Counter-Terrorism and Border Security Bill

Baroness Hamwee Excerpts

Report stage (Hansard - continued): House of Lords
Monday 3rd December 2018 Lords Chamber

[Earl Howe]

My Lords, I shall also speak to Amendment 25. Clause 6 will add a number of further terrorism offences to the list at Section 17 of the Terrorism Act 2006, to which extraterritorial jurisdiction, or ETJ, applies. This means that individuals can be prosecuted in UK courts for conduct that took place outside the UK which would have been unlawful under an offence listed at Section 17 had it taken place here. This will ensure that UK courts are able to prosecute terrorist fighters who travel to or return to the UK having joined terrorist groups and become involved in conflicts or other terrorist activity overseas. It will also ensure that we are able to prosecute people who base themselves overseas and seek to radicalise people in the UK.

In relation to this latter category of radicalisers, Section 13(1) of the Terrorism Act 2000 contains the offence of displaying in a public place an item of clothing or other article, such as a flag, in circumstances which arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. As a result of Clause 2 it will also contain, at new subsection (1A), the offence of publishing an image of such an article in the same circumstances. As currently drafted, the effect of Clause 6 is that a person could potentially be prosecuted under Section 13 in the UK, having displayed while in another country the flag of a terrorist organisation that is proscribed in the UK but not in that country. This is something about which the Joint Committee on Human Rights has raised concerns, and the noble Baroness, Lady Hamwee, tabled amendments on behalf of the JCHR in Committee which would have removed the Section 13 offence from the ETJ provisions entirely, or alternatively would have limited ETJ in relation to Section 13 to UK nationals and residents only.

These amendments return to issues on which we have had extensive and helpful debates. I have set out very clearly and at some length the Government’s position on why this power is needed, but it is worth reminding ourselves of two key points. First, we have seen modern terrorist groups, such as Daesh, use slick and effective online propaganda, including activity covered by the Section 12 and 13 offences, which has been aimed at radicalising people in the UK, building support for terrorist organisations and ideology, and encouraging terrorist attacks in the name of such organisations. This activity is not currently within the jurisdiction of the UK courts where it occurs in another country, but as we have seen in the Syrian context, it can give rise to a very real and immediate threat within the UK. For this reason it is imperative that we extend ETJ to these offences, and that we do so in an effective and workable way which does not unduly limit the ability of UK courts to deal with serious terrorist activity. This is the effect of Clause 6.

However, I have considered and reflected carefully on the points raised previously by the noble Baroness, Lady Hamwee, on behalf of the JCHR, and by other noble Lords, about the breadth of Clause 6 as currently drafted, and I have recognised the strength of feeling on this issue. While I remain of the view that the safeguards I outlined in Committee will ensure that the power is used in a proportionate way, I accept that this has not provided sufficient assurance to your Lordships. I have therefore concluded that the extension of ETJ to the Section 12 and 13 proscription offences should be limited to cases where the individual is a UK national or resident, in line with the amendment proposed in Committee by the noble Baroness, Lady Hamwee.

Amendments 24 and 25 in my noble friend’s name deliver this. Although the noble Baroness’s earlier amendment focused on Section 13, the same principle arises in relation to Section 12 of the 2000 Act, which criminalises invitations of support for a proscribed organisation, and as a result of Clause 2 will also cover reckless statements of support. The government amendments therefore extend this limitation to both Sections 12 and 13. This will ensure that it will still be possible to prosecute in the UK courts a person who has travelled from the UK to join a terrorist organisation, and who has become involved in propaganda on behalf of the organisation while they are overseas. But it will exclude the type of case about which the noble Baroness has raised concerns, where a foreign national acts in support of an organisation which is not proscribed in his or her country—for example, if a Lebanese national living in Lebanon displays a flag associated with the military wing of Hezbollah or invites support for that wing of the organisation. These amendments will put beyond doubt that such a person will not be liable to be arrested or prosecuted should they subsequently travel to the UK.

