Counter-Terrorism and Border Security Bill
Tuesday 22nd January 2019
(5 years, 11 months ago)
Commons 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: Commons Consideration of Lords Amendments as at 22 January 2019 - (22 Jan 2019)
The Minister for Security and Economic Crime (Mr Ben Wallace)
I beg to move, That this House agrees with Lords amendment 1.
Mr Deputy Speaker (Sir Lindsay Hoyle)
With this it will be convenient to discuss the following:
Lords amendment 2.
Lords amendment 3, and amendment (a) thereto.
Lords amendments 4 to 11.
Lords amendment 13.
Lords amendment 16.
I inform the House that the Speaker has selected amendment (a) to Lords amendment 3 tabled in the name of Stephen Twigg.
Mr Wallace
After that jovial urgent question on proxy voting, I feel like some purveyor of doom, as the Security Minister, having to break the positive note, for we are dealing here with some of the most serious issues facing our society. At the outset, however, I would like to thank Members across the House for their work to improve the Bill and for their cross-party approach to nearly all parts of it. If our security and counter-terrorism policies are to be successful, they must bring with them as many people as possible.
Many of the Lords amendments follow up on earlier debates on the Bill in this House and accordingly I trust that they will command the support of all Members on both sides of the House. I will focus my remarks on the substantive amendments. Clause 3 updates section 58 of the Terrorism Act 2000 to make it clear that it is an offence for a person to view or otherwise access via the internet information likely to be useful to a terrorist. Although section 58 as currently drafted includes a reasonable excuse defence, the hon. Member for Torfaen (Nick Thomas-Symonds) argued in Committee for greater certainty for those who might have a legitimate reason for accessing terrorist material. The Government had previously offered assurances that those legitimately engaged in journalism or academic research would be covered by the reasonable excuse defence, but to provide further reassurance, Lords amendment 1 makes this explicit in section 58.
Although the designated area offence received widespread support when it was inserted into the Bill on Report in this House, the shadow Security Minister said at the time that it would need further scrutiny in the House of Lords. Their lordships lived up to their role as a revising Chamber and proposed amendments to clause 4. Initially, the Government could not support all of them, but on reflection we agree that they do improve the operation of the new offence. The designated area offence is designed to establish a clear ban on travel to a tightly defined area or areas outside the UK, where such a ban is necessary for the purpose of protecting the public from a risk of terrorism, with a criminal sanction for breaching that ban.
John Woodcock (Barrow and Furness) (Ind)
I am pleased that the designated area offence, for which I and others have long been pushing, has survived in some form, but does the Minister not share my concern that some of the get-outs now listed in the Bill could be very easily exploited? For example, how can it be proven that somebody was not going to a designated area to attend a funeral, if that is what they say?
Mr Wallace
The hon. Gentleman makes a fair point, but if someone goes to a designated area, their reasonable excuse will have to cover all their activities. If they say they are going as a doctor but also commit a terrorist offence or crime, that reasonable excuse will effectively fall away. Everything they do will have to be covered by the reasonable excuse; they are not de facto lifted out of having committed an offence. It is important to understand that going to a designated area with a legitimate reason, such as aid work, and then engaging in some other activity will not prevent them from being in breach of statute and therefore guilty of an offence.
Sir Edward Davey (Kingston and Surbiton) (LD)
I seek clarification. In previous debates, I understood the designated area approach to mean that just being there would create an offence, but in his response to the hon. Member for Barrow and Furness (John Woodcock), the Minister seems to be suggesting that the prosecuting authorities would have to find evidence not just that the individual was there but that they were doing something other than what they said they were doing.
Mr Wallace
The original offence always required a reasonable excuse. The right hon. Gentleman will be a supporter of the European convention on human rights. Of course, people have certain rights to travel—to visit family or carry out certain other important activities, for example—and the House would consider the restriction of such activities to be a very serious matter. We have to bear it in mind that people travel legitimately. We are not in the business of drawing a circle around somewhere and saying no one is allowed in. That said, someone would have to have a reasonable excuse and present it so that it can be tested and investigated.
Their lordships have said—and I agree—that there are legitimate reasons for entering war zones. Among others, I am thinking of aid workers and Crown servants working for the UK Government or the United Nations. They would have legitimate reasons for being there, and we do not want to shut those off to people, but we do want to make sure they have a reasonable excuse. As is often the case in legislation, however, there was some concern about whether to have an exhaustive list, and risk missing something, or an indicative list, and we have opted for an indicative list.
Some people are concerned about the delivery of humanitarian aid—an amendment on that has been selected today—but I have made sure that the reasonable excuse of delivering humanitarian aid is tempered by the provision in proposed new subsection (3E) in Lords amendment 3 that
“the reference to the provision of aid of a humanitarian nature does not include the provision of aid in contravention of internationally recognised principles and standards applicable to the provision of humanitarian aid”.
That provision is there because, as we have seen before I am afraid, terrorist groups sometimes use humanitarian aid as cover to go somewhere. Ignoring recognised principles, they pick those to whom they deliver the aid and carry out other offences while doing so. By taking that approach, we preserve the freedoms we believe in while sending a clear message that there are areas we do not want people to go to and that going there could in itself become an offence.
We are all struggling in the west to deal with the emerging threat of foreign fighters as failed state safe areas are becoming the routine. Members on both sides of the House rightly get angry when foreign fighters come back and we cannot prosecute them because gathering evidence of deeper and more complex offences is very challenging. We have looked at the Australian and Danish models and found the designated area offence along with a sunset clause and review—it is not indefinite—to be one of the best ways to send a strong message to our constituents that going off to fight in these places is either a terrorist offence or not to be encouraged.
I do not want young people in my constituency going to fight whether for glory or in the commission of terrorist offences, or for anything else; I want them to realise that, however seductive the grooming on the internet, it would turn into a horror story if they went. Also, we do not want young people going out, being trained in terrorist techniques, coming back and posing a threat. In response to the hon. Member for Barrow and Furness (John Woodcock), I simply say, however, that the offence must reflect the freedoms we hold dear. We instinctively find it a challenge to restrict movement in this country—we do not like it, and why should we? It is a freedom we enjoy.
Gavin Robinson (Belfast East) (DUP)
As the Minister will recall, some of the concerns that I expressed during the Bill’s earlier stages turned on the issue of free movement within this country, particularly for UK citizens moving from one port to another. In some cases there had been a casual appropriation of former anti-terrorism provisions whereby no suspicion was required, yet people were challenged and checked as to whether they should be travelling. The Minister honourably indicated that he would engage with me on the issue, and he has done so on two occasions. May I ask him whether he has now formed a conclusion on how we can best protect ordinary UK citizens travelling internally from one port to another, and ensure that they are not being checked under counter-terrorism provisions?
Mr Wallace
The hon. Gentleman has made some very valid points. Provisions in schedules 3 and 7 to the 2000 Act relating to intra-UK travel allow people to be stopped and checked without suspicion. I think that one of the best ways in which we can prevent abuse of that tool is to publish figures. I told the hon. Gentleman at a recent meeting that in September I would publish figures showing how many people had been subject to such checks while travelling within the United Kingdom, and I think we can start that process of opening up.
I also think that if any of our constituents are subject to such checks, we must always ensure that the police do their work in a manner which is timely and considerate, and which secures the best results for them and the individual who has been stopped. That is not a matter of legislation, but a matter of handling things sensitively. Perhaps we should also be more efficient when it comes to obtaining information, so that there is time to check people before they leave the country.
One reassuring fact is that the vast majority of checks carried out under schedules 3 and 7 involve people who are returning rather than leaving, so there is less disruption than there is when someone is going off for a holiday, for instance. However, I give the hon. Gentleman an undertaking to ensure that the figures are published in September, and I shall then be happy to discuss the issue with him further.
Kevin Foster (Torbay) (Con)
May I briefly return the Minister to the list of reasonable excuses? Will he confirm that it would not be up to the prosecution to prove beyond reasonable doubt that they did not apply, but that a person defending a charge would be required to produce some basic evidence that they did apply?
