard legal requirement only if an organisation is concerned in terrorism. Is there even any question of getting into that area of discretion, balance and appropriateness? What these amendments seek to address is the mismatch between what the law requires and what the Government do.
The Minister raised the prospect of organisations that might engage, disengage and then re-engage, and I am sympathetic to that. It is precisely the difficulty I was seeking to address with Amendment 32A. That is the one which, by making it a condition to be concerned or to have been concerned in terrorism, elides and removes that difficulty. I would think it was helpful in addressing the problem to which the Minister referred.
The Minister said that annual review is not needed to ensure justice. I say with great respect to her that the evidence during the past 15 years is that nothing else has a hope of ensuring justice. It is not enough to rely just on the ability to apply for deproscription, because, as we have all heard, very few organisations over those years have applied to be deproscribed and one can understand why. It is very expensive. The PMOI case to which the noble Lord, Lord Carlile, referred cost some £300,000—perhaps that is lawyers for you. Someone has to put their head above the parapet and say that they want to apply. Some organisations for their own reasons might not want to apply. In any event, what comfort is that to the individual who is disrupted or investigated by police for possibly being connected with a terrorist organisation and who would never have been the person who would have applied for deproscription?
The Minister insisted particularly on Northern Ireland, where, like my noble friend Lord Carlile, I have had the privilege of spending a good deal of time over recent years with the security services. Surely at the root of the Northern Ireland settlement is respect for the rule of law. Continuing to ignore the law, which is what the Government are doing and propose to continue to do, is no substitute for enforcing and, if necessary, changing it, as the amendments propose.
The injustice about the law as it applies is that it exposes people in Northern Ireland, Great Britain and, after Clause 6 becomes law, in other countries as well to a range of police and prosecutorial powers in relation to activities that Parliament never intended should be criminal. The names of the groups that do not meet the statutory condition for proscription are not known to me, and I very much doubt that a secret list of them has been provided to police or prosecutors in the United Kingdom or that such a list would be provided to police or prosecutors in other countries. In those circumstances, there can be no reassurance that the law will be properly applied in practice.
I would have liked to divide the House on these amendments, not least because they concern the whole insecure basis on which much of the Bill is constructed—I am thinking particularly of Clauses 1, 2 and 6—but having heard from the respective Front Benches, I suspect that that could be a futile exercise. I shall not press my amendments and hope that, as the noble Lord, Lord Kennedy, and the noble and learned Lord, Lord Garnier, have constructively suggested, they may find favour in another form or on another day.
Counter-Terrorism and Border Security Bill
Tuesday 15th January 2019
(5 years, 3 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 153-I Marshalled list for Third Reading (PDF) - (14 Jan 2019)
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I will also speak to the other government amendments in this group.
Government Amendments 1 to 4 return to the issue of the proper scope of the new designated area offence provided for in Clause 4. I thank the Opposition for their constructive approach to this provision. It was clear from our earlier debates that there was general support for the principle of a designated area offence to help protect the public from a real terrorist threat, such as we have seen as a result of UK nationals and residents travelling to conflict zones in Syria and Iraq. The area of dispute was how we protect those who have a legitimate reason for travelling to a designated area.
On Report, the Government sought to provide greater reassurance by building on the existing reasonable excuse defence and setting out an indicative list of such excuses. However, your Lordships preferred an alternative approach, put forward by the noble Lord, Lord Rosser, which excludes from the scope of the offence travel to a designated area for one or more specified purposes. The list of such specified purposes matched the Government’s list of indicative reasonable excuses, but with a power to amend the list of specified purposes by regulations.
It is clear that, while the Opposition and the Government took different approaches to the challenge, we were ultimately striving to achieve the same result. I am pleased to say that, on reflection, the Government are content to accept the approach put forward in the Opposition’s amendment. Having consulted our operational partners, we consider that this change would not materially affect the operation of the offence. Indeed, noble Lords will recall that, on Report, I indicated that, from the perspective of an individual returning to the UK from a designated area, the two approaches would, in one sense, not look very different. Either way, the police would still need to investigate to determine whether, under one approach, an exclusion from the offence applied or, under the other, whether the subject of the investigation had a reasonable excuse.
I also reminded your Lordships that the police have made very clear that they will investigate any person returning from Syria to establish what risk they may pose to the public, given the high level of terrorist threat associated with that region. It seems reasonable to expect that this is likely to be the position in relation to any area that might be designated in the future under this power, as part of the police’s basic responsibility for protecting the public. This is aside from the question of whether a person returning from such an area may have had a legitimate reason for travelling under Clause 4. I accept, however, that an individual with a legitimate reason for travelling to a designated area would take greater comfort from knowing that they had not committed the offence in the first place than from knowing that they had a defence to the offence.
The Government must ensure that the law is as clear as it can be. These four amendments will help to achieve this. Amendment 1 is intended to make explicit in the Bill that there are exemptions from the offence—namely that an individual would not commit an offence if they leave a designated area within one month of the area being designated; that an individual enters or remains in a designated area involuntarily; or that an individual enters or remains in such an area in connection with one or more specified purposes.
Amendments 2 and 4 simply ensure that, consistent with the drafting of the Terrorism Act 2000, the parliamentary procedure for the new regulation-making power is set out in Section 123 of that Act rather than in new Section 58B. This in no way changes the operation of the regulation-making power or the parliamentary process for approving regulations made under it.
Finally, Amendment 3 provides for a definition of “terminally ill” where a person enters a designated area to visit a terminally ill relative. This point was raised by the noble Baroness, Lady Hamwee, on Report. This amendment will provide greater clarity for individuals who may pray in aid this reason for travelling to a designated area.
Lord Foulkes of Cumnock (Lab Co-op)
Before the Minister sits down, I want to raise a particular point about the amendment: why six months? Why was six months chosen rather than three months, a year or any other period? I wondered whether there was a clear medical or legal reason for that or whether it was just taken out of the hat. What is behind the choice of six months in particular?
Earl Howe
My Lords, I am advised that it is in line with provisions in other Acts. If the noble Lord will allow, I will write to him on which they are, as I do not have that information. Essentially, it was a matter of drawing a line at some point. One cannot legislate for every type of terminal illness; it seemed a reasonable line to draw.
In summary, these changes are merely intended to refine and polish the amendment agreed by the House on Report. I hope noble Lords will agree that they reflect the collaborative approach that has characterised the passage of the Bill. I beg to move.
Baroness Finlay of Llandaff (CB)
My Lords, I beg the indulgence and forgiveness of the House because I have not been involved in previous stages of the Bill, but the amendment concerns terminal illness, and I should declare that that is my specialty. It may be helpful to the Minister if I explain that the DS1500 benefits are where the six-month definition has come from—we are going back many years. If someone is deemed likely to die within six months in this country, they become eligible for DS1500 benefits, which is a special fast-track benefit.
However, the problem with the six months is that it is impossible to predict. All the evidence is that you cannot accurately predict whether someone’s prognosis is longer or shorter; it is really a best guess. Therefore, I completely accept the humanitarian rationale behind the amendment, but it is important that the Minister clarifies that this provision is six months with treatment available wherever that person is. I raise that because, to take the example of an insulin-dependent diabetic, if they stop their insulin and already have complications, they will die within six months, but if they carry on with their insulin, they may well live for many years.
It is important to clarify on the record that they are expected to be terminally ill given that they have accessed the treatment available wherever they are. I fully accept that in some parts of the world there is very little treatment available for a lot of diseases, but there is a very wide range of conditions which are fatal in a short time if they are not treated, and I should hate the Government to be caught out by any manipulation.
Earl Howe
I am grateful to the noble Baroness. The example she cites illustrates very well that whether the exemption applies will depend very much on the facts of the individual case and would ultimately be for a jury to determine, if a case got that far. In her example, it would need to be established whether drugs were available for the person or not and the likelihood of their being available. She will notice that the wording is very carefully drawn to say that if, at the time, the person suffers from a progressive disease and their death in consequence of that disease can reasonably be expected within six months—it is that reasonable belief that we need to focus on. It is possible, of course, that the exemption could come under one of the other headings in the amendment: for example, for aid of a humanitarian nature.
The Archbishop of York
My Lords, will the Minister contemplate another example? Megrahi was sent from a Scottish jail back to Libya and expected to die within a short period, but he lived for longer than six months. What if someone was here and the same thing applied? President Pinochet was allowed to go back. Everybody expected him to die but he walked off the plane and lived for quite some time. So the six-month period could become a problem. One needs to find a way of describing it in another way. People have died within six months but some have lived longer. Can the noble Earl help us with that quandary?
Baroness Hamwee (LD)
My Lords, I am grateful to the Minister and the Government for pursuing the point. I looked at this for some time and came to the view that the words “reasonably be expected” were the best that one could provide to cover circumstances that cannot be listed in detail. Indeed, I confess that having complained throughout the Bill’s progress that I did not want to rely on the CPS tests, the police’s common sense and all the rest of it, I will do so on this one. I thank him.
However, I want to raise another point and I hope the Minister is aware of it—I emailed the Bill team about it yesterday. I am happy with the drafting amendments, which are to do with regulations, but given the supplementary delegated powers memo, I thought that I should pursue the issue of peacebuilding as a reasonable excuse. The paragraph of the memorandum dealing with “reasonable excuse defence” gives,
“purposes of a peacebuilding nature”,
as a possible example of a purpose that can be referred to as a reasonable excuse. I referred to peacebuilding at the previous stage, on 3 December, and the noble Earl said:
“I entirely accept the importance of peacebuilding activity … the government amendment does not preclude a person advancing this or any other category of reasonable excuse. I am of the view that legitimate peacebuilding activity could very well be a reasonable excuse”—[Official Report, 3/12/18; col. 860]—
but that it was up to a jury.
The debate continued and, as the House is aware, the amendment in the name of the noble Lord, Lord Rosser, which we supported, was agreed on a Division. Therefore, the point rather floated away. Essentially, I hope the noble Earl can commit the Government today to considering adding peacebuilding when the Bill goes back to the Commons. It seems, from correspondence I have received since I emailed the Bill team, that peacebuilding may or may not be what is understood to be a humanitarian activity. There is a particular concern that—given that this is not something that we talk about and define every day—juries may be puzzled as to what it is and not understand its value. I am not sure whether that is a fair comment. However, it has been described to me as being “complementary to humanitarian aid” and covers a large range of activities, including mediation, support to the local community, justice and reconciliation, psychosocial support and research in the area. The Government have been considering this matter. It would complete the provisions in this area if it could be referred to specifically when the Bill is enacted.
Lord Judd (Lab)
My Lords, I support very strongly indeed what has just been said. Having spent much of my life working with humanitarian agencies, I know that the importance of what has been said cannot be overemphasised. We must not slip into an attitude in which relief, when things have gone badly wrong, may be interminable and highly costly, apart from anything else. There is a real need in hot situations to be working at prevention.
In broad government statements we get very reassuring remarks about the importance of conflict resolution and peacebuilding. The humanitarian agencies frequently find themselves involved in this and I think with all possible clarity that that is valid. They should not just be tolerated, they should be supported by the Government and others. That is significant because anything that either intentionally or unintentionally detracts from the commitment in that area would be very unfortunate.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I rise briefly to say that I support the amendments before us. I am pleased that the Government have listened to the proposal put by my noble friend Lord Rosser, who is unable to be with us today. I think that the noble Baroness, Lady Finlay, has raised an important issue as regards the medical terminology used, but the noble Earl has answered the point in terms of what can be expected. Generally, I support the amendments because they certainly clarify what we put forward in the first place and I thank the Government for listening in this case.
Earl Howe
My Lords, I am doubly grateful to all noble Lords who have spoken. I am sympathetic to the point made by the noble Baroness, Lady Hamwee, but only up to a certain point. Given that this is Third Reading, our starting point has to be that any further amendments to the Bill should be limited to those that are absolutely necessary to improve the drafting of the Bill in the light of the amendment agreed by the House at Report. I am not persuaded that adding to the list of exemptions from the offence properly falls within the category of amendments that we should now be contemplating at this late stage of the Bill, either today or when the Bill returns to the Commons to consider the Lords amendments.
