Counter-Terrorism and Border Security Bill

Baroness Hamwee Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

I hope my explanation for these amendments is clear and that noble Lords agree with the importance of being able to act quickly against the imminent threat of hostile activity. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have some small questions for the Minister, and I hope she has been given notice of them in her brief—I contacted the Bill team yesterday. I think she has largely answered one of them, but I will ask it anyway. In her Amendment 73 and elsewhere, there is provision for a cut-off to the period for representations. I understand the need for that. Is there a timetable for the rest of the process? This is likely to be significant to the passenger, the affected party.

Secondly, in Amendment 76 and other amendments—the Minister has just mentioned this—what is an example of what is not “reasonably practicable”? She mentioned the possible difficulty of getting in touch with the individual. Again, I understand that. Does the term “reasonably practicable” go to that sort of thing? In other words, is it on the part of the person trying to get in touch, or is it looked at from the point of view of the passenger? Destruction of an article or conditions as to the use of the article are likely to be significant in this situation.

Thirdly, I have a similar question about the urgency condition in Amendment 77. Who assesses what is urgent? Is it the Home Office or the commissioner, and is it urgency in the eyes of the passenger? If the Minister can help to flesh out some of those queries, I will be grateful.

[Lord Rosser (Lab)]

Perhaps I may add one further question to those raised by the noble Baroness, Lady Hamwee. It relates to the urgency procedure. The noble Baroness has already asked who makes the decision on what is or is not urgent, but can we also have some feel, presumably based on the experience of the agencies concerned, of how frequently they expect to use this procedure?

[Baroness Williams of Trafford]

My Lords, the kind of situation in which we can expect the urgency provisions to be used possibly goes to the question asked by the noble Lord, Lord Rosser, about how frequently they are used. It is difficult for me to talk about the average frequency in any week, year or other given timescale, but clearly there is a spike nature to some of these events. Therefore, I hope that the noble Lord will accept that I cannot give a definitive answer to his question. However, basically the provisions will be used to disrupt a live threat—for example, where a hostile agent tries to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In the aftermath of something like the Salisbury event, Schedule 3 powers would provide the police with additional tools to stop and question persons with potential links to a hostile state or its actors who might have knowledge of or involvement in the attack. In such a scenario, it would be critical to analyse their devices and material at speed in order to understand the extent to which they were engaged in hostile activity.

The noble Baroness, Lady Hamwee, talked about the timeframe. Obviously, the urgency procedures would be used only where there was an immediate risk of death or significant injury or of a hostile act being carried out. In such a case, the police must be able to act with immediate effect. However, on the question of whether we could have done it the other way round, with a prior authorisation procedure being put in place, the answer is that that would still take some days. I hope that that answers the question.

The point was made that the timeframe for the urgency process—that is, within 24 hours—makes it very difficult to make representations to the commissioner. I was asked whether that is enough time or whether it should be longer. The timescales for the urgency process aim to strike a balance between giving the property owner enough time to make representations and ensure that the police are not able to use the property without judicial authorisation with the decision having to be taken by the commissioner within three days, and, by the same token, conceding that it is likely the property owner will want a decision to be taken as quickly as possible to prevent the police using their property without a decision by the commissioner. The draft Schedule 3 code of practice, which is available online, makes it clear that the examining officer must provide a notice that will explain to the property owner that they are invited to make representations to the commissioner, including contact details and the associated timescales.

Did the noble Baroness ask me what happens if the property owner cannot be contacted?

[Baroness Hamwee]

I asked about what is “reasonably practicable”.

[Baroness Williams of Trafford]

She did, and I have the answer here—as if by magic. Paragraph 63 of the draft Schedule 3 code of practice is clear that, where the examining officer retains a person’s property beyond the period of examination, the officer should ask the person how they would prefer to be contacted regarding the status or return of their property. The officer will typically seek to acquire the phone number, email address or postal address of the examinee. However, under the urgency process, the examining officer would attempt to use the details provided by the examinee to make contact and to provide the information. This would typically include attempting to call the person a number of times, as well as sending them information by recorded post and email. If the person is at the known UK address then the officer from the local force could be tasked to attend the address to deliver the relevant information in person. Obviously, however, it would not be reasonably practicable for the police to take this approach on every occasion or where the person is abroad. It would not be reasonably practicable for the examining officer to make contact with the person where they have provided false contact details. I hope that satisfies the noble Baroness.

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We firmly suggest that the Government place a higher value on the importance to human rights of timely access to confidential legal advice from a solicitor in person. The restrictions in the Terrorism Act and in this Bill are disproportionate and should, I suggest, be amended in the ways we propose. I beg to move.

[Baroness Hamwee]

My Lords, my noble friend’s curtain-raiser has covered a great deal of the ground. I will speak to Amendments 83, 84, 85, 87 and 88, which come from the Joint Committee on Human Rights and seek to ensure that, under Schedule 3 to the Bill, detainees are informed of their rights and provided with timely and confidential legal advice in all four jurisdictions. It is because there is more than one jurisdiction that there are a number of amendments.

We are concerned that the safeguard of access to a lawyer is not adequately protected under this Bill. In particular, it is not clear that an individual will even be informed of his right to request access—apparently, this is available only on request. Access to a lawyer may not be available when a person is questioned initially; it may be delayed. In our view, it is not sufficient to rely on a code of practice in this area. The legislation should be adequate in itself and, as regards access, unqualified or very close to unqualified. I will come to that in a moment.

The Government told the committee that a code of practice would make clear that permission to seek legal advice should be permitted when “reasonably practicable” and that the,

“restrictions are to mitigate against the possibility of an examination being obstructed or frustrated as a result of a detainee using his right to a solicitor”.

Leaving aside whether we should accept the second point—and I do not think I do—it is my view that the two statements are barely consistent or compatible.