Mr Wallace
Yes. That is important. Someone who claims to be an aid worker or a doctor will be expected to prove that. It is not possible simply to pick one of the excuses and use it as a defence. We should expect it to be necessary for the police to investigate any case in which a person returns from a designated area, to establish either whether that person may pose a risk to the public, or whether they fall outside the offence by virtue of travelling for one of the specified purposes or can otherwise rely on a “reasonable excuse” defence.
Bob Stewart (Beckenham) (Con)
If a person from this country were to go to one of the prohibited areas and then come back, would it be automatic for that person to be picked up if he or she had not been given permission to do something there? Is it possible that the security services—which, I presume, fully support this measure—would say, “Let him or her run, because it is more in our interests to watch what they do”?
Mr Wallace
As I think my hon. Friend will know, when it comes to intelligence and investigations, such decisions are operational. Should our police or intelligence services suspect that someone has committed an offence but there is nevertheless more to discover, that is a risk that they will have to take. They will take it into consideration and make a decision. Of course, any prosecution under the Crown Prosecution Service must meet a number of thresholds. It must be established, for example, whether the prosecution is in the public interest, or whether there is a likelihood of success. However, if someone does not provide a reasonable excuse, that person is potentially open to prosecution and to being sentenced to up to 10 years in prison.
It is regrettable but a fact of life, given the challenges posed by end-to-end encryption, secure communications, and the ability to obtain evidence from people who we may know from intelligence—but not in evidential space—have been up to no good, that we must seek a way around the current issue. When I attended the G7 in Canada last year, it was clear that every state represented at the table, from Japan to France, faced the same challenges. We must reduce the number of offences of this type, and we hope that the Bill will make a difference. We want it to deliver a strong deterrent to ensure that people are where they are for the right reasons, and to make clear there are other ways to better people’s lives in their communities than going to a designated area for reasons that may turn out to be spurious.
To ensure that the power to designate an area is used proportionately, Lords amendment 5 provides that regulations designating an area will automatically cease to have effect after three years. That will not, however, prevent further regulations from being made to designate the same area should such a designation still be required to keep the public safe from the threat of terrorism.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I am pleased to hear what the Minister is saying, and I commend the work of my Front-Bench colleagues—and those in the other place—who have pushed for it. Does he agree that this is also the perfect time to look at, in particular, the issue of far-right and extreme-right groups? Obviously Prevent already addresses it, and does some excellent work—I have regular contact with my local police force about that—but does the Minister agree that we need to do much more to tackle organisations such as System Resistance Network and Radio Aryan, of which he is well aware, and which spew out hate and bile?
Mr Wallace
The hon. Gentleman has been a good campaigner on that issue, which he has brought to the attention of the Home Office on a number of occasions. One of the reasons why I think this is the perfect time to review Prevent is that I truly believe that if the public knew how much it does in respect of the far right, there would be more support for it, not less. It is having significant success. Half the Channel cases involve the far right. The work that has been done over the last two years clearly shows that Prevent is not about a particular group or ideology, but is similar to other forms of safeguarding that are carried out every day by our social workers, teachers and police.
Stewart Malcolm McDonald (Glasgow South) (SNP)
As far as I can see, those far-right organisations are winning the hybrid war against society. Will the Minister talk a wee bit about what his Department is doing to curb the extremely dark channels of money that are coming in from around the world and funding far-right extremism here in the United Kingdom?
Mr Wallace
Terrorist financing, including of the far-right group that was proscribed 18 months ago, is worrying because actually it is not as high as people imagine. In the day of the internet, people can be groomed and inspired for very small amounts of money. Indeed, the five main terrorist attacks of 2017 cost £5,000 in total. That is the reality of a modern-day terrorist attack and the financing behind it. I do not see much evidence of huge swathes of money funding it; what I do see is growing evidence of the impact of the internet in allowing people to join up who in the past had nowhere to go. They may have been the oddball or odd one out in their village, but they now have the ability to live in a fantasy world, indulge their bigoted beliefs, learn how to make bombs and damage and hurt people, and find kindred spirits across the internet. That is what has given one of the big boosts to terrorism, including far-right terrorism.
Mr Alister Jack (Dumfries and Galloway) (Con)
What conversations has the Minister had with social media companies to try to get terrorist material removed from the internet?
Mr Wallace
The UK was the first country in the world to set up a counter-terrorism referral unit. It is in the Met police and has taken down over a quarter of a million pieces of material from the internet. It has been around for some years now and has been a great success, very quickly getting on to the internet and content service providers. We have also done extensive work alongside them to get them to improve their response, and we are going to go further: the online harms White Paper, a joint Home Office and Department for Digital, Culture, Media and Sport document, will be out imminently and in it we have said that we will look at everything from voluntary measures all the way through to regulation. It is incredibly frustrating as the Security Minister to proscribe a far-right organisation only to find that its hateful website or its allies are spouting rubbish and bigotry from, for example, the United States, protected under one jurisdiction. That is incredibly difficult to have to deal with.
Sir Edward Davey
I thank the Minister for the fact that the Government are not opposing amendment 13 made by the Opposition parties in the other place; that is very welcome. He was talking about the review he will undertake as a result of that amendment. Can he tell us a little more about the remit and timescale of the review? Perhaps he was about to do that anyway, but it would be helpful to have that on the record.
Mr Wallace
We have not formed the terms of reference. The timescale is six months; within that period we will appoint an independent reviewer. I am incredibly happy to take suggestions on that from all parts of the House, from both the Back Benches and Front Benches, and I will be happy to meet the right hon. Gentleman to discuss his ideas. I am pleased that this will give the critics of Prevent the opportunity to produce evidence, because time and again we have to spend time knocking down allegations without any evidence behind them. I will look forward to them producing that evidence as part of the process.
Imran Hussain (Bradford East) (Lab)
The Minister is making some very thoughtful comments. Will he accept that any strategy must not further isolate or alienate any minority communities that continue to face an increase in discrimination and hate crimes? It is therefore particularly welcome that the Government have conceded and we are to have this independent review. Will its findings be brought back to this House for scrutiny, as the Minister pointed out?
Mr Wallace
The hon. Gentleman is right: this will be a public review and we will be able to debate its results in the House and ask for contributions from colleagues and members of the public and groups alike.
Prevent was started by the hon. Gentleman’s Government and I believe it is on a successful flight path. It has diverted hundreds of people, both on the right and Islamist extremists, from the Channel programme back into the mainstream. It is not perfect; not everyone responds to the work that is done and they have to volunteer into the Channel programme. It is high risk, and Labour will inevitably be sitting on the Government side one day and they will carry that risk as well. It is not perfect, and it is better received in some communities than others. I do not mean that in terms of religious communities; I represent a seat that covers north Preston, in Lancashire and this programme is having very good success in some parts of the country. It is not always delivered as well as it should be, but colleagues from around the House from all parties come to me asking for Prevent co-ordinators, suppliers and community groups, and other colleagues who come with concerns.
It is the right time to do this. I started publishing statistics as Minister as I was keen to ensure they were out. We have done two years of statistics and they show clearly that it is not a mass spying operation; there have been 7,000 referrals compared with 621,000 for safeguarding, child abuse and domestic abuse. Also, the proportion of people diverted out of the programme are the same as in other safeguarding areas and in the last few years over 300 people have received help on Channel and stopped being a concern in the future. That is 300 people who could have posed a very real risk to our constituents, so I am proud of where we have got to, but am also very open to improving it and moving it forward.
Stephen Doughty
Programmes like Prevent and Channel are needed because of the grooming the Minister was talking about a few moments ago. I was pleased to hear what he said about the joint work between his Department and DCMS, particularly with regard to online content, because he will be aware that I am very concerned about online broadcasting and online radio stations, particularly Radio Aryan, which has been exposed by BBC Wales, The Mail on Sunday and the excellent work by Hope not Hate. Will the Minister undertake to look specifically at that issue, because it is producing some vile content that will undoubtedly draw people into far-right and extreme right-wing activity?
