Counter-Terrorism and Border Security Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 11th June 2018
(5 years, 10 months ago)
Commons ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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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.
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 (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.
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)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 26th June 2018
(5 years, 10 months ago)
Public Bill CommitteesCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 26 June 2018 - (26 Jun 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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
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?
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.
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.
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)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 26th June 2018
(5 years, 10 months ago)
Public Bill CommitteesCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 26 June 2018 - (26 Jun 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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.
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 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.
Counter-Terrorism and Border Security Bill (Third sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 28th June 2018
(5 years, 10 months ago)
Public Bill CommitteesCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 28 June 2018 - (28 Jun 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 3rd July 2018
(5 years, 9 months ago)
Public Bill CommitteesCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 3 July 2018 - (3 Jul 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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
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.
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.
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)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 3rd July 2018
(5 years, 9 months ago)
Public Bill CommitteesCounter-Terrorism and Border Security Act 2019 Read Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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.
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.”.
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.
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.
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)
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 5th July 2018
(5 years, 9 months ago)
Public Bill CommitteesCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 5 July 2018 - (5 Jul 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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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.
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.
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”.
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 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.
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.
Counter-Terrorism and Border Security Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 11th September 2018
(5 years, 7 months ago)
Commons ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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.
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 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.
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.
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.
Counter-Terrorism and Border Security Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 9th October 2018
(5 years, 6 months ago)
Lords ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 11 September 2018 - (11 Sep 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
Counter-Terrorism and Border Security Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 9th October 2018
(5 years, 6 months ago)
Lords ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 11 September 2018 - (11 Sep 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 29th October 2018
(5 years, 6 months ago)
Lords ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: HL Bill 131-II Second marshalled list for Committee (PDF) - (29 Oct 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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 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 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 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.
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.
Counter-Terrorism and Border Security Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 29th October 2018
(5 years, 6 months ago)
Lords ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: HL Bill 131-II Second marshalled list for Committee (PDF) - (29 Oct 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 31st October 2018
(5 years, 5 months ago)
Lords ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: HL Bill 131-II Second marshalled list for Committee (PDF) - (29 Oct 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
“(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 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.
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 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 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 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 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.
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.
Counter-Terrorism and Border Security Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 12th November 2018
(5 years, 5 months ago)
Lords ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: HL Bill 131-IV Fourth marshalled list for Committee (PDF) - (12 Nov 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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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.
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.
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 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.
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
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 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.
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.
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 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.
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 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 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
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 14th November 2018
(5 years, 5 months ago)
Lords ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: HL Bill 131-IV Fourth marshalled list for Committee (PDF) - (12 Nov 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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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.
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.
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 (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.
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.
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 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 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.
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
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.
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.
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.
“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.
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.
Counter-Terrorism and Border Security Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 3rd December 2018
(5 years, 4 months ago)
Lords ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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)
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 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.
“(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)
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.
““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.”
Counter-Terrorism and Border Security Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 3rd December 2018
(5 years, 4 months ago)
Lords ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: HL Bill 142-I Marshalled list for Report (PDF) - (29 Nov 2018)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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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.
“(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 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.
“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
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
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 17th December 2018
(5 years, 4 months ago)
Lords ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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, 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.
Counter-Terrorism and Border Security Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 15th January 2019
(5 years, 3 months ago)
Lords ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: HL Bill 153-I Marshalled list for Third Reading (PDF) - (14 Jan 2019)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
Counter-Terrorism and Border Security Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 22nd January 2019
(5 years, 3 months ago)
Commons ChamberCounter-Terrorism and Border Security Act 2019 Read Hansard Text Amendment Paper: Commons Consideration of Lords Amendments as at 22 January 2019 - (22 Jan 2019)
This text is a record of ministerial contributions to a debate held as part of the Counter-Terrorism and Border Security Act 2019 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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.