My noble friend quoted the Government’s response that legal privilege might be used to pass on instructions to a third party through intimidation or a coded message. These powers, or restrictions, unjustifiably interfere with the right to timely and confidential advice and therefore, ultimately, with the right to a fair trial if there is a prosecution. I make that point because the Joint Committee approaches everything from the point of view of human rights, the right to a fair trial being one. There is not in the Bill a sufficient safeguard against the arbitrary exercise of the powers.

The last time I recall there being a question on legal privilege being regarded as a problem by the Government, I sat and listened in a Minister’s office to something like a seminar with the Minister and two very senior lawyers—both Members of this House and both of whom are here this afternoon—who articulated very effectively and authoritatively what I would describe as my own queasiness about the suggestion that access to a solicitor should be restricted. They dealt very effectively with the safeguards that exist against dodgy lawyers, if I may put it like that. After all, this issue is not peculiar to this situation. As my noble friend said, there have been suggestions such as the pre-approval of vetted panels of lawyers.

I am not quite convinced—we will hear from the noble Lord, Lord Rosser—that Amendment 86, tabled by the Labour Benches, meets the Government’s points or deals with the principle, but we urge the Government to consider how a client’s fundamental human rights in this area should be protected, because there are other ways of dealing with this.

[Lord Judge (CB)]

My Lords, I invite the Government to think rather carefully about this. This provision enables an individual to be stopped, detained and searched—it is true that it is not an intimate search, but it is a strip search—and his or her property to be detained. It really should be elementary that he or she should be able to speak to a lawyer of some kind within the ambit of the amendment of the noble Lord, Lord Marks, if only to be told, “Yes, they do have these powers. It would be rather a good idea for you to comply”.

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[Lord Rosser]

As has been said on more than one occasion, Schedule 3 deals with border security and the power to stop, question and detain and states:

“An examining officer may question a person for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.


It goes on to say:

“An examining officer may exercise the powers … whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.


There does not need to be reasonable suspicion. That is a very considerable power and safeguards are needed to ensure that it is used in a necessary and proportionate manner. Amendment 67ZA seeks to have such a safeguard in relation to this power by providing that the Investigatory Powers Commissioner,

“must be informed when a person is stopped”,

and,

“make an annual report on the use of”,

this power.

In the schedule, there is provision for the Investigatory Powers Commissioner to keep under review the operation of the many provisions in the schedule and make an annual report to the Secretary of State about the outcome of the review. In the Commons, the Government were asked whether in carrying out the review process and producing the report—under Part 6 of Schedule 3 —the commissioner would be aware of every stop that had taken place. Our amendment provides that the commissioner must be informed of such stops. The initial reply from the Minister in the Commons was “Yes”, but he then went on to say:

“Although the commissioner will not be informed every time someone is stopped, the numbers will all be recorded, and he will have the power … to investigate those stops while doing the review”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 5/7/18; col. 190.]


That appears to be a qualification of the initial answer of yes. The information that the commissioner will get is the numbers—perhaps total numbers—but that may apparently be some time after individuals have been stopped.

This amendment provides that the commissioner must be informed when a person is stopped. Will the Investigatory Powers Commissioner be informed when people are stopped, questioned and detained or only given numbers at a frequency that is unstated? Will the commissioner be told why people have been stopped, questioned and detained, or will he or she have to inquire about that when given overall numbers at some later stage?

As I understand it, the Government’s argument appears to have been that the Terrorism Act 2000 powers on counterterrorism have been used to stop, question and detain people where there is an issue of potential hostile activity, and that the Bill simply regularises what is already happening. If I have understood the Government’s argument, does that mean that they expect no increase in the number of people being stopped, questioned and detained at our borders, particularly at the sensitive border in Ireland between north and south? One could put that interpretation on it, if it is correct that the Government are saying that the Bill simply regularises something that has been happening under the powers in the Terrorism Act 2000. But if not, and the Government expect an increase in the numbers of people being stopped as a result of this provision, on what scale is that increase expected to be? I beg to move.

[Baroness Hamwee]

My Lords, I was not clear whether the noble Lord, Lord Rosser, was using this amendment to seek more information, but we wonder about the operational practicality of its first paragraph. It suggests that if the commissioner is informed of a particular stop, they would have some power or role to respond. More important are the points implicit in what the noble Lord said about keeping records or data. In another context, the noble Lord, Lord Anderson, used the term “meticulous” about keeping records in Northern Ireland, and reference was made to using them as the basis for review of practice. That is very important and although we have hesitations about the amendment’s first paragraph, what has prompted it is important.

[Baroness Williams of Trafford]

As the noble Lord, Lord Rosser, pointed out, Amendment 67ZA would require an examining officer to notify the IPC each time a person is examined under Schedule 3 and require the commissioner to publish an annual report on the use of the powers in the Northern Ireland border area. In relation to the second part of the amendment, as the noble Lord stated, Part 6 of Schedule 3 already requires the commissioner to review the use of the powers and make an annual report.

The police will make a record of every examination conducted under Schedule 3, as they already do with Schedule 7. I reassure noble Lords that the commissioner will be afforded full access to these records on request, and to information on how the powers have been exercised. It would place an unnecessary burden on the examining officer to have to notify the commissioner each and every time a person has been examined.

Regarding concerns about how these powers will be exercised at the border in Northern Ireland, media and political commentary over the summer sought, wrongly, to conflate the introduction of this legislation with the discussions on the Irish border in the context of Brexit and concerns over the possibility of more stringent measures. The Security Minister wrote to the shadow Secretary of State for Northern Ireland on 4 October to address these concerns. I circulated a copy of that letter after Second Reading, so I will not repeat his response in full here. However, I want to reiterate that it is simply not the case that these powers will be used as an immigration control or to interfere with the right to travel within the CTA. Their application to the border area mirrors that of the analogous counterterrorism powers in Schedule 7 to the 2000 Act, which have been in operation for 18 years. In that time, we have not seen a blanket or large-scale use of these powers in the border area. In fact, the number of examinations in Northern Ireland as a whole during 2017-18 amounted to 6% of the UK total.