Mr Wallace
The hon. Gentleman makes a good point. In protecting people from being groomed and exploited, we all have concern about three main areas. In communities, we need to make sure that people are not groomed by radicalisers and not seduced once they have latched on to what they have seen on the internet from online preachers or elsewhere. That is why the Prevent programme is there. There is also the question of the cause of what drives people to feel that they are lesser or outside the support of the state, which is why we need to do a lot more around Islamophobia; we must challenge Islamophobia. It is happening; it happens in Lancashire and around the country, and if we do not tackle it as a Parliament and a Government it will give some cause and grievance that will be used to recruit people. We probably all dealt in the past in our inboxes with ridiculous BNP-sponsored emails about veterans getting less than an immigrant, with photographs of soldiers and comments like “This veteran gets nothing, but the immigrant gets more,” which turned out to be complete fiction. We must work on that, and where there is a genuine grievance we must make sure it is not hijacked by those who want to exploit that into terrorism or violent extremism.
There is also the question of the method of delivery of grievance and grooming, which is the internet. We need to make sure that Ofcom works alongside the Government, but it is of course independent and can make its own judgments. Organisations like Ofcom are there to regulate what is being broadcast to us. The last stage is what part of this legislation does—recognise that where legislation is written for broadcasters and the internet, it moves with the times. Often when Ofcom has banned people they have flipped on to Facebook and launched a broadcast channel, without any controls. So we must be much more agile to do that.
Sir Mike Penning (Hemel Hempstead) (Con)
I apologise for not being present for the start of the Minister’s speech. I listened carefully to what the Minister said about how little money there is, but it is plainly obvious that money is being moved around. Some of this terrorism is coming back from organised crime, particularly in the Province of Northern Ireland. While we look at the technical stuff and the nitty-gritty of what goes on to prevent terrorism like that in Londonderry the other night—the bravery of our police and armed forces and security services is there to be seen—the explosion did take place and we need to do more to prevent such explosions.
Mr Wallace
My right hon. Friend knows about these challenges from his own experience. In some parts of Northern Ireland terrorism is entirely ingrained in organised crime, with the money and control of the community organised crime seeks to exert. The Criminal Finances Act 2017, which I took through the House about two years ago, brought in measures that will be very useful for combating illicit finance, whether it is being used to finance terrorism or organised crime. That legislation is being extended to cover Northern Ireland, which will allow us to get to grips with some of the godfathers who have helped to fund that terrorism in the first place.
Nick Thomas-Symonds (Torfaen) (Lab)
I am grateful to the Security Minister for his opening remarks, and for his tone and the consensual approach he has taken. We most definitely do not agree on everything, and we have robust exchanges across the Dispatch Box, but we try to work together constructively on these serious matters whenever we can. I am grateful to him for accepting Lords amendment 1 to clause 3, which has caused controversy in the past. The clause deals with a situation in which it was previously illegal to download these terrible recruiting videos but not illegal to stream them. We have to have a situation in which both are illegal. We cannot have a situation in which watching something later on is illegal but watching it at the time is not. This has been difficult to deal with, and there is no perfect way to capture it in legislation.
As the Minister knows, I was also concerned about the three clicks approach, and I am pleased that the Government have dropped it. Dropping it has not, as some suggested, led to a situation in which one click could lead to an offence being committed. The Bill sets out clearly that anyone inadvertently clicking in that way would not be covered by the offence. I was concerned that the reasonable excuse defence mechanism went put on to the face of the Bill, particularly in relation to journalists and academics, and I am pleased that the Government have now accepted those concessions. It is clear that in the years ahead we will have to look at precisely how the clause works in practice, but it is important to send a clear message that streaming these terrible videos is equally as awful as downloading them and watching them later on.
On designated areas, the Security Minister quoted what I said in the Commons because this measure was introduced at a very late stage and I was unable to have that discussion with him in Committee. We do not oppose the overall aim of dealing with so-called foreign fighters, but the clause needed significant work. Again, I am pleased with the work that has been done and I pay tribute to my Labour colleagues in the Lords and those of other parties there who have put in the work and time to improve the clause. I am also grateful to the Minister for accepting the changes.
There was originally a non-exhaustive list of reasonable excuse defences on the face of the Bill. This has essentially been taken and carved into the law itself, so that people do not commit the offence in the first place if they have a particular purpose for travelling. That was important for two reasons. First, someone with a perfectly legitimate reason for doing something would inevitably have been stopped, and would have been able to raise the reasonable excuse defence only further down the line. It is therefore much better in principle that they do not commit the offence in the first place. Secondly, the last thing anyone in this House wants is to deter people with a perfectly reasonable motive from going to areas of conflict. Aid workers are an example, and I know that the Chair of the International Development Committee, my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) has tabled an amendment on that.
For completeness, Lords amendment 3 states that the offence is not committed if one or more of the purposes of the visit is to provide
“aid of a humanitarian nature…carrying out work for the government of a country other than the United Kingdom…carrying out work for the United Nations or an agency of the United Nations…carrying out work as a journalist…attending the funeral of a relative or visiting a relative who is terminally ill…providing care for a relative who is unable to care for themselves”.
That is not meant to be an exhaustive list.
In addition, the reasonable excuse defence is maintained. This relates to the amendment tabled by my hon. Friend the Member for Liverpool, West Derby. The reason is that if no exception is already carved into the law and the purpose of the visit is not included in the list, it could none the less appear as a reasonable excuse defence. In an intervention on the Minister, the hon. Member for Torbay (Kevin Foster) talked about a burden in these cases. With the reasonable excuse defence, there is of course a burden on the defendant to raise it, but the burden to disprove it lies with the prosecution. In the carve-outs in the law that I have suggested, however, these people would not be committing the offence in the first place.
I want to press the Security Minister on how exactly this is going to work in practice. As he knows, there are two models around the world: the Australian model, which I think the sunset clause has been taken from, and the Danish model. The way the Danish model works in terms of not committing the offence in the first place involves an extensive system in which people obtain licences before they go. That is not without its problems, because journalists sometimes like to travel to certain areas without advertising the fact that they are doing so, so I am not suggesting that this would be a silver bullet or a magic solution. However, there will presumably have to be a system whereby we can show clearly that someone has not committed the offence in the first place, as against those situations in which there might be a reasonable suspicion that an offence had been committed and in which the reasonable excuse defence was raised later. Any details from the Minister on how this will work would be appreciated.
The other Lords amendments on these issues are also important. They include the introduction of a sunset clause for the statutory instruments to designate particular areas so that they cease to apply and have to be replaced. This will ensure that the Government regularly make the case to Parliament if they wish to continue with a designation in the long term. Lords amendments 7 and 8 relate to two additional concessions. Lords amendment 7 provides that the Government have to make a statement outlining why they believe an area needs to be designated at the same time as they lay the relevant statutory instrument. Similarly, Lords amendment 8 states that when the Government revoke a designation, the change must be subject to the negative resolution procedure in Parliament in case anyone wishes to object to it. Taken together, the amendments produce a much better clause in relation to the designated areas. It will allow the Government to tackle the problem of so-called foreign fighters, of which we are all conscious, but it now does so in a more balanced, fair way, without deterring those who wish to travel to areas of conflict for perfectly honourable and legitimate reasons. No one in the House would wish to prevent them from doing that.
There are three other broad themes to the amendments in this group. The first relates to extraterritorial jurisdiction, which the Minister will be aware I have raised before in a slightly different context. The Government added extraterritorial jurisdiction to the offence of inviting or recklessly expressing support for a proscribed organisation, and concern was expressed about that by the Joint Committee on Human Rights. The Committee was concerned that the extension of extraterritorial jurisdiction to certain offences was problematic when there was no equivalent offence in the country involved. The safeguard will now ensure that extraterritorial jurisdiction applies only if the offence was committed by a UK national or UK resident. That is in line with what the Joint Committee recommended, and I welcome that change.
Turning to the independent review of the Prevent strategy, I genuinely welcome the Security Minister’s acceptance that a review is required, and I give credit to the shadow Home Secretary, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), who has argued for one for some considerable time. As the Security Minister knows, I have visited Prevent programmes across the country, including in south Wales. My hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) also raised the issue of far-right terrorism, which this House must be conscious of and take action on.