I hope that these are welcome amendments and will answer the concerns that have been raised by a number of your Lordships. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I am indeed very grateful for the Government’s amendments and their consideration of the points that have been made in Committee as well as by the committee, and at previous stages. They are very significant indeed. Amendment 26 is attributed to the Government on the groupings list but I will put that right. It would provide that, in connection with what we dealt with earlier today, the offences under paragraphs (ca) and (cb) will be relevant only where the actions are an offence in the country where they took place.

In Committee the noble and learned Lord, Lord Judge, who was very careful to be neutral about this, cautioned the Committee to take care:

“The Bill risks criminalising a citizen of another country for doing something that is not unlawful in that country … there may be minor matters, in relative terms, which we criminalise here but are not unlawful by the laws of a different country. We need to be careful not to extend the criminal law further than it should go”.—[Official Report, 31/10/18; col. 1368.]


The government amendments have indeed dealt with one aspect—the “who”, if I can put it that way—but not with the “what”.

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Moved by

[Baroness Hamwee]

28: Clause 13, page 15, line 27, leave out from “assessing” to “and” in line 28 and insert “whether the person to whom the warrant relates is in breach of notification requirements”

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[Baroness Hamwee]

My Lords, Amendment 28 repeats an amendment I proposed in Committee on behalf of the JCHR, which gathered considerable support from the noble Lords, Lord Anderson, Lord Judd and Lord Pannick, and the noble Baroness, Lady Kennedy, as well as my Front Bench and the Labour Front Bench. The noble Lord, Lord Carlile, said that he was,

“not convinced that the Government have got the proportionality of this right”.— [Official Report, 31/10/18, col. 1409.]

That has encouraged me to raise the issue again.

This amendment is in connection with the search and entry provisions. It would provide that, rather than allowing search and entry to assess risk, it would be far more specifically to assess whether the subject of a warrant was in breach of the notification requirements applying to him.

The Minister said that the provision was proportional. The terminology used in Committee included “home visits” and the police “keeping in touch”, which sounds much gentler than a power to enter and search under a warrant. I talked about what the noble Lord, Lord Anderson, called the human element—the impact on an individual’s family—but, as other noble Lords pointed out, the impact is often much wider in such a situation.

We will consider the Prevent policy on the next day of Report and no doubt noble Lords will raise the importance of how a policy is perceived by the community affected. The infringement of the privacy of the individual and of the individual’s family, who I think are at risk of considerable distress, which is part of the Government’s proposals, is not just a matter of a lack of proportion. It also carries a significant risk of damaging, if not destroying, the trust of the community, which in turn impacts on everyone’s security.

I acknowledge that there has to be a warrant. I am sorry if this sounds cynical, but can we be confident that a magistrate will always ask for details of compliance or otherwise with the notification requirements on the part of the subject of a requested warrant? Will a magistrate ignore the police’s wish to go on a fishing expedition, if you like?

The Minister drew a comparison with registered sex offenders. As the noble Lord, Lord Anderson, is here, perhaps I should let him speak for himself if he wishes and intends to do so, having pursued this with Professor Clive Walker. I am looking to see whether he is going to because if not then I am going to quote Professor Walker—I am being told to go ahead. I am grateful to him for pursuing this matter. Professor Walker looked at the comparison with people on the sex offender register and distinguishes this situation from that one because of the additional ways of mitigating the risk where terrorist offenders are concerned. He also made the point that if he had realised what the provisions applying to sex offenders were, he would have been critical then. As he says,

“a bad precedent should not be used as a basis for more bad law … I still argue that it is unwarranted to treat terrorism offenders in this way in comparison to sex offenders because of the different designs now being applied to terrorism offenders … in terms of their periods of endurance and also possibilities of review”.

He refers particularly to the extent of the respective orders—currently scrutiny over identity, residence, travel— and to the fact that the Bill imposes requirements as to mobile phone details, email addresses, vehicles, banks and identification documents. He says:

“If such information is provided, all of which can be checked against external records, should this not reduce the residual risk and so reduce the need for entry in order to check ‘risk’? … If these extra demands do not adequately reduce risk, what is their value?”


