Counter-Terrorism and Border Security Bill
Tuesday 9th October 2018
(6 years, 2 months ago)
Lords ChamberCounter-Terrorism and Border Security Act 2019 View all Counter-Terrorism and Border Security Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 11 September 2018 - (11 Sep 2018)
Lord Tebbit (Con)
My Lords, I thought the House might like to be reminded of just three of our parliamentary colleagues who were the victims of terrorism: Airey Neave, the Reverend Robert Bradford and Ian Gow. After all, in this debate today we have not heard much about the victims.
There has been a degree of consensus in the debate, but it is a consensus that I do not in any way share. Of course I agree that this is a complex Bill with an ambitious purpose. To quote from the Queen’s Speech of June 2017, that purpose is,
“to ensure that the police and security services have all the powers they need, and that the length of custodial sentences for terrorism-related offences are sufficient to keep the population safe”.
In other words, it is a contribution to the first and second of the key obligations of government. The first obligation is to maintain the borders of the kingdom securely and to bar entry to those who do not share our purposes in life in this kingdom. The second purpose is to maintain the Queen’s peace.
As we all know from our long experience of grappling with the terrorist movement of the Irish Republican Army and Sinn Féin, these are difficult tasks that have been costly in both treasure and blood. However, the threat today is unlike that from the Irish dimension. There was a simple logic to that threat. Unable to persuade the people of Northern Ireland to vote for a union of Ulster with the Irish Republic, Sinn Féin conducted a terrorist campaign of violence by its armed organisation, the IRA, towards that aim. Fortunately, the courage of the people of Ulster and the skill and bravery of the Royal Ulster Constabulary, the Police Service of Northern Ireland and the Armed Forces of the United Kingdom demonstrated that the ambition of the republican movement could not be attained by violence either. That task was made no easier by the support given to IRA/Sinn Féin by what was then the hard left in this country and is now the leadership of the Labour Party today.
The nature of the threat today is different, and it is made worse by the rise of so-called social media, which provides an open platform for—what shall we call them?—the proponents of terrorism. Some of the threat is directed to bringing about a worldwide caliphate. Much of it is largely directed from overseas, bringing a requirement for extraterritorial action—and I welcome that particularly in this Bill. Some of the threat arises from Islamist extremists resident or born in this country. But a great deal of it springs from a love of violence, and uses the language of Islam to justify inflicting violence in its name. That may well prompt others of unstable mind to inflict violence on peaceable followers of Islam.
The provisions of the Bill well deserve support. There may be ways in which it might be improved, but I hope we will not see nit-picking in the name of liberty by those who have sympathy with the aims of those who inflict terrorist violence, whether from political or religious conviction or because of mental illness.
There was talk today, and in the other place before the Recess, of the need to protect free speech, freedom of assembly and association, and all that. There was talk also of the effects on the meanderings of the European Court of Justice. I speak tonight, as nobody else seems to have done so far, for those who died at the hands of terrorists. I support the Bill, and others who have suffered at the hands of terrorists and survived will undoubtedly support it, too. There are many who will support this Bill from beyond the grave. I speak for them tonight.
Lord Blair of Boughton (CB)
My Lords, like others, I think that this has so far been an excellent debate, and I shall try not to spoil that record. It is an honour to follow the noble Lord, Lord Tebbit. His views and mine do not normally coalesce in any way whatever—except on terrorism.
As far as I can see, I welcome the Bill in its entirety. We all remember with sadness the lives lost and the lives horrifyingly changed by the attacks in Britain in 2017. This Bill is part of our nation’s response to those events. I thought that the decision by the Government, MI5 and the police to put in train the operational improvement review—carried out by the then David Anderson QC, now my noble friend Lord Anderson of Ipswich—was wise and proportionate, and this Bill reflects that position.
In the same way as the noble Lord, Lord King, said, I appreciate the bipartisan approach taken by both Houses to this matter. It has not always been thus. As a rather famous namesake of mine once said, I have “scars on my back” from the times in which there was not a bipartisan approach to terrorism.
The Bill recognises that terrorist behaviour and terrorist threats are changing, particularly, as my noble friend Lady Manningham-Buller said, in the way in which terrorists are using less sophisticated methods, radicalising more quickly and more often acting alone. The Bill takes account of the increasing number of ungoverned spaces in the world and of the evolving nature of the internet, from downloading to streaming. In addition, the background to the Bill is that not all the changes in circumstance represent the new. We are seeing old threats returning, particularly the rise of the far right, which we should not underestimate, and the presence on British soil of state agents with malign intent.
Perhaps the most important feature of the Bill, however, is its implicit recognition, as the present Commissioner of the Metropolitan Police and the noble Baroness both said, that what is happening in the UK is not a spike in terrorist criminality but a shift to what appears to be a long-term, higher intensity of activity, with more than one arrest a day for terrorism occurring in the year to March 2018. Even with all the passion and doubts expressed by the noble Baroness, Lady Warsi, I welcome the way in which the Government, faced by this and by the speed with which individuals can move from being at risk of radicalisation to direct action, have continued to support the Prevent arm of the world-leading Contest strategy. I really look forward to the involvement of non-central parts of government in that endeavour. I thoroughly agree with that proposition and I will explain why.
I was involved at the very beginning of the discussions about what became Prevent. I passionately argued that it was inappropriate for the police to have fundamental responsibility outside government for making Prevent work. It seemed to me absurd that communities, especially at that time Muslim communities in the aftermath of 9/11 and 7/7, should be asked to report suspicious behaviour to an arm of the police when that might mean that another arm of the police—literally an armed unit of the police—might eventually respond to what they had said. I argued fiercely that local authorities and education authorities should be co-responsible for Prevent, and I am really glad to see that happening.
However, in addition to that, our past comes back to haunt us as previously convicted terrorists are now being released, having served prison sentences for which too short a maximum sentence had been prescribed in earlier legislation. I welcome the increasing length of sentences for preparatory behaviour short of actual action. I am not normally in favour of lengthening maximum sentences for anything, but I am when we talk about terrorism. Beyond that, I still believe that the terrorist prevention and investigation measures, TPIMs, remain of too short a duration, and I hope that the Government will look again at that issue during the passage of the Bill through the House.
I congratulate the Government on their decision to keep this important legislation coming through both Houses in the middle of the tensions of Brexit, and I hope that the Bill completes its full legislative passage as soon as possible. I also hope that, by the time its provisions come into effect, they do not do so in a Europe in which Britain has lost most of its ability to co-operate effectively with EU countries on security and policing, particularly on the European arrest warrant, Schengen and the Prüm arrangements—but that is probably for another day.
Lord Ahmed (Non-Afl)
My Lords, all of us share the same objective when it comes to the safety of our country and our citizens. Since the tragic acts of 9/11 and 7/7, the United Kingdom, like many countries around the world, has put in place many laws to ensure that the police and security services have all the powers and means to arrest terrorists and stop terrorist acts in our country and around the world. In rightfully making such provisions, it is critical that we do not allow legislative provision to go forward that fundamentally undermines who we are and what we stand for—our rights of freedom of speech and thought and our right to freedom of religious belief.
Britain has the most wide-ranging terrorism laws in Europe. Since 1998, a raft of terrorism laws has been passed in the UK. Despite these laws, the summer of 2017 saw major terrorist incidents, which were mentioned earlier. So, politically motivated violence remains a problem from which the state must safeguard its citizens. However, while the law needs to target criminals and their acts and plots, constantly widening laws and offences to bring more people within the definition of terrorism and treating them as a security threat will ultimately prove counterproductive, as that alienates the very people whose support is needed for an effective counterterrorism strategy. The Bill again widens the scope of terrorism, which will affect every citizen, and when we come to look at the details, we will see that innocent citizens could be caught by the proposed new laws.
My concerns are shared by many, including human rights organisations such as Amnesty International, which has voiced concerns over Clauses 1, 2 and 3 as well as Clause 20 and Schedule 3. The Government’s own inadequate impact assessment does not even refer to the fact that this major piece of legislation will have a differential impact on many citizens and communities. Legislation already on the statute book has already been widened by our courts. For example, the definition of terrorism in Section 1 of the Terrorism Act 2000 has already been criticised for being too wide, and its scope has been widened by the Supreme Court.
For a moment, I will highlight the impact on the Muslim community. This proposed legislation would place Imams, scholars and Muslim speakers in a difficult position when they are talking about overseas conflicts in which Muslim communities are suffering and local scholars have already declared resistance as legitimate. As a consequence of the definition of terrorism and the extra offences created in the Bill, speakers and comments may be deemed terrorist or seen to be encouraging terrorism when they are discussing matters overseas and pose no threat to the UK whatever. Clauses in the Bill make this even more likely.
The provisions covering expressions of support for a proscribed organisation extend the offence of inviting support for a proscribed—terrorist—organisation to cover expressions of support that are reckless regarding whether they will encourage others to support the organisation. Creating an offence that criminalises “expression of support” as opposed to “invitation to support” a terrorist group—this can also be “reckless”—will draw into criminal activity people who may be speaking, writing and discussing political affairs around the world. The law seems to be moving away from criminalising people for their acts to their thoughts and expressions.
There is also an underlying acceptance in this clause of the conveyor belt to violence theory—that there is a straight-line progression from expression of political ideas, leading to joining groups and/or violence. That theory has been rejected by a host of security and academic experts. Such a clause will have a chilling effect on freedom of expression and opinion. One can still hold an opinion, but if it cannot be expressed, then individual freedom has effectively been curtailed. This clause also appears to be in contradiction with Article 19 of the ICCPR and Article 10 of the ECHR, according to the UN Special Rapporteur for the Protection of Human Rights in her submission to consultation on the Bill.
New provisions covering the obtaining or viewing of material over the internet have been mentioned on many occasions. They update the offence of obtaining information likely to be useful to a terrorist to cover terrorist material that is just viewed or streamed over the internet, rather than downloaded to form a permanent record. The existing “reasonable excuse” defence will apply in circumstances where a person did not know that the documents would contain terrorist material. However, the clause now seeks to extend the current offence of downloading or distributing terrorist materials to capture people who may not download but view streamed materials online. This would mean that a person who clicks online rather than downloads may be committing a terrorist offence. The offence was meant to apply to three clicks, which has been mentioned, and even if someone did not click directly but was looking over someone else’s shoulder. In an interconnected world where social media provide the platform to meet people’s intense interest in what is going on, there is a real potential to criminalise them for their curiosity or legitimate interest in general research for journalism purposes. Innocent people may click on links sent on Messenger but may not actually view them. For example, my inability to understand IT means that I click everything that is sent to me on my mobile phone.
Terrorist materials are categorised as tier 1, tier 2 or tier 3 and can include literature, articles and lectures by prominent personalities. They can also include videos of conflict battle scenes. Without a definitive published list of terrorist materials and personalities, how do we know whose lectures and work should not be viewed? Many people, particularly children and young people, may not know what constitutes terrorist material and may be unaware that they are committing an offence. For example, in communities originating from conflict zones such as Syria and Libya, viewing and sharing conflict scenes from those areas is common as they have a legitimate interest in the conflict and want to keep up to date, or their families are affected by them. Some of these viewings and materials may be deemed terrorist in nature. Even if an investigation takes place and no prosecution is brought, the burden of proving “reasonable excuse” will cause much distress, especially to young people.
Between 2000 and 2015 Parliament passed six counterterrorism laws; this Bill will be the seventh. Many human rights groups have argued that there are enough laws to deal with the current threats posed to the UK. At some point there will need to be a new debate and thinking around how we tackle violence with political motives, which is essentially how the law defines acts of terrorism. We can continue to enact more legislation to tackle the challenges of terrorism, but the truth is that until we work with our communities to counter the evil of terrorism, we can have as many new laws as we want and spend as much public money as we want, but we will never rid ourselves of the scourge of terrorism. We will not be successful in meeting the challenges of terrorism until we work with all communities, as mentioned by the noble Baroness, Lady Warsi, and our communities take on the challenge of fighting terrorism with our Government. Our police and security services may need more powers, but equally important is that those powers do not erode our fundamental freedoms. Urgent thought and action is required to engage with our communities and unite them behind our fight against terrorism.