My argument about the independent review of Prevent is that there is a concern that its aims may end up in conflict with or become slightly confused between intelligence gathering, what I would call the more welfarist or safeguarding aspect of Prevent, and community cohesion. There has been an issue around community cohesion, because the facilities that are available to local authorities, for example, are an important part of that. I have had conversations in which it was clear that the pressures on local authority services are really affecting Prevent’s ability to deliver.
There are also aspects or parts of our society—in fairness to the Security Minister, he pointed this out himself—that have lost faith in the programme, and it is time to look at that. We need a programme in which everyone can have faith. None of us wants to see people living a life of violence and hatred that is driven by these kinds of ideologies. We all want to prevent people from doing that, but let us do so in the most effective way. From our conversations, I am hopeful that the Security Minister will be keen to have a wide-ranging review that can deal with such issues.
While I am on the subject of Prevent, I know that the competition to become the new independent reviewer of terrorism legislation has now closed to applications, and I hope that someone new will be appointed soon. I hope, too, that the Minister will be receptive to suggestions about how exactly to construct this independent review, so that we can have the most robust and reliable conclusions possible and, if necessary, make appropriate changes.
Lords amendment 16 is another sensible amendment, relating to bank accounts or terrorist’s bank accounts. There was an issue in the law as originally drafted in that the account would have to be in the name of a particular person. Of course, that did not take into account the fact that people can have control of other people’s bank accounts by their behaviour, and it is important that that was covered in the legislation as well.
Taken together, all the Lords amendments make this legislation far better, and it is pleasing that we end the passage of this Bill on a note of significant consensus.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
I echo the comments of the hon. Member for Torfaen (Nick Thomas-Symonds) about the consensual approach taken by the Government during the passage of this Bill and about the concessions already made during earlier stages, including on the likes of the three-clicks provision. As the Scottish National party has said since this process started last June, we welcome the Government amending this important legislation and appreciate the need to combat the constantly evolving threat from international terrorism in the modern age. However, we must be extremely careful how that is executed, and any new powers must be subject to stringent checks and safeguards if we are to maintain a healthy balance of security and civil liberties.
I will deal with the amendments in fairly short order lest I repeat many of the points already made by the Labour spokesman today or points that either of us made during earlier stages. The SNP welcomes the amendments—the improvements—made to the Bill in the other place and, as an SNP Member, I say that through gritted teeth. However, most of the amendments made in the other place were argued for in one way or another by the hon. Member for Torfaen and myself throughout the passage of the Bill in this place. None the less, I am pleased that the Government have dropped their opposition to many of the additional safeguards, and I hope the Minister is as generous in his treatment of the Crime (Overseas Production Orders) Bill on Report and Third Reading next week.
Gavin Newlands
I am not saying that the review will be watered down in any way, but I will give way to the Minister on that point.
Mr Wallace
I am grateful to the hon. Gentleman. I would not like him to think that we ordered the review because we do not think that the strategy is safeguarding people. He refers to the fact that we must do much better based on his meeting with Safaa Boular, who by the way was convicted of planning a proper terrorist plot, no matter how nice she may have been in the detention centre. The reality is that the strategy has safeguarded hundreds of people away from violence and has been proving a success, so I would not want him to leave an impression that it has not. Of course, I agree that, like all schemes, it does not work for every single person, but it has had considerable success in all our constituencies.
Gavin Newlands
I do not dispute anything that the Minister has just said, but there is a huge clamour for review because of the inadequacies of the Prevent strategy, as seen by many in the community. His points about the terrorist plot, and so on, are well made, and I do not dispute them for one second. I am not arguing that Safaa Boular should not have been punished or put in prison; my point is about the fact that she was radicalised in the first place.
Yes, we need legislation that gives the police everything they need to fight serious crime and terrorism, but the Government should bear in mind that this Bill is, in many respects, deeply controversial. They must get it absolutely right, and that will be impossible without a full, independent review—that review has been hamstrung by the Government before it starts. I ask that the Opposition be consulted on the terms of reference, to which the right hon. Member for Kingston and Surbiton (Sir Edward Davey) alluded earlier, and on the timescale for that consultation.
Stephen Twigg (Liverpool, West Derby) (Lab/Co-op)
I rise to speak to amendment (a), in my name, to Lords amendment 3. Two years ago, in the space of just six months, we saw five terrorist attacks here in the United Kingdom: the Westminster attack, Manchester Arena, London bridge, Finsbury Park and Parsons Green. Those attacks killed 36 people and remind us all of the very real and continuing threat of terrorism here in the UK. Indeed, we were reminded of it again just last weekend by the latest terror bombing in Northern Ireland.
We know there are people living in fragile states across the world who face this threat daily. Last week, we saw the appalling attack in Nairobi, which killed 21 people, and in western and central Africa, we have seen the appalling terrorist activities of Boko Haram, notably in Nigeria. Earlier this month, more than 9,000 people had to flee Nigeria for Cameroon after such an attack.
The whole House is united in our condemnation of terror, in extending our condolences to all those who have lost loved ones to terror and in our debt of gratitude to the emergency and security services. These appalling acts, both here and in other parts of the world, underline the need to update existing powers to respond better to the threat of terrorism in the modern age, which is why I support the Bill.
I am grateful for the changes that have been secured, and I pay tribute to the Labour Front-Bench team, particularly my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), to the shadow Home Affairs team and to others on both sides of this House and in the House of Lords. The Bill’s consideration has served to make significant changes that have improved the Bill. I particularly welcome Lords amendment 3, tabled by my noble Friend Lord Rosser and agreed by the Lords, and my amendment (a) relates to that amendment.
As has already been explained, the Government’s original approach was to introduce a “designated area” offence to give the Home Secretary the power to designate all or part of a country as forbidden to UK nationals and residents. If an individual is charged with the offence and they are not able to prove that they have a reasonable excuse for entering or remaining in the designated area, they could receive a sentence of up to 10 years in prison. The only original exemption was for Crown agents, and there was wide concern that that could have unintended consequences for a number of categories of people, including United Kingdom citizens who work as aid workers.
Lords amendment 3 was made to reverse the burden of proof by introducing a number of specified purposes that are excluded from the scope of the new offences. I absolutely accept the urgent need to tackle the real issue of so-called foreign fighters, but in doing so, it would be wrong to have the unintended effect of deterring people with perfectly legitimate purposes from travelling. The amendment refers to those working in the humanitarian field and to journalists, which is a truly significant improvement in protecting UK nationals who have legitimate reasons for travelling abroad. I am particularly concerned that, without this amendment, there might not be sufficient protection for aid workers and for the organisations that employ them, which could have a devastating effect on the provision of vital humanitarian aid.
Non-governmental organisations, led by BOND—British Overseas NGOs for Development—have been urging this House to accept Lords amendment 3 because it exempts individuals involved in the provision of aid of a humanitarian nature. In December 2018, the chief executives of 22 organisations signed a statement calling on the Government to introduce an exemption for aid workers and others with a legitimate reason to travel to a designated area.
I am delighted that the Government, on reflection, are content with Lords amendment 3, but the purpose of amendment (a) is to urge the Minister to go a little further and add a number of additional specified purposes. Lords amendment 3 refers to those working to deliver
“aid of a humanitarian nature”.
I am concerned that, defined narrowly, this could unnecessarily limit the activities that are considered legitimate, which is why my amendment would extend that list. First, it would cover work on a development project or programme. That could be a long-term programme to deliver health or education, or one that promotes women’s economic empowerment. Secondly, and importantly, it would cover work on a peace-building project or programme. Peace building is defined by the United Nations as:
“A range of measures targeted to reduce the risk of lapsing or relapsing into conflict by strengthening national capacities at all levels for conflict management, and to lay the foundation for sustainable peace and development.”
Mr Jim Cunningham (Coventry South) (Lab)
My hon. Friend raises an important point. Churches often go on aid missions and peace missions, so it is important that we get the legislation right because otherwise, as he says, it could have unintended consequences. Those are two important points.
Stephen Twigg
My hon. Friend is absolutely right. Church and other faith-based organisations are often involved in peace-building activities.