That is another way of asking the question that I asked in Committee on whether the notification requirements in themselves were insufficient. If the answer is no, they are sufficient—and I would expect the Government to say that—then what is the justification for this, as I say, potentially damaging provision? I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I support the amendment for the reasons that the noble Baroness has given. The only additional point that I would make, and I made it in Committee as well, is whether the person to whom the warrant relates being in breach of notification requirements constitutes a sufficient ground for the entry and search of the home of a TPIM subject—among, one must assume, the most dangerous of terrorists or suspected terrorists in this country. It is a little hard, at least for me, to see why it should not be sufficient in relation to the prisoners and those remanded in custody who are dealt with under this part of the Bill.

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[Baroness Hamwee]

My Lords, as I said, two bad laws are twice as bad as one. The Minister said that the experience is that terrorist offenders are likely to be unco-operative when they are asked to host a home visit—and I wonder why they are unco-operative. This seems a very intrusive power. We are talking not only about entering a person’s home but, to take just one of the purposes mentioned by the Minister, assessing their mental health. What is done when that visit, or entry, is made, to undertake that assessment? The power is much broader and deeper than it may appear on the surface. I will not repeat the debate that we had last time but I do not feel that I am any more enlightened or, I have to say, any more persuaded. However, I accept that we are where we are for tonight, and I beg leave to withdraw the amendment.

Amendment 28 withdrawn.

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[Baroness Hamwee]

My Lords, we too support these amendments and recognise the steps that the Government have taken. Perhaps I may put on the record a couple of comments made by the Law Society on this general area. Unfortunately, its briefing arrived too late for us to build on it by way of amendment, but it comments on legally privileged material being retained for use as evidence or for deportation proceedings. It gives the view that:

“Legally privileged material should not be retained for any purpose other than a potentially urgent need to prevent death, injury or a hostile act”.


It also comments on:

“The process by which material can be identified as constituting legally privileged material”,


and asks who is responsible for making the determination, as that is not,

“explicitly clear in the Bill as drafted”.

It continues:

“It is important that this determination is made by a legally qualified person who is capable of accurately assessing whether a given article is subject to legal professional privilege”.


As I said, I thought that it was worth putting those comments on the record.

My noble friend Lord Marks is sorry not to be able to be here this evening and asks that his thanks to the Minister for building on the indication given at the last stage is recorded. He too asks about what he calls an “unacceptable, dodgy solicitor”. I think that any dodgy solicitor is unacceptable—you do not have to fill two criteria. If an unacceptable dodgy solicitor is selected for a second time, he and I assume that the senior officer might give a further objection. My noble friend also asks whether the Government intend to issue a further draft code of practice relating to the considerations that senior officers should take into account when considering making these directions.

[Baroness Williams of Trafford]

I thank the noble Baroness for those questions. The noble Lord, Lord Rosser, asked what happens if the detainee chooses another solicitor, who is then of concern. I am trying to read the writing here. If concerns still exist, the superintendent is within his or her right to direct that the detainee should choose a different solicitor, and that applies not just to the first-choice solicitor. The point about confidential material—

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Moved by

[Baroness Hamwee]

30: Schedule 2, page 29, line 16, at end insert “, and
(c) the Commissioner for the Retention and Use of Biometric Material has consented under section 63G to the retention of the material.”

[Baroness Hamwee]

My Lords, the JCHR proposed a number of amendments on the subject of biometrics for the last stage. The Minister gave a long reply, quoting the Biometrics Commissioner’s support for bringing the periods for retention of data for arrest on suspicion of terrorism offences into line with arrests under the Police and Criminal Evidence Act. At that stage, it seemed to me that this did not go to the question of oversight by the commissioner, and I still do not think that has really been dealt with.

I confess that I had to go by way of Beachy Head and along the byways of PACE to arrive at Amendment 30, so I am well prepared for criticisms of the drafting. However, it is intended to ensure that the retention of biometric data for a terrorism offence has consent from the commissioner. I am entirely open to a different way of achieving that end, but I am certain in my own mind that, whatever the basis of arrest, the retention of data should require this consent. I beg to move.