However, I can assure the noble Baroness that the Government will keep the list of exempted purposes under review. The Bill now helpfully includes a power by regulations—a Henry VIII power to all intents and purposes—to add to the list of exempted purposes should it be appropriate to do so in the light of experience of operating the new offence. I am sure that officials in the Home Office will closely scrutinise the use of this power and will work with their colleagues in the Department for International Development and the Foreign and Commonwealth Office to determine if peacebuilding could usefully be added to the list of exempted reasons in the future.
But I need to make clear to all noble Lords that this is a nicety. In the absence of such an exemption the Government are clear that entering and remaining in a designated area for the purpose of engaging in peacebuilding would constitute a reasonable excuse. We have that all-encompassing provision, as the noble Baroness is aware, in the Bill. There is a problem associated with any approach that has within it a list of some kind, which is why we started out with a very short list indeed. Through our debates we persuaded ourselves that it would be helpful to augment the very short list that the Government started off with, but we have to ask ourselves where we stop.
I hope what I have said has offered some assurance to the noble Baroness and she understands that, while it would not be appropriate to add peacebuilding to the list of exemptions at the moment, that will not preclude us doing so in the future, should there be an operational imperative.
Baroness Hamwee
My Lords, to be rather blunt it is always frustrating when procedure gets in the way of substance. I ask the Minister to ensure that Home Office officials appreciate that “in the light of experience” should not just be what may happen when someone comes back and says, “I have been working on peacebuilding in Syria”. It is also about deterring NGOs from going into conflict or post-conflict areas to work on peacebuilding. That could be a consequence we do not want to see from the offence we have created in the Bill.
Earl Howe
I entirely agree with the noble Baroness, but I hope too that she will recognise that the wording of the first purpose set out in this amendment,
“providing aid of a humanitarian nature”,
is quite broad. So humanitarian agencies of any kind could feel secure in going out for almost any humanitarian purpose one can devise.
Lord Garnier (Con)
Before my noble friend sits down, I caution that sometimes lists can become exclusive and that some good things are easier to recognise than to define. He ought to stick to the way the Bill is currently drafted and allow himself the freedom to consider rather more carefully, despite the charming way in which the noble Baroness has advanced her case.
Lord Judd
My Lords, the Minister has been very helpful in the comments he has made and I most genuinely thank him for that. I just wonder whether it is possible for the Government and the Minister, when this legislation is given final consideration, to say some encouraging and positive things about the recognition of the courage and value of such work, so as to in no way whatsoever inhibit organisations that are able to make a positive contribution of this kind. Having been through this kind of situation, the trustees and leaders of the agencies concerned obviously give a great deal of deliberation to what they do and what is involved. To feel they are doing it in a climate of good will and not just acceptance is very important.
Earl Howe
I accept the point the noble Lord has made. That is why the whole tone and flavour of this part of the amendment carries the implication he would wish, in particular the provision that talks about,
“carrying out work for the government of a country other than the United Kingdom … carrying out work for the United Nations or an agency of the United Nations”,
and so forth. It is clear that the value of work of this kind—whether carried out by an individual, an agency or a Government—is fully recognised. I am sure that point will not be lost on those whose job it is to implement the Bill.
“(c) a person is “terminally ill” at any time if at that time the person suffers from a progressive disease and the person’s death in consequence of that disease can reasonably be expected within 6 months.”
(a) in subsection (4), after paragraph (b) insert—“(ba) section 58B(7);”;(b) in subsection (5), for “or (b)” substitute “, (b) or (ba)”;(c) ”
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I extend my thanks for the wide range of expertise from around your Lordships’ House that has provided such a constructive and measured approach to what is a very serious Bill that has passed through the House. I thank first my noble friend Lord Howe, who has helped me through all stages of the Bill, and my two noble friends Lady Manzoor and Lady Barran for their contribution as Government Whips.
On the Opposition Front Bench, I thank the noble Lords, Lord Kennedy and, of course, Lord Rosser—I express the feeling of the whole House in wishing him well and looking forward to seeing him back in his place very soon. On the Lib Dem Benches, I thank the noble Baroness, Lady Hamwee, and the noble Lords, Lord Paddick, Lord Marks and Lord Stunell, for their contribution. Then, of course, there are the heavyweights on the Cross Benches—I refer not to their frames but to their intellects—the noble Lords, Lord Carlile and Lord Anderson, the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Manningham-Buller; I thank them all for the helpful advice they have given me in proceeding with this Bill. Finally, I thank the officials from both the Home Office and the Ministry of Justice who have supported us as the Bill proceeded.
I am very pleased at this stage that we have achieved an outcome where there is a broad consensus on all aspects of the Bill bar one: whether there should be an independent review of Prevent. We continue to reflect on that matter in advance of the Bill returning to the House of Commons. In any event, I hope that this issue will not stand in the way of the Bill securing Royal Assent. On that basis, I beg to move.
Lord Paddick (LD)
My Lords, we thank the noble Baroness, the noble Earl, and their Whips and officials for the way in which they have, at least to some extent, listened and responded to the concerns that we have raised. It was interesting, having been completely opposed at one stage, to find a government amendment in accordance with the arguments we had made coming in at the next stage of the Bill, but surprises are sometimes good ones.
However, we are still concerned that a dangerous precedent is being perpetuated by this Bill adding to the list of criminal offences where those acting completely innocently commit an offence for which they can be arrested and charged, and only have a defence once they have been charged. We note that the Government, in accepting the Labour amendment excluding people with legitimate reasons from the scope of the designated area offence, recognise those concerns to some extent. Perhaps I should say to the noble Lord, Lord Carlile of Berriew, with whom I jousted on this issue, that this is a matter to which we will return when we debate the Offensive Weapons Bill in the coming weeks.
We are still concerned about people being criminalised by this Bill for what they think rather than what they do, or for being foolish or unwitting; that people can be detained at our borders without any reasonable grounds for suspicion; and that, in the exercise of these powers and the operation of Prevent, black and minority ethnic people and Muslims may be unfairly targeted. We believe the Bill amounts to a further erosion of civil liberties, and that is something the Liberal Democrats will continue to fight to prevent.
Lord Foulkes of Cumnock
Before the noble Lord sits down, I would like to ask him whether he would have been able to give that speech in exactly the same way when the Liberal Democrats were part of the coalition.
Lord Paddick
My Lords, I am grateful for the question. All I can say is that it is a hypothetical question and I did not hold a Front-Bench position during the coalition.
Lord Marlesford (Con)
My Lords, this Bill was intended to do everything necessary at present to counter terrorism and protect our borders. It does not. I have made repeated attempts to persuade the Government to evaluate—just evaluate—the need for a secure personal identity number system, with biometrics held on a secure central database with which the biometrics of any UK citizen could be compared online by those authorised to do so. The Home Office has refused point blank to even consider this suggestion. This is inexcusable. I recognise that the default position of the Home Office has long been to ignore, reject or oppose external suggestions for changing its procedures, practices or policies, but that is not a satisfactory situation. That it may get away with such behaviour can of course be a reflection on the effectiveness of Ministers, some of whom are coaxed into being mere parrots of Home Office views. I suspect that a rule of the department is, whenever necessary, to remind Ministers “Theirs not to reason why”.
On border control, I will make three points. First, the list published in Hansard, in response to Written Questions I have put down periodically since 2012, of Home Office immigration officials who have been sentenced to often long periods of imprisonment, up to eight or nine years, for misconduct in public office—that is what Hansard describes their offence as being, in most cases—now includes over 50 such cases. This is a disgrace which should have been tackled long ago. All that has happened is that the Home Office has now decided to withhold the names of those who, in open court, have been so convicted, apparently on the grounds that it infringes their privacy or human rights. Secondly, there is still no record, for online access at entry and departure points, of other passports held by UK passport holders. Thirdly, the Home Office seems to have been caught by surprise, with the Home Secretary having had to hurry back from holiday, by the sudden increase in the number of illegal immigrants who have sought to travel to the UK across the Channel in small boats. This was both predictable and predicted, and it can be expected to increase greatly next summer unless effective action is taken to halt it.
Perhaps I could end by quoting Sherlock Holmes:
“From a drop of water a logician could infer the possibility of … a Niagara”.
I am afraid there is a shortage of logicians in the Home Office.
Lord Kennedy of Southwark
My Lords, I join others in thanking the Government and in particular the noble Baroness, Lady Williams of Trafford, and the noble Earl, Lord Howe, for the way they have conducted themselves in the course of this Bill. I enjoy our tussles across the Dispatch Box very much and I have great respect for both noble Lords on the way they conduct themselves in the House, as does the whole House. I thank them very much for that. I also thank Ben Wallace MP, the Security Minister, for his engagement in this Bill—he has been very helpful. I too thank my noble friend Lord Rosser. He is much missed, and I hope he will be back in the House very soon. He is certainly more forensic in dealing with the Government, and I look forward to having him back by my side shortly.
I also thank the officials from the Bill team and other officials from the Home Office and elsewhere whom we met. They were able to discuss our concerns and look at the issues that we were raising, and they came back in a very positive way. That was very helpful for me and my noble friend Lord Rosser.
I thank noble Lords across the House for their contributions. As the Minister said, they have been wide-ranging and authoritative. Something that we certainly saw on this Bill was the authority that people spoke with on a variety of issues. In particular, as has been said, the contributions by the noble Lords, Lord Anderson of Ipswich and Lord Carlile, the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Manningham-Buller, helped us to understand where we were coming from.
I thank Grace Wright from the opposition office. She has been helpful and supportive in her guidance to me, and ensured that we were able to put our arguments forward well and effectively. She is a skilful member of staff and we are very appreciative of the work that she does for us all.
All sorts of claims and counterclaims have been flying around for the last hour or two about who did what or who did not in relation to the Bill. That is all quite regrettable, and I am not going to engage in it. All I will say is that my job as the opposition spokesperson here is to table amendments and put forward suggestions and ideas to engage with the Government. Hopefully, we all agree that the Bill was necessary; it is about ensuring that we keep our country safe and can deal with the threats that are posed. At the same time it is about protecting our liberties, and that is the balance that we always have to find. That is certainly my and my colleagues’ job here. I think we have got the balance right. The Government have listened on a number of issues, and I thank them very much.
I also thank the Minister for her comments on the issue of Prevent. We had certainly hoped that the Government would look at reviewing it, and clearly they will. Hopefully, in time we will have some good news about that, but if not then I am sure we will have a further debate in the House. At this stage, though, I again thank the House with respect to the Bill.
Green Deal (Conduct of Home Energy and Lifestyle Management Ltd)
Tuesday 22nd January 2019
(5 years, 2 months ago)
Commons ChamberRead Full debate Read Hansard Text Amendment Paper: Commons Consideration of Lords Amendments as at 22 January 2019 - (22 Jan 2019)
Alan Brown (Kilmarnock and Loudoun) (SNP)
I beg to move,
That leave be given to bring in a Bill to require the Secretary of State to review the conduct of Home Energy and Lifestyle Management Ltd in relation to the Green Deal; to require the Secretary of State to report on the merits of a scheme guaranteed by Her Majesty’s Government to compensate persons mis-sold loans under the Green Deal; and for connected purposes.
This private Member’s Bill should not be required. First, it is a consequence of a Government-backed scheme failing. Equally, since the mis-selling scandal became apparent, had the Government accepted the responsibility to investigate and to compensate victims, this Bill would be redundant. To date, however, the UK Government have turned a deaf ear to such calls, so now I stand here having to reiterate the call for a UK Government review. I pay tribute to the work of others who are pressing for such action, both here and at the Scottish Parliament; additionally, to my constituents such as Isobel McNicol, who started an awareness and campaign group on Home Energy and Lifestyle Management Systems—HELMS for short—and campaigner Irene Harris; and to Citizens Advice, particularly Linda Corbett from the Kilmarnock bureau.