I will give some examples of the sorts of things that could be covered by peace building. It could include mediation and dialogue activities to negotiate local ceasefires or broker peace talks, support for local communities to strengthen early warning schemes or civilian protection efforts and initiatives to deal with the legacy of violence and promote social cohesion so that peace is built. DFID’s single departmental plan has as one of its five objectives strengthening global peace, security and governance, and DFID seeks to spend about half its investment in fragile states. In November last year, the Department doubled the UK’s commitment to the United Nations Peacebuilding Fund as part of a long-term strategy to build global peace and prosperity by tackling the underlying causes of instability.
Bob Stewart
In my experience, a Department such as DFID will sometimes send in a project team to do peace building or peace making, or to build a hospital. Does the hon. Gentleman agree that we might also have to consider bodyguards, because a private military company might be involved in protecting DFID’s people when they go into a war zone? Has he considered that as part of his amendment?
Stephen Twigg
The hon. Gentleman is absolutely right. Aid workers—whether directly employed by DFID or other donor countries, or employed by other non-governmental organisations or private contractors—require security arrangements in precisely the sorts of countries that we are discussing. That is an important part of the aid effort, and therefore it is, as he suggests, covered by my amendment.
My concern is that the term “aid of a humanitarian nature” does not explicitly include such peace-building programmes. I fear that without a clear exemption, there is a risk that peace building could be at the mercy of interpretation on what constitutes a reasonable excuse. This is a relatively low-profile area of international activity, so I think there is a risk that it may not be widely understood. I note that, as the SNP spokesman rightly said, on Third Reading in the other place Earl Howe for the Government said:
“In the absence of such an exemption the Government are clear that entering and remaining in a designated area for the purpose of engaging in peacebuilding would constitute a reasonable excuse.”—[Official Report, House of Lords, 15 January 2019; Vol. 795, c. 141.]
That commitment is welcome, but I think the risk remains that were such a case to come to court, juries might not have a full understanding of peace building and might not understand it to be covered by the concept of humanitarian activity. I do not think anybody in this House would want the Bill to have the unintended consequence of deterring NGOs from going into conflict areas or post-conflict areas. I urge the Minister, if he gets the chance to do so in responding to the debate, to give a commitment to the importance of peace building. Ideally, he will do so, as per my amendment, by adding this activity to the list of specified purposes. Alternatively, he could make it explicitly clear today that peace keeping is covered by the term “aid of a humanitarian nature”, and he could reflect that in the policy guidance.
Finally, let me refer to human rights monitoring. Rightly, the Bill now refers to
“carrying out work as a journalist”
but my amendment seeks to extend the provision to cover those who are undertaking human rights monitoring or advocacy. The United Nations defines human rights monitoring as seeking
“to gather information about the human rights situation in a country or region over time through readily available methods, with the goal of engaging in advocacy to address human rights violations.”
That is dangerous and incredibly important work. Without human rights defenders on the ground, injustices too often go unchallenged, and the most marginalised and vulnerable people have little protection from abuses of power. Those who work in the field of human rights monitoring and advocacy often put themselves in grave danger to shine a light on the abuse of power. I believe they have a right to know that when they are conducting that important work, they have protection in UK law that recognises their legitimate reasons for travelling to such designated areas.
I finish by saying that although it is fundamental that we strengthen our legislation to tackle terrorism, it is important to ensure that when we do so, we do not inadvertently undermine the very values that terrorists seek to attack. We have a proud record as an open, outward-looking country that does not turn away when it witnesses injustice. It would be sad if the Bill had the unintended consequence of limiting the contribution of our own citizens to development programmes, peace building and human rights monitoring in some of the world’s most fragile states. Although I will not press my amendment to a Division, I hope that the Minister will consider the points that I and others have made about this and will, even at this late stage, consider accepting my amendment.
Sir Edward Davey
It is a real privilege to follow the hon. Member for Liverpool, West Derby (Stephen Twigg). Had he pressed his amendment, I would have voted for it. I agree with everything he said in his general remarks and with what he said about the real challenge being to balance security and the need to tackle people who threaten our way of life with the protection of the values that make our way of life. He made that point specifically by building on the progress that we saw made in the other place with Lords amendment 3, which is very welcome, and I hope the Minister will cover that point in his response to the debate.
This House should thank Members in the other place because, as we heard the Minister say, they strengthened the legislation in several areas. They particularly strengthened it in respect of concerns that I and others had about civil liberties and freedoms, to make sure that innocent people were not inadvertently caught by some of the new offences that will be created. Lords amendment 1 in particular makes it absolutely clear—to be fair to him, I think the Minister had this in mind—that journalists and people doing academic research will have extra special protections.
We have talked about Lords amendment 3, but Lords amendment 13 on the review of the Prevent strategy—I intervened to ask the Minister about it—is really welcome and will support the Prevent strategy in its objectives. Both today and when we have discussed the matter before, the Minister has rightly said that there are a lot of good things about Prevent, and I agree with him. One of my concerns, which was why I supported the case for a review, was that some of the people who criticised Prevent gave valid criticisms, which I hope will be taken on board during the review, and others made the point that whether or not Prevent was doing the right work and whether or not it was successful, it had lost the trust of some communities. I hope the review will support the work that the Government rightly want to do by rebuilding trust. The review can play a positive role in the meeting of the objectives that I think we all share in this House.
One issue that did not find favour in the other place relates to something the Minister said about proscribed organisations. My colleagues in the other place wanted to see whether there could be a relatively regular review of the list of proscribed organisations. Indeed, Lord Anderson, who is well known and has huge experience in this policy area, said he believed that at least six of the organisations on the proscribed list really should not be there. I hope I can tempt the Minister to say, if he feels able to, whether a process of review of proscribed organisations already goes on somewhere and, if not, whether he would favour one, either specified in the Bill or dealt with outside it. I hope he will look into that, because it would be helpful and welcome.
In closing my brief remarks, let me just say that it is good that the Government have either agreed to accept the amendments made in the other place or to come forward with concessions.
John Woodcock
Far be it from me to be a discordant voice in this House, but I have real concerns that the House of Lords have not strengthened the Bill and may have fundamentally weakened parts of it, particularly in respect of the terror travel ban, which, as I said earlier, I have been campaigning for the Minister to adopt for well over a year.
I do not know whether you have had a chance to see the British satirical film “Four Lions”, Madam Deputy Speaker, but it recounts the exploits of four hapless British wannabe jihadis from my home city of Sheffield who are determined to wage jihad. The film opens with one of them getting an invitation to attend a wedding in Pakistan. He knows full well that there is no such wedding, and in fact he and his friend are going over there to be part of a jihadi training camp in the Pakistani mountains.
Although that film is fiction and satire, that excuse is commonly used by people who are overwhelmingly suspected of going over to areas with high levels of jihadi activity to train as foreign fighters, with the potential to then bring that training, knowledge and extremism back to British shores. The whole point of the designated area offence was to make that more difficult. I fully endorse the push of my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) to get official recognition for aid workers and journalists. I recognise that there would be a total outcry if someone who verified themselves as a legitimate journalist or aid worker were captured by this legislation. I find it almost impossible to concede that that would happen if they were in fact genuine, but if the measure does give reassurance to development agencies and to members of the fourth estate, I can understand it and agree that it is a good thing.
However, I have real concerns about the list of family excuses, which will surely prove incredibly difficult to disprove once they have been stated. Now that they are up in lights in the Bill, it will become that much harder to bring any prosecutions, and that much harder to deter people from travelling to become foreign fighters, which is, of course, what the legislation is intended to do. It is supposed not to catch people once they are there, but to deter them from travelling in the first place. Clearly, I am in an unusually small minority in this House in expressing that view, but I fear that we will come to rue agreeing such wide-ranging and easy-to-fake excuses in the Bill, and we may need to return to it in future months and years.