Baroness Barran (Con)
My Lords, I am aware that my remarks stand between your Lordships and the much anticipated speech of the noble Lord, Lord Anderson, so I will focus my comments on the proposed changes to the Prevent duty, as set out in Clause 19. As we have heard, they will allow local authorities as well as the police to make a referral to a Channel panel. Before I do so, I congratulate my noble and learned friend Lord Garnier, and the noble Lord, Lord Tyrie, who has moved, on their excellent maiden speeches. I am not sure what the collective noun is for maiden speeches, but I suggest that it should be “a brilliance”, based on what we have heard in the debate.
I also acknowledge the many community groups, head teachers, including one whose school overlooks Westminster Bridge, and Prevent leads from around the country who shared their practical experiences of Prevent and the Channel panels with me, both good and bad. It is fair to say that a majority value how Prevent is working in their communities, but all are worried that its reputation will limit its impact. The fears we have already heard expressed are about securitising our schools and communities, identifying the wrong people, stigmatising in particular Muslim communities, stifling debate and a general lack of transparency about the effectiveness of the approach. I will try to address some of those issues.
Allowing local authorities as well as the police to make a referral to a Channel panel should help to reduce the sense of securitising or criminalising those who are referred and will rather focus on the safeguarding aspects of the referral. That is not to say that safeguarding is without fear or stigma as well. Any of us who are parents will know that conversations with a professional about one of our children about abuse, neglect, sexual exploitation, drug use, criminal behaviour or violent extremism are not conversations that we are keen to have. However, we need to recognise the context: difficult conversations about safeguarding and referrals to children’s services happen more than 640,000 times a year, with Prevent referrals making up less than 1% of that figure. While they are important, we need to see them in that context. I hope that a conversation with a social worker rather than a police officer, with the greatest respect to the former police officers in this House, will feel more about safeguarding and less about criminalising. That was confirmed by the feedback from the Dovetail projects that have taken place over the past year. One of the key points that came out was that real care was taken over communication with families if a member of the family was being referred to a Channel panel. My main concern about this change is that where we are working in local authority areas that are already struggling with all their duties, this additional one will represent a real challenge. I hope that my noble friend the Minister will consider whether additional resources are required to fulfil those new duties.
I turn now to the second criticism, which is whether Prevent identifies the right people. Like any preventive programme, the short answer is that we do not know exactly, but from looking at the data, it is encouraging that Prevent appears to identify people with a real vulnerability to different forms of grooming, of which violent extremism is one. It is much less compelling when we look at the young people referred to by the noble Baroness, Lady Manningham-Buller, who apparently could be resilient but could be quickly radicalised. However, we still need to find those vulnerable people. I read the data rather differently from the noble Lord, Lord Stunell. Of those identified by Prevent, two-thirds were identified as needing support, 14% went to a Channel panel, 50% got some safeguarding support and just over a third were not in receipt of any support. That proportion of a third is identical to all other safeguarding referrals. Moreover, in relation to the noble Lord’s point about who gets screened in and who is screened out, the people we want to see being screened in are those who are being screened in. You are almost twice as likely to go from a referral to a Channel panel if the referral comes from educational or children’s services than if it comes from the police, again pointing to more of a safeguarding focus. We lack clarity, however, on what interventions happen at a panel. More data here would be extremely helpful.
Finally, and importantly, critics of Prevent rightly point to the risk of stigmatising Muslims, stifling debate and creating more divisions in our society—points picked up on by my noble friend Lady Warsi. Although the data may point to an increase in referrals of right-wing extremists, who now account for about 25% of the total referrals, the perception in too many communities remains that Prevent is, to quote a Muslim community worker I spoke to, “a stick to beat Muslims with”. The workers who gave me their time varied in their views: some were staunchly supportive of Prevent, some equivocal and some fiercely opposed to it. The key lies as much in the legislation as in the quality of the implementation.
Everybody I spoke to came up with the same recommendations on how to address that quality, whether they were supportive or sceptical and whether they came from the voluntary or the statutory sector. First, they all stressed that Prevent will succeed only if it is built on a foundation of community cohesion and tolerance in our schools and in our communities more widely. Secondly, they stressed the need for high-quality training. Many people mentioned how tired the training is; one former head teacher described it as “tired, boring and patronising”. For my sins, I did some of the online training, thinking that I ought to eat my own cooking, and I can only agree. They also suggested that the training needs to cover not only how to deliver Prevent but how to engage with hard-to-reach groups, and should be delivered by people from the most affected communities. I would be more than happy to share some of the great examples I heard.
Thirdly, there was a universal call for greater transparency. A number of noble Lords mentioned the call for an independent review. I am concerned about the delay this might create. I am also concerned that the answer it will find is that in areas where Prevent is implemented well, it works pretty well, and in areas where it is implemented badly, it does not. Instead, we need to build quickly on the data published last year by the Home Office and put ourselves in a position where we can be more confident in the effectiveness of both identification and intervention. That needs to be reinforced by the national Prevent oversight board.
Finally, the word that was used most frequently in relation to Prevent, as mentioned by the right reverend Prelate the Bishop of Newcastle, was a call for “compassion” in its implementation. There is currently a stark gap in the Prevent and Channel guidance. Nowhere does it mention the need to acknowledge the stigma and fear that will inevitably accompany being identified as needing support in relation to extremist or terrorist activity; nor does it guide agencies on how to respond to those fears in an empathetic and kinder way.
The changes set out in Clause 19 give a solid opportunity to move both the reality and the perception of Prevent from one of securitising to one of safeguarding. If implemented with compassion, I hope it will have a wider impact and help to rebuild trust in our communities. I hope the Minister will consider the points made to me about training, data and improved guidance when the materials for Prevent and Channel are updated.
Lord Anderson of Ipswich (CB)
My Lords, I congratulate the twin maidens on their enviably assured and elegant speeches. I thank the Minister, noble Lords and the noble Baroness, Lady Barran, for the overly kind comments they addressed to this near-maiden.
The noble Lord, Lord King, referred ruefully to the number of anti-terrorism laws that have come before this House in recent years. He can perhaps take comfort from the fact that he has not been sitting in the Australian federal Parliament, which last time I checked —on Thursday last week—had passed 74 counterterrorism statutes since 9/11. It was my privilege to assist MI5 and counterterrorism policing last year in drawing the necessary lessons from the atrocities perpetrated in London and Manchester. The most important of those lessons relate to the gathering and processing of intelligence, but it is right to ensure also that our laws are in the best possible shape.
In support of the Bill on the whole, I will make two comments. First, whatever its faults, it is based on the criminal justice approach to counterterrorism that has served this country so well. Our freedoms are better protected by the common sense of a jury than they are by an expansion in the range or volume of Executive commands such as control orders, and now TPIMs, which are imposed by Ministers and reviewed in court only months after the event and on the basis of evidence that cannot be shown to the subject.
Secondly, I welcome the conclusion, to which I was reluctantly driven when I was the Independent Reviewer of Terrorism Legislation, that the existing law may not deal sufficiently with radicalisers. Anjem Choudary has been mentioned, with good reason. As many as 25% of British jihadis convicted between 2001 and 2015 were associated with his organisations, outnumbering the 10% linked to al-Qaeda and the 5% linked to ISIS, or Daesh. His organisations also had great influence in northern Europe, yet although the police reported his activities to the Crown Prosecution Service 10 times between 2002 and 2015, no prosecution could be brought, whether for incitement to religious hatred, indirect encouragement to terrorism, inciting terrorism overseas, incitement to murder or proscription offences. In my mind, his eventual conviction in 2016 does not excuse us from seeking to improve the law in this area.
The Bill has some troubling features. I will refer to three of them which have so far been touched on only lightly or not at all. The first relates to proscription offences, which are supplemented or strengthened in Clauses 1, 2, 6 and 9 to 11. Whatever the merit in extending these offences, we should do so only if we can be sure that proscribed organisations are proscribed lawfully because they are, in the words of the Terrorism Act 2000, “concerned in terrorism”. Unfortunately, we have no such certainty; rather, the reverse. In 2013, the Home Office admitted to me that up to 14 proscribed international terrorist groups did not appear to be lawfully proscribed. It allowed me to publish the fact and commenced a programme of deproscription, but as I recorded in my report of December 2016, that initial honourable resolve on the part of the then Home Secretary soon foundered, I suspect under the influence of another great department of state. So it is likely that at least 14 international groups remain proscribed despite not meeting the statutory requirements for proscription.
We do not know how many of the 14 Northern Irish groups, every one of which has been proscribed continuously throughout this century, are in the same position. There, as the Committee on the Administration of Justice pointed out, the flags of proscribed organisations fly everywhere and their symbols cover memorials, appear on gable walls and decorate banners hanging from lamp posts. The law is applied to them only partially and occasionally, inadvertently injecting an unwanted political element into the exercise of police and prosecutorial discretions. It is true that proscribed organisations are eligible to seek deproscription, but this is a rarely invoked and extremely costly process, as was shown by the PMOI case—the only one in which such an application has ever gone to trial.
Then, to make it worse, the Government abandoned the regular reviews that they used to conduct until 2013, despite those reviews having been described by a High Court judge in the PMOI case as,
“certainly a practice that the Secretary of State should continue to adopt”.
As I wrote at the time, they seem to have discontinued these reviews out of embarrassment at their own inability to act on their conclusions.
It is surely unjust to expose a person to prosecution for a proscription-related offence when the organisation that he or she is said to support does not meet the statutory conditions for proscription. There are solutions to this, but would the Minister accept in the meantime that we are confronted with a tricky problem that is exacerbated rather than relieved by the Bill?
My second point, much more briefly, is on Clause 4, which would create the so-called designated area offence. I was quoted on Report in another place as a vigorous opponent of this idea, but, to set the record straight, the comments in question came from my former special adviser Professor Clive Walker and, despite their distinguished source, were never adopted by me. But some of his words at least ring true. I have spoken, as I know others have, to organisations and individuals engaged in humanitarian and peacebuilding activity in conflict zones who are not at all reassured by the discretions that Clause 4 would confer on the Secretary of State and prosecutors. The Government have cited Australian and Danish precedents for this law, so I hope that the Minister will consider adopting either some more precise conditions for designation and defences, as in Australia, or a pre-authorisation regime, as in Denmark, or both.
My third point is on the new Schedule 3 port power. When I was independent reviewer I noted that, over a five-year period, between 13% and 25% of all intelligence reports resulting from stops under the existing Schedule 7 were concerned not with terrorism, which is the object of Schedule 7, but with nuclear proliferation or espionage. Ports officers sometimes expressed to me their unease at being invited to stop people who could be described as possible terrorists only on the most elastic interpretation of that already broad definition. The case of David Miranda is a well-publicised example.
I am glad that the object of the Schedule 7 power is being extended to counterproliferation and counter- espionage, but the Schedule 3 powers do not stop there. It is proposed that they might be used to determine whether a person appears to have engaged in “hostile activity”, including acts that threaten the economic well-being of the country in the interests of a foreign state, whether or not those acts constitute criminal offences. That is far too broad a basis on which to allow these extremely extensive no-suspicion powers to be exercised. Then there are the additional powers exercisable at the Irish border under paragraph 2 of Schedule 3, which will also need to be elucidated.
Each of my three points echoes concerns expressed by the Supreme Court in the 2013 case of R v Gül about the very broad discretions already given in this area to prosecutors and to police. In particular, the court warned against Parliament delegating to the DPP or to the Attorney-General the power to decide whether an activity should be treated as criminal for the purpose of prosecution. That, as the Supreme Court puts it, leaves citizens unclear whether their actions or projected actions will be judged to be criminal and risks undermining the rule of law. I do not wish to embarrass the noble and learned Lord, Lord Hope, but he put his name to that judgment.
I will keep those comments in mind throughout our scrutiny of this important Bill. Flexibility is useful, but when behaviour is criminalised we all need to know where the line is drawn.
Lord Kirkhope of Harrogate (Con)
My Lords, in the same way that my noble friend Lady Barran indicated that she would be a form of warm-up act for the noble Lord, Lord Anderson, I suppose I serve the function of offering an anticlimactic effect following his excellent speech. I too congratulate my noble friend Lord Tyrie and my noble and learned friend Lord Garnier on their excellent maiden speeches. They are old friends in many ways and they are still operating as effectively as they ever did at the other end of the Corridor. They are very welcome indeed. I declare an interest in this debate as a lawyer, a former spokesman for justice and home affairs for many years in the European Parliament and a former Home Office Minister here responsible for, among other things, immigration and control of our borders.