As the title of my Bill suggests, one company in particular has been at the centre of the mis-selling activity: Home Energy and Lifestyle Management Ltd, or HELMS. One individual from HELMS, Robert Skillen, brazenly struts about telling everyone that it was nothing to do with him and all the fault of the UK Government. I know that Robert Skillen will be watching or reviewing this debate, and I have one thing to say to him: do not bother looking through Hansard and coming back to me—I am not interested.
Robert Skillen has already appeared on STV’s “Scotland Tonight” programme, with my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands) and my constituent Irene Harris. That night, Skillen convinced no one, and I have now discovered that the very next morning after that TV appearance, he emailed my constituent Irene, looking for her written permission to contact her insurance company on her behalf. Apart from the sheer gall of that, it shows that he has held on to personal details and is surely in breach of data protection laws. Even more alarming is his attempt to masquerade as an expert claims company to help people get compensation for the deals he originally mis-sold them. How many people is he targeting using the personal data that he has held on to?
I will contact the relevant authorities, but that again shows how, had the UK Government taken a lead in investigating the HELMS mis-selling, such antics might have been stopped by now. Considering HELMS was previously fined £200,000 by the Information Commissioner’s Office, that latest activity reconfirms Skillen’s brazenness. I support the ICO call for it to have the power to fine such company directors up to £500,000.
A proper review would flush out Skillen’s claims that he warned the Department for Business, Energy and Industrial Strategy of the flaws in the system. That is an audacious claim, because he is either telling the truth, in which case he did not care about the flaws and continued to make money, or it is just further bluster.
I remind the House of the number of those affected, which in turn underlines the need for wider Government action: 4,262 households in the UK have HELMS solar PV green deals, with 3,054 in Scotland and 142 in my constituency; 93% of the green deal loans are in Scotland, with 97% of my affected constituents having loans in the 20 to 25-year range. With such numbers of households possibly affected, further Government action is obviously required.
I will now cover the main failings and use them to set the terms for a Government review aimed at making recommendations with regard to compensation. First, the length of the loans needs to be considered. I can only conclude that such loans were a cynical manoeuvre by HELMS to reduce the annual repayment figure below the predicted first year savings, as per the golden rule.
We are told that the PV panels should last for 25 years. As a civil engineer, however, I have undertaken whole-life costing exercises, and it was normal to allow for mechanical and electrical equipment to be replaced at a maximum interval of 15 years. It therefore beggars belief that HELMS cowboy installations will last those 25 years. Also, long-term maintenance costs need to be considered. Was any of that factored into the golden rule? I have previously stated that the actual savings need to be assessed against the theoretical savings, now that we have the installations to measure that against. That needs to be done on a year-on-year, whole-life basis, not just on that first year. On the expected savings, sadly, enough HELMS examples show that electricity bills have increased, not decreased, so again why are the Government sitting back on such matters?
As well as the adequacy of long-duration loans—the high volume of which should have been a governance red flag—the review should consider the age profile of those taking loans and their ability to pay back in the long term. Spend-to-save projects should have a payback period of a few years, not a quarter of a century.
We need a proper root-and-branch review into the HELMS installations. How many households do not have the building warrants that HELMS was supposed to procure? Those without warrants should be compensated against the retrospective charges that are set in law. How many installations are wrongly wired to the meter or connected to the wrong meters? Remedial action should be taken, also at no cost to the householders. How many people have insulation cladding with no building warrant? Where necessary, intrusive testing should be undertaken to prove it is suitable and, again, any remedial works should be compensated. Given that this was a Government-backed scheme, it is not surprising that so many people were trusting.
That takes us to the hard sales tactics. Again, the Government need to review that and to take proper evidence. Given the use of the Government logo and no money required up front, it is easy to see how unscrupulous salespeople could easily conflate matters to the extent that the installations seemed to be completely free. Some customers might already have had free insulation through the energy company obligation, which of itself could have added credibility to the free concept. Even for the ECO, however, we actually all pay for it via our energy bills, so that shows the risks of the Government pretending that measures are free—just like the free smart meters, which we all actually pay for.
The review should also check aftercare and assess how many installations are correctly insured. My constituent Irene Harris says that her insurance is no longer valid. How many others are there like that, and what are the associated risks? There has been a blasé attitude about the fact that those loans are against the property and are not personal loans as though somehow that means the length of the loan does not matter. Well, it does matter. The Government should see that 20-plus years of outstanding loans, no insurance and no building warrants mean that those houses cannot be sold. People are trapped in houses that might not suit their long-term housing need. The review must identify the scale of that problem.
We need to know how many people have been defrauded of their feed-in tariff. In answer to a parliamentary question from me, the Government confirmed that they do not have that information on whose tariffs have been transferred to a third party. It is vital to find that out and to find ways to prevent Skillen from continuing to profit from such fraudulent transfers. It is undisputable that people did not realise that they were assigning their tariffs over to his other company. Worse, many people claim that their signatures were forged. The UK Government need to get a handle on that and to ensure that victims get ownership of the tariffs.
The Government might argue that an appeal process is in place, but that is inadequate. People need to know that they have been ripped off. They then need to set that out to the Green Deal Finance Company, which might make an offer which is associated with a non-disclosure agreement, which smacks of divide and conquer. Worse, many of those people will not be in a position to assess the merits of an offer made to them, and they will feel further stressed by the whole situation.
Sure, if people are not satisfied, they can appeal to the BEIS Secretary, but that process is so tortuous. The last data I had stated that the Department had only made decisions on two out of 79 appeals and well over half of those had been in the system for nine months or more. That shows the limbo that people are left in. It has taken 15 months for my constituent Irene Harris to receive an offer, one fewer than for the original made by the Green Deal Finance Company. Where does that leave her? It is further proof that greater transparency is needed.
If the Government do not step up to the plate on those matters, we will never know the real extent of the problem. People will continue to discover at a later stage that they cannot sell their homes; many will not get the feed-in tariffs that they should be getting; others will overpay on their electricity bills, possibly for the rest of their lives; and incorrect installations will remain in place. Some of the Government architects of the flawed scheme have been rewarded with peerages and knighthoods. Are those matters what we want the legacy of the green deal to be, or will the Government step up to the plate, support my ten-minute rule Bill, conduct a review and properly compensate the victims?
Question put and agreed to.
Ordered,
That Alan Brown, Gavin Newlands, Patricia Gibson, Dr Philippa Whitford, Drew Hendry, Stuart C. McDonald, Chris Stephens, David Linden, Alison Thewliss, Ben Lake and Ged Killen present the Bill.
Alan Brown accordingly presented the Bill.
Bill read the First time; to be read a Second time on Friday 8 March, and to be printed (Bill 322).
Counter-Terrorism and Border Security Bill (Programme) (No.3)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Counter-Terrorism and Border Security Bill for the purpose of supplementing the Orders of 11 June 2018 (Counter-Terrorism and Border Security Bill (Programme)) and 11 September 2018 (Counter-Terrorism and Border Security Bill (Programme) (No.2)):
Consideration of Lords Amendments
(1) Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion at 7.00 pm at today’s sitting.
(2) The proceedings shall be taken in the following order: Lords Amendments Nos. 1 to 11, 13 and 16; Lords Amendments Nos. 12, 14, 15 and 17 to 42.
Subsequent stages
(3) Any further Message from the Lords may be considered forthwith without any Question being put.
(4) The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—(Michelle Donelan.)
Question agreed to.
Counter-Terrorism and Border Security Bill
Tuesday 22nd January 2019
(5 years, 2 months ago)
Commons ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 22 January 2019 - (22 Jan 2019)
The Minister for Security and Economic Crime (Mr Ben Wallace)
I beg to move, That this House agrees with Lords amendment 1.
Mr Deputy Speaker (Sir Lindsay Hoyle)
With this it will be convenient to discuss the following:
Lords amendment 2.
Lords amendment 3, and amendment (a) thereto.
Lords amendments 4 to 11.
Lords amendment 13.
Lords amendment 16.
I inform the House that the Speaker has selected amendment (a) to Lords amendment 3 tabled in the name of Stephen Twigg.
Mr Wallace
After that jovial urgent question on proxy voting, I feel like some purveyor of doom, as the Security Minister, having to break the positive note, for we are dealing here with some of the most serious issues facing our society. At the outset, however, I would like to thank Members across the House for their work to improve the Bill and for their cross-party approach to nearly all parts of it. If our security and counter-terrorism policies are to be successful, they must bring with them as many people as possible.
Many of the Lords amendments follow up on earlier debates on the Bill in this House and accordingly I trust that they will command the support of all Members on both sides of the House. I will focus my remarks on the substantive amendments. Clause 3 updates section 58 of the Terrorism Act 2000 to make it clear that it is an offence for a person to view or otherwise access via the internet information likely to be useful to a terrorist. Although section 58 as currently drafted includes a reasonable excuse defence, the hon. Member for Torfaen (Nick Thomas-Symonds) argued in Committee for greater certainty for those who might have a legitimate reason for accessing terrorist material. The Government had previously offered assurances that those legitimately engaged in journalism or academic research would be covered by the reasonable excuse defence, but to provide further reassurance, Lords amendment 1 makes this explicit in section 58.
Although the designated area offence received widespread support when it was inserted into the Bill on Report in this House, the shadow Security Minister said at the time that it would need further scrutiny in the House of Lords. Their lordships lived up to their role as a revising Chamber and proposed amendments to clause 4. Initially, the Government could not support all of them, but on reflection we agree that they do improve the operation of the new offence. The designated area offence is designed to establish a clear ban on travel to a tightly defined area or areas outside the UK, where such a ban is necessary for the purpose of protecting the public from a risk of terrorism, with a criminal sanction for breaching that ban.
John Woodcock (Barrow and Furness) (Ind)
I am pleased that the designated area offence, for which I and others have long been pushing, has survived in some form, but does the Minister not share my concern that some of the get-outs now listed in the Bill could be very easily exploited? For example, how can it be proven that somebody was not going to a designated area to attend a funeral, if that is what they say?
Mr Wallace
The hon. Gentleman makes a fair point, but if someone goes to a designated area, their reasonable excuse will have to cover all their activities. If they say they are going as a doctor but also commit a terrorist offence or crime, that reasonable excuse will effectively fall away. Everything they do will have to be covered by the reasonable excuse; they are not de facto lifted out of having committed an offence. It is important to understand that going to a designated area with a legitimate reason, such as aid work, and then engaging in some other activity will not prevent them from being in breach of statute and therefore guilty of an offence.
Sir Edward Davey (Kingston and Surbiton) (LD)
I seek clarification. In previous debates, I understood the designated area approach to mean that just being there would create an offence, but in his response to the hon. Member for Barrow and Furness (John Woodcock), the Minister seems to be suggesting that the prosecuting authorities would have to find evidence not just that the individual was there but that they were doing something other than what they said they were doing.
Mr Wallace
The original offence always required a reasonable excuse. The right hon. Gentleman will be a supporter of the European convention on human rights. Of course, people have certain rights to travel—to visit family or carry out certain other important activities, for example—and the House would consider the restriction of such activities to be a very serious matter. We have to bear it in mind that people travel legitimately. We are not in the business of drawing a circle around somewhere and saying no one is allowed in. That said, someone would have to have a reasonable excuse and present it so that it can be tested and investigated.
Their lordships have said—and I agree—that there are legitimate reasons for entering war zones. Among others, I am thinking of aid workers and Crown servants working for the UK Government or the United Nations. They would have legitimate reasons for being there, and we do not want to shut those off to people, but we do want to make sure they have a reasonable excuse. As is often the case in legislation, however, there was some concern about whether to have an exhaustive list, and risk missing something, or an indicative list, and we have opted for an indicative list.