Finally, let me just say a word on the review of Prevent. It is of course right that any Government should seek periodically to review flagship parts of any policy. Certainly, in the critical area of preventing extremism and preventing terrorism gaining a grip in our own communities, I very much hope that this review is carried out and is understood in the spirit of remaining robustly in favour of the overall goal of Government, which is to be able to find ways to intervene to stop extremism taking hold. We need a dispassionate analysis of how, in its working, Prevent is able to recognise and potentially to call out the attempts to undermine the programme, which go beyond legitimate concerns, but are, in fact, tools of the very extremist organisations that would fill many young people and British citizens with the hate and terror that can lead to them going abroad to fight jihad, or, in the worst case, bringing terror on to British streets.
Mr Wallace
With the leave of the House, I will respond to the points of hon. and right hon. Members. First, let me address the amendment. The hon. Member for Liverpool, West Derby (Stephen Twigg) made a passionate and well-articulated case for adding peace building to the list of reasonable excuses. His example is at the heart of the challenge—peace building is most needed in fragile states, but it is in fragile states that foreign fighters emerge and safe spaces are constructed for that very reason. Effectively, the two sides of this challenge are summarised by peace building. It is therefore important to say that, first, the list is indicative. As long as I have been in this House, there has been debate about whether we have judicial discretion and about not doing too much in primary legislation. Lawyers in this House will be well used to that. The more comprehensive the list, the less room there is for judicial discretion. With no list, there is judicial discretion; holes are found, and we become subject to a different interpretation by judges every time. The word “indicative” is key. This is an indicative list. The major reasons listed are the headline reasons why the vast majority of people go to these places. They are clear, but still broad enough to cover most of the areas that concern us.
Bob Stewart
So, if a person wishes to go to a designated area, that person should, perhaps on Foreign Office advice, be told, “That is a designated area; you need to declare it.” If that person declares it prior to his or her going, that is good. If they do not declare it, and they go there and are picked up on the way back—it might be a mistake, but it might not—is that what the Minister anticipates might happen?
Mr Wallace
The decision that we took around this offence is that it is not a permission—something that you obtain in advance. As the hon. Member for Torfaen (Nick Thomas-Symonds) pointed out, in the Danish system one effectively gets a licence. The problem with that is that people just get a legitimate licence, and then go and carry out their other mission. It is also administratively burdensome. It also becomes a barrier to travelling for those who are doing so for a genuine reason, because they would have to check in with the state beforehand. We are proposing that people can go, but that if we have a suspicion that they have been doing something, we will test their “reasonable excuse”, and if the “reasonable excuse” fails, they will be guilty of the offence. We believe that to be the best way.
The hon. Member for Torfaen said that journalists would not be able to advertise where they were going. Many are based in theatre and do not know where they are about to go. They might be based in Lebanon and choose to visit—as some have—foreign fighters in detention in Syria. We shall not set up a permissions system; it is simply that you will have to declare it.
To clarify, the list of specified purposes is an exhaustive, not an indicative list, but there is power to add to the list by regulation. To give some reassurance to the hon. Member for Liverpool, West Derby, let me say that we will review the operation of this in conjunction with the Department for International Development and the Foreign Office, to see how it works, and we will of course be open to adding to the list if there were such issues as he represents. I am confident, however, that genuine peace builders would have a reasonable excuse and would not, therefore, be subject to the committing of an offence.
To give the hon. Member for Barrow and Furness some reassurance let me say that these excuses do not exempt a person from committing the offence if all their reasons for being out there are not covered by the “reasonable excuse.” You cannot say, “On Monday I am a peace builder; on Tuesday I am a terrorist.” That will not exempt you from that offence. You have to be there specifically and entirely for a reasonable excuse.
Stephen Twigg
I thank the Minister for his response, particularly for what he has said about the potential for review and the ability perhaps to make additions at a later stage. I also thank him for speaking into the record what he has just said about genuine peace builders, which is immensely helpful. I understand that some sort of policy guidance will be issued once this Bill is enacted. May I encourage his Department to look at the reference to peacebuilding in that policy guidance?
Mr Wallace
I would be delighted to look at that. I also remind the hon. Gentleman that the Crown Prosecution Service has a role in this. It will test not only the validity but the interest of prosecuting in this area. We do not risk people being wrongly prosecuted by organisations not being on the list as it is, by the time the process has been gone through. While the individuals may not be totally au fait, the prosecutor will be, as will the judge who will test the proposition of the prosecution. I do believe that we should be confident about that. However, I give the hon. Gentleman the undertaking that I will keep it under review.
The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) made a good point about best practice. My experience of visiting Prevent around the whole of the United Kingdom is that it is better received in some areas and better delivered in others. It is absolutely the case that Prevent works very well in some areas, depending on the different communities and who the Prevent champions and community leaders are. He made very good points about community cohesion in Scotland. We are, absolutely, happy to look at that to see what lessons are to be learned. At the heart of his point, he is absolutely right—best practice is going on. I do not want us to throw out Prevent because of a few failing examples, or examples that do not actually exist when tested. We need to build on it and show where it is a success, and we must not be frightened to say, “Look, it is working”, if that is what the reviewer decides. But of course it can be improved. We improve Contest every few years. We do not hold that the Contest strategy overall is absolutely stuck, and therefore we make sure that we move it on.
The right hon. Member for Kingston and Surbiton (Sir Edward Davey) talked about proscription. He will know that Lord Anderson made this suggestion. I met former Lord Chief Justices and a number of Members of the House of Lords on the issues. The Lords, including those on the Labour Front Bench, rejected the amendment. It is quite easy to request that an organisation is looked at and de-proscribed. It only takes a letter from someone to say, “Will you consider de-proscribing this organisation?” In doing so, they are effectively immune from being prosecuted. If they say, for example, “I do not think this organisation should be proscribed because I support it”, and send the letter in, the process starts. That is already open to people.
However, the legislation around proscription is not as straightforward as some people think. We often proscribe groups overseas. In fact, since I have been Security Minister, we have de-proscribed groups that I had frankly never heard of until we did so. They were way overseas somewhere. For example, we de-proscribed one of them so as to assist peace building in a country that was a fragile state so as to allow that process to progress. It is not as straightforward as I think some in the House of Lords had thought it was going to be. A lot of the proscription legislation came around the time of the Northern Ireland Good Friday agreement. We should be mindful about what automatic de-proscription, or automatic reviews, may unlock not so far away.
It is important that we reflected on the issues. We rejected the proposal as there is a solid mechanism already in place whereby people can ask to de-proscribe and call for a review. That is why the House of Lords rejected it, and we are not going to seek to replace it here.
Lords amendment 1 agreed to.
Lords amendments 2 to 11, 13 and 16 agreed to.
After Clause 16
Persons detained under port and border control powers
Madam Deputy Speaker (Dame Rosie Winterton)
With this it will be convenient to consider Lords amendments 14, 15 and 17 to 42.
Mr Wallace
This group of amendments relates to the new port and border powers in schedule 3 to the Bill to tackle hostile state activity, as well as to the existing counter-terrorism ports powers in schedule 7 to the Terrorism Act 2000. I will focus my remarks on the substantive amendments.
During the passage of the Bill through this House, the hon. Member for Torfaen (Nick Thomas-Symonds) has pressed the Government on whether there is an alternative to the power exercisable in exceptional circumstances for a police officer to be in the sight and hearing of a consultation between an individual detained under schedule 3 and their solicitor. While the Government were clear that safeguards were needed to prevent the right to consult a solicitor from being abused, thereby potentially putting lives at risk, the hon. Gentleman argued that such a provision would undermine the principle of confidentiality of consultations between lawyer and client.
On Report in September, I undertook to consider the issue further. Where there are concerns about a detainee’s chosen solicitor, Lords amendments 35 to 37, 39 and 40 would allow a senior police officer to direct that the individual consult a different solicitor. In practice, that is likely to be the duty solicitor. This provision is modelled on the Police and Criminal Evidence Act 1984—PACE—code H and reflects the suggestion made by the Law Society in its evidence to the Public Bill Committee in June last year. The change will apply to persons detained under both schedule 3 to the Bill and schedule 7 to the 2000 Act. I hope that the hon. Gentleman will agree that this change adequately addresses the concerns that he raised.