The Schedule 3 powers must be used only to determine a person’s involvement in hostile activity. The location and extent of their use will be informed by the threat from hostile activity and any decision to use them will be on a case-by-case basis. While the commissioner’s annual report will not provide a location breakdown of where the powers are exercised, for clear national security reasons, he will review police exercise of the powers, including their use in Northern Ireland.

The noble Lord, Lord Rosser, asked whether the Bill regularises stops that are already taking place under Schedule 7. The answer is no. Schedule 3 powers will be used only to determine whether a person is engaged in hostile activity. We have already discussed the definition of hostile activity. Its broad scope is to mitigate a range of threats. Schedule 7 is about persons engaging in terrorism.

I hope that I have been able to reassure the noble Lord, Lord Rosser, and that he will be content to withdraw his amendment.

Counter-Terrorism and Border Security Bill

Baroness Hamwee Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, again on behalf of the Joint Committee on Human Rights, I have Amendments 64 and 65 in this group, as my noble friend Lord Paddick has trailed. The Bill gives powers, as does the Terrorism Act 2000, whether or not there is a suspicion. The JCHR’s amendment would insert a test of reasonableness—that is, a threshold of reasonable suspicion—to stop, search and detain for the purpose of determining whether an individual is involved in the commission of a hostile act, and would allow the exercise of these powers only when it is,

“necessary and proportionate to do so”.

My noble friend said that he was not sure whether the second of those words was necessary, or possibly even proportionate. I find it quite difficult to know when one should articulate those criteria. We are told that they must always apply but sometimes it seems necessary to have the debate.

The committee identified five potential interferences with Article 8 rights in the case of a person subject to the power: he must provide any information or document requested—failure to do so is punishable by a substantial fine and imprisonment; he can be stopped and searched; his personal belongings may be copied and retained; he may have biometric data taken; and he may be detained for questioning. These are of course existing provisions but there are distinctions from the 2000 Act. Under this legislation the purpose of the Schedule 3 power is broader and, we think, more ambiguous than the Schedule 7 power in the 2000 Act, giving a greater risk of arbitrary use of the power.

Professor Clive Walker, whom I have quoted before, has suggested that if the real mischief behind these powers is the Salisbury attack, the purpose should be confined to powers to stop, question and detain without reasonable suspicion on the basis that the person has information or is carrying materials which might relate to crimes under the Official Secrets Act or chemical, biological, radiological, nuclear and explosive crimes. Under the schedule to this Bill, there are also broader powers to retain articles and make copies of materials, including “confidential material”, compared to Schedule 7. Under that schedule to the 2000 Act, material cannot be reviewed or copied unless officers have reasonable grounds to believe that it is confidential.

Under Schedule 3, there will be the oversight of the Investigatory Powers Commissioner, which is of course welcome. The Government also point to the fact that the decisions of the commissioner are subject to judicial review as a safeguard but, as the European court has commented, where statutory powers are wide, applicants can face formidable obstacles in proving that decisions are ultra vires. For that reason, among others, we think it is necessary that the statutory powers are clearly defined and sufficiently circumscribed.

[Lord Rosser (Lab)]

We have Amendment 65A in this group. I shall speak to it briefly. Paragraph 1(4) of Schedule 3 states:

“An examining officer may exercise the powers under this paragraph whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.


As has already been said, under Schedule 7 to the Terrorism Act 2000, an officer can stop a person without having grounds for suspicion that the individual is involved in terrorist activity. However, the draft guidance published by the Government states that stops under Schedule 3 cannot be arbitrary and must be informed by the threat of hostile activity to the UK. The purpose of Amendment 65A is simply to enshrine the wording in the draft guidance in the Bill. The precise wording in the draft guidance is:

“the decision to select a person for examination must not be arbitrary. An examining officer’s decision to select a person for examination must be informed by the threat from hostile activity to the United Kingdom and its interests posed by foreign States and hostile actors acting for, on behalf of, or otherwise in the interests of, those States, whether active in or outside the United Kingdom”.

The objective of this amendment is simply to put that wording in the draft guidance, which provides some sort of safeguard, into the Bill rather than leaving the Bill with, as it appears to be at the moment, effectively a random stop-and-search power.

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[Lord Anderson of Ipswich (CB)]

I support the Government’s position on Amendments 42 and 46. In a report of July 2013, The Terrorism Acts in 2012, I recorded the result of an extensive inquiry conducted with MI5 and counterterrorism police into the value of no-suspicion stops under Schedule 7 to the Terrorism Act. I started from a position of, I hope, healthy scepticism, but noted three useful functions of the no-suspicion stop: deterring and detecting the use of “clean skins” to transport terrorist material; avoiding alerting travellers that they were the object of surveillance; and enabling the travelling companion of a person suspected of involvement in terrorism to be stopped and questioned. I followed this up with several real-life examples, which I had verified, of no-suspicion stops that had brought significant benefits in terms of disrupting potential terrorists. More to the point, perhaps, in the case of Beghal in 2015 a majority of the Supreme Court held that having regard to the many safeguards on its exercise, the absence of a suspicion requirement was not such as to render the basic Schedule 7 power inconsistent with the principle of legality. That judgment contained a lengthy comparison of Schedule 7 with the former Section 44, to which the noble Lord, Lord Paddick, addressed some remarks.

These few words should not be understood as a rejection of some enhanced threshold for the use of more specialised powers under Schedule 7 to the 2000 Act, or Schedule 3 to this Bill, such as downloading a phone or, indeed, taking a person into detention. Still less should it be understood as support for no-suspicion powers of stop and search in more orthodox areas of policing where threats to national security are not in issue. I hope, however, that it explains why I do not support these amendments.