Some people are concerned about the delivery of humanitarian aid—an amendment on that has been selected today—but I have made sure that the reasonable excuse of delivering humanitarian aid is tempered by the provision in proposed new subsection (3E) in Lords amendment 3 that
“the reference to the provision of aid of a humanitarian nature does not include the provision of aid in contravention of internationally recognised principles and standards applicable to the provision of humanitarian aid”.
That provision is there because, as we have seen before I am afraid, terrorist groups sometimes use humanitarian aid as cover to go somewhere. Ignoring recognised principles, they pick those to whom they deliver the aid and carry out other offences while doing so. By taking that approach, we preserve the freedoms we believe in while sending a clear message that there are areas we do not want people to go to and that going there could in itself become an offence.
We are all struggling in the west to deal with the emerging threat of foreign fighters as failed state safe areas are becoming the routine. Members on both sides of the House rightly get angry when foreign fighters come back and we cannot prosecute them because gathering evidence of deeper and more complex offences is very challenging. We have looked at the Australian and Danish models and found the designated area offence along with a sunset clause and review—it is not indefinite—to be one of the best ways to send a strong message to our constituents that going off to fight in these places is either a terrorist offence or not to be encouraged.
I do not want young people in my constituency going to fight whether for glory or in the commission of terrorist offences, or for anything else; I want them to realise that, however seductive the grooming on the internet, it would turn into a horror story if they went. Also, we do not want young people going out, being trained in terrorist techniques, coming back and posing a threat. In response to the hon. Member for Barrow and Furness (John Woodcock), I simply say, however, that the offence must reflect the freedoms we hold dear. We instinctively find it a challenge to restrict movement in this country—we do not like it, and why should we? It is a freedom we enjoy.
Gavin Robinson (Belfast East) (DUP)
As the Minister will recall, some of the concerns that I expressed during the Bill’s earlier stages turned on the issue of free movement within this country, particularly for UK citizens moving from one port to another. In some cases there had been a casual appropriation of former anti-terrorism provisions whereby no suspicion was required, yet people were challenged and checked as to whether they should be travelling. The Minister honourably indicated that he would engage with me on the issue, and he has done so on two occasions. May I ask him whether he has now formed a conclusion on how we can best protect ordinary UK citizens travelling internally from one port to another, and ensure that they are not being checked under counter-terrorism provisions?
Mr Wallace
The hon. Gentleman has made some very valid points. Provisions in schedules 3 and 7 to the 2000 Act relating to intra-UK travel allow people to be stopped and checked without suspicion. I think that one of the best ways in which we can prevent abuse of that tool is to publish figures. I told the hon. Gentleman at a recent meeting that in September I would publish figures showing how many people had been subject to such checks while travelling within the United Kingdom, and I think we can start that process of opening up.
I also think that if any of our constituents are subject to such checks, we must always ensure that the police do their work in a manner which is timely and considerate, and which secures the best results for them and the individual who has been stopped. That is not a matter of legislation, but a matter of handling things sensitively. Perhaps we should also be more efficient when it comes to obtaining information, so that there is time to check people before they leave the country.
One reassuring fact is that the vast majority of checks carried out under schedules 3 and 7 involve people who are returning rather than leaving, so there is less disruption than there is when someone is going off for a holiday, for instance. However, I give the hon. Gentleman an undertaking to ensure that the figures are published in September, and I shall then be happy to discuss the issue with him further.
Kevin Foster (Torbay) (Con)
May I briefly return the Minister to the list of reasonable excuses? Will he confirm that it would not be up to the prosecution to prove beyond reasonable doubt that they did not apply, but that a person defending a charge would be required to produce some basic evidence that they did apply?
Mr Wallace
Yes. That is important. Someone who claims to be an aid worker or a doctor will be expected to prove that. It is not possible simply to pick one of the excuses and use it as a defence. We should expect it to be necessary for the police to investigate any case in which a person returns from a designated area, to establish either whether that person may pose a risk to the public, or whether they fall outside the offence by virtue of travelling for one of the specified purposes or can otherwise rely on a “reasonable excuse” defence.
Bob Stewart (Beckenham) (Con)
If a person from this country were to go to one of the prohibited areas and then come back, would it be automatic for that person to be picked up if he or she had not been given permission to do something there? Is it possible that the security services—which, I presume, fully support this measure—would say, “Let him or her run, because it is more in our interests to watch what they do”?
Mr Wallace
As I think my hon. Friend will know, when it comes to intelligence and investigations, such decisions are operational. Should our police or intelligence services suspect that someone has committed an offence but there is nevertheless more to discover, that is a risk that they will have to take. They will take it into consideration and make a decision. Of course, any prosecution under the Crown Prosecution Service must meet a number of thresholds. It must be established, for example, whether the prosecution is in the public interest, or whether there is a likelihood of success. However, if someone does not provide a reasonable excuse, that person is potentially open to prosecution and to being sentenced to up to 10 years in prison.
It is regrettable but a fact of life, given the challenges posed by end-to-end encryption, secure communications, and the ability to obtain evidence from people who we may know from intelligence—but not in evidential space—have been up to no good, that we must seek a way around the current issue. When I attended the G7 in Canada last year, it was clear that every state represented at the table, from Japan to France, faced the same challenges. We must reduce the number of offences of this type, and we hope that the Bill will make a difference. We want it to deliver a strong deterrent to ensure that people are where they are for the right reasons, and to make clear there are other ways to better people’s lives in their communities than going to a designated area for reasons that may turn out to be spurious.
To ensure that the power to designate an area is used proportionately, Lords amendment 5 provides that regulations designating an area will automatically cease to have effect after three years. That will not, however, prevent further regulations from being made to designate the same area should such a designation still be required to keep the public safe from the threat of terrorism.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I am pleased to hear what the Minister is saying, and I commend the work of my Front-Bench colleagues—and those in the other place—who have pushed for it. Does he agree that this is also the perfect time to look at, in particular, the issue of far-right and extreme-right groups? Obviously Prevent already addresses it, and does some excellent work—I have regular contact with my local police force about that—but does the Minister agree that we need to do much more to tackle organisations such as System Resistance Network and Radio Aryan, of which he is well aware, and which spew out hate and bile?
Mr Wallace
The hon. Gentleman has been a good campaigner on that issue, which he has brought to the attention of the Home Office on a number of occasions. One of the reasons why I think this is the perfect time to review Prevent is that I truly believe that if the public knew how much it does in respect of the far right, there would be more support for it, not less. It is having significant success. Half the Channel cases involve the far right. The work that has been done over the last two years clearly shows that Prevent is not about a particular group or ideology, but is similar to other forms of safeguarding that are carried out every day by our social workers, teachers and police.
Stewart Malcolm McDonald (Glasgow South) (SNP)
As far as I can see, those far-right organisations are winning the hybrid war against society. Will the Minister talk a wee bit about what his Department is doing to curb the extremely dark channels of money that are coming in from around the world and funding far-right extremism here in the United Kingdom?
Mr Wallace
Terrorist financing, including of the far-right group that was proscribed 18 months ago, is worrying because actually it is not as high as people imagine. In the day of the internet, people can be groomed and inspired for very small amounts of money. Indeed, the five main terrorist attacks of 2017 cost £5,000 in total. That is the reality of a modern-day terrorist attack and the financing behind it. I do not see much evidence of huge swathes of money funding it; what I do see is growing evidence of the impact of the internet in allowing people to join up who in the past had nowhere to go. They may have been the oddball or odd one out in their village, but they now have the ability to live in a fantasy world, indulge their bigoted beliefs, learn how to make bombs and damage and hurt people, and find kindred spirits across the internet. That is what has given one of the big boosts to terrorism, including far-right terrorism.
Mr Alister Jack (Dumfries and Galloway) (Con)
What conversations has the Minister had with social media companies to try to get terrorist material removed from the internet?
Mr Wallace
The UK was the first country in the world to set up a counter-terrorism referral unit. It is in the Met police and has taken down over a quarter of a million pieces of material from the internet. It has been around for some years now and has been a great success, very quickly getting on to the internet and content service providers. We have also done extensive work alongside them to get them to improve their response, and we are going to go further: the online harms White Paper, a joint Home Office and Department for Digital, Culture, Media and Sport document, will be out imminently and in it we have said that we will look at everything from voluntary measures all the way through to regulation. It is incredibly frustrating as the Security Minister to proscribe a far-right organisation only to find that its hateful website or its allies are spouting rubbish and bigotry from, for example, the United States, protected under one jurisdiction. That is incredibly difficult to have to deal with.
Sir Edward Davey
I thank the Minister for the fact that the Government are not opposing amendment 13 made by the Opposition parties in the other place; that is very welcome. He was talking about the review he will undertake as a result of that amendment. Can he tell us a little more about the remit and timescale of the review? Perhaps he was about to do that anyway, but it would be helpful to have that on the record.
Mr Wallace
We have not formed the terms of reference. The timescale is six months; within that period we will appoint an independent reviewer. I am incredibly happy to take suggestions on that from all parts of the House, from both the Back Benches and Front Benches, and I will be happy to meet the right hon. Gentleman to discuss his ideas. I am pleased that this will give the critics of Prevent the opportunity to produce evidence, because time and again we have to spend time knocking down allegations without any evidence behind them. I will look forward to them producing that evidence as part of the process.
Imran Hussain (Bradford East) (Lab)
The Minister is making some very thoughtful comments. Will he accept that any strategy must not further isolate or alienate any minority communities that continue to face an increase in discrimination and hate crimes? It is therefore particularly welcome that the Government have conceded and we are to have this independent review. Will its findings be brought back to this House for scrutiny, as the Minister pointed out?
Mr Wallace
The hon. Gentleman is right: this will be a public review and we will be able to debate its results in the House and ask for contributions from colleagues and members of the public and groups alike.
Prevent was started by the hon. Gentleman’s Government and I believe it is on a successful flight path. It has diverted hundreds of people, both on the right and Islamist extremists, from the Channel programme back into the mainstream. It is not perfect; not everyone responds to the work that is done and they have to volunteer into the Channel programme. It is high risk, and Labour will inevitably be sitting on the Government side one day and they will carry that risk as well. It is not perfect, and it is better received in some communities than others. I do not mean that in terms of religious communities; I represent a seat that covers north Preston, in Lancashire and this programme is having very good success in some parts of the country. It is not always delivered as well as it should be, but colleagues from around the House from all parties come to me asking for Prevent co-ordinators, suppliers and community groups, and other colleagues who come with concerns.
It is the right time to do this. I started publishing statistics as Minister as I was keen to ensure they were out. We have done two years of statistics and they show clearly that it is not a mass spying operation; there have been 7,000 referrals compared with 621,000 for safeguarding, child abuse and domestic abuse. Also, the proportion of people diverted out of the programme are the same as in other safeguarding areas and in the last few years over 300 people have received help on Channel and stopped being a concern in the future. That is 300 people who could have posed a very real risk to our constituents, so I am proud of where we have got to, but am also very open to improving it and moving it forward.
Stephen Doughty
Programmes like Prevent and Channel are needed because of the grooming the Minister was talking about a few moments ago. I was pleased to hear what he said about the joint work between his Department and DCMS, particularly with regard to online content, because he will be aware that I am very concerned about online broadcasting and online radio stations, particularly Radio Aryan, which has been exposed by BBC Wales, The Mail on Sunday and the excellent work by Hope not Hate. Will the Minister undertake to look specifically at that issue, because it is producing some vile content that will undoubtedly draw people into far-right and extreme right-wing activity?
Mr Wallace
The hon. Gentleman makes a good point. In protecting people from being groomed and exploited, we all have concern about three main areas. In communities, we need to make sure that people are not groomed by radicalisers and not seduced once they have latched on to what they have seen on the internet from online preachers or elsewhere. That is why the Prevent programme is there. There is also the question of the cause of what drives people to feel that they are lesser or outside the support of the state, which is why we need to do a lot more around Islamophobia; we must challenge Islamophobia. It is happening; it happens in Lancashire and around the country, and if we do not tackle it as a Parliament and a Government it will give some cause and grievance that will be used to recruit people. We probably all dealt in the past in our inboxes with ridiculous BNP-sponsored emails about veterans getting less than an immigrant, with photographs of soldiers and comments like “This veteran gets nothing, but the immigrant gets more,” which turned out to be complete fiction. We must work on that, and where there is a genuine grievance we must make sure it is not hijacked by those who want to exploit that into terrorism or violent extremism.