Lords amendment 25 provides for a procedure to enable the urgent examination of a detainee’s property, including confidential journalistic or legally privileged material, in cases where there is an imminent threat to life or significant injury, or where there is an imminent threat of a hostile act being carried out. In such cases, the police must be able to act with immediate effect and, consequently, the usual process whereby any such examination must be approved in advance by the Investigatory Powers Commissioner cannot apply.
These Lords amendments to schedule 3 would instead allow an examining officer, with the approval of a senior officer, to examine a detainee’s property before a decision has been made by the commissioner. Under this exceptional procedure, authorisation would be required to be given or withheld by the commissioner or a judicial commissioner after the event. Where the commissioner withholds authorisation, he would have the power to direct that the property be returned and that information taken from it, including copies, is not used and destroyed.
As with the existing process provided for in the Bill, the commissioner’s decision will be taken after consideration of any representations made by affected parties, and there will also be an opportunity to appeal that decision where it has been delegated to a judicial commissioner. That approach is consistent with the Court of Appeal’s judgment in the case of Miranda, where the Court recognised that there might be a need for
“post factum oversight in urgent cases”.
Further details of the process for examining retained property, including where it contains confidential material, will be set out in the schedule 3 code of practice, which must be debated and approved by both Houses before the provisions in schedule 3 can come into force. These Lords amendments improve the provisions in the Bill, and I commend them to the House.
At present, the schedule 7 code of practice requires that an individual examined under schedule 7 is informed of their rights on first being detained. There is analogous provision in the draft schedule 3 code of practice. The Joint Committee on Human Rights suggested that this protection for detainees is sufficiently important that it should be provided for on the face of the Bill and not left to a code of practice. The Government were content to accept the Joint Committee’s recommendation, and Lords amendments 33, 34 and 38 provide for that.
Lords amendments 41 and 42 respond to a recommendation from the Delegated Powers and Regulatory Reform Committee. The Committee argued that the regulation-making power in paragraph 53 of schedule 3 is too widely drawn. Under that power, the Home Secretary must specify additional categories of persons with whom information acquired by an examining officer may be shared. The Delegated Powers and Regulatory Reform Committee pointed out that this regulation-making power places no limitation on the categories of persons who could be specified for those purposes, including an organisation in the private sector. Lords amendment 41 narrows the schedule 3 regulation-making power so that it can be used only to specify persons carrying out public functions, and Lords amendment 42 makes a similar change to the Terrorism Act 2000. I commend these amendments to the House.
Nick Thomas-Symonds
I again welcome the approach that the Security Minister has taken in reaching consensus on these matters.
First, and this is a very important principle, in this Bill we have maintained and preserved the right to receive legal advice in private. It is a very important principle and, as the Security Minister knows, I pressed him on it at a very early stage of and throughout the proceedings on the Bill. There was a concern either that someone who had been stopped and detained would use the ability to contact a lawyer to communicate the fact that they had been stopped—in other words, to contact someone who was not a lawyer—or, alternatively, that a genuine lawyer was contacted but that the lawyer would then somehow, inadvertently or otherwise, pass on information about the stop. I pressed the Minister on the solution that is now in the Bill at quite an early stage about a kind of duty solicitor scheme that could deal with both of those concerns, but also ensure that we preserved the very important right of legal advice in private. I am pleased that we have reached this stage on the Bill and that the Government have made that concession.
I now turn to a set of Lords amendments, starting with Lords amendment 14, on the urgent procedure for retaining and copying property at the border. I have looked at the Court of Appeal judgment in the David Miranda case. As the Minister says, the judgment, at paragraph 96, identified that there is
“no provision for authorisation by a court or other independent and impartial decision-making body in a case involving journalistic material prior to the use of the Schedule 7 power or, in an urgent case, immediately after the obtaining of the material pursuant to the exercise of the power.”
I fully accept that there are going to be very urgent situations, and this is expressed in terms of an imminent threat of loss of life or of injury. I am pleased to hear what the Minister has said about the code of practice, which we can look at in due course. I previously suggested that there could be situations where a decision maker was available at the end of a telephone line, but I appreciate that there will be truly exceptional cases. The key to this is that, while I fully accept the law needs to be brought into line with what has been suggested in the Miranda case, we have to understand that these must be truly exceptional cases. That is something we can set when we come to debate the code of practice, being very clear that in these particular circumstances there will have to be a genuine, imminent threat that needs to be dealt with. Again, however, bringing the law into line with what the Court of Appeal has suggested is, on the whole, to be welcomed.
I want to speak to two other sets of Lords amendments. I will start with Lords amendments 17, 19, 26, 28 and 29 on the definition of hostile activity. The difficulty is that if this is defined purely in terms of criminal activity, that does not capture other types of hostile espionage activity, which may not necessarily bring into play parts of the criminal law. I did think that there was a danger of this being drawn too broadly, and I am pleased that these amendments narrow the definition, so that when we talk about threatening the economic wellbeing of the UK, we have now added
“in a way relevant to the interests of national security”.
The key is to ensure that we have the powers we need while also being precise about what we consider “hostile activity” to be. It is a welcome amendment that improves the Bill.
Finally, Lords amendments 41 and 42 relate to information sharing. Schedule 3 provides that an officer questioning someone at the border can hand over information to appropriate bodies, as decided by the Secretary of State. I think that narrowing the provision to bodies exercising public functions is to be welcomed, but I have regularly made the point to the Minister during the passage of the Bill that bodies such as local authorities will need the appropriate resources, expertise and support to handle the information, particularly when it is likely to be highly sensitive.
Taken together, I think that the Lords amendments that I have spoken to, covering the four themes I have referenced, make the Bill a better and more effective piece of legislation, although I am keen to engage with the Minister when the codes of practice to which he referred come before both Houses.
Gavin Newlands
The House will be relieved to hear that I intend to be even more succinct in my comments on the provisions pertaining to port and border control powers. We have again seen positive movement in this area.
Despite the best efforts of the hon. Member for Torfaen (Nick Thomas-Symonds) and myself, when the Bill reached the other place it restricted access to a lawyer for those detained under schedule 7. Specifically, it restricted an individual’s right to consult their legal representative in private, away from a relevant officer. As I and other Members have said at every stage of the Bill’s consideration, the ability to speak to a legal representative in private is a fundamental right that should not be infringed. Indeed, as the Minister outlined in oral evidence to the Public Bill Committee, both the Law Society of Scotland and Law Society of England and Wales have reinforced that point. Richard Atkinson stated in evidence that the UK’s criminal justice systems have an excellent reputation but that their very
“cornerstone is legal professional privilege…not access to a lawyer”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 30.]
We therefore very much welcome Lords amendments 12, 15, 35 to 37, 39 and 40, which ensure that that right is protected. Our preference would be for anyone detained under these powers to be able to consult legal representatives of their choosing, but I have heard the Government’s case for the power to require a detainee to consult a different solicitor and, although I would prefer not to have that provision, I completely understand the rationale behind it. I only hope that the power is not abused to ensure lesser representation.
On that note, we also very much welcome amendments 33, 34 and 38, which confirm a detainee’s right to be informed of their rights, which will now be in the Bill rather than simply in the draft code of conduct.
We also welcome Lords amendments 17, 19, 26, 28 and 29—I am not used to having so many Lords amendments, Madam Deputy Speaker. As the hon. Member for Torfaen said, the narrow definition of “hostile act”, so that it is an act that threatens the UK’s economic wellbeing, qualifies only if it
“is relevant to the interests of national security”.
We on the Scottish National party Benches are well known for standing up for civil liberties and human rights, but we do understand that keeping people safe and secure is the primary function of government and fully support our services having the appropriate powers to keep us safe. We therefore support an expedited process for retaining and examining property and confidential material where there is an immediate risk of death or serious injury, or of a hostile act being carried out. That relates to Lords amendments 18, 25, 27 and 30 to 32.