I make it clear that I agree that terrorism, without doubt, is an evil that must be met with determination by democracies and by all those who value freedom. It is a matter of the greatest priority that that should be the case. But when I look at the nature of the legislation—indeed, I was interested to hear remarks by the noble Baroness, Lady Manningham-Buller, about the number of pieces of legislation; that was referred to by others, including by the noble Lord, Lord Anderson, a moment ago—it is interesting to note that we are by no means a country without a continuing concern and interest in legislation to keep us up-to-date with the challenges we meet. As far as I am concerned, it is vital that we keep abreast and catch up, if you like, with the changes in the approach of terrorists and major criminals. Andrew Parker, the director-general of MI5, said about a year ago that the ongoing threat was,
“multidimensional, evolving rapidly, and operating at a scale and pace we have not seen”.
It is quite clear from that that the terrorist seems always to have an advantage over democracy, justice and the way in which we operate our laws.
Our response in recent times has of course been to have independent reviews under the control and leadership of the noble Lord, Lord Anderson, and, until recently, Max Hill QC. While those reviews are very valuable as an ongoing consideration, it is still difficult to keep our legislative programme up to date. That rapid evolution has to be met. I have always thought that we need to review how we legislate to keep up to date. I had previously described the need for what I call “smart legislation”, where either the law itself is required to be examined at a set point and that is written into the legislation, or we have a more flexible system where we can make changes not to the principles that we have already agreed but to some of the practical elements that run alongside them.
When the French state of emergency ended last November following the Paris attacks, President Macron introduced new counterterror laws that some might say were more draconian than the provisions of the Bill before us—but at least they included very clear understandings that the law had to be not only continually monitored but revised or reviewed by Parliament within two years after that monitoring. That is an important element that we see very much in other countries. I saw it in my work in the European Parliament. Now written into almost all legislation are these necessary reviews or, in some cases, sunset clauses, depending on what sort of legislation it might be.
At the same time, President Macron looked carefully at the co-ordination between the domestic and the foreign intelligence agencies and the police forces in France, because one of the elements of difficulty after the Paris attacks—certainly in Belgium, where I was located—was that there were issues regarding co-ordination between the police services and the intelligence agencies. There was an element of confusion and concern that these were not properly co-ordinated and that there were competitive elements between them that were not in the interests of detecting and dealing with terrorism. That is something we always ought to consider.
In the same way, we ought to consider the issue of scrutiny. I know that to some people the word “scrutiny” is not particularly attractive. Sometimes it looks as though they cannot do what they think they must do because someone is always going to be looking over their shoulder. But if you want to get a balance between the security of the state and its citizens and the civil rights of those suspected of threatening it, you have to allow for scrutiny—not only scrutiny of an official nature, organised by government, but an understanding that we are now, inevitably, in this modern world, scrutinised constantly, whether we like it or not, by the media, by NGOs and by international partners and players. We need to be sure that whatever we do measures up to the sort of scrutiny and the balance I have referred to.
I will mention the need for something that has been referred to by several speakers: the criterion of necessity and proportionality has got to apply not only in terms of what we do about terrorism but in how we consider it. Noble Lords would be surprised if I did not mention international relations briefly. We have not really got anything here, because of course our legislation on terrorism is a national matter. However, it is necessary to refer again to the ongoing partnerships that have allowed us to deal with what is a worldwide phenomenon in an effective manner. In fact, there is plenty of evidence that we have been able to deter and detect terrorists on the basis of information we have received from our neighbours.
Of course, we have a trusted position, currently, with our EU neighbours, but also, through the Five Eyes arrangement with Australia, Canada, New Zealand and the United States, we have been able to obtain information and intelligence which has assisted us to protect our citizens. As one of the authors, or rapporteurs, involved in developments in the EU such as SIS II—the Schengen Information System that has been referred to—Prüm and PNR, passenger name records, I feel very strongly that whatever the Brexit process brings, it must ensure that there is no gap or uncertainty, even for one hour, in the ongoing full exchange of intelligence. That includes intelligence exchanges in real time, because the whole point of terrorism is that terrorists get away with it if we delay taking action and using information that we have. This is important—indeed, it is more than important, it is vital.
I dare not quote, perhaps, Sir Bill Cash, the Member of Parliament and chair of the House of Commons European Scrutiny Committee—not necessarily the greatest Europhile, I have to say—who said, when asking for clarity about the Government’s intentions in these measures:
“We can see no justification for this reticence. We expect the Government to be far more forthcoming about their intentions in relation to SIS II”—
and, I would add, all the other areas in which we have close co-operation with Europe.
My last area deals with legal issues. Very briefly, as a solicitor, as a lawyer, I have always believed in the right of an accused to have a lawyer to support them at the earliest possible opportunity. When we dealt with measures in a directive on access to lawyers in Europe, we made it clear that this access had to be without undue delay: I think it was quite clear what sort of thing that meant. I would like some reassurance on this because I think there is some confusion. It was referred to earlier. The confusion lies, of course, in our Schedule 3, where there is some contradiction. First, there is an issue regarding the privacy and confidentiality of lawyers with clients, where the presence of a “qualified officer” seems to be required even when a lawyer is present to take instructions. That is quite a serious matter. The Law Society and others are deeply concerned about it. Yet it is contradicted by Schedule 3(24)(2) which says, as has also been referred to:
“The examining officer may not question the detainee under paragraph 1 or 2 until the detainee has consulted a solicitor”.
So there is confusion—there is no certainty about this, and I think we need to clarify and make sure that the protection of the rights of the defendant are always in place.
Finally, on the issue of recklessness, I am a little curious. Other noble Lords here are far more distinguished lawyers than I am, and have been over many years—I concentrated on knowing Rylands v Fletcher and one or two other interesting cases—but it nevertheless seems to me rather odd that we have a new approach that makes recklessness in itself criminal in this context. In my understanding of what is required for a crime, there is mens rea, which is made up of intention or knowledge of wrongdoing. That is fairly clear, but it constitutes only part of the crime. The rest of it is action and conduct. Apart from strict liability, where no mens rea is required, I cannot find myself particularly sympathetic to the term “recklessness” as being conclusive in relation to somebody’s intention, and enough for criminal liability.
Having said all that, I support the Bill; I think it is important that we keep the legislation going. I would like to see it more mobile and more flexible. But, in the meantime, we rightly carry out our duties—the responsibilities we have to protect our citizens from crime and from terrorism at every opportunity.
Lord Bew (CB)
My Lords, I support the general purposes of the Bill and I thank the Minister for her introduction, in which she stressed that the focus is on the new terrorism. Matters have evolved, she said; things have changed since 2006 and we are not dealing with the same problems we dealt with in the latter part of the last century with respect to Irish terrorism. But she also expressed her concern about those who act with hostile intent on the Irish border and, of course, there is the question of the activity of dissident republican organisations. I would add the slightly surprising point that has come to me in preparing for this debate: there is another dimension to this question of people with hostile intent on the Irish border.
I have taken to reading intensely the Irish expert writers on matters of intelligence and security. They argue two things. One is that Ireland simply cannot have the intelligence infrastructure that the United Kingdom has—the incredible skills of our intelligence services, GCHQ and so on. These simply cannot operate in Ireland. The second is that people of extremist and Islamist views know this and therefore have in some ways made Ireland the backdrop for the unfortunate and tragic events that have happened in this country. Therefore, when the Minister talked about her fears of people with hostile intent on the border—the only land border between the United Kingdom and the European Union—she is entirely right to have a concern, and it might unfortunately be a little broader than I suspect was in her mind when she made the point.
In talking about the Bill, I must express a degree of surprise. The House is well aware of the intensity of the recent debate in this Chamber about a possible Brexit hard border. It was a deeply passionate event and I well remember the noble Lord, Lord Alderdice, explaining that there were circumstances in which he would not be content with Liberty Hall on the Irish border; there were circumstances in which there would have to be checks, which he could envisage without too much stretching of his imagination. Yet the House chose to vote down the Government’s proposal on that day. I think the majority was 65. The general feeling was that any check of any sort on the Irish border was a hard border. Yet tonight, who is saying this?
I was very pleased by the tone of the debate in the other place, which was largely consensual. The points raised by the Opposition Front Bench were perfectly reasonable. Matters that it was suggested we should consider here included the concern about aspects of accountability for actions on the Irish border. But the intensity of the emotion, which the noble Lord, Lord Alderdice, will recall, and the certainty of moral conviction about checks on the border seem to have disappeared entirely, and I do not quite know why. For the Irish Government, I might be able to offer a kind of answer but, believe me, within Ireland itself hackles have been raised by this proposed legislation.
The noble Lord, Lord Anderson, mentioned the Committee on the Administration of Justice. Its objections go far beyond the significant point to be discussed about proscribed organisations and how we handle them. That is a serious point, but its objections go far beyond that. The objection of the influential Committee on the Administration of Justice is that this is another hard border, which we all apparently promised that there would not be. That is its objection. Articles have appeared in Irish newspapers saying that we are establishing a double standard for citizenship between citizens who live on the border and who may be stopped and citizens who live in Ulster and are not likely to be stopped. The phrase “border area”, which appears in the legislation, also requires some comment. I am not referring to these points because I necessarily agree with them, I am saying simply that there is a debate and hackles have been raised.
On the Parliament website there is a description of the Bill:
“To make provision in relation to terrorism; to make provision enabling persons at ports and borders to be questioned for national security and other related purposes; and for connected purposes”.
That last phrase has been seized on in Ireland: “Ah, this is about smuggling”. Frequently, smuggling is a connected purpose with respect to Irish terrorism. It would not be a stretching of the language for an officer to interpret it in that way because it frequently is and the money is used for the purposes of terrorism. So there has been finger-wagging and the claim that this is indeed a hard border and, not only that, it is actually concerned with matters—well, to be honest, smuggling is a trade in Ireland. Paragraph 9 of Schedule 3 refers specifically to the apprehension of goods. There is no question that that is part of the intention of the Bill.
Personally, I support this but I wonder where all the other people are who were so indignant only a few weeks ago in this Chamber and are so indignant about it in general. I wonder where the Irish Foreign Minister is, who I recall saying on “The Andrew Marr Show” that there could be no checks of any sort on the island of Ireland. This was a moral and psychological blow that no decent Irish nationalist should be forced to live with even the contemplation of. There is a problem with that in that the Irish Government currently carry out checks on their side of the border on individuals they do not want entering their labour market, on quite an extensive scale. All right, perhaps he had temporarily forgotten that, but he was very indignant on this point. But the Irish Government have been silent about the Bill.
The Irish Government do have a difficulty and I will explain what it is. It is in United Nations Security Council Resolution 1373, passed shortly after 9/11, which I know some academic lawyers do not like because they think it is the United Nations Security Council making itself a legislator, but it has remained, with some modification and some further reflection, the byword for the international approach in this matter. Incidentally, just before the turn of the year, the European Union, whose standards on these questions have been invoked many times in the debate, issued a document on Resolution 1373, broadly expressing solidarity with its purposes. The purpose of the resolution was to have border security in the fight against terrorism. Clause 2(g) talks explicitly about the need for “effective border controls” and checks. The problem for the Irish Government is that Ireland was a non-permanent member of the Security Council that passed it—we, of course, are permanent members—and they are now trying to get on the Security Council again as a non-permanent member and it is not particularly good advertising for such a campaign to say, “The last time we were here, we thought this resolution was a fantastic idea. Now we want to get back on the Security Council, we did not mean a word of it”, so they are circumscribed to some degree.