There is also the question of the method of delivery of grievance and grooming, which is the internet. We need to make sure that Ofcom works alongside the Government, but it is of course independent and can make its own judgments. Organisations like Ofcom are there to regulate what is being broadcast to us. The last stage is what part of this legislation does—recognise that where legislation is written for broadcasters and the internet, it moves with the times. Often when Ofcom has banned people they have flipped on to Facebook and launched a broadcast channel, without any controls. So we must be much more agile to do that.
Sir Mike Penning (Hemel Hempstead) (Con)
I apologise for not being present for the start of the Minister’s speech. I listened carefully to what the Minister said about how little money there is, but it is plainly obvious that money is being moved around. Some of this terrorism is coming back from organised crime, particularly in the Province of Northern Ireland. While we look at the technical stuff and the nitty-gritty of what goes on to prevent terrorism like that in Londonderry the other night—the bravery of our police and armed forces and security services is there to be seen—the explosion did take place and we need to do more to prevent such explosions.
Mr Wallace
My right hon. Friend knows about these challenges from his own experience. In some parts of Northern Ireland terrorism is entirely ingrained in organised crime, with the money and control of the community organised crime seeks to exert. The Criminal Finances Act 2017, which I took through the House about two years ago, brought in measures that will be very useful for combating illicit finance, whether it is being used to finance terrorism or organised crime. That legislation is being extended to cover Northern Ireland, which will allow us to get to grips with some of the godfathers who have helped to fund that terrorism in the first place.
Nick Thomas-Symonds (Torfaen) (Lab)
I am grateful to the Security Minister for his opening remarks, and for his tone and the consensual approach he has taken. We most definitely do not agree on everything, and we have robust exchanges across the Dispatch Box, but we try to work together constructively on these serious matters whenever we can. I am grateful to him for accepting Lords amendment 1 to clause 3, which has caused controversy in the past. The clause deals with a situation in which it was previously illegal to download these terrible recruiting videos but not illegal to stream them. We have to have a situation in which both are illegal. We cannot have a situation in which watching something later on is illegal but watching it at the time is not. This has been difficult to deal with, and there is no perfect way to capture it in legislation.
As the Minister knows, I was also concerned about the three clicks approach, and I am pleased that the Government have dropped it. Dropping it has not, as some suggested, led to a situation in which one click could lead to an offence being committed. The Bill sets out clearly that anyone inadvertently clicking in that way would not be covered by the offence. I was concerned that the reasonable excuse defence mechanism went put on to the face of the Bill, particularly in relation to journalists and academics, and I am pleased that the Government have now accepted those concessions. It is clear that in the years ahead we will have to look at precisely how the clause works in practice, but it is important to send a clear message that streaming these terrible videos is equally as awful as downloading them and watching them later on.
On designated areas, the Security Minister quoted what I said in the Commons because this measure was introduced at a very late stage and I was unable to have that discussion with him in Committee. We do not oppose the overall aim of dealing with so-called foreign fighters, but the clause needed significant work. Again, I am pleased with the work that has been done and I pay tribute to my Labour colleagues in the Lords and those of other parties there who have put in the work and time to improve the clause. I am also grateful to the Minister for accepting the changes.
There was originally a non-exhaustive list of reasonable excuse defences on the face of the Bill. This has essentially been taken and carved into the law itself, so that people do not commit the offence in the first place if they have a particular purpose for travelling. That was important for two reasons. First, someone with a perfectly legitimate reason for doing something would inevitably have been stopped, and would have been able to raise the reasonable excuse defence only further down the line. It is therefore much better in principle that they do not commit the offence in the first place. Secondly, the last thing anyone in this House wants is to deter people with a perfectly reasonable motive from going to areas of conflict. Aid workers are an example, and I know that the Chair of the International Development Committee, my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) has tabled an amendment on that.
For completeness, Lords amendment 3 states that the offence is not committed if one or more of the purposes of the visit is to provide
“aid of a humanitarian nature…carrying out work for the government of a country other than the United Kingdom…carrying out work for the United Nations or an agency of the United Nations…carrying out work as a journalist…attending the funeral of a relative or visiting a relative who is terminally ill…providing care for a relative who is unable to care for themselves”.
That is not meant to be an exhaustive list.
In addition, the reasonable excuse defence is maintained. This relates to the amendment tabled by my hon. Friend the Member for Liverpool, West Derby. The reason is that if no exception is already carved into the law and the purpose of the visit is not included in the list, it could none the less appear as a reasonable excuse defence. In an intervention on the Minister, the hon. Member for Torbay (Kevin Foster) talked about a burden in these cases. With the reasonable excuse defence, there is of course a burden on the defendant to raise it, but the burden to disprove it lies with the prosecution. In the carve-outs in the law that I have suggested, however, these people would not be committing the offence in the first place.
I want to press the Security Minister on how exactly this is going to work in practice. As he knows, there are two models around the world: the Australian model, which I think the sunset clause has been taken from, and the Danish model. The way the Danish model works in terms of not committing the offence in the first place involves an extensive system in which people obtain licences before they go. That is not without its problems, because journalists sometimes like to travel to certain areas without advertising the fact that they are doing so, so I am not suggesting that this would be a silver bullet or a magic solution. However, there will presumably have to be a system whereby we can show clearly that someone has not committed the offence in the first place, as against those situations in which there might be a reasonable suspicion that an offence had been committed and in which the reasonable excuse defence was raised later. Any details from the Minister on how this will work would be appreciated.
The other Lords amendments on these issues are also important. They include the introduction of a sunset clause for the statutory instruments to designate particular areas so that they cease to apply and have to be replaced. This will ensure that the Government regularly make the case to Parliament if they wish to continue with a designation in the long term. Lords amendments 7 and 8 relate to two additional concessions. Lords amendment 7 provides that the Government have to make a statement outlining why they believe an area needs to be designated at the same time as they lay the relevant statutory instrument. Similarly, Lords amendment 8 states that when the Government revoke a designation, the change must be subject to the negative resolution procedure in Parliament in case anyone wishes to object to it. Taken together, the amendments produce a much better clause in relation to the designated areas. It will allow the Government to tackle the problem of so-called foreign fighters, of which we are all conscious, but it now does so in a more balanced, fair way, without deterring those who wish to travel to areas of conflict for perfectly honourable and legitimate reasons. No one in the House would wish to prevent them from doing that.
There are three other broad themes to the amendments in this group. The first relates to extraterritorial jurisdiction, which the Minister will be aware I have raised before in a slightly different context. The Government added extraterritorial jurisdiction to the offence of inviting or recklessly expressing support for a proscribed organisation, and concern was expressed about that by the Joint Committee on Human Rights. The Committee was concerned that the extension of extraterritorial jurisdiction to certain offences was problematic when there was no equivalent offence in the country involved. The safeguard will now ensure that extraterritorial jurisdiction applies only if the offence was committed by a UK national or UK resident. That is in line with what the Joint Committee recommended, and I welcome that change.
Turning to the independent review of the Prevent strategy, I genuinely welcome the Security Minister’s acceptance that a review is required, and I give credit to the shadow Home Secretary, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), who has argued for one for some considerable time. As the Security Minister knows, I have visited Prevent programmes across the country, including in south Wales. My hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) also raised the issue of far-right terrorism, which this House must be conscious of and take action on.
My argument about the independent review of Prevent is that there is a concern that its aims may end up in conflict with or become slightly confused between intelligence gathering, what I would call the more welfarist or safeguarding aspect of Prevent, and community cohesion. There has been an issue around community cohesion, because the facilities that are available to local authorities, for example, are an important part of that. I have had conversations in which it was clear that the pressures on local authority services are really affecting Prevent’s ability to deliver.
There are also aspects or parts of our society—in fairness to the Security Minister, he pointed this out himself—that have lost faith in the programme, and it is time to look at that. We need a programme in which everyone can have faith. None of us wants to see people living a life of violence and hatred that is driven by these kinds of ideologies. We all want to prevent people from doing that, but let us do so in the most effective way. From our conversations, I am hopeful that the Security Minister will be keen to have a wide-ranging review that can deal with such issues.
While I am on the subject of Prevent, I know that the competition to become the new independent reviewer of terrorism legislation has now closed to applications, and I hope that someone new will be appointed soon. I hope, too, that the Minister will be receptive to suggestions about how exactly to construct this independent review, so that we can have the most robust and reliable conclusions possible and, if necessary, make appropriate changes.
Lords amendment 16 is another sensible amendment, relating to bank accounts or terrorist’s bank accounts. There was an issue in the law as originally drafted in that the account would have to be in the name of a particular person. Of course, that did not take into account the fact that people can have control of other people’s bank accounts by their behaviour, and it is important that that was covered in the legislation as well.
Taken together, all the Lords amendments make this legislation far better, and it is pleasing that we end the passage of this Bill on a note of significant consensus.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
I echo the comments of the hon. Member for Torfaen (Nick Thomas-Symonds) about the consensual approach taken by the Government during the passage of this Bill and about the concessions already made during earlier stages, including on the likes of the three-clicks provision. As the Scottish National party has said since this process started last June, we welcome the Government amending this important legislation and appreciate the need to combat the constantly evolving threat from international terrorism in the modern age. However, we must be extremely careful how that is executed, and any new powers must be subject to stringent checks and safeguards if we are to maintain a healthy balance of security and civil liberties.
I will deal with the amendments in fairly short order lest I repeat many of the points already made by the Labour spokesman today or points that either of us made during earlier stages. The SNP welcomes the amendments—the improvements—made to the Bill in the other place and, as an SNP Member, I say that through gritted teeth. However, most of the amendments made in the other place were argued for in one way or another by the hon. Member for Torfaen and myself throughout the passage of the Bill in this place. None the less, I am pleased that the Government have dropped their opposition to many of the additional safeguards, and I hope the Minister is as generous in his treatment of the Crime (Overseas Production Orders) Bill on Report and Third Reading next week.
Gavin Newlands
I am not saying that the review will be watered down in any way, but I will give way to the Minister on that point.
Mr Wallace
I am grateful to the hon. Gentleman. I would not like him to think that we ordered the review because we do not think that the strategy is safeguarding people. He refers to the fact that we must do much better based on his meeting with Safaa Boular, who by the way was convicted of planning a proper terrorist plot, no matter how nice she may have been in the detention centre. The reality is that the strategy has safeguarded hundreds of people away from violence and has been proving a success, so I would not want him to leave an impression that it has not. Of course, I agree that, like all schemes, it does not work for every single person, but it has had considerable success in all our constituencies.
Gavin Newlands
I do not dispute anything that the Minister has just said, but there is a huge clamour for review because of the inadequacies of the Prevent strategy, as seen by many in the community. His points about the terrorist plot, and so on, are well made, and I do not dispute them for one second. I am not arguing that Safaa Boular should not have been punished or put in prison; my point is about the fact that she was radicalised in the first place.
Yes, we need legislation that gives the police everything they need to fight serious crime and terrorism, but the Government should bear in mind that this Bill is, in many respects, deeply controversial. They must get it absolutely right, and that will be impossible without a full, independent review—that review has been hamstrung by the Government before it starts. I ask that the Opposition be consulted on the terms of reference, to which the right hon. Member for Kingston and Surbiton (Sir Edward Davey) alluded earlier, and on the timescale for that consultation.
Stephen Twigg (Liverpool, West Derby) (Lab/Co-op)
I rise to speak to amendment (a), in my name, to Lords amendment 3. Two years ago, in the space of just six months, we saw five terrorist attacks here in the United Kingdom: the Westminster attack, Manchester Arena, London bridge, Finsbury Park and Parsons Green. Those attacks killed 36 people and remind us all of the very real and continuing threat of terrorism here in the UK. Indeed, we were reminded of it again just last weekend by the latest terror bombing in Northern Ireland.