I am sorry to have to mention Brexit so close to the end of our considerations, but it will potentially have a huge impact on the effectiveness of much of this legislation. One of the greatest threats to our national security and counter-terrorism capacity is Brexit and the risk of losing seamless access to multilateral information-sharing tools. Terrorism and organised crime will continue to operate after 29 March without care towards the UK’s membership of the EU—I see that the Minister is delighted by the mention of Brexit. Yet without Europol, Police Scotland will no longer have access to information systems, support and expertise that help make Scotland, the rest of the UK and Europe a safer place. We cannot risk having arrangements that dilute the access that we currently have, and any new arrangements must consider Scotland’s distinctive criminal justice system in order to provide a continuing basis for the direct co-operation that currently exists between law enforcement agencies in Scotland and their counterparts. If we have not made provision to keep our policing effective outside the EU, how can we expect Prevent and everything that has been discussed today to work even after a review?
I thank the hon. Member for Torfaen and the Minister for the manner in which the Bill has been debated throughout its passage and I look forward with joy unconfined to dealing with them again next week on the Crime (Overseas Production Orders) Bill.
Sir Edward Davey
It is a pleasure to follow the hon. Member for Paisley and Renfrewshire North (Gavin Newlands). He tempts me to talk about Brexit—[Hon. Members: “Go on!”] In relation to security and counter-terrorism, of course, Madam Deputy Speaker. I share his concerns that that has not been dealt with adequately. The political declaration is far too weak on the subject and that concerns me. If we got that right, it would go much further than the Bill can.
On border security, which the amendments cover, I was slightly amused that some of the points I made on Report, about which the Minister was not happy, had been dealt with in the other place. I pay tribute to my noble Friend Lord Paddick, who, in discussions with the Minister in the other place, clarified a point in the legislation in a very helpful way. I am grateful to the Government for conceding that point. I was concerned about the Bill’s definition of hostile activity to include anything that threatened the United Kingdom’s economic wellbeing. Although I clearly do not want anyone to threaten the United Kingdom’s wellbeing, it seemed a broad and unspecific definition. Some people would say that Brexiteers threatened the United Kingdom’s wellbeing, but I do not want to take that too far because that would be controversial. However, I was pleased that the Government have now qualified the provision with,
“in a way relevant to the interests of national security”.
That may well have been the original intention, but the Bill did not say that. That is why we raised the matter and I am pleased that the Government have seen fit to move on that.
I say gently to the Minister that if we are serious about border security, law is important, but we must have enough Border Force guards. I am worried that we do not have enough people to ensure that our borders are as safe and secure as the House wants. That resource point should not be missed as we legislate.
Mr Wallace
With the leave of the House, Madam Deputy Speaker, I will respond.
I am pleased that the hon. Member for Torfaen and I have managed to find a way that accepts his points about ensuring that people have legitimate legal representation, but finds an alternative when the state has concerns that there could be abuse. There will be a code of practice and until it is approved by both Houses, law enforcement officials will not be able to use schedule 3. There will be a public consultation and I am happy to discuss matters with him so that we can ensure that we clarify any further areas about which people may be concerned.
The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) made several points. One reason for discussing hostile state activity is what happened in Salisbury last year. There are hundreds of declared and undeclared foreign intelligence officers in the UK who seek to harm this country. They seek to undermine our values, corrupt our people and our news, carry out espionage and do us serious harm. None could be more serious than what happened in the Salisbury attack, where Novichok, a nerve agent banned by law, was used on our streets. That ended in a tragic death—the murder of a British citizen. That is outrageous and something that we did not really see even in the cold war. We should recognise that while the traditional barriers of the cold war and the 1980s are long gone, even more states are committing hostile acts every day, and we need the powers to deal with that.
James Cleverly (Braintree) (Con)
Does my right hon. Friend agree that it is important that as a society—not just as a Government and a House—we make it clear that the norms of international behaviour that we impose on ourselves are not universally accepted? The willingness to deploy both poisons such as Novichok and fake news, lies and so on might seem beyond reality to us, but is the norm for other regimes in the world. We have to be prepared to deal with such regimes and to push back against them.
Mr Wallace
My hon. Friend makes a strong observation about the rest of the world. Now is not the time for us to abandon our belief in the rule of law and, indeed, in the maintenance of our freedoms. In fact, we defeat others by leading by example. As he rightly points out, however, when we are faced by such adversaries, the challenge for any Government is to navigate their way through, to keep people safe while upholding their belief in the values and freedoms that we enjoy in the United Kingdom and maintaining the rule of law.
The stops—the powers under schedules 3 and 7—have been around in the terrorism space since 2000. They are strong powers, and they are limited by being used only at the border. Their use is not open to normal police officers going about their normal business. We do that to ensure that we maintain the freedoms in our society, while at our vulnerabilities, such as at borders, we have that extra layer in order to deal with—
Mr Wallace
No, I will press on to the end. I do not think that my right hon. Friend has been in the debate.
It is important to deal with issues as we look at the legislation. The right hon. Member for Kingston and Surbiton (Sir Edward Davey) used the B word, although I had hoped to get through the whole debate without using it. One of the delights of being the Security Minister is that in the world of intelligence sharing and of law and order, Brexit has often been kept at bay. However, the right hon. Gentleman has raised the issue, and we have taken steps to deal with it through private conversations with Ministers from around Europe and the European Commission and through the withdrawal agreement in the deal, which got us access to nearly all the things that we have now. That is why I was, and am, in favour of the deal—security is incredibly important.
We have recruited hundreds more people in order to strengthen the border and to deal with anticipated changes as we get there. The Government are taking that seriously, and we will plan to deal with it. However, it is at our borders that we will be most vulnerable, which is why this new power will help the police and intelligence services at least to keep our borders safer than they are now. That will not change, whatever our relationship with Europe. The hostile-state power will be for our domestic intelligence services and police, and whether we are in or out of Europe, half in or half out, or whatever we are, this power will be a welcome one that they are willing and wanting to use.
Julian Knight (Solihull) (Con)
Obviously, the B word is my favourite word at the moment. On information sharing, does the Minister agree that although we are leaving the EU, we are not leaving Europe? We will be a good neighbour as far as security and information sharing are concerned as we move forward into the future.
Mr Wallace
Within the remit of the Bill, we should remember that intelligence is the preserve of the nation state and will continue to be so. That has not changed and will not change. Contrary to what Sir Richard Dearlove, the head of MI6 at the time of the Iraq war, said in a letter that he put out last week, we managed to be full members of the Five Eyes and NATO at the same as we were full members of the European Union, so I do not believe that that will be lessened, whatever our status. We will still be members of the Five Eyes and NATO, whatever our relationship with the EU post 29 March. That is why the Bill is pitched correctly. It deals with the threats we have faced, the lessons we have learned from terrorist attack and from the hostile-state attack by Russia last year, and we are only as good as the lessons we learn. That is why the Bill is important in giving us the powers that we need.
In closing, I thank the Bill team, who have put up with their Minister wanting far too many changes, for helping me to deliver the sort of collaborative working that I used not to see, I am afraid, when I was in opposition a long time ago and for producing a Bill that I think most of the House regard as a good place to be. I am also grateful to their lordships for improving the Bill and to Her Majesty’s Opposition, the Liberal Democrats and the Scottish National party for their changes to the Bill. Thanks to those changes, we have a Bill that truly will help to bring people together and deliver better security.
I also thank the hon. Member for Torfaen for putting up with my struggling pronunciation of his constituency—I hope I got it right, but my Welsh is very poor—the right hon. Member for Kingston and Surbiton and the hon. Member for Paisley and Renfrewshire North (Gavin Newlands). I thank, too, the hon. Member for Barrow and Furness (John Woodcock) for his helpful suggestions and his campaign on the designated areas. He was part of their inspiration, so he can carry some of the blame if it turns out in a few years that they do not work. [Laughter.] I will take some of the blame; so can he.
Finally, I also thank my hon. Friend the Member for Redditch (Rachel Maclean), who performed gallantly as my Parliamentary Private Secretary through Committee, and our usual channel, the Lord Commissioner of Her Majesty’s Treasury, my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard). I also thank you, Madam Deputy Speaker, the Speaker and the other Deputy Speakers for steering the Bill through the House.
Lords amendment 12 agreed to.
Lords amendments 14, 15 and 17 to 42 agreed to.