I also hope that another reason the Irish Government have been so calm on this matter is that we are moving towards a compromise on these very difficult issues. There is so much writing by all the informed commentators, all the national and international think tanks, about the damage that will be done to the Irish economy by a hard Brexit that the need for a compromise is becoming painfully obvious. I am hoping that for these reasons we are moving away from the intense and angry mood in which these issues were discussed. But the dog has not barked in the night in the case of the Irish Government. I suspect that if we get a relatively benign resolution—that will be no perfect one—over the next few months, the dog will not bark in the night. But I warn the Minister that we are still in a difficult circumstance because the formal position of the European Union was, “You must stop our internal market being polluted by goods coming over the border from Northern Ireland but you are not allowed to have any checks to stop our internal market being polluted”. It is a brilliant Catch-22 and the only solution is to semi-detach Northern Ireland in a way that the Prime Minister has said is unsatisfactory.
Something has to give here. There has to be a compromise. I very much hope that there will be a compromise. I think there are some signs that there will be one. I end my remarks by saying to the Minister—unkindly, perhaps—that rough tides may be returning to the discussion of this issue; rough tides that we have seen and the noble Lord, Lord Alderdice, saw that night, have infected the way we talk about this issue in this House. I am glad we are in such calm waters and that there was such a significant degree of cross-party consensus in the other place.
Lord Marlesford (Con)
My Lords, I would like to say, first, what a wonderful brief the Library produced for this debate and, secondly, how excited I am that we now have my noble and learned friend Lord Garnier and my noble friend Lord Tyrie with us. They are a great addition. I have never been an MP, but I know them both and have huge admiration for them.
The Home Secretary said in the Commons Second Reading debate that,
“the wide-ranging Counter-Terrorism and Border Security Bill … is about keeping the people of this country safe”.—[Official Report, Commons, 11/6/18; col. 630.]
I strongly support the Bill, as it seeks to widen and deepen action against terrorism. But for the purpose stated, some of its provisions seem to be rather theoretical and almost metaphysical rather than practical. They risk, as we have heard during the debate today, allowing the argument to be between lawyers and libertarians. The result is likely to be slow and amorphous. In short, it bears the hallmarks of Home Office drafting.
I hope during the passage of the Bill to fill in some of the gaps with a couple of practical steps that can and should be taken. This is a subject in which I have been involved for well over a decade, and I am afraid that I have found, under successive Governments, that the Home Office constantly resisted taking the steps necessary to keep the people of this country safe. I remember that, in 1997, I got Parliament to agree to the introduction of a centrally held electronic register of all legitimate firearms, and I got Ministers in successive Governments to support that. The Home Office resisted and resisted it; the provision eventually came into force in 2006 and is working extremely well.
Even when I have convinced Home Office Ministers, the trouble is that the officials usually oppose them. In fact, the attitude of the Home Office to its own Ministers sometimes reminds me of my early youth, when I started my national service as a recruit at the Caterham guards depot. In those days, probably rightly, the response to any of us who began a statement, “Sergeant, I thought …”, would be—I am deleting the expletives—“You are not here to think. You are here to do what you are told”. Of course no civil servant would dream of addressing a Minister in that way, but the attitude of the Home Office reflects that approach all the same. I hope that the appointment of Sajid Javid as Home Secretary, with the advantages that he has over some of his predecessors, may produce a more effective counterterrorism policy.
But let me first mention the backdrop we face. There is no need for parliamentarians to be made aware of the scale of the threat, surrounded as we are by dozens of armed police. But it is not just we who work or live in London who have suffered a monstrous intrusion into our normal way of civilised life. It has been bad enough to lose the former ease and flexibility of air travel; now it appears that we may face a similar challenge to road travel.
The cost to the economy of terrorism is a serious and growing factor. In May this year, the European Parliament published a report by the RAND Corporation which makes some estimates of the human, physical and GDP cost of terrorism in each EU member country. The highest cost is in France: some €38 billion for the four years from 2013 to 2016. The UK comes second at €16 billion, which is €4 billion a year. This is over 25% of our total annual spending on foreign aid, which is around €15 billion. Of course, the opportunity cost to public spending is a significant factor in keeping down the standards of our social services. There is no doubt that the threat of terrorism and the cost of countering it has expanded rapidly since those figures were calculated for 2016.
We used to have enough problems with the IRA, but that was nothing compared with the threat of Islamist jihad. That of course became a whole new dimension in April 2014 with the formation of the Islamic State from the Iraqi franchise of al-Qaeda. It called itself ISIS—Islamic State of Iraq and Syria. It has as its stated and implacable aim the installation of a worldwide caliphate under sharia law. Although its military forces have suffered heavy defeats, it is active in many other countries. In Europe I suspect that the main country in which it is making progress is Spain.
Let me turn to a couple of proposals which really need to be taken seriously by the Home Office and could be incorporated in the Bill. First, a nation state, even one at peace, needs to know who its citizens are—and by citizens I mean inhabitants, whether of UK or other nationality. I do not advocate identity cards. They are dangerous because they can be forged and thus convince those who need to know of a false identity. This applies especially if there are biometrics in the card because of course any competent criminal or terrorist—and by competent I do not mean the amateurs who now operate for the Russian GRU—can ensure that their biometrics are on the identity document. What is needed is a national identity number with centrally held biometrics of the holder. These could enable the holder to be checked against the central record. This would replace the plethora of other ID numbers used, including those on driving licences and passports.
My second point is on something that I have been advocating for a long while. I believe it has long been essential that the UK passport authority should know what other passports are held by British passport holders. I emphasise that I am not for one moment suggesting that people should not be allowed a second, third or even fourth passport. All I am asking is that their possession of such passports is recorded in such a way that the scanning of a passport at the UK border reveals their existence; otherwise, as I was told years ago, people travel to a place on one passport and do things that they should not do on another passport.
I believe that the powers to take some action envisaged in Clause 4 are long overdue, but rather than designating areas of no travel I prefer the approach suggested by my noble friend Lord Faulks of introducing modern treason legislation. We should look more closely at some of the proscribed organisations. In this context, I think particularly of the Muslim Brotherhood. It was founded in 1928, and practically its first action was to kill the Prime Minister of Egypt in 1947, I think. Its leader was then assassinated and it has been behind huge troubles all over the world, but it keeps its face clean. It is really like Sinn Féin was to the IRA.
We should be more discriminating over those to whom we grant refuge. When David Cameron proposed to take 20,000 refugees from Syria, some of us asked for priority to be given to Christians and Yazidis, who were particularly subject to persecution. Up to now, the Government have resisted this.
It is a disgrace that more than 1,200 members of the UK Muslim community were able to join ISIS and it is an even greater mistake that 400 of them have been allowed to return to the UK. To take up arms against forces of which Her Majesty’s military form a part should be grounds for the immediate withdrawal of UK citizenship.
A national identity number system would be of value not only for national security but also for the administration of social services and health services where the present mess of identity through national insurance numbers and NHS numbers is laughable. The potential saving in that area would easily pay for the introduction of national identity numbers.
Finally, I shall comment on what my noble friend Lady Warsi said. She wants the Government to re-engage with the Muslim community. I am all in favour of that, of course, but the best way to do that would be for the leaders of that community to exclude and excommunicate those who support Islamist jihad. Only then can we really get together to prevent and fight terrorism.
Lord Ramsbotham (CB)
My Lords, with so many distinguished experts contributing to this Second Reading, including the noble and learned Lord, Lord Garnier, and my noble friend Lord Tyrie, both of whom I congratulate on such outstanding maiden speeches, I am conscious that by speaker number 25 all that could be said has been said and that all I can do is make some additional points. Like other noble Lords, I thank the Minister for her comprehensive introduction and express my thanks to Russell Taylor for his excellent Library briefing, particularly because it included analysis of the very detailed and penetrating report of the Joint Committee on Human Rights and of the passage of the Bill through the other place. Like the noble Lord, Lord King, I was very sceptical about the impact assessment. Impact assessments seem to be done incredibly badly by all ministries. I have to admit that, like other noble Lords, while I recognise and support the Government’s intention behind the Bill—to keep people safe and to update legislation—I remain uneasy about some of the detail.
My noble friend Lady Manningham-Buller, who mentioned the increased pace and size of the threat, reminded me that my practical experience of counterterrorist operations is somewhat dated, but the principles have not changed and include the need for any action taken to be balanced and proportionate. As my noble friend Lord Anderson was speaking, I remembered being frustrated, when commanding troops in Belfast between 1978 and 1980, that the conspiracy law was so inadequate that we could not arrest those who incited people to violence when making speeches at IRA funerals.
I have two general comments as well as some detailed ones. First, having been critical for many years of the Home Office’s failure to direct and oversee the systematic processing of legal asylum and immigration applicants, I am concerned about how any of its fragile systems will cope with the demands made on them by both legal and illegal immigration after Brexit. Having lost sight of at least 631,000 legal applicants—a figure that the then Minister confirmed during the passage of the last immigration Bill through this House—and having no record of who has left the country, how on earth will border officials identify, let alone question and detain, individuals suspected of involvement in hostile activity for or on behalf of another state?
Like the Joint Committee on Human Rights, I believe that the definition of “hostile act” is extremely wide, and I worry about the lack of any threshold test before a person is detained and examined. The Minister confirmed that the Government intend to publish a draft code of practice before Committee, which I suggest will need the closest scrutiny.
In responding to proposed amendments to Clause 21 and Schedule 3 of the Bill, the Security Minister in the other place set out in some detail the Government’s riposte to the human rights committee’s concern that access to a lawyer was not adequately protected. The fact that access to such lawyers is currently patchy suggests that his explanation will need to be scrutinised in Committee.
My second general concern is about the European arrest warrant, which many noble Lords have mentioned. The other day I listened to a lecture by the EU’s head of counterterrorism, in which he deplored the potential loss to other European countries of UK intelligence in particular after Brexit, emphasising how vital an ingredient it was to all their antiterrorist operations. Of course, bilateral arrangements can be made with each one of them, but there can be little doubt that in the context of European security the European arrest warrant is a vital ingredient. The Security Minister in the other place alleged that the proposed amendment was not needed because the Government were already negotiating for the European arrest warrant, or something as identical as possible, to apply. Could the Minister please confirm that this is so?
I turn to my other concerns. I share the human rights committee’s concern about the wide scope of Clauses 1 and 2, and echo its view that to criminalise the publication of an article that may be worn or displayed in a private place risks catching a vast amount of activity and being disproportionate. The Minister indicated that the Government intend to update Section 13 of the Terrorism Act 2000, on which Clause 2 of the Bill is based, for the digital age. I hope that update will be available before Committee. In that connection, I note the Government’s reassurance that the existing safeguards were adequate following the human rights committee’s concern that Clause 3 may capture academic and journalistic research as well as those with inquisitive or even foolish minds. I hope that is true.
Acknowledging the views of the noble Lord, Lord Faulks, about the need for convicted terrorists to be sent to prison but also the concerns of the noble Lord, Lord Marks, about the current situation in our overcrowded and understaffed prisons, I am concerned that insufficient thought has been given to the implications of the increased sentences in Clauses 7 to 11. As Chief Inspector of Prisons I inspected both HMP Maze, which housed terrorists in Northern Ireland, and the special separation unit in HMP Belmarsh, which housed both Northern Ireland prisoners, some of whom were on hunger strike, and others convicted of terrorist offences. In both cases, I was very concerned about the lack of support for staff, who were put under immense strain, particularly mentally, because of the intensity of their task and their subjection to propaganda. Do the Government intend to separate terrorists from other prisoners and, if their numbers build up, do they intend to establish a Maze? Either way, consideration needs to be given to what regime might be imposed on terrorist prisoners and what additional resources, including management, support and training, ought to be provided for their guards.
Finally, I agree with all those who have recommended that the Prevent strategy be independently reviewed. I am very glad that the noble Baroness, Lady Warsi, said what she did, because Muslims risk being demonised by the failure to engage with them. If the Government are so keen on revising the legislation as a whole, why not all of its parts, including Prevent?
Lord McInnes of Kilwinning (Con)
My Lords, I, too, begin by congratulating my noble and learned friend Lord Garnier and my noble friend Lord Tyrie on their excellent maiden speeches this evening. We have had a good glimpse of the contribution that they will make to your Lordships’ House in the coming days, weeks, months and years. The noble Lord, Lord Ramsbotham, mentioned the difficulty of being the 25th speaker. The 26th discovers that he has no original thought whatever. However, I will try to let your Lordships know what I think about our discussion this evening.