We know there are people living in fragile states across the world who face this threat daily. Last week, we saw the appalling attack in Nairobi, which killed 21 people, and in western and central Africa, we have seen the appalling terrorist activities of Boko Haram, notably in Nigeria. Earlier this month, more than 9,000 people had to flee Nigeria for Cameroon after such an attack.
The whole House is united in our condemnation of terror, in extending our condolences to all those who have lost loved ones to terror and in our debt of gratitude to the emergency and security services. These appalling acts, both here and in other parts of the world, underline the need to update existing powers to respond better to the threat of terrorism in the modern age, which is why I support the Bill.
I am grateful for the changes that have been secured, and I pay tribute to the Labour Front-Bench team, particularly my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), to the shadow Home Affairs team and to others on both sides of this House and in the House of Lords. The Bill’s consideration has served to make significant changes that have improved the Bill. I particularly welcome Lords amendment 3, tabled by my noble Friend Lord Rosser and agreed by the Lords, and my amendment (a) relates to that amendment.
As has already been explained, the Government’s original approach was to introduce a “designated area” offence to give the Home Secretary the power to designate all or part of a country as forbidden to UK nationals and residents. If an individual is charged with the offence and they are not able to prove that they have a reasonable excuse for entering or remaining in the designated area, they could receive a sentence of up to 10 years in prison. The only original exemption was for Crown agents, and there was wide concern that that could have unintended consequences for a number of categories of people, including United Kingdom citizens who work as aid workers.
Lords amendment 3 was made to reverse the burden of proof by introducing a number of specified purposes that are excluded from the scope of the new offences. I absolutely accept the urgent need to tackle the real issue of so-called foreign fighters, but in doing so, it would be wrong to have the unintended effect of deterring people with perfectly legitimate purposes from travelling. The amendment refers to those working in the humanitarian field and to journalists, which is a truly significant improvement in protecting UK nationals who have legitimate reasons for travelling abroad. I am particularly concerned that, without this amendment, there might not be sufficient protection for aid workers and for the organisations that employ them, which could have a devastating effect on the provision of vital humanitarian aid.
Non-governmental organisations, led by BOND—British Overseas NGOs for Development—have been urging this House to accept Lords amendment 3 because it exempts individuals involved in the provision of aid of a humanitarian nature. In December 2018, the chief executives of 22 organisations signed a statement calling on the Government to introduce an exemption for aid workers and others with a legitimate reason to travel to a designated area.
I am delighted that the Government, on reflection, are content with Lords amendment 3, but the purpose of amendment (a) is to urge the Minister to go a little further and add a number of additional specified purposes. Lords amendment 3 refers to those working to deliver
“aid of a humanitarian nature”.
I am concerned that, defined narrowly, this could unnecessarily limit the activities that are considered legitimate, which is why my amendment would extend that list. First, it would cover work on a development project or programme. That could be a long-term programme to deliver health or education, or one that promotes women’s economic empowerment. Secondly, and importantly, it would cover work on a peace-building project or programme. Peace building is defined by the United Nations as:
“A range of measures targeted to reduce the risk of lapsing or relapsing into conflict by strengthening national capacities at all levels for conflict management, and to lay the foundation for sustainable peace and development.”
Mr Jim Cunningham (Coventry South) (Lab)
My hon. Friend raises an important point. Churches often go on aid missions and peace missions, so it is important that we get the legislation right because otherwise, as he says, it could have unintended consequences. Those are two important points.
Stephen Twigg
My hon. Friend is absolutely right. Church and other faith-based organisations are often involved in peace-building activities.
I will give some examples of the sorts of things that could be covered by peace building. It could include mediation and dialogue activities to negotiate local ceasefires or broker peace talks, support for local communities to strengthen early warning schemes or civilian protection efforts and initiatives to deal with the legacy of violence and promote social cohesion so that peace is built. DFID’s single departmental plan has as one of its five objectives strengthening global peace, security and governance, and DFID seeks to spend about half its investment in fragile states. In November last year, the Department doubled the UK’s commitment to the United Nations Peacebuilding Fund as part of a long-term strategy to build global peace and prosperity by tackling the underlying causes of instability.
Bob Stewart
In my experience, a Department such as DFID will sometimes send in a project team to do peace building or peace making, or to build a hospital. Does the hon. Gentleman agree that we might also have to consider bodyguards, because a private military company might be involved in protecting DFID’s people when they go into a war zone? Has he considered that as part of his amendment?
Stephen Twigg
The hon. Gentleman is absolutely right. Aid workers—whether directly employed by DFID or other donor countries, or employed by other non-governmental organisations or private contractors—require security arrangements in precisely the sorts of countries that we are discussing. That is an important part of the aid effort, and therefore it is, as he suggests, covered by my amendment.
My concern is that the term “aid of a humanitarian nature” does not explicitly include such peace-building programmes. I fear that without a clear exemption, there is a risk that peace building could be at the mercy of interpretation on what constitutes a reasonable excuse. This is a relatively low-profile area of international activity, so I think there is a risk that it may not be widely understood. I note that, as the SNP spokesman rightly said, on Third Reading in the other place Earl Howe for the Government said:
“In the absence of such an exemption the Government are clear that entering and remaining in a designated area for the purpose of engaging in peacebuilding would constitute a reasonable excuse.”—[Official Report, House of Lords, 15 January 2019; Vol. 795, c. 141.]
That commitment is welcome, but I think the risk remains that were such a case to come to court, juries might not have a full understanding of peace building and might not understand it to be covered by the concept of humanitarian activity. I do not think anybody in this House would want the Bill to have the unintended consequence of deterring NGOs from going into conflict areas or post-conflict areas. I urge the Minister, if he gets the chance to do so in responding to the debate, to give a commitment to the importance of peace building. Ideally, he will do so, as per my amendment, by adding this activity to the list of specified purposes. Alternatively, he could make it explicitly clear today that peace keeping is covered by the term “aid of a humanitarian nature”, and he could reflect that in the policy guidance.
Finally, let me refer to human rights monitoring. Rightly, the Bill now refers to
“carrying out work as a journalist”
but my amendment seeks to extend the provision to cover those who are undertaking human rights monitoring or advocacy. The United Nations defines human rights monitoring as seeking
“to gather information about the human rights situation in a country or region over time through readily available methods, with the goal of engaging in advocacy to address human rights violations.”
That is dangerous and incredibly important work. Without human rights defenders on the ground, injustices too often go unchallenged, and the most marginalised and vulnerable people have little protection from abuses of power. Those who work in the field of human rights monitoring and advocacy often put themselves in grave danger to shine a light on the abuse of power. I believe they have a right to know that when they are conducting that important work, they have protection in UK law that recognises their legitimate reasons for travelling to such designated areas.
I finish by saying that although it is fundamental that we strengthen our legislation to tackle terrorism, it is important to ensure that when we do so, we do not inadvertently undermine the very values that terrorists seek to attack. We have a proud record as an open, outward-looking country that does not turn away when it witnesses injustice. It would be sad if the Bill had the unintended consequence of limiting the contribution of our own citizens to development programmes, peace building and human rights monitoring in some of the world’s most fragile states. Although I will not press my amendment to a Division, I hope that the Minister will consider the points that I and others have made about this and will, even at this late stage, consider accepting my amendment.
Sir Edward Davey
It is a real privilege to follow the hon. Member for Liverpool, West Derby (Stephen Twigg). Had he pressed his amendment, I would have voted for it. I agree with everything he said in his general remarks and with what he said about the real challenge being to balance security and the need to tackle people who threaten our way of life with the protection of the values that make our way of life. He made that point specifically by building on the progress that we saw made in the other place with Lords amendment 3, which is very welcome, and I hope the Minister will cover that point in his response to the debate.
This House should thank Members in the other place because, as we heard the Minister say, they strengthened the legislation in several areas. They particularly strengthened it in respect of concerns that I and others had about civil liberties and freedoms, to make sure that innocent people were not inadvertently caught by some of the new offences that will be created. Lords amendment 1 in particular makes it absolutely clear—to be fair to him, I think the Minister had this in mind—that journalists and people doing academic research will have extra special protections.
We have talked about Lords amendment 3, but Lords amendment 13 on the review of the Prevent strategy—I intervened to ask the Minister about it—is really welcome and will support the Prevent strategy in its objectives. Both today and when we have discussed the matter before, the Minister has rightly said that there are a lot of good things about Prevent, and I agree with him. One of my concerns, which was why I supported the case for a review, was that some of the people who criticised Prevent gave valid criticisms, which I hope will be taken on board during the review, and others made the point that whether or not Prevent was doing the right work and whether or not it was successful, it had lost the trust of some communities. I hope the review will support the work that the Government rightly want to do by rebuilding trust. The review can play a positive role in the meeting of the objectives that I think we all share in this House.
One issue that did not find favour in the other place relates to something the Minister said about proscribed organisations. My colleagues in the other place wanted to see whether there could be a relatively regular review of the list of proscribed organisations. Indeed, Lord Anderson, who is well known and has huge experience in this policy area, said he believed that at least six of the organisations on the proscribed list really should not be there. I hope I can tempt the Minister to say, if he feels able to, whether a process of review of proscribed organisations already goes on somewhere and, if not, whether he would favour one, either specified in the Bill or dealt with outside it. I hope he will look into that, because it would be helpful and welcome.
In closing my brief remarks, let me just say that it is good that the Government have either agreed to accept the amendments made in the other place or to come forward with concessions.
John Woodcock
Far be it from me to be a discordant voice in this House, but I have real concerns that the House of Lords have not strengthened the Bill and may have fundamentally weakened parts of it, particularly in respect of the terror travel ban, which, as I said earlier, I have been campaigning for the Minister to adopt for well over a year.
I do not know whether you have had a chance to see the British satirical film “Four Lions”, Madam Deputy Speaker, but it recounts the exploits of four hapless British wannabe jihadis from my home city of Sheffield who are determined to wage jihad. The film opens with one of them getting an invitation to attend a wedding in Pakistan. He knows full well that there is no such wedding, and in fact he and his friend are going over there to be part of a jihadi training camp in the Pakistani mountains.
Although that film is fiction and satire, that excuse is commonly used by people who are overwhelmingly suspected of going over to areas with high levels of jihadi activity to train as foreign fighters, with the potential to then bring that training, knowledge and extremism back to British shores. The whole point of the designated area offence was to make that more difficult. I fully endorse the push of my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) to get official recognition for aid workers and journalists. I recognise that there would be a total outcry if someone who verified themselves as a legitimate journalist or aid worker were captured by this legislation. I find it almost impossible to concede that that would happen if they were in fact genuine, but if the measure does give reassurance to development agencies and to members of the fourth estate, I can understand it and agree that it is a good thing.
However, I have real concerns about the list of family excuses, which will surely prove incredibly difficult to disprove once they have been stated. Now that they are up in lights in the Bill, it will become that much harder to bring any prosecutions, and that much harder to deter people from travelling to become foreign fighters, which is, of course, what the legislation is intended to do. It is supposed not to catch people once they are there, but to deter them from travelling in the first place. Clearly, I am in an unusually small minority in this House in expressing that view, but I fear that we will come to rue agreeing such wide-ranging and easy-to-fake excuses in the Bill, and we may need to return to it in future months and years.
Finally, let me just say a word on the review of Prevent. It is of course right that any Government should seek periodically to review flagship parts of any policy. Certainly, in the critical area of preventing extremism and preventing terrorism gaining a grip in our own communities, I very much hope that this review is carried out and is understood in the spirit of remaining robustly in favour of the overall goal of Government, which is to be able to find ways to intervene to stop extremism taking hold. We need a dispassionate analysis of how, in its working, Prevent is able to recognise and potentially to call out the attempts to undermine the programme, which go beyond legitimate concerns, but are, in fact, tools of the very extremist organisations that would fill many young people and British citizens with the hate and terror that can lead to them going abroad to fight jihad, or, in the worst case, bringing terror on to British streets.