[Baroness Hamwee]

The noble Lord reminds us about the draft code of conduct. It spells out considerations that relate to the threat of hostile activity and lists a number of factors, one of which, in the context of the stop not being arbitrary, is to have consideration of “possible current, emerging … hostile activity”, which is understandable, and “future hostile activity”. Can the Minister explain the distinction between emerging and future hostile activity?

[Lord Blair of Boughton (CB)]

I support the words of the noble Lord, Lord Anderson. As long as these powers are restricted to the extreme circumstances of national security and are not a passport to a widening of stop and search without justification, I think this is about hanging a notice around the UK—particularly, as he said, in relation to clean skins and travelling companions—saying that this is a hostile place for people with deeply malign intent.

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[Baroness Williams of Trafford]

As the third person to be not legally qualified to respond to this, I thank both noble Lords for raising some important issues with respect to Clause 16. As we have heard, the clause provides for how oral answers or information given to examining officers in response to questioning under Schedule 7 to the Terrorism Act 2000 can be used in subsequent criminal proceedings. Noble Lords will be aware that the powers under Schedule 7 are essential to help the police to tackle the threat posed by terrorism. I have listened carefully to the points made today about these powers and the concerns about how they might be used. One important check and balance for port and border powers is the statutory bar that we are introducing in Clause 16, which is also mirrored in Schedule 3. Under Schedule 7 there is a legal duty on those examined to give the examining officer any information that the officer requests. It is an offence under paragraph 18 to wilfully fail to comply with this duty. Unlike where someone has been arrested and has a right of silence, an examinee under Schedule 7 is compelled, under pain of prosecution, to answer questions put to him or her.

By introducing a statutory bar on the admissibility, as evidence at criminal trials, of any answers or information given orally in the course of a Schedule 7 examination—where the suspect will not have been arrested or cautioned—we are providing greater clarity and therefore comfort to the subjects of these examinations, and helping police to exercise their powers under Schedule 7. We are including a corresponding statutory bar in Schedule 3. The bar will provide that reassurance to examinees who might be unwilling to answer questions for fear of incriminating themselves that their oral answers or the information they provide will not be used against them.

The principle of excluding material from criminal proceedings on fairness grounds is reflected in Section 78 of the Police and Criminal Evidence Act 1984, which already provides the courts with the discretion to exclude such evidence if it would have an adverse effect on the fairness of proceedings. In the case of Beghal in 2015, the Supreme Court held that criminal courts would almost inevitably use Section 78 to exclude from criminal trials any answers or information given in Schedule 7 examinations. This clause puts the position beyond doubt and, in doing so, fulfils our commitment to the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson, to legislate in this way.

However, the statutory bar is not absolute—a point that the noble Lord, Lord Anderson, recognised, as did the Supreme Court in the Beghal case. There are three exceptions. First, the bar will not apply where the individual is charged with an offence under Schedule 7 of wilfully obstructing or failing to comply with an examination. Secondly, it will not apply where an individual is prosecuted for perjury. Finally, the bar will not apply for another offence where, in giving evidence in relation to that offence, a defendant makes a statement inconsistent with their oral response to questioning under Schedule 7—provided that the defendant is the party to adduce evidence relating to that information or asks a question relating to it.

Amendment 43 seeks to narrow the first of the three exceptions to that bar that I have just described. The amendment is intended to ensure that oral answers or information given in an examination are used as evidence against the person in criminal proceedings only where they are charged with wilfully obstructing or failing to comply with a duty arising during that particular examination, and not as evidence in proceedings for the obstruction of any earlier or subsequent examination.

We are of the view that this amendment is unnecessary, as what it seeks to provide for is already the case in practice. This is a consequence of the way the paragraph 18 offence is drafted, requiring as it does “wilful”—that is, “knowing”—obstruction or breach of an obligation. It is not possible for a person’s answer or information given in one examination to represent a knowing obstruction of, or non-compliance with, any previous or subsequent examination. At the time the answer or information is given, the person is beyond the point in time at which he or she can knowingly obstruct a past examination—nor can it be known that he or she will be subject to a future examination, so they cannot knowingly obstruct it. The current drafting of the Bill therefore secures the outcome that the noble Lords intend: namely, that answers given in an examination can be used in evidence only in a prosecution for wilful obstruction of that examination, and not any other examination. We believe that this is the right outcome.

Amendments 44 and 45 seek to remove the third exception to the statutory bar in its entirety. This is an important exception, which allows the prosecution to challenge a defendant where they have provided statements to the police in a Schedule 7 examination which are inconsistent with, or contradict, statements made later in criminal proceedings. To accept these amendments would give defendants in such situations the confidence to knowingly mislead the court in the case of another prosecution, as any contradictory statements they made during a Schedule 7 examination would not be admissible.

This third exception to the statutory bar reflects the legal exception that already exists in other legislation—for example, Section 360 of the Proceeds of Crime Act 2002 and, more recently, Section 22C of the Terrorism Act 2000, which was inserted by the Criminal Finances Act of 2017. It is not unique to terrorism legislation and, consequently, I see no case for removing the third exemption.

This clause introduces an unambiguous fair-trial safeguard. But, in putting the almost inevitable application of Section 78 of the Police and Criminal Evidence Act beyond doubt by means of this statutory bar, it is right that we reflect the legitimate exceptions that the Supreme Court has itself contemplated, in confirming that the statutory bar should apply other than,

“in proceedings under paragraph 18 of Schedule 7 or for an offence of which the gist is deliberately giving false information when questioned”.

I hope that that is a clear explanation of what the noble Lord asked and that he will be content to withdraw his amendment.