The priority of any Government must be the protection of their people. I am therefore very pleased to see this Second Reading before your Lordships’ House. The updating of our counterterrorism legislation following the horrific terrorist attacks in Manchester and London last year is essential. It is fortuitous that the Bill comes before us at this time, when it can incorporate measures that, in Part 2, reflect our response following the deplorable Salisbury attack.
The very nature of terrorism is that those who wish to wage war on innocent people and spread terror will always try to find means to circumvent existing legislation. It therefore behoves all of us to ensure that the legislative framework within which our excellent and brave security forces need to work is flexible and not only up-to-date but predictive in identifying future threats to our country.
As the Bill makes progress through your Lordships’ House, it will, correctly, face significant scrutiny. Some aspects of this scrutiny have already been requested at Third Reading in the other place, when many Members there gave their support to the Bill contingent on the scrutiny of your Lordships’ House. It will therefore lie with this House to ensure that freedom and safety are maintained within the confines of the Bill.
Given the breadth of legal and security knowledge and expertise in the Chamber, which we have already heard today, I shall limit my remarks to three areas. The first is Clause 1 and expression of support for proscribed organisations. Like my noble friend Lord Faulks and the noble Lord, Lord Anderson, I agree that the Bill as drafted allows the correct balance between ensuring freedom of expression and allowing our security services to pursue those who seek to radicalise others and use expressions of support in a reckless manner.
As the noble Lord, Lord Anderson, intimated, it took nearly 15 years before Anjem Choudary, the so-called preacher of hate, could be imprisoned, and of course he is about to be released. The same man is widely acknowledged as having radicalised many, leading to their deaths as well as the deaths of others. He maintained his freedom by using the law and keeping ahead of it, moving from one proscribed organisation to another. I hope that the Minister will resist significant dilution of the clause, and so ensure that our justice system can adequately deal with the Choudarys of the future.
I turn to Clause 4, which deals with designated areas. I am pleased to see that among the reasonable excuses that will be considered are those of humanitarian workers and those who work for the United Nations. Many of the best professionals and NGOs across the world are British, and it is important that we do not allow that soft power to be undermined or stopped because they happen to work in the most dangerous parts of the world. The very reason a location may be designated often goes hand-in-hand with the humanitarian requirements of a failed state. I seek reassurance from my noble friend the Minister that, provided there is stringent verification of the humanitarian nature of the work, the Government would consider the kind of pre-registration used in Denmark, mentioned by the noble Lord, Lord Anderson, this evening, or consider the suggestion made by the noble Baroness, Lady Hamwee, of pre-authorisation for those who work in NGOs, journalism or other fields where we need to ensure that British subjects are able to go into dangerous areas of the world.
Finally, I shall deal with Clause 19, on Prevent. I have listened very carefully to the noble Lord, Lord Stunell, and the noble Baroness, Lady Howe, as well as my noble friends Lady Warsi and Lady Barran. Of the four pillars of the Contest strategy, the effectiveness of Prevent is always the most difficult to measure. This has led to regular and some well-founded public criticism of Prevent, and an amplification of publicly embarrassing cases. It is also clear, as my noble friend Lady Warsi told the House, that the Prevent strategy has failed to engender confidence in many of the communities with which it was originally suggested it would build cohesion, specifically our Muslim communities. But we need to keep this criticism in context. As my noble friend Lady Barran intimated, in 2016-17 there were no fewer than 6,033 referrals through Prevent, 20% of which made it to a Channel panel. That is over 1,000 vulnerable people, while 300—as the noble Lord, Lord Stunell, said—were able to receive further Channel support after that referral.
At the same time, some 2,700 were signposted to alternative services, mostly in education. That suggests to me that there is a government pathway that is providing, as my noble friend Lady Barran suggested, safeguarding to very vulnerable, often young, people in this country. I would be very suspicious and concerned if we were to undermine that process in any way before we were clear that internal review and the opportunity to build confidence in communities—using the local government mechanism that will be available, should the Bill pass this House—will allow us to build community cohesion, and allow the Prevent strategy and safeguarding to continue.
I appreciate that Prevent is not perfect and has significant hurdles to overcome if it is to properly build confidence with many. But there is an opportunity, and I hope the Minister will take it to ensure that the priority of reviews within the Home Office is building confidence in Prevent among communities across the UK.
It is also worth emphasising and dealing with the perception that Prevent is there to deal only with Islamic extremism. An increasing stream of Prevent’s work deals with right-wing extremism, often directed at Muslim communities. We cannot allow that to be forgotten as we move forward.
Lord Tebbit
What is this right-wing extremism? Is it people who want to reduce taxes and have smaller government and greater liberty?
Lord McInnes of Kilwinning
I thank my noble friend for his intervention. I refer to the 1,000 cases out of the 6,000 in 2016-17 that the Home Office report identified as providing a channel for those with extreme right-wing views that could lead to terrorism.
I therefore hope that the Minister will be able to reassure me that the focus of building public confidence will be a core element of continuing internal review.
The Bill protects the freedoms and liberties we all enjoy while fulfilling the state’s responsibility to protect all our citizens from harm. The Government must continue to do all they can to ensure that we have a flexible and fit-for-purpose framework that our security services may work within, keeping ahead of those who wish to cause harm. I look forward to the Bill’s progress through your Lordships’ House.
Lord Hogan-Howe (CB)
My Lords, I support the intentions of the Bill. I will say a little about the context that has not already been covered by the many speeches we have heard today, and will then say little about three of the clauses that have been mentioned. Before that, I will respond to the excellent speeches of the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Tyrie, both of which were informed and entertaining. The noble Lord, Lord Tyrie, who is not here at the moment, referred at the end of his speech to extradition cases. Although he talked about three of the inquiries that have taken place, he did not refer to one police investigation which delayed the conclusion of the first inquiry. Should there ever be a judge-led inquiry, as he would prefer, I hope that the Belhaj case that the Crown Prosecution Service decided not to pursue will be made available to that inquiry, as it would provide vital information that would help inform any future decisions in that area.
Secondly, the noble Baroness, Lady Warsi, has concerns about Prevent. I do not particularly share those, but I agree with her that cohesion and integration are a vital element in preventing terrorism in the future. Usually we see two elements where we get radicalisation: a lack of integration and Middle East foreign policy. Those two things tend to repeat time and time again. This is not necessarily my view of Prevent, but minority communities have become so concerned about it, and it is a strong thing, not a weak thing, to review something. The time has come to at least look at it and perhaps move on. It has achieved a lot but may yet achieve more if we are able to be flexible.
We are still reaping the effects of two civil wars which started more than seven years ago: one in Syria in 2011 and the other in Iraq a few years later. At least 12,000 people travelled from Europe to fight, particularly in Syria but also in Iraq. We know that at least 15% of the 900 UK people who went died, and that about 55% of them have returned. Some went for humanitarian purposes and some to fight. We have seen the effects of that terrorism on the streets of Brussels, Nice, Paris and, sadly and more recently, London. The next phase of our fight against terrorism is now evolving. I suggest that the Bill is a good time for us to reflect on our preparations for that future.
It will have three distinct elements that we need to plan to combat. The first is the potential for those foreign fighters to return. They are brutalised, and dangerous because of their training and their motives but also because they are now in contact with a network of other terrorists, and they may still perpetuate conspiracies. The second is the release in the coming years, and even now, of the first wave of prisoners convicted of terrorist offences during the last five to seven years. Sometimes they were convicted of other criminal offences, because, although we believed that they had a terrorist motive, we could convict them only of a criminal offence.
In prison they met people called criminals. Many of the people who we are suspicious of and worried about do not have a criminal background. That is of great benefit, because it means that they do not have access to organised criminals, who are the means by which criminals generally get hold of firearms. They have now met a lot of people in prison, and on their release they will still have those associations, along with the people they met in prison who may have become radicalised.
Finally, the terrorists will have learned from the first series of prosecutions, because the prosecutor reveals the tactics by which they were caught, and that means that they will adapt. We see that with various generations of terrorists, who adapt their tactics to meet their failures, as they see them, when successful prosecutions occur.
I will not repeat the numbers we have already heard for what I always think of as the pyramid of doom: the 20,000 subjects of interest, the 3,000 subjects of current interest, and, as we heard from the noble Baroness, Lady Manningham-Buller, the 500 security service operations. There are a further 600 counterterrorist police operations, so that is over 1,000 live operations dealing with this threat.
The point I am supporting is that it is clearly fair to say that we have a serious threat now, as described in the threat assessment, but the numbers alone are concerning. It is a real threat that we must all think about. It is, of course, evolving, and the vectors through which the threat operates are evolving too. We need to respond in a proportionate and incremental way; I would argue that, in legislative terms, the UK has responded incrementally. We have not seen the mistakes that, sadly, those with more experience of terrorism in Northern Ireland saw, when general internment caused more problems than it solved. We should approach the problem incrementally and see whether we can adapt; then, if we need to legislate, let us legislate to the problem, not use generic legislation. We need always to keep a majority in our society—and our minority communities in particular—on side.
The question is: if the threat has evolved in a way that requires new legislation, what is it that we are trying to address? The simplicity and volatility of the threat require us to intervene earlier to protect the public, individuals and groups. We need to make sure that a process that goes from planning to attack in a matter of hours is interrupted quickly. Also, offences previously considered peripheral and minor are now seen as indicative of a volatile, unpredictable actor. We do not want to wait for high-level offences before taking action, given how rapidly that threat can escalate; we need lasting disruptive impact and control of offenders, which is where lengthier prison sentences can have an impact.
The noble Lord, Lord Marks, is not in his place, but I agreed with a lot of what he said; the tests he applied were sensible. I agreed with an awful lot, but one of the reasons he gave for not extending sentences, if I understood him correctly, was that our prisons are already full and therefore we cannot get more prisoners in. If that is the case, we none the less ought always to find room for terrorists, even if that means excluding other people. In fact, the prison population is starting to drop now—albeit, I would argue, not enough, but we must always find space for terrorists if we consider that they are committing serious offences.
We must also think about technological changes; a significant amount of our coverage of people involved in terrorism concerns their online persona and methods of communication. As we have heard, it is 20 years since legislation set out the various ways in which we can monitor that technology. Particularly in the streaming area, this is a good time to make sure that we can monitor in the way that we need to, and prove offences. We know that radicalisation is happening in a very powerful and influential way by streaming video. It seems to be an incredibly useful way for people to get over quickly some very dangerous methods of implementing terrorist attacks.
There have been some criticisms of the Bill already and we have heard more of them today; I do not necessarily support them all. In the debates to come, I am sure that improvements will be made forensically to the eventual Act when it is concluded. There is a concern that the Bill will capture innocent or accidental online activity, but none of the proposed offences is absolute, as they are in child sexual exploitation offences. Intent has to be proved. In any event, all cases must pass three tests, including sufficiency of evidence and public interest. I know the noble Baroness, Lady Hamwee, was not convinced by the public interest test, but I am; I think it is a thorough test, supplied by an independent prosecutor, with good lawyers in the CPS, and my experience is that they are quite hard to persuade of something I might find blindingly obvious.
Baroness Hamwee
Perhaps I could explain that my concern about the public interest test is that we should not be forced to rely on it; we should get the legislation certain and reliable rather than look to public interest as the mechanism to catch what we have not been able to solve in the legislation.
Lord Hogan-Howe
The noble Baroness did make that point, and I accept it. My third point is that the prosecution has to overcome any reasonable excuse defence. That is the third measure which I think is helpful in reassuring those who might not be persuaded by the first two tests. Only rarely will a single action or statement be a basis for a charge, as we have seen on many occasions. We heard of the Choudary case, which I shall come back to. In that case, it took an awfully long time to prove a criminal offence, and I think that this strikes the right balance between protecting society and protecting the rights of the suspect.
I will mention a couple of clauses which I particularly support. The first is Clause 4. I argued for this measure about two or three years ago and it relates to the concerns of the investigators. I argued that having a designated area is particularly helpful. Investigating an offence that has occurred within a failed state, such as Syria or Iraq, can be particularly difficult. There is no one at the border keeping a clear register of people who have travelled across it, and there is no easy state mechanism for gathering evidence, particularly from number plate recognition, CCTV, hotel records or anything else that you might want to access. That is particularly difficult in a failed state. So saying “Please give me all the evidence to prove that offence” when people return is a particular challenge for investigators.