Mr Wallace
With the leave of the House, I will respond to the points of hon. and right hon. Members. First, let me address the amendment. The hon. Member for Liverpool, West Derby (Stephen Twigg) made a passionate and well-articulated case for adding peace building to the list of reasonable excuses. His example is at the heart of the challenge—peace building is most needed in fragile states, but it is in fragile states that foreign fighters emerge and safe spaces are constructed for that very reason. Effectively, the two sides of this challenge are summarised by peace building. It is therefore important to say that, first, the list is indicative. As long as I have been in this House, there has been debate about whether we have judicial discretion and about not doing too much in primary legislation. Lawyers in this House will be well used to that. The more comprehensive the list, the less room there is for judicial discretion. With no list, there is judicial discretion; holes are found, and we become subject to a different interpretation by judges every time. The word “indicative” is key. This is an indicative list. The major reasons listed are the headline reasons why the vast majority of people go to these places. They are clear, but still broad enough to cover most of the areas that concern us.
Bob Stewart
So, if a person wishes to go to a designated area, that person should, perhaps on Foreign Office advice, be told, “That is a designated area; you need to declare it.” If that person declares it prior to his or her going, that is good. If they do not declare it, and they go there and are picked up on the way back—it might be a mistake, but it might not—is that what the Minister anticipates might happen?
Mr Wallace
The decision that we took around this offence is that it is not a permission—something that you obtain in advance. As the hon. Member for Torfaen (Nick Thomas-Symonds) pointed out, in the Danish system one effectively gets a licence. The problem with that is that people just get a legitimate licence, and then go and carry out their other mission. It is also administratively burdensome. It also becomes a barrier to travelling for those who are doing so for a genuine reason, because they would have to check in with the state beforehand. We are proposing that people can go, but that if we have a suspicion that they have been doing something, we will test their “reasonable excuse”, and if the “reasonable excuse” fails, they will be guilty of the offence. We believe that to be the best way.
The hon. Member for Torfaen said that journalists would not be able to advertise where they were going. Many are based in theatre and do not know where they are about to go. They might be based in Lebanon and choose to visit—as some have—foreign fighters in detention in Syria. We shall not set up a permissions system; it is simply that you will have to declare it.
To clarify, the list of specified purposes is an exhaustive, not an indicative list, but there is power to add to the list by regulation. To give some reassurance to the hon. Member for Liverpool, West Derby, let me say that we will review the operation of this in conjunction with the Department for International Development and the Foreign Office, to see how it works, and we will of course be open to adding to the list if there were such issues as he represents. I am confident, however, that genuine peace builders would have a reasonable excuse and would not, therefore, be subject to the committing of an offence.
To give the hon. Member for Barrow and Furness some reassurance let me say that these excuses do not exempt a person from committing the offence if all their reasons for being out there are not covered by the “reasonable excuse.” You cannot say, “On Monday I am a peace builder; on Tuesday I am a terrorist.” That will not exempt you from that offence. You have to be there specifically and entirely for a reasonable excuse.
Stephen Twigg
I thank the Minister for his response, particularly for what he has said about the potential for review and the ability perhaps to make additions at a later stage. I also thank him for speaking into the record what he has just said about genuine peace builders, which is immensely helpful. I understand that some sort of policy guidance will be issued once this Bill is enacted. May I encourage his Department to look at the reference to peacebuilding in that policy guidance?
Mr Wallace
I would be delighted to look at that. I also remind the hon. Gentleman that the Crown Prosecution Service has a role in this. It will test not only the validity but the interest of prosecuting in this area. We do not risk people being wrongly prosecuted by organisations not being on the list as it is, by the time the process has been gone through. While the individuals may not be totally au fait, the prosecutor will be, as will the judge who will test the proposition of the prosecution. I do believe that we should be confident about that. However, I give the hon. Gentleman the undertaking that I will keep it under review.
The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) made a good point about best practice. My experience of visiting Prevent around the whole of the United Kingdom is that it is better received in some areas and better delivered in others. It is absolutely the case that Prevent works very well in some areas, depending on the different communities and who the Prevent champions and community leaders are. He made very good points about community cohesion in Scotland. We are, absolutely, happy to look at that to see what lessons are to be learned. At the heart of his point, he is absolutely right—best practice is going on. I do not want us to throw out Prevent because of a few failing examples, or examples that do not actually exist when tested. We need to build on it and show where it is a success, and we must not be frightened to say, “Look, it is working”, if that is what the reviewer decides. But of course it can be improved. We improve Contest every few years. We do not hold that the Contest strategy overall is absolutely stuck, and therefore we make sure that we move it on.
The right hon. Member for Kingston and Surbiton (Sir Edward Davey) talked about proscription. He will know that Lord Anderson made this suggestion. I met former Lord Chief Justices and a number of Members of the House of Lords on the issues. The Lords, including those on the Labour Front Bench, rejected the amendment. It is quite easy to request that an organisation is looked at and de-proscribed. It only takes a letter from someone to say, “Will you consider de-proscribing this organisation?” In doing so, they are effectively immune from being prosecuted. If they say, for example, “I do not think this organisation should be proscribed because I support it”, and send the letter in, the process starts. That is already open to people.
However, the legislation around proscription is not as straightforward as some people think. We often proscribe groups overseas. In fact, since I have been Security Minister, we have de-proscribed groups that I had frankly never heard of until we did so. They were way overseas somewhere. For example, we de-proscribed one of them so as to assist peace building in a country that was a fragile state so as to allow that process to progress. It is not as straightforward as I think some in the House of Lords had thought it was going to be. A lot of the proscription legislation came around the time of the Northern Ireland Good Friday agreement. We should be mindful about what automatic de-proscription, or automatic reviews, may unlock not so far away.
It is important that we reflected on the issues. We rejected the proposal as there is a solid mechanism already in place whereby people can ask to de-proscribe and call for a review. That is why the House of Lords rejected it, and we are not going to seek to replace it here.
Lords amendment 1 agreed to.
Lords amendments 2 to 11, 13 and 16 agreed to.
After Clause 16
Persons detained under port and border control powers
Madam Deputy Speaker (Dame Rosie Winterton)
With this it will be convenient to consider Lords amendments 14, 15 and 17 to 42.
Mr Wallace
This group of amendments relates to the new port and border powers in schedule 3 to the Bill to tackle hostile state activity, as well as to the existing counter-terrorism ports powers in schedule 7 to the Terrorism Act 2000. I will focus my remarks on the substantive amendments.
During the passage of the Bill through this House, the hon. Member for Torfaen (Nick Thomas-Symonds) has pressed the Government on whether there is an alternative to the power exercisable in exceptional circumstances for a police officer to be in the sight and hearing of a consultation between an individual detained under schedule 3 and their solicitor. While the Government were clear that safeguards were needed to prevent the right to consult a solicitor from being abused, thereby potentially putting lives at risk, the hon. Gentleman argued that such a provision would undermine the principle of confidentiality of consultations between lawyer and client.
On Report in September, I undertook to consider the issue further. Where there are concerns about a detainee’s chosen solicitor, Lords amendments 35 to 37, 39 and 40 would allow a senior police officer to direct that the individual consult a different solicitor. In practice, that is likely to be the duty solicitor. This provision is modelled on the Police and Criminal Evidence Act 1984—PACE—code H and reflects the suggestion made by the Law Society in its evidence to the Public Bill Committee in June last year. The change will apply to persons detained under both schedule 3 to the Bill and schedule 7 to the 2000 Act. I hope that the hon. Gentleman will agree that this change adequately addresses the concerns that he raised.
Lords amendment 25 provides for a procedure to enable the urgent examination of a detainee’s property, including confidential journalistic or legally privileged material, in cases where there is an imminent threat to life or significant injury, or where there is an imminent threat of a hostile act being carried out. In such cases, the police must be able to act with immediate effect and, consequently, the usual process whereby any such examination must be approved in advance by the Investigatory Powers Commissioner cannot apply.
These Lords amendments to schedule 3 would instead allow an examining officer, with the approval of a senior officer, to examine a detainee’s property before a decision has been made by the commissioner. Under this exceptional procedure, authorisation would be required to be given or withheld by the commissioner or a judicial commissioner after the event. Where the commissioner withholds authorisation, he would have the power to direct that the property be returned and that information taken from it, including copies, is not used and destroyed.
As with the existing process provided for in the Bill, the commissioner’s decision will be taken after consideration of any representations made by affected parties, and there will also be an opportunity to appeal that decision where it has been delegated to a judicial commissioner. That approach is consistent with the Court of Appeal’s judgment in the case of Miranda, where the Court recognised that there might be a need for
“post factum oversight in urgent cases”.
Further details of the process for examining retained property, including where it contains confidential material, will be set out in the schedule 3 code of practice, which must be debated and approved by both Houses before the provisions in schedule 3 can come into force. These Lords amendments improve the provisions in the Bill, and I commend them to the House.
At present, the schedule 7 code of practice requires that an individual examined under schedule 7 is informed of their rights on first being detained. There is analogous provision in the draft schedule 3 code of practice. The Joint Committee on Human Rights suggested that this protection for detainees is sufficiently important that it should be provided for on the face of the Bill and not left to a code of practice. The Government were content to accept the Joint Committee’s recommendation, and Lords amendments 33, 34 and 38 provide for that.
Lords amendments 41 and 42 respond to a recommendation from the Delegated Powers and Regulatory Reform Committee. The Committee argued that the regulation-making power in paragraph 53 of schedule 3 is too widely drawn. Under that power, the Home Secretary must specify additional categories of persons with whom information acquired by an examining officer may be shared. The Delegated Powers and Regulatory Reform Committee pointed out that this regulation-making power places no limitation on the categories of persons who could be specified for those purposes, including an organisation in the private sector. Lords amendment 41 narrows the schedule 3 regulation-making power so that it can be used only to specify persons carrying out public functions, and Lords amendment 42 makes a similar change to the Terrorism Act 2000. I commend these amendments to the House.
Nick Thomas-Symonds
I again welcome the approach that the Security Minister has taken in reaching consensus on these matters.
First, and this is a very important principle, in this Bill we have maintained and preserved the right to receive legal advice in private. It is a very important principle and, as the Security Minister knows, I pressed him on it at a very early stage of and throughout the proceedings on the Bill. There was a concern either that someone who had been stopped and detained would use the ability to contact a lawyer to communicate the fact that they had been stopped—in other words, to contact someone who was not a lawyer—or, alternatively, that a genuine lawyer was contacted but that the lawyer would then somehow, inadvertently or otherwise, pass on information about the stop. I pressed the Minister on the solution that is now in the Bill at quite an early stage about a kind of duty solicitor scheme that could deal with both of those concerns, but also ensure that we preserved the very important right of legal advice in private. I am pleased that we have reached this stage on the Bill and that the Government have made that concession.
I now turn to a set of Lords amendments, starting with Lords amendment 14, on the urgent procedure for retaining and copying property at the border. I have looked at the Court of Appeal judgment in the David Miranda case. As the Minister says, the judgment, at paragraph 96, identified that there is
“no provision for authorisation by a court or other independent and impartial decision-making body in a case involving journalistic material prior to the use of the Schedule 7 power or, in an urgent case, immediately after the obtaining of the material pursuant to the exercise of the power.”
I fully accept that there are going to be very urgent situations, and this is expressed in terms of an imminent threat of loss of life or of injury. I am pleased to hear what the Minister has said about the code of practice, which we can look at in due course. I previously suggested that there could be situations where a decision maker was available at the end of a telephone line, but I appreciate that there will be truly exceptional cases. The key to this is that, while I fully accept the law needs to be brought into line with what has been suggested in the Miranda case, we have to understand that these must be truly exceptional cases. That is something we can set when we come to debate the code of practice, being very clear that in these particular circumstances there will have to be a genuine, imminent threat that needs to be dealt with. Again, however, bringing the law into line with what the Court of Appeal has suggested is, on the whole, to be welcomed.