[Earl Howe]

My Lords, as the noble Baroness, Lady Hamwee, has made clear, this amendment returns to one of the issues raised in the reports on the Bill by the Joint Committee on Human Rights: the rules governing the retention of biometric data in national security cases. I am sorry that the noble Baroness remains unpersuaded by my previous response. I will do my best to be more persuasive today.

Without going over too much ground, it may be helpful if I briefly reiterate that Schedule 2 amends the laws that govern the retention, review and deletion of fingerprints and DNA profiles by the police for national security purposes. The intention of these provisions is to strike a better balance between on the one hand enabling the police to use fingerprints and DNA in an agile and effective way to support terrorism investigations and protect the public, and on the other ensuring that the retention of DNA and fingerprints continues to be proportionate and subject to appropriate safeguards. Schedule 2 delivers this and, importantly, it retains proportionate safeguards, including regular case-by-case review and the robust independent oversight provided by the Biometrics Commissioner.

The noble Baroness’s amendment would amend paragraph 2 of Schedule 2, which harmonises the retention periods for biometric data obtained when an individual is arrested on suspicion of terrorism, but not subsequently charged, under the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000. Paragraph 2 does so by providing for biometric data to be retained for an automatic period of three years when an individual is arrested under PACE for a qualifying terrorist offence.

As the noble Baroness is aware, currently an individual arrested under the Terrorism Act 2000 may have their biometric data automatically retained for three years. But the same automatic retention would not be available if the same individual were arrested in relation to the exact same activity under PACE. Rather, in that case, ongoing retention for national security purposes would require the police to make a national security determination with the approval of the Biometrics Commissioner, or would otherwise require the consent of the Biometrics Commissioner under Section 63G of PACE if retention were solely for the prevention or detection of crime generally.

Our position on this is that having two different retention regimes in such cases is quite simply anomalous. The Bill will provide for a more consistent approach to the retention of biometric data for all those arrested on suspicion of terrorism by providing for the same retention period in otherwise identical terrorism cases regardless of the power of arrest used. This is a proportionate and logical change.

The noble Baroness’s amendment would mean that this inconsistency between the two retention regimes would persist. Particularly against the backdrop of the heightened threat picture we face today, I am clear that it is important that the police are not deprived of information that could prove vital to keeping the public safe. That is what underlies a lot of what we seek without removing, as I emphasised earlier, the safeguards that are in place.

As noble Lords would expect, we consulted the Biometrics Commissioner on this provision. He is clear that he supports the measure, and I quoted his words last time. The noble Baroness’s amendment would have the effect not of modifying or improving this aspect of Schedule 2 but of effectively nullifying the provision and preserving the current anomaly. That disparity is not sustainable and I see no good reason for continuing it.

I sense that I have not persuaded the noble Baroness in what I have said, but I hope that she can at least see the logic of the Government’s position and perhaps, on reflection, will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, I think we want the same thing, but I confess that I do not understand how the Government have got here. The noble Earl did indeed quote the commissioner last time, but it seemed to me that that was on a different point. Perhaps I may check this. I think he is saying that the oversight through an NSD is equivalent to the oversight applied by PACE. I do not know whether he is able to answer that, but I am finding it difficult to understand how they are in fact exactly equivalent in the way that he is telling the House.

[Earl Howe]

The strict answer to the question put by the noble Baroness is that the two Acts provide for different kinds of retention regimes, one where it is automatic for three years under certain conditions and the other where the Biometrics Commissioner has to give his permission; namely, under PACE. The point I was making was that that applies in cases which are otherwise identical and that it is simply anomalous to have that difference. The Biometrics Commissioner has actually said that it would be,

“a sensible approach to bring the retention periods for arrest on suspicion of terrorism offences in line”.

If he is relaxed about it, I cannot see that we should not be either.

[Baroness Hamwee]

I have the Official Report of when the noble Earl quoted that last time, and it seemed to me then that that was about the retention period, not quite about the role of the commissioner. I do not think that we are going to make further progress and at this time of night it would be inappropriate for me to labour the point. It may be my fault for failing to follow the details. As I say, I have had to go by way of Beachy Head to get to the amendment that I put down. I beg leave to withdraw it.

Amendment 30 withdrawn.