I accept that we have intelligence, but the distinction between intelligence and evidence is that we can use intelligence to gain evidence but only evidence can be put before a court. So this is an important change. I understand that some amendment might be needed in relation to humanitarian cases, which I do not think anyone is seeking to stop in any way, but I think that it is a particularly helpful development, and certainly I support it. In my view, it should have happened quite some time ago. Of course, it will not capture the people who are presently in Syria or Iraq, but that is not the intention here, and there is a cooling-off period of, I think, one month for future offences.
The second thing is that putting a responsibility on the traveller to explain why they went to a certain place would not be unreasonable. The Foreign Office will usually have issued a travel advice warning and a designated area warning—and finally there is the reasonable excuse defence. Given the threat that we face, these are not unreasonable things to ask of someone who chooses to travel to a war zone and is acting in a potentially treasonable way, as has been suggested in the past.
I also support Clause 1. I will not say a lot more about it, as others have covered it better, but I think that we have to capture the Choudary-type offence. Clever interlocutors or demagogues will adapt to the latest movement of the law and we have to adapt with them. They will always be clever and try to find a new way round it, so that we have to adapt. Although not the only one, Choudary was an example of where, no matter how hard the security services tried, they could not persuade the prosecutor that they had a case. I do not think that there was a lack of evidence; the law was not helpful and did not allow something that we all agreed was wrong to be prosecuted.
My final points are small ones. The noble Lord, Lord Rosser, mentioned the legislation relating to flags and the fact that removing a flag could cause tension. That is a fair point, but most police officers use discretion when making an arrest or an intervention. The display of a flag can cause tension too. People might remember an incident about four years ago in Parliament Square. When I was in charge of it, the Met was criticised for not taking from someone what appeared to be an ISIS flag. The officers were quite right to decide not to do so. First, the person involved was a seven year-old child and, secondly, the officers could not be absolutely sure that the flag they saw with Arabic writing on it was in fact a proscribed flag. They made a perfectly reasonable decision based on discretion. We expect that of officers and I do not see this as a particular problem.
I hesitate to make my final point because it concerns resources—although the noble Lord, Lord West, raises these points, so I do not see any reason why I cannot. I entirely accept that the Government have supported the police and the security services by maintaining resourcing for counterterrorism policing. That is a fair point and there is no argument about it. However, when you lose 20,000 police officers and probably 10,000 police community support officers, it is a real challenge. There are other things as well, but two-thirds of Security Service leads come from community contacts. That comes through neighbourhood policing, and that is the first thing to go when you lose 20,000 cops. So it is an important point and it needs to be considered.
Finally, I remind the House that the threat remains severe and is evolving. The society that we live in has progressed since the Terrorism Act 2000 and this Bill is a reasonable response. It should command the support of the majority and minority communities and, I argue, of this House.
Lord Bethell (Con)
My Lords, I would like to start by saying what a memorable pair of maiden speeches they were. I am a newcomer, so I can say—quite literally—they were the best I have ever heard, a real showcase of two great parliamentary careers, and I welcome them both. I would also like to thank the Minister, who did an excellent job of capturing the essence of the dilemma facing us. How do we protect public security while simultaneously safeguarding civil liberties, and at a time when technology is changing very quickly?
My noble friend Lady Warsi and the noble Lord, Lord Ahmed expressed very well the challenge to the Muslim community in the UK and the noble Lord, Lord Hogan-Howe, talked very interestingly about the strategic challenge the police face. I want to come at it from a different direction and declare an interest. I am a founder of a campaign against neo-Nazi fascist and racist extremism, sometimes called far-right extremism, but we will be careful about that epithet. I would like to give the perspective of someone who has worked as a volunteer on the front line against the threat of that kind of extremism, against the kind of people who spend their time online trying to recruit, foster hate and agitate for violence. I ran a campaign 10 years ago to challenge the distasteful and disruptive politics of that kind of extremism. It brought me face to face with supremacists, neo-Nazis and agitators for terror. I spent a lot of time personally rebutting and challenging these keyboard warriors, and have some first-hand experience of how that kind of online extremist propaganda is deliberately calculated to foment civic rage and acts of violence. I came to realise that from a legal and technical point of view, we are really struggling to keep up. Many of the activists of the extreme far-right are thoughtful, systematic strategists who study the law, network technology and human psychology deliberately to create turmoil in our society and to groom individuals into their ideology and potentially into acts of criminality.
I went into this enterprise keen to preserve democratic values and free speech, but came to understand that our laws need to be updated. With some regret, I realised it was necessary to prosecute those who, through their words, images and videos, were spreading hate, and to counter the advantage they had through modern technology. I wrote a report 10 years ago, A Shadow over Democracy, which projected a lot of our fears at the time. I am concerned that those predictions have come true. I remember earlier this year Mark Rowley, the outgoing Assistant Commissioner of the Metropolitan Police, warning about four foiled right-wing terrorist attacks, the potency of leaders like Tommy Robinson, 24% of Channel panel referrals earlier this year being from extremist groups at the neo-Nazi end of the scale, and this awful interdependent ratchet between Islamist terrorism and far-right terrorism that we need to try to break. The internet has played a central role in these developments. It has provided these groups with a network to spread their hate, to leap borders, to raise money to recruit people and to circumvent the societal norms and laws around incitement to hate and violence. I keep a watchful eye on what is happening in Europe and America, and fear we may be looking at an increase in this area. It is for that reason I welcome this Bill, and in particular Clause 1, which makes reckless statements of support for proscribed organisations illegal. I took on board what the noble Lord, Lord Marks, said—I thought he put it very well—but from my experience, it feels like we need to tighten up the law in this area.
I welcome Clause 3, which tightens up the law around streaming and downloading materials useful to committing or preparing an act of terrorism. I have seen how individuals have been inspired by words and videos to perform acts of violence. However, I was one of those researchers who clicked on these videos a lot, and I do not want to be captured by this law. Therefore, I urge the Minister to stretch every sinew to reassure people like me that we have a reasonable excuse and that this measure will not somehow be lost because of that. The noble Baroness, Lady Hamwee, made very good points on that.
Lastly, I welcome Clause 5, which strengthens the Terrorism Act 2006 and measures concerning the dissemination of material that might encourage people to commit acts of terrorism. Ten years ago, we were warning that self-radicalised, lone wolf, white-supremacist terrorists were a big threat, but it seemed distant and unlikely. However, since then, we have seen Anders Breivik, the Norwegian far-right terrorist, Darren Osborne, the Finsbury Park mosque attacker, and Thomas Mair, the far-right terrorist who killed Jo Cox. In that context, Clause 5 seems both proportionate and timely.
The one nudge I would give the Minister concerns the culpability of the distribution network—the tech giants who own the networks. It is obviously beyond the ambit of this Bill to cover that, but I know that the DCMS is looking at its White Paper and at potential legislation in this area. I urge the Minister please to look at that. A lot has been done, I know, but a lot more needs to be done.
Lord Paddick (LD)
My Lords, this has been an interesting and well informed debate. We also had the joy of listening to two excellent maiden speeches. While listening to the noble and learned Lord, Lord Garnier, I wrote down the words, “Amusing and informative”. Unlike during his previous maiden speech, noble Lords were riveted by what he had to say. I am sure the noble and learned Lord will prove that he has his uses in this House. “Generous and thoughtful” is what I wrote while listening to the speech from the noble Lord, Lord Tyrie. His electoral record in Chichester speaks volumes about the esteem in which he is held generally. Judging by what he said this evening, I am in no doubt that he will be fearless in his future contributions in the House. I also thank the Minister for comprehensively introducing the Bill.
I pay tribute to the police and the security services. During consideration of previous legislation, I had the privilege of going both to GCHQ and to the security services headquarters. I was impressed not only by the capability of those working in the services but by their integrity. The noble Lord, Lord Hogan-Howe, and others talked about the numbers involved—the number of suspects and the number of operations going on—which just goes to prove how successful the police and the security services have been, despite the tragic events that we have seen in recent years.
I am not wrong in saying that there has been a general consensus, on all sides of the House, that the legislation—whatever it ends up as—needs to pass the test of being necessary and proportionate. The noble Lord, Lord King of Bridgwater, the noble Baroness, Lady Howe of Idlicote, and even the noble Baroness, Lady Manningham-Buller, all suggested that that was necessary. There were perhaps two notable exceptions to that consensus, as that was not something that the noble Lords, Lord Blair of Boughton and Lord Tebbit, would support.
I say to the noble Lord, Lord Tebbit, in particular that I was the police spokesman after the bombings on 7 July 2005. I was in this House when the terrorist incident happened in which one of our police colleagues was killed. I was at home, a 10-minute walk away from London Bridge, when that attack happened. That is not the first-hand, tragic experience that the noble Lord has had, and I completely understand that his experience has deeply affected him. We should not lose sight of the impact that these incidents have had on the victims.
So there is a consensus, generally. Clearly, as the noble Lord, Lord King, said, there may be some differences of opinion as to what is necessary and what is proportionate. Obviously, we accept that this legislation has already been through the other place. But, as the noble Lord, Lord McInnes of Kilwinning, said, some in the other place said that they agreed to the legislation being passed subject to it receiving scrutiny in this House, and that is clearly what we must do.
We on these Benches will support any necessary and proportionate measure that makes the United Kingdom safer or will help defeat terrorism, but we will not support measures that we consider to be disproportionate and counterproductive. Colleagues on these Benches, particularly my noble friend Lady Hamwee, highlighted evidence from the Joint Committee on Human Rights—concerns that not only we share but the current Independent Reviewer of Terrorism Legislation, Max Hill, also shares. We offer a similar view to his. There are some good, pragmatic measures in the Bill, but there are others that go too far.
As the noble Baroness, Lady Jones of Moulsecoomb, suggested, only in the most extreme cases should the police be given such wide discretion that they can arrest someone engaged in potentially completely innocent activity where the person arrested has to rely on a reasonable excuse defence. Having a reasonable excuse defence in legislation is no protection from an innocent person being arrested and potentially charged.
I echo the concerns of the noble Baroness, Lady Warsi, and the right reverend Prelate the Bishop of Newcastle. If I understand my noble friend Lord Thomas of Gresford correctly, with “reckless”, either it is an objective definition of reckless, in which case we are into the realms of people being arrested for what they think or simply for expressing their view, or we are looking at a subjective definition of reckless, which is what the current law says. In that case, the provision is superfluous to what is already in existing legislation. Clearly, we need to consider these issues carefully.
Similarly, in terms of other provisions in the Bill, it is not too difficult to think of circumstances where a teenager innocently takes a selfie in a mate’s bedroom not realising that there is an ISIS flag on the wall behind him and posts that photograph on Facebook. The next thing, that individual is in police custody—a completely innocent action that results in them being arrested.
Under this Bill, it would also be an offence to click on a page on the internet that has,
“information of a kind likely to be useful to a person committing or preparing an act of terrorism”.
Just one attempt to look at the document could result in that individual being arrested, with a potential term of imprisonment not exceeding 15 years. The Minister said that previous legislation covered only situations where documents were downloaded and now we have a situation where people are streaming or simply just looking at documents. Not too long ago, we in this House considered at length internet connection records. Surely that sort of thing will provide the necessary evidence, even if people are looking at or streaming information rather than downloading documents. There is a lot to be considered here in terms of whether the legislation is necessary or whether it goes too far. Of course, it was only at the last minute that that particular provision about looking at things on the internet was changed from being one where someone looks at a page on the internet, goes back to it and goes back to it again before they can be convicted to being a one-click offence.
The other last-minute provision that we have serious concerns about is the Secretary of State designating areas overseas as being illegal for UK citizens or residents to travel to. It could become illegal for a Syrian refugee who is resident in the UK but whose family still lives in Syria to visit them, even though his mother or father could be dying. Again, the Government will say that there is the “reasonable excuse” defence, but how sick does your mother have to be before it is considered reasonable for you to travel to a designated area? There would be no reason in law why you should not be arrested and charged, whatever the circumstances. The Government will say that the police are not going to arrest innocent people, but the history of policing is littered with cases of innocent people being wrongly arrested where legislation has been drawn too broadly. Sometimes they have even been charged and wrongly imprisoned.