I want to speak to two other sets of Lords amendments. I will start with Lords amendments 17, 19, 26, 28 and 29 on the definition of hostile activity. The difficulty is that if this is defined purely in terms of criminal activity, that does not capture other types of hostile espionage activity, which may not necessarily bring into play parts of the criminal law. I did think that there was a danger of this being drawn too broadly, and I am pleased that these amendments narrow the definition, so that when we talk about threatening the economic wellbeing of the UK, we have now added
“in a way relevant to the interests of national security”.
The key is to ensure that we have the powers we need while also being precise about what we consider “hostile activity” to be. It is a welcome amendment that improves the Bill.
Finally, Lords amendments 41 and 42 relate to information sharing. Schedule 3 provides that an officer questioning someone at the border can hand over information to appropriate bodies, as decided by the Secretary of State. I think that narrowing the provision to bodies exercising public functions is to be welcomed, but I have regularly made the point to the Minister during the passage of the Bill that bodies such as local authorities will need the appropriate resources, expertise and support to handle the information, particularly when it is likely to be highly sensitive.
Taken together, I think that the Lords amendments that I have spoken to, covering the four themes I have referenced, make the Bill a better and more effective piece of legislation, although I am keen to engage with the Minister when the codes of practice to which he referred come before both Houses.
Gavin Newlands
The House will be relieved to hear that I intend to be even more succinct in my comments on the provisions pertaining to port and border control powers. We have again seen positive movement in this area.
Despite the best efforts of the hon. Member for Torfaen (Nick Thomas-Symonds) and myself, when the Bill reached the other place it restricted access to a lawyer for those detained under schedule 7. Specifically, it restricted an individual’s right to consult their legal representative in private, away from a relevant officer. As I and other Members have said at every stage of the Bill’s consideration, the ability to speak to a legal representative in private is a fundamental right that should not be infringed. Indeed, as the Minister outlined in oral evidence to the Public Bill Committee, both the Law Society of Scotland and Law Society of England and Wales have reinforced that point. Richard Atkinson stated in evidence that the UK’s criminal justice systems have an excellent reputation but that their very
“cornerstone is legal professional privilege…not access to a lawyer”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 30.]
We therefore very much welcome Lords amendments 12, 15, 35 to 37, 39 and 40, which ensure that that right is protected. Our preference would be for anyone detained under these powers to be able to consult legal representatives of their choosing, but I have heard the Government’s case for the power to require a detainee to consult a different solicitor and, although I would prefer not to have that provision, I completely understand the rationale behind it. I only hope that the power is not abused to ensure lesser representation.
On that note, we also very much welcome amendments 33, 34 and 38, which confirm a detainee’s right to be informed of their rights, which will now be in the Bill rather than simply in the draft code of conduct.
We also welcome Lords amendments 17, 19, 26, 28 and 29—I am not used to having so many Lords amendments, Madam Deputy Speaker. As the hon. Member for Torfaen said, the narrow definition of “hostile act”, so that it is an act that threatens the UK’s economic wellbeing, qualifies only if it
“is relevant to the interests of national security”.
We on the Scottish National party Benches are well known for standing up for civil liberties and human rights, but we do understand that keeping people safe and secure is the primary function of government and fully support our services having the appropriate powers to keep us safe. We therefore support an expedited process for retaining and examining property and confidential material where there is an immediate risk of death or serious injury, or of a hostile act being carried out. That relates to Lords amendments 18, 25, 27 and 30 to 32.
I am sorry to have to mention Brexit so close to the end of our considerations, but it will potentially have a huge impact on the effectiveness of much of this legislation. One of the greatest threats to our national security and counter-terrorism capacity is Brexit and the risk of losing seamless access to multilateral information-sharing tools. Terrorism and organised crime will continue to operate after 29 March without care towards the UK’s membership of the EU—I see that the Minister is delighted by the mention of Brexit. Yet without Europol, Police Scotland will no longer have access to information systems, support and expertise that help make Scotland, the rest of the UK and Europe a safer place. We cannot risk having arrangements that dilute the access that we currently have, and any new arrangements must consider Scotland’s distinctive criminal justice system in order to provide a continuing basis for the direct co-operation that currently exists between law enforcement agencies in Scotland and their counterparts. If we have not made provision to keep our policing effective outside the EU, how can we expect Prevent and everything that has been discussed today to work even after a review?
I thank the hon. Member for Torfaen and the Minister for the manner in which the Bill has been debated throughout its passage and I look forward with joy unconfined to dealing with them again next week on the Crime (Overseas Production Orders) Bill.
Sir Edward Davey
It is a pleasure to follow the hon. Member for Paisley and Renfrewshire North (Gavin Newlands). He tempts me to talk about Brexit—[Hon. Members: “Go on!”] In relation to security and counter-terrorism, of course, Madam Deputy Speaker. I share his concerns that that has not been dealt with adequately. The political declaration is far too weak on the subject and that concerns me. If we got that right, it would go much further than the Bill can.
On border security, which the amendments cover, I was slightly amused that some of the points I made on Report, about which the Minister was not happy, had been dealt with in the other place. I pay tribute to my noble Friend Lord Paddick, who, in discussions with the Minister in the other place, clarified a point in the legislation in a very helpful way. I am grateful to the Government for conceding that point. I was concerned about the Bill’s definition of hostile activity to include anything that threatened the United Kingdom’s economic wellbeing. Although I clearly do not want anyone to threaten the United Kingdom’s wellbeing, it seemed a broad and unspecific definition. Some people would say that Brexiteers threatened the United Kingdom’s wellbeing, but I do not want to take that too far because that would be controversial. However, I was pleased that the Government have now qualified the provision with,
“in a way relevant to the interests of national security”.
That may well have been the original intention, but the Bill did not say that. That is why we raised the matter and I am pleased that the Government have seen fit to move on that.
I say gently to the Minister that if we are serious about border security, law is important, but we must have enough Border Force guards. I am worried that we do not have enough people to ensure that our borders are as safe and secure as the House wants. That resource point should not be missed as we legislate.
Mr Wallace
With the leave of the House, Madam Deputy Speaker, I will respond.
I am pleased that the hon. Member for Torfaen and I have managed to find a way that accepts his points about ensuring that people have legitimate legal representation, but finds an alternative when the state has concerns that there could be abuse. There will be a code of practice and until it is approved by both Houses, law enforcement officials will not be able to use schedule 3. There will be a public consultation and I am happy to discuss matters with him so that we can ensure that we clarify any further areas about which people may be concerned.
The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) made several points. One reason for discussing hostile state activity is what happened in Salisbury last year. There are hundreds of declared and undeclared foreign intelligence officers in the UK who seek to harm this country. They seek to undermine our values, corrupt our people and our news, carry out espionage and do us serious harm. None could be more serious than what happened in the Salisbury attack, where Novichok, a nerve agent banned by law, was used on our streets. That ended in a tragic death—the murder of a British citizen. That is outrageous and something that we did not really see even in the cold war. We should recognise that while the traditional barriers of the cold war and the 1980s are long gone, even more states are committing hostile acts every day, and we need the powers to deal with that.
James Cleverly (Braintree) (Con)
Does my right hon. Friend agree that it is important that as a society—not just as a Government and a House—we make it clear that the norms of international behaviour that we impose on ourselves are not universally accepted? The willingness to deploy both poisons such as Novichok and fake news, lies and so on might seem beyond reality to us, but is the norm for other regimes in the world. We have to be prepared to deal with such regimes and to push back against them.
Mr Wallace
My hon. Friend makes a strong observation about the rest of the world. Now is not the time for us to abandon our belief in the rule of law and, indeed, in the maintenance of our freedoms. In fact, we defeat others by leading by example. As he rightly points out, however, when we are faced by such adversaries, the challenge for any Government is to navigate their way through, to keep people safe while upholding their belief in the values and freedoms that we enjoy in the United Kingdom and maintaining the rule of law.
The stops—the powers under schedules 3 and 7—have been around in the terrorism space since 2000. They are strong powers, and they are limited by being used only at the border. Their use is not open to normal police officers going about their normal business. We do that to ensure that we maintain the freedoms in our society, while at our vulnerabilities, such as at borders, we have that extra layer in order to deal with—
Mr Wallace
No, I will press on to the end. I do not think that my right hon. Friend has been in the debate.
It is important to deal with issues as we look at the legislation. The right hon. Member for Kingston and Surbiton (Sir Edward Davey) used the B word, although I had hoped to get through the whole debate without using it. One of the delights of being the Security Minister is that in the world of intelligence sharing and of law and order, Brexit has often been kept at bay. However, the right hon. Gentleman has raised the issue, and we have taken steps to deal with it through private conversations with Ministers from around Europe and the European Commission and through the withdrawal agreement in the deal, which got us access to nearly all the things that we have now. That is why I was, and am, in favour of the deal—security is incredibly important.
We have recruited hundreds more people in order to strengthen the border and to deal with anticipated changes as we get there. The Government are taking that seriously, and we will plan to deal with it. However, it is at our borders that we will be most vulnerable, which is why this new power will help the police and intelligence services at least to keep our borders safer than they are now. That will not change, whatever our relationship with Europe. The hostile-state power will be for our domestic intelligence services and police, and whether we are in or out of Europe, half in or half out, or whatever we are, this power will be a welcome one that they are willing and wanting to use.
Julian Knight (Solihull) (Con)
Obviously, the B word is my favourite word at the moment. On information sharing, does the Minister agree that although we are leaving the EU, we are not leaving Europe? We will be a good neighbour as far as security and information sharing are concerned as we move forward into the future.
Mr Wallace
Within the remit of the Bill, we should remember that intelligence is the preserve of the nation state and will continue to be so. That has not changed and will not change. Contrary to what Sir Richard Dearlove, the head of MI6 at the time of the Iraq war, said in a letter that he put out last week, we managed to be full members of the Five Eyes and NATO at the same as we were full members of the European Union, so I do not believe that that will be lessened, whatever our status. We will still be members of the Five Eyes and NATO, whatever our relationship with the EU post 29 March. That is why the Bill is pitched correctly. It deals with the threats we have faced, the lessons we have learned from terrorist attack and from the hostile-state attack by Russia last year, and we are only as good as the lessons we learn. That is why the Bill is important in giving us the powers that we need.
In closing, I thank the Bill team, who have put up with their Minister wanting far too many changes, for helping me to deliver the sort of collaborative working that I used not to see, I am afraid, when I was in opposition a long time ago and for producing a Bill that I think most of the House regard as a good place to be. I am also grateful to their lordships for improving the Bill and to Her Majesty’s Opposition, the Liberal Democrats and the Scottish National party for their changes to the Bill. Thanks to those changes, we have a Bill that truly will help to bring people together and deliver better security.
I also thank the hon. Member for Torfaen for putting up with my struggling pronunciation of his constituency—I hope I got it right, but my Welsh is very poor—the right hon. Member for Kingston and Surbiton and the hon. Member for Paisley and Renfrewshire North (Gavin Newlands). I thank, too, the hon. Member for Barrow and Furness (John Woodcock) for his helpful suggestions and his campaign on the designated areas. He was part of their inspiration, so he can carry some of the blame if it turns out in a few years that they do not work. [Laughter.] I will take some of the blame; so can he.
Finally, I also thank my hon. Friend the Member for Redditch (Rachel Maclean), who performed gallantly as my Parliamentary Private Secretary through Committee, and our usual channel, the Lord Commissioner of Her Majesty’s Treasury, my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard). I also thank you, Madam Deputy Speaker, the Speaker and the other Deputy Speakers for steering the Bill through the House.
Lords amendment 12 agreed to.
Lords amendments 14, 15 and 17 to 42 agreed to.
Royal Assent
Tuesday 12th February 2019
(5 years, 2 months ago)
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