[Baroness Hamwee]

Before my noble friend responds, as I recall, the draft code of practice has provisions on giving information to people who are stopped as to their rights. I had some difficulty in opening and reading the draft code and so I have been able to do so only quickly, but the points that have been discussed require hot towels and quite a lot of time. In drafting the explanation of individuals’ rights, has the Home Office subjected, or might it subject, the explanation of how these provisions work to, say, the Plain English society, which comes to mind, or Citizens Advice —in other words, to people who are concerned with clear explanations?

[Baroness Williams of Trafford]

My Lords, I am always conscious of the Plain English society when I say some of the things that I do during the passage of legislation.

[Baroness Hamwee]

No criticism is intended.

[Baroness Williams of Trafford]

Then I shall just agree.

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Moved by

[Baroness Hamwee]

47: Schedule 2, page 29, line 5, leave out paragraph 2

[Baroness Hamwee]

My Lords, Clause 18, which has just been agreed, and Schedule 2 amend existing powers to retain fingerprints and DNA samples for counterterrorism purposes, and the JCHR has proposed a number of amendments.

As regards Amendment 47, currently under the Police and Criminal Evidence Act a person who is arrested but not charged or convicted of a terrorist offence may have his data retained for three years for security purposes with the consent of the Biometrics Commissioner. The Bill removes the requirement for that consent. In the view of the JCHR, the oversight of the commissioner is a matter that gives confidence to the public that the powers are used only where “necessary and proportionate”, and we are not aware that this oversight impedes the ability of the police to undertake counterterrorism work.

The Government responded to our first report, stating that they did not agree that,

“it would be appropriate or responsible to reduce the powers available to the police”,

but we did not propose the removal of those powers. We recognise the logic in harmonising the retention periods for biometric data so that cases are treated in the same way, whether an individual is arrested under PACE or under the Terrorism Act, but we were concerned about removing the requirement for the consent of the Biometrics Commissioner, and I have not seen a response from the Government to that point.

Therefore, the obvious question is: what is the justification for the biometric data of a person unlawfully or mistakenly arrested being exceptionally stored rather than destroyed? If the aim is to align the procedures, why not add to the protection by the commissioner having oversight of both categories of DNA retention under both powers? The JCHR made the comment, and did not make it lightly, that it was concerned about a race to the bottom of human rights protections. I beg to move.

[Lord Paddick]

My Lords, I support what my noble friend Lady Hamwee has said. The report of the Joint Committee on Human Rights talks about the oversight of the Biometrics Commissioner giving the public greater comfort that such powers are used only where necessary and proportionate, and it would seem that no valid reason has yet been presented by the Government for removing that oversight.

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[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for tabling this amendment and I understand both her concern and that of the Joint Committee on Human Rights. However, I stress, as the Government did in their response to the Joint Committee’s first report on the Bill, that this measure to enable biometric data to be retained when an individual is arrested under the Police and Criminal Evidence Act 1984—PACE—for a qualifying terrorist offence is both proportionate and necessary to help protect the public.

Schedule 2 contains amendments to the laws governing the retention, review and deletion of fingerprints and DNA profiles by the police for counterterrorism purposes. This is a complex area of law, and it may assist the Committee if I first spend a short while explaining the current position. The relevant statutory framework was introduced by the Protection of Freedoms Act 2012, which established the principle that the biometric data of people who have not been convicted of any offence should no longer be kept indefinitely. This means that for the vast majority of people who are arrested and whose fingerprints and DNA are taken by the police, that biometric data will be promptly deleted if they are not convicted. This system is overseen by the independent Biometrics Commissioner, currently Professor Paul Wiles.

When passing the 2012 Act, Parliament recognised that it would be irresponsible, and would put the public at risk, to make this a blanket requirement in every case, regardless of the risk the individual might pose. So it made limited and tightly circumscribed provision for biometrics to be retained for limited periods in certain circumstances in the absence of a conviction. For example, if a person is arrested using the general power of arrest in the Police and Criminal Evidence Act 1984 and is charged with a qualifying sexual, violent or terrorist offence, but is not ultimately convicted, it was recognised that there may be a range of reasons why they were not convicted and that they could still pose a risk of harm to the public, despite the discontinuance of the case.

In these circumstances it would be inappropriate, and indeed complacent, to ignore this risk to public safety and to require the police to immediately and automatically delete the individual’s DNA profile and fingerprints once a case is discontinued or the suspect is acquitted. The 2012 Act in these circumstances provides for a clearly limited three-year retention period before the data must be deleted. Similarly, if a person is arrested on suspicion of being a terrorist under the Terrorism Act 2000, whether or not they are subsequently charged, there is also a three-year retention period. This means that the police are better able to identify whether the individual is involved in terrorism, or other activity that poses a threat to the public, during that period. But it also means that the individual’s biometrics will not simply be held indefinitely.

In counterterrorism cases a person’s biometric data can be retained beyond the point when it would otherwise have to be deleted only if the chief officer of police of the area in which the material was taken personally considers that this is necessary for national security purposes. In these circumstances he or she can make a national security determination—or NSD—authorising retention for a further limited period, subject to a maximum of two years currently, and renewable if retention continues to be necessary. NSDs will, of course, be made only where it is proportionate to do so. This determination must then be reviewed and approved by the independent Biometrics Commissioner, who has the power to order deletion of the data if he is not satisfied that the determination is necessary. An NSD can be renewed for a further period, but only if the legal tests continue to be met and if the commissioner approves the renewed NSD. The assessment is made on the basis of intelligence and other relevant information about the threat the individual poses. We shall, of course, come to national security determinations in the next group of amendments, but it is helpful to provide an overview of these provisions up front to inform the debate on Amendment 47.

The amendments to existing legislation contained in Schedule 2 do not depart from these principles. Rather, they are intended to strike a better balance between on the one hand enabling the police to use fingerprints and DNA in an agile and effective way to support terrorism investigations and protect the public, and on the other ensuring that this continues to be subject to proportionate safeguards, regular case-by-case review and robust independent oversight.