Surely there must be a way for academic researchers to get permission in advance in order to look at offending pages on the internet, or that grieving family members or humanitarian workers can get permission to visit these areas in advance. As my noble friends Lady Hamwee and Lord Thomas of Gresford said, should there not be an opportunity to get the “reasonable excuse” defence in first?
Clearly, offences should carry a penalty that both deters and keeps innocent people safe, but sentence inflation, as suggested in this Bill, will simply add to the crisis in the Prison Service, as my noble friend Lord Marks said. Contrary to what the noble Lord, Lord Hogan-Howe, said, this is not about the fact that prisons are full and therefore we should not put terrorists in prison. This is about the difference between prisons being a place where people with extremist views can be rehabilitated and prisons being a place where radicalisation can become endemic because of overcrowding and the lack of ability of prison staff to carry out any sort of rehabilitation. Surely a smaller prison population would be better, in that we know that prisons are places where people, being at their most vulnerable, are more easily radicalised. Keeping people in prison for longer periods of time surely gives more opportunity for that to take place.
As many noble Lords have said, in some communities there is deep suspicion about Prevent, and along with Independent Reviewers of Terrorism Legislation, the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Warsi, we support not only an independent review of Prevent but a recasting of the programme with a much more community-based approach that is incorporated into other safeguarding functions. Those at risk of being radicalised are also in danger of being exploited sexually or being drawn into criminal gangs. Prevent should be part of a broader safeguarding process rather than people being potentially stigmatised as a result.
I have to say that there was a bit of conflict between what my noble friend said and what the noble Baroness, Lady Barran, said in terms of the statistics around referrals to Channel panels. On one reading, it would seem that only a small proportion of people who are referred are actually considered to be at risk of being radicalised, while on another reading it seems to be a rather higher proportion. Again, we need to consider those issues very carefully.
Finally, there is the extension of Schedule 7. We agree with the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson of Ipswich, that Schedule 7 powers and the powers in this Bill should be limited to those who are reasonably suspected of being involved in the commission, preparation and instigation of acts of terrorism.
Lord Anderson of Ipswich
On a point of order, I have always accepted that the Schedule 7 power to stop should be exercisable without the need for reasonable suspicion. I said that some higher threshold should perhaps be required for some ancillary powers, for example those to detain and examine electronic devices.
Lord Paddick
I am grateful to the noble Lord, but the fact is that at the moment, if you are crossing the UK border, you can have your mobile device or computer seized and examined even without any reasonable suspicion. Extending that to those who are now engaged in hostile activity would seem to make this issue potentially worse.
I understand that the Bill is a response to the Prime Minister promising to harden the country’s defences against all forms of hostile state activity following the attempted assassination of the Skripals, but can the Minister confirm whether that was an act of terrorism covered by the existing Schedule 7?
As I have said, we on these Benches will support any reasonable and proportionate response that makes this country of ours safer. However, we believe that large parts of the Bill are unreasonable, disproportionate and could potentially make us less safe, although we look forward to being convinced otherwise.
Finally, I completely agree with the noble Baroness, Lady Warsi, on the Government’s disengagement with Muslim organisations. Individual members of those communities may have said things that they now regret, but as a result the Government refuse to engage at all with those communities. At the end of the day, a former head of police counterterrorism said that the police and security services alone will not combat terrorism, but organisations working closely with communities will defeat terrorism. If communities are to work with us to defeat terrorism, we need to engage with them.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, the first duty of a Government is to keep their citizens safe and have legislation on the statute book that gives powers to the appropriate authorities to keep people safe. I will always support the work of the Government in this regard. That is not to say that I will not question and probe them and seek to amend legislation when we believe that they are not striking the right balance. That is the point of our being here: to make legislation better and more effective; to fully understand the Government’s intentions; and to avoid as far as possible the problems caused by unintended consequences —a point made earlier by the right reverend Prelate the Bishop of Newcastle.
The noble Lord, Lord Anderson of Ipswich, speaks with great knowledge and experience of these matters and the House will benefit enormously from his contributions. I hope the Minister will answer the points he made.
It would not be right to respond to a debate on counterterrorism and border security without putting on record our thanks to and gratitude for the members of the security services and the police who have done so much to keep us safe, as well as those of the other emergency services, such as the fire brigade and the ambulance service, who are there when they are needed. They save people’s lives, as do NHS staff—not only doctors and nurses but the other healthcare professionals and ancillary staff who work together to deliver the services we all rely on, particularly in times of emergency.
We have seen terrorism on our streets too many times, most recently on Westminster Bridge and at Carriage Gates, at Manchester Arena, London Bridge and Borough Market, and at Parsons Green. There were also the terrible events in Salisbury—the poisoning of Sergei and Yulia Skripal, then the poisoning of Dawn Sturgess and Charlie Rowley on 30 June, leading to the death of Dawn Sturgess on 8 July. I express my sympathy to all victims of these terrorist incidents and their families. This is very real and we are lucky that many more plots and plans have been prevented, as the noble Baroness, Lady Williams of Trafford, mentioned in opening the debate. The noble Lord, Lord King of Bridgwater, set out in his contribution the number of offences and convictions and the potential terrorist operations that have been prevented. We thank all those heroes for their bravery and professionalism; they were there when we needed them to keep us safe.
The noble Lord, Lord Tebbit, was right to remind us of the names of parliamentary colleagues who lost their lives and were murdered by terrorists. I would add the name of Jo Cox, MP for Batley and Spen, who was murdered by a terrorist with links to the far right in her constituency on 16 June 2016. The terrorist shouted “Britain First” as he stabbed her to death outside the library in Birstall, where she was due to hold a surgery.
Lord Tebbit
The noble Lord referred to the murder of our parliamentary colleague Jo Cox by a far-right terrorist. He was not a far-right terrorist. He was an unbalanced man who was obsessed with the Nazis, the National Socialist German Workers’ Party—a left-wing party.
Lord Kennedy of Southwark
We will have to disagree on that point.
As I said, I support the Bill and will always seek to make a contribution in your Lordships’ House that supports the work of those who seek to protect us and to provide constructive opposition to improve legislation before us, as does my noble friend Lord Rosser.
Before we get to the Bill itself, I join other noble Lords in congratulating both noble Lords who made their excellent maiden contributions today. They bring considerable experience from the House of Commons where they served for many years with distinction. The noble and learned Lord, Lord Garnier, served as the Solicitor-General in the first part of the coalition Government. I lived and worked in the east Midlands for many years and, although I am a Londoner, I have much affection for my time there and in Leicestershire. I know the noble and learned Lord’s former constituency very well.
The noble Lord, Lord Tyrie, was the formidable chair of the Treasury Select Committee for the last seven years of his time in the House of Commons, having succeeded my noble friend Lord McFall to that position. In a previous life some years ago I appeared before a House of Commons committee. It was a scary experience. I am very pleased that the noble Lord was not a member of that committee; I would have been very worried about his forensic questioning. I am now worried about some forensic interventions in future debates, but I know that we all look forward to both noble Lords’ contributions in this House, which they will make many times.
We can support the Bill in general and will seek to make improvements during its passage through this House, building on issues raised in the other place and in today’ debate. The Bill is in two parts, with the first making changes to the law following reviews by the Government of their counterterrorism strategy and of counterterrorism legislation in force, while Part 2 seeks to provide new powers in respect of the detention and questioning of people at ports and border controls suspected of being involved in hostile acts on behalf of and in the interests of another state outside the United Kingdom.
As my noble friend Lord Rosser pointed out, a number of amendments to the Bill were tabled fairly late in the day in the Commons and were added with little scrutiny. Those amendments in particular will require detailed examination by the House. There are Members on all Benches, many of whom have spoken today, who are expert in providing scrutiny and challenge. In particular, I refer to the amendments made to the Bill in the other place covering entering and remaining in a designated area, the publication of images, obtaining or viewing material over the internet, increases in maximum sentences and extended sentences for terrorism offences.
My noble friend Lord Rosser outlined concerns about proportionality, particularly arising from amendments introduced in the House of Commons. The noble Lord, Lord Marks of Henley-on-Thames, drew out some contradictions in the Bill that will need to be examined further. The noble Lord, Lord Janvrin, made a very important point about people being radicalised in prison. I hope that the noble Baroness, Lady Williams of Trafford, will address that in her reply. That is not to say that we do not agree with the proposals but they need proper scrutiny, which they have not received so far.
Legitimate concerns have been raised by Bond, the UK network for organisations working in international development, humanitarian aid and peacebuilding. Can the noble Baroness tell us what the protections for aid workers in high-risk jurisdictions are? She may not think that these proposals pose any risk to them, but that view is not shared by everyone: we need to address the legitimate concerns raised by NGOs in this regard.
It would also be useful if the noble Baroness addressed the protection afforded by “reasonable excuse”. Is she really satisfied that it provides protection to mitigate the impact on individuals? The wider point was made about banks and other financial institutions taking derisking measures such as stopping bank payments and closing the bank accounts of NGOs. Journalists and foreign correspondents of UK news organisations can sometimes find themselves in very difficult and dangerous places. What they find and report on is vital, shining a light on those individuals, organisations and Governments, including dictatorships, who work in the dark, who abuse, oppress, terrorise and murder people, and who do not want their activities to be widely reported on. These activities can be against their own citizens or citizens of another country.
I made the point earlier about unintended consequences of legislation. We must be very mindful of that during the passage of the Bill, which I hope the whole House can see could have far-reaching effects on both international aid and journalism if not handled properly. I very much support the protection of press freedom and journalistic sources, as I support the victims of press abuse and their right to proper redress. Again, it will be important to clarify the intention of some of the clauses so that legitimate investigative journalism and reporting is not caught up and criminalised. It may be that, through regulation and guidance, protections will be sufficiently strong, but this is an important area for our deliberations.
The noble Baroness, Lady Warsi, made a powerful speech which the Government would be wise to listen to carefully. Getting the balance right on this legislation will be crucial. I was very sorry to hear about the abuse the noble Baroness has received on social media, which I condemn. The internet and social media is a wonderful thing and can enrich our lives, but the darker side and the abuse must be stopped. The Government really have to address that issue separately from the Bill.
Of course, we fully understand that the Government have to deal with the issue of foreign fighters returning from abroad, but any suggestion of updating and using the concept of treason, a law dating from 1351 and not used since 1945, is misplaced. There are other, more appropriate means of addressing these issues. I also think that we undermine, not uphold, the rule of law by removing the right to private legal advice. My honourable friend in the other place, Nick Thomas-Symonds MP, reminded us that the Appeal Court upheld this principle recently in the case of the Serious Fraud Office v Eurasian Natural Resources Corporation. Lawyers are subject to professional standards and it is right that they are. Illegal activities should be dealt with appropriately, but we should not lose the principle of being able to seek advice from a lawyer in private. Proposals in the Bill seek to change that, and the reasons given are that the person in question may want to contact someone in order to alert them that they have been stopped at a border crossing, or that a lawyer would not adhere to proper professional standards and would pass information on or would leak information inadvertently. There is a better solution, which is to establish a panel of lawyers, subject to proper rules and regulations, who would be able to give legal advice. The advice would remain private, retaining an important legal principle but also safeguarding against a person misusing the right to seek advice from a lawyer in private.
My noble friend Lord Rosser referred to the European arrest warrant and the important role it plays in bringing suspects quickly into the criminal justice system. We need a deal to secure the European arrest warrant and it will be a disaster if this cannot be assured. Criminals will be the only beneficiaries. It is worth noting that the Government sought a European arrest warrant against the suspects in the Skripal incident.
I fully endorse the comments of the noble Lord, Lord Kirkhope of Harrogate: there must not be even one hour’s gap in the work of sharing information with other European partners, as to allow this will benefit only the terrorist who is seeking to harm our country, citizens and residents.
The noble Baroness, Lady Manningham-Buller, made an important point about getting the balance right and the importance of co-operation with our partners. I accept the point she made about the pace and scale of operations and the need to plug a number of gaps in our legislation to address certain issues.
My noble friend Lord Rosser spoke about the Prevent programme and I fully endorse his comments.