We should not underestimate the value of biometric data in helping to secure convictions in terrorism cases. Such information played a vital role in the conviction in June of this year of Khalid Ali. Noble Lords will recall that Ali was arrested not far from this House and was subsequently convicted of terrorism offences, including his involvement in the use of explosive devices against coalition forces in Afghanistan.

Paragraph 2 of Schedule 2—which Amendment 47 would delete—will harmonise the retention periods for biometric data obtained when an individual is arrested on suspicion of terrorism, but not subsequently charged, under PACE and the Terrorism Act 2000. At present, an individual arrested under the Terrorism Act may have their biometric data automatically retained for three years. However, this automatic retention would not be available if the same individual were arrested in relation to the exact same activity under PACE.

In a terrorism case, retention for national security purposes would require the police to make an NSD with the approval of the Biometrics Commissioner, or would otherwise require the consent of the Biometrics Commissioner under Section 63G of PACE if retention was necessary solely for the prevention or detection of crime generally. However, the noble Baroness’s amendment would mean that this inconsistency between the retention regimes under the Police and Criminal Evidence Act and the Terrorism Act 2000 would remain. This could therefore result in the situation where the police are deprived of information that could prove vital to keep the public safe. The measure as drafted will remove this anomaly and ensure a consistent approach to the retention of biometric data for all those arrested on suspicion of terrorism, by providing for the same retention period regardless of the power of arrest used.

I do not accept the noble Baroness’s argument that this is a race to the bottom in terms of civil liberties. I say that because, as the Committee would expect, we have consulted the Biometrics Commissioner about this and other provisions in Schedule 2. In relation to this particular provision, perhaps I may read out what Professor Wiles has said:

“In my 2017 Annual Report I mentioned several issues that I thought the Government might wish to consider reviewing as part of the CT legislation review ordered by the Prime Minister ... I … noted in my Report my concerns about the police applying for ‘pre-emptive’ NSDs, often where a person has been arrested under PACE on suspicion of a terrorism offence. It is proposed in the CT Bill to allow biometric material taken after a PACE arrest for a terrorism offence to be retained automatically for three years (with the possibility of extending this period by making an NSD), as is already the case for the biometrics of those arrested on suspicion of terrorism offences under TACT”—


that is, the Terrorism Act. He goes on:

“It seems to me to be a sensible approach to bring the retention periods for arrest on suspicion of terrorism offences into line”.


Given that authoritative opinion, which we sought expressly from the Biometrics Commissioner, and his view that this aspect of the Bill adopts a “sensible approach”, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, the Biometrics Commissioner’s response does not seem to go to the question of oversight. As I have heard and read it, it is about the period of retention. I am not sure, but the Minister may be saying that through this amendment I have produced another failure to make the two regimes consistent, and that would certainly be an oversight on my part. If the commissioner has powers of oversight under PACE, that immediately throws into question the proportionality, and maybe the necessity, of this Bill’s provision in omitting the oversight.

What the Minister has had to say will require careful reading and I will do that. However, there has been a temptation to slide from the issue of oversight into other aspects of the arrangements, and I am not sure that the Committee has quite been answered. We will look at it, and I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Moved by

[Baroness Hamwee]

48: Schedule 2, page 29, line 29, leave out sub-paragraph (4)

[Baroness Hamwee]

My Lords, Amendments 48 to 53 would remove the proposed extension of national security determinations, which the Minister has explained, for the retention of biometric material to five years in six existing provisions. The Minister has also explained the role of the chief police officer and the rolling determinations, if necessary, but a review every two years for a fresh determination is required. The Bill will change that to five years. We are not questioning the retention as a legitimate aim, rather we are questioning the period of time and whether five years is proportionate for retaining the biometric data of people who have never been convicted of a crime, particularly in the absence of the possibility of a review. The Government have told us that operational experience has shown that in many cases the two-year period is too short and that cases of national security concern will often pose a more enduring threat. That does not entirely go to answer the point of the initial period.

The retention of biometric data is a significant intrusion on an individual’s right to privacy. It is lawful as long as it is not blanket and indiscriminate, but is it proportionate without the possibility of a review? We think not. I beg to move.

[Lord Paddick]

My Lords, I rise briefly to support these amendments. Other than for the convenience of senior police officers in having to review these cases every five years as opposed to every three, I do not understand what is to be achieved operationally by extending the period from three years to five when the period of retention can be extended every three years.

--- Later in debate ---

[Earl Howe]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining that the amendments seek to strike out the provisions in Schedule 2 extending the maximum duration of a national security determination from two years to five years. In responding to her previous amendment, I explained to the Committee the circumstances in which such a determination can be made. I will not cover that ground again but I reiterate that all such determinations are reviewed by the independent Biometrics Commissioner, who may order the deletion of a person’s fingerprints and DNA profile if he is not satisfied that a determination is necessary.

Schedule 2 extends the maximum length of a national security determination from two years to five years. In his most recent report, the Biometrics Commissioner commented that in some cases,

“the evidence/intelligence against the relevant individuals is such that they could be granted for longer than two years”,

and suggested that the Government may want to consider legislating on this issue. We have considered the issue carefully and agree that it would be appropriate to introduce a longer maximum period. I am grateful to the noble and learned Lord, Lord Hope, because his comments put this issue in its proper context.

Operational experience has shown that the current two-year length is too short in many cases and that those involved in terrorism—such that it is necessary and proportionate for the police to retain their biometric data—will often pose a more enduring threat than this. The views of those who embrace terrorism can be very entrenched. Individuals who hold such views can disengage and re-engage in terrorism unpredictably and without warning over a period longer than two years, and so can pose an ongoing risk. Individuals who travel overseas to engage in terrorist training or fighting may remain there for more than two years and are likely to pose a particularly high risk to the public on their return. There is a broad range of circumstances in which a person who presents a terrorist risk today may continue to pose a sufficient risk in two years’ time such that it will still be necessary and proportionate for the police to retain their fingerprints and DNA to help them identify if the person continues to engage or re-engages in terrorism.

This provision will therefore ensure that if a chief officer reasonably judges that the case before him or her is such a case, they will be able to authorise retention for a period of up to five years if this is necessary and proportionate. I emphasise that this will be the maximum period; it will be open to the chief officer to specify a shorter period if they consider that more proportionate. In every case, the NSD will need, as now, to be reviewed and approved by the Biometrics Commissioner, who has the power to order deletion of the data if he is not satisfied that its retention is necessary.

This measure will retain the key principle that biometric data should not be retained indefinitely where the individual has not been convicted. It will continue to provide that ongoing retention should be authorised at a senior level on a case-by-case basis, and subject to approval by the independent Biometrics Commissioner. Where ongoing retention is approved, this will not be open-ended but will continue for a finite period, with review and further authorisation needed if it is to be extended beyond the expiry of the NSD. But it will strike a better balance between these important safeguards, on the one hand, and, on the other, enabling the police to use biometrics to support terrorism investigations and identify suspects without placing a disproportionate burden on themselves. The increased maximum length of an NSD will ensure that, in appropriate cases, the police do not have to review cases and reaffirm necessity and proportionality more frequently than is necessary.

I hope that I have been able to explain the operational challenge which this provision is intended to address in a proportionate manner and to reassure the noble Baroness that we are not removing the important oversight of all national security determinations by the Biometrics Commissioner. For that reason and the others that I have advanced, I ask her to consider withdrawing her amendment.

[Baroness Hamwee]

My Lords, as the Minister said on the previous amendment, these amendments have to be read with that one. NSDs and their oversight are to some extent part and parcel of the same debate. As my noble friend said, it is perhaps a debate about convenience or inconvenience. It would probably be naive of me not to accept that there is an issue of resources here, but balancing how resources are applied and human rights does not always produce immediately obvious answers. This may be a matter of fine detail or where we place the line—that, too, can be a challenge.

Thinking of challenges and listening to what the Minister had to say about the period not necessarily being two years, I wonder how an individual would challenge the period applied and how many times over recent years NSDs have been of less than two years. That may be something that the Minister is able to tell me after today’s debate. For now, looking at these two groups of amendments together, I beg leave to withdraw the amendment.

Amendment 48 withdrawn.

--- Later in debate ---

[Lord Sheikh (Con)]

My Lords, I will talk about the Prevent strategy in greater detail when we discuss Amendment 57. At this stage, I would like to say that there is disquiet among Muslims regarding the application of the Prevent strategy and it is felt that a review is necessary.

The Home Office should gather and publish figures to see whether the strategy is disproportionately affecting any particular ethnic group or religion. I understand that the Government publish data on the age, gender and region of residence of those referred under the Prevent programme, together with the type of concerns raised. It is important that there is complete transparency and people are given all the appropriate information, including details regarding ethnicity and religion. This will enable us not only to have a complete understanding of all the issues but to take appropriate remedial action. As regards Muslims, we need to involve members and leaders of the community, the mosques, the imams, Muslim centres and the media. We can then make arrangements for all the people to get involved and provide the necessary guidance and support.

Islam is indeed a religion of peace and forbids any form of suicidal act or terrorism. We need to explain to people who are misled about the true principles of Islam, once we have examined the total extent of the problem. I therefore support the amendment.

[Baroness Hamwee]

My Lords, I support my noble friend. I do not know whether he used the words “confidence”, “trust” and “perceptions” but he certainly alluded to them when speaking about the operation of Prevent—that is something we will come to in the next group of amendments. He referred to the public good that comes of transparency. I understand that local authorities that are in receipt of freedom of information requests about the local operation of Prevent are advised by the Home Office to say that they cannot answer, on grounds that include national security, health and safety and—something I was particularly puzzled by—commercial interests.

When questions are asked about the delivery of Prevent projects, the generic answer is apparently that to disclose information could reveal commercial interests and negatively affect the commercial viability of the organisations that deliver the projects. I am sure that the Committee will be interested in how the Home Office suggests that requests for information of this sort should be answered. I do not expect the Minister to disclaim the way in which the Home Office has been advising, if it has been—or at any rate not without taking some advice. But the issue of commercial confidentiality throws a light on this that I had not expected to see.

[Baroness Barran (Con)]

I just want to clarify one point. I believe that the information about the difference in referrals to Prevent that end up at a Channel panel is in the Home Office information bulletin. So the answer to the noble Lord’s question about whether a police referral is more likely to get through than education or local authority referrals is that it is just over half as likely to get through if it is initially a police referral. Therefore, I think that your Lordships can take some comfort from this being, as the noble Lord, Lord Carlile, suggested, genuinely about safeguarding rather than a criminal justice intervention.

--- Later in debate ---

Moved by

[Baroness Hamwee]

57: Clause 19, page 21, line 25, at end insert—
“( ) After section 40 (indemnification), insert—“40A Independent review of preventing people being drawn into terrorism and support for those vulnerable to being drawn into terrorism(1) The Secretary of State must make arrangements for an independent review of the Government’s Prevent strategy for preventing people from being drawn into terrorism and for supporting those vulnerable to being drawn into terrorism within 6 months of this provision entering into force.(2) The Secretary of State must report on the findings of the review. This report must be laid before both Houses of Parliament within 18 months of this provision entering into force.””

[Baroness Hamwee]

My Lords, Amendment 57 is another amendment that I am moving on behalf of the Joint Committee on Human Rights. The noble Baroness, Lady Jones, my noble friend Lord Stunell and the noble Baroness, Lady Lawrence—who is also a member of the committee—have their names to it as well. This amendment calls for an independent review of Prevent. We are by no means the first to call for such a review.