In conclusion, this is an important Bill covering many serious issues for this House to consider over the coming period. I look forward to working with others to improve what is before the House today and to send a much better Bill back to the other place for its agreement. With that in mind, I hope the Government will continue to work in the consensual manner they have demonstrated to date.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have taken part in this very serious debate. We should never forget the nature of the issues we are discussing. Contributions throughout the debate have reminded us just what we are dealing with. I echo the tributes paid to not just the police but the emergency services, who dealt so bravely with the terrorist threats we faced last year, and to my noble friend Lord Tebbit, who spoke not only as a victim of terrorism but for the victims who can no longer speak.
It was particularly pleasing to hear the two maiden speeches. When my noble and learned friend Lord Garnier told the House that he had made his maiden speech in the middle of the night, I did not know whether he had actually engineered that because I arranged for my maiden speech to be in the Moses Room so that not many people would hear it. He brings to this House many years of experience practising at the Bar and of course was Solicitor-General for two years. Drawing on his experiences, he has given us some valuable insights into the provisions in the Bill, particularly those relating to the changes to the criminal law and sentencing. We also heard from the noble Lord, Lord Tyrie. I am glad he is not “Lord Tyrie of Tyrie, Tyrie”, because that might be a bit of a mouthful. But I know he will hold the Government to account in this House with the same vigour that he showed during his 20 distinguished years in the House of Commons, including seven years at the chair of the Treasury Select Committee. I note that one of the accolades he earned in that time was,
“The most powerful backbencher in the House of Commons”,
so it was with some trepidation that I listened to his speech, but I was very interested in some of the things he said and I look forward to further discussions with him.
The many other contributors to the debate demonstrated yet again the considerable experience that the Members of your Lordships’ House bring to bear when scrutinising legislation such as this. I am sure that, given the length and breadth of the debate, noble Lords will appreciate that I cannot possibly answer every single question but, in addition to responding to the debate, I will endeavour to write a fulsome letter, which I will place in the Library. We have had the benefit of insights from a former Independent Reviewer of Terrorism Legislation, a former director-general of the Security Service, two former Metropolitan Police Commissioners, a former Chief Inspector of Prisons, and current members of the Intelligence and Security Committee and the Joint Committee on the National Security Strategy. We are so lucky to have such expertise, while other noble Lords bring to this debate their highly relevant experiences as members of the legal profession or academia.
As this Bill has already been through the House of Commons, where it was given a Third Reading by an overwhelming majority of 376 votes to 10, noble Lords have quite properly approached this debate from the perspective of our role as a revising Chamber. We have heard a range of views, as I have said. It was most important that the noble Baroness, Lady Manningham-Buller, my noble friends Lord King and Lord Tebbit, and the noble Lords, Lord Blair and Lord Hogan-Howe, reminded us how very real the threat of terrorism is. I welcome the broad measure of support for the Bill from the Opposition Front Bench and from many who spoke from the Cross Benches, while accepting that they, like other noble Lords, will want to scrutinise the detail of the Government’s proposals. I think we are in for an interesting Committee stage. I sense from the Liberal Democrats that they might be more sceptical in nature but, even in that, there were expressions of support from noble Lords there. I am sure that they will approach Committee in the same constructive manner that we have heard in the Second Reading speeches.
It is evident that noble Lords will want to probe some of the changes to terrorism offences, the increase in maximum penalties—that was clear—and aspects of the new hostile-state activity ports powers in Schedule 3. I welcome the opportunity to explain these provisions in more detail and respond to some other points that have been raised in the debate.
Regarding Clause 1, “Expressions of support for a proscribed organisation”, and the concept that these provisions might be an attack on the freedom of speech, noble Lords are absolutely right to raise that issue. The noble Lords, Lord Marks, Lord Thomas and Lord Ahmed, and the noble Baroness, Lady Jones, expressed concern that the extension of the offence of inviting support for a proscribed organisation would undermine that freedom of speech. The right reverend Prelate the Bishop of Newcastle also spoke about this issue. It is of course right that we uphold the right to freedom of expression, something which we value so highly in this country and is part of our core values. People are free to express any view they wish, even ones which the wider public might find distasteful, as long as they do so within the law and do not harm others. However, we are clear that any groups or individuals that cause harm to our society and promote hatred and division will not be tolerated. This measure is aimed at those who are reckless—“reckless” being quite a well-established word in law—as to whether statements that they make will encourage others to support a proscribed terrorist organisation. That type of activity is very serious. It can have a strong influence on individuals who are vulnerable to radicalisation, as some noble Lords pointed out, and can create a real risk of harm to the public. As such, it is vital that we are able to target those who seek to exploit others and lure them into terrorism, so that they can no longer skirt the fringes of legality—something that noble Lords have talked about extensively today.
Moving to Clause 4, the noble Lords, Lord Rosser and Lord Anderson, my noble friend Lord McInnes and the noble Baroness, Lady Hamwee, raised the designated area offence that it provides for and sought reassurance that it would not apply to those with legitimate reason to travel to a designated area. I can absolutely confirm that the offence as drafted includes a reasonable excuse defence, which will be available to individuals who travel to a designated area solely for a legitimate purpose—such as, as noble Lords have said, to deliver humanitarian aid or journalism, or indeed to attend a family funeral. The police, the CPS and the courts are familiar with this approach, and it works well in other contexts where an offence has a reasonable excuse defence. In practice, such cases are unlikely to come to court as they would not get beyond the police investigation or scrutiny by the CPS, which would be unlikely to conclude that there was a reasonable prospect of securing a conviction. We do not consider it necessary or helpful to take a different approach for this offence. Whether a particular excuse is reasonable will be highly dependent on the facts and circumstances of the individual case and cannot be prescribed in advance in the abstract.
The noble Lords, Lord Janvrin and Lord Hogan-Howe, asked whether the police have the resources to implement the provisions in the Bill. It is of course important that we ensure that counterterrorism policing has the resources needed to deal with the threat we face. That is why the counterterrorism policing budget has gone up by £50 million of entirely new money in 2018-19 to at least £757 million. This follows the £28 million of new money the Government provided in 2017-18 to forces across the country for CT policing to meet costs relating to recent terror attacks. I totally get the point made by the noble Lord, Lord Hogan-Howe, about the pipeline of people required to fulfil those roles.
The noble Baroness, Lady Hamwee, and the noble Lords, Lord Ramsbotham and Lord Anderson, talked about the definition of hostile state activity and questioned whether the definition in Schedule 3 is sufficiently precise. For the purposes of this power, hostile activity has been defined as the “commission, preparation or instigation” of an act that threatens the national security or economic well-being of the UK or is a serious crime,
“carried out for, or on behalf of, a State other the United Kingdom, or … otherwise in the interests of a State other than the United Kingdom”.
That may seem broad, but I am afraid that the threat posed to the UK from hostile state activity is wide-ranging and includes espionage, sabotage, coercion, assassination and subversion. Consequently, the definition of hostile activity must necessarily be broad to encompass the range of threats this country faces from nefarious states.
The noble Lord, Lord Bew, talked about Schedule 3 and the creation of a hard border. He pointed to concerns that have been raised in some quarters about how the provisions of Schedule 3 will operate on the Northern Ireland border. As the noble Lord, Lord Rosser, indicated, the issue was raised on Report in the Commons and the Minister for Security has written to Tony Lloyd on this question. I will make sure that noble Lords receive a copy of that letter rather than me repeating it this evening.
My noble friend Lord Faulks and the noble Lords, Lord Thomas of Gresford, Lord Kirkhope of Harrogate and Lord Kennedy, raised detainees’ right to consult their lawyer in private in the context of Schedule 3. In exceptional circumstances there may be a need for a more senior police officer to restrict that right by requiring that the consultation take place in the sight and hearing of an officer who has no connection to the detainee’s case, for instance, where there are reasonable grounds to believe that private consultation will result in interference with evidence, gathering of information, injury to another person, alerting others that they are suspected of an indictable offence or hindering the recovery of property obtained by an indictable offence. The aim of the restriction is to disrupt and deter a detainee who seeks to use their right to a solicitor to trigger activity that would lead to those consequences. It could be achieved by the detainee using their solicitor to pass on instructions to a third party by, for example, intimidating the solicitor or using a coded message of which the solicitor is unaware. However, the shadow Security Minister has put forward an alternative proposal for dealing with this issue, and we can explore it further in Committee.
There were a lot of contributions on Prevent, expressing support for aversion to it, or suggesting review of it. In particular the noble Lords, Lord Stunell, Lord Rosser and Lord Ramsbotham, and my noble friend Lady Warsi called for an independent review. Prevent is fundamentally about safeguarding and supporting vulnerable individuals to stop them supporting terrorism or becoming terrorists, regardless of whether that is in support of Islamist, far-right or any other form of terrorism. That point was extremely well made by my noble friends Lady Barran and Lord McInnes. When considered from this perspective, Prevent is working and we do not accept the need for an independent review. It has had a significant impact on stopping people being drawn into terrorism. Indeed, the Commissioner of the Metropolitan Police, Cressida Dick, said recently:
“There have been hundreds of people who have been turned away from violent extremism by their engagement with Channel and other aspects of Prevent, and that is all positive”.
It is clear that those who work to keep us safe from the terrorist threat back Prevent.
The noble Lords, Lord Janvrin, Lord Kennedy and Lord Rosser, and in particular my noble friend Lord Bethell, talked about online harms and ensuring that tech companies are responsible for rapidly taking down terrorist content that is posted online. That point about rapid takedown is very well made. The then Secretary of State for Digital, Culture, Media and Sport announced in May that at the next possible opportunity the Government will bring forward online safety legislation that will capture online terrorist content. We need a comprehensive online safety strategy, not one that tackles specific harms in a piecemeal fashion. That is why the Home Office is working closely with DCMS to publish a White Paper later this Session that will set out proposals for new online safety laws to ensure that the UK is the safest place in the world to be online.
A number of noble Lords, including the noble Lords, Lord Rosser, Lord Kennedy, Lord Marks, Lord Blair and Lord Ramsbotham, and my noble friends Lord King and Lord Kirkhope, talked about co-operation on counterterrorism after Brexit. That is a crucial point and I think that the whole House is in agreement on it. It is something that the Government are absolutely focused on working towards. The government White Paper provides an ambitious and comprehensive vision for our future security relationship with the EU and reinforces the Prime Minister’s message that the UK remains unconditionally committed to maintaining Europe’s security, both now and after our withdrawal from the EU.
Some interesting points were made about updating the treason laws to reflect what is happening, particularly in foreign states, by my noble friends Lord King, Lord Faulks and Lord Marlesford. We have a comprehensive range of terrorism offences and other powers that the Bill will update for the digital age. That will provide the police and intelligence services with the powers that they need to protect the public from terrorism. We do not consider it necessary to create new treason offences for this purpose, but I know exactly where my noble friends are coming from. The Prime Minister announced on 14 March that the Government will consider the need for new counterespionage powers, including legislation to harden our defences against hostile state activity. Where relevant, treason offences may be considered as part of that work.
A number of noble Lords talked about combating radicalisation in prisons, which is a very good point. I must first point out that those convicted of terrorism offences have already themselves been radicalised, but it is important that we do not exacerbate the problem, as noble Lords said, while defenders are serving their sentences. A joint HM Prisons and Probationary Service and Home Office extremism unit was created in April 2017 to lead the response to extremism and terrorism in prisons and probation. We make every effort to ensure that terrorist offenders are given the best possible chance to rehabilitate while in prison and on probation, and all offenders of extremist or terrorist concern are managed actively as part of a comprehensive counterterrorism case management system.
In conclusion, all sides of the House recognise the real threats that we face, whether from terrorism or the hostile acts of foreign powers. As those threats evolve over time, so must our response. We must ensure that our law enforcement and security agencies have the powers and capabilities that they need to disrupt the activities of those who would do the people of this country harm. The safety and security of those who live in this country must always be our paramount concern, but I recognise that the laws that we create to help ensure such security are a matter of legitimate debate and should rightly be subject to proper scrutiny. In that spirit, I look forward to our further deliberations on the Bill, but it is the Government’s firm belief that its provisions are a necessary and proportionate response to the ongoing threats that we face. On that basis, I have no hesitation in commending the Bill to the House.