The Government have said that, in the Bill, extending to local authorities the power to refer to the Prevent programme individuals regarded as vulnerable to being drawn into terrorism is not an expansion of the scope of Prevent but just a sensible measure to streamline the process of referrals. As the Minister may point out again, I proposed that in 2015. It seemed to me then—and in some ways does now—that it is odd that local authorities, which through social services and other services are at the heart of prevention and safeguarding, should be excluded from that part of the process. As I have said before, and will go on saying, the important word here is “safeguarding”. Other important words are “trust” or “mistrust”, “perception” and “independent”.

The committee took evidence earlier in the year on the issue of Prevent. Again perhaps to pre-empt it being pointed out, we reported—because we wanted to report fully on the evidence—that although a number of stakeholders had reiterated the call for an independent review there were concerns. A doctor and academic expressed concerns about local authority involvement. She said that healthcare professionals and local authority processes can mean that people go down the track into,

“incidences of dissent and illiberal political beliefs–rather than vulnerability to abuse in persons with formal care needs … People have a right to their beliefs without them being interpreted and medicalized as ‘vulnerabilities’”.

I agree that beliefs should not be medicalised, but what she describes is not what should be the catalyst for safeguarding.

The noble Lord, Lord Carlile, who I am sure will intervene in this discussion, conducted a one-off independent review of the Prevent strategy in 2011. However, unlike many aspects of counterterrorism law or terrorism law, this is not subject to continuous review or oversight. I hope that the noble Lord, Lord Anderson—I am sure he will—may refer to his work. It is inevitable that I will trail his comments and pray him in aid, but I hope not to pre-empt him. In a submission to the Home Affairs Select Committee of the Commons two years ago, he said that he thought that,

“Prevent could benefit from independent review. It is perverse that Prevent has become a more significant source of grievance in affected communities than the police and ministerial powers”.

Two years ago, the Joint Committee picked up the subject when we expected there to be a counterextremism Bill. The noble Lord, Lord Carlile, said then,

“reviewers can help the Government by challenging them … I cannot see anything being lost by reviewing the Prevent policy”.

I take that as at least not opposition. It may be support. I hope that it was not damning with faint praise.

[Lord Carlile of Berriew]

The noble Baroness has managed successfully to provoke me on to my feet. Could she give her view on the following? There is about to be appointed a new Independent Reviewer of Terrorism Legislation—the advertisement was on the Cabinet Office job site last week. Can she see any reason why the review, which I and she share the opinion would be sensible, cannot be carried out by the same Independent Reviewer of Terrorism Legislation as is appointed as a result of that advertisement? Does she see any utility in having another reviewer with overlapping responsibility? Also, given that she has taken a great interest and shows great expertise in these matters, can she cite to the Committee by identity any Prevent projects that have given rise to the mistrust—that was the word she used—and can she tell us whether she has visited them in order to make her own assessment?

[Baroness Hamwee]

I would have denied the expertise in any event. I shall not go into what I have visited but I have not visited any of the projects that would fall into that category. If the people affected tell us—not only me—that they are unhappy and mistrustful, that answers the question in itself.

[Lord Carlile of Berriew]

I promise to intervene only once more. Has the noble Baroness had cited to her projects—and will she tell us which ones if that is the case—that fall into the mistrust category? I have a sense that Prevent is being demonised as a campaigning route and not on an evidential basis.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have visited several Prevent schemes and I have heard from people who are deeply mistrustful of them. That is set out in various reports from the London Assembly if noble Lords would like to look them up. It is not simply campaigning and I think that is a slur.

[Baroness Hamwee]

My Lords, I cannot cite schemes but I do not think that undermines my argument because Prevent is wider than individual schemes. As it happens, I agree with the noble Lord on his first point. My amendment does not propose a separate independent reviewer and I have noticed some frustration among past reviewers at their having to be somewhat at arm’s length, or slightly detached, from Prevent because it does not fall within their terms of reference. Perhaps I may say that I hope an appointment is made soon so that there is not too much of a gap in the process.

Where was I? I quoted the noble Lord and I think he still supports the proposition. I have mentioned the comment of the noble Lord, Lord Anderson of Ipswich, about the lack of transparency and we have just debated an amendment on that. Whether it is on individual schemes or as a result of demonisation—if that happens, that is a problem too—there is clearly mistrust of the regime; perhaps I can put it as widely as that. On sensitive issues such as this, in my view, perceptions are fundamentally important.

In evidence to the Joint Committee, the Muslim Council of Britain—I am choosing to quote the council only because it is a convenient quotation; I know it has its fans and its critics—referred to,

“an undermining of trust and human rights and civil liberties in Muslim communities. The resulting self-censorship”—

something I have heard about from others as well—

“the lack of transparency and expansion of ‘Prevent’ risk being a threat to cohesive societies that can effectively respond to terrorism”.

In oral evidence to the committee, Liberty said:

“The Government have ignored calls”—


for an independent review—

“and seek to extend and reinforce the Prevent strategy without looking back at questions like what its interaction is with other legal duties in the criminal law … How is personal information being dealt with in the Prevent programme?”.

Keeping the strategy under review internally, to anticipate what we may hear from the Dispatch Box, or by anyone seen to be close to the programme, is not enough. It needs to be someone who is accepted as being independent. A challenge—that does not mean opposition—to the Government on this is important. We need to know what is working and what is not working. Who knows? The Government could gain a great deal of credit not just from the process of review but from its outcome. However, we do not have the review to reassure us. I beg to move.

[Baroness Jones of Moulsecoomb]

My Lords, I have attached my name to this amendment because it is an issue that goes to the heart of civil liberties in this country. The Prevent strategy is of great concern to me and to tens of thousands of others, particularly campaigners and those from ethnic minorities. As a Member of the London Assembly and the Metropolitan Police Authority, I visited Prevent projects and heard from local people and the practitioners themselves. I can assure noble Lords that there is mistrust, and even distrust, of Prevent in many places. One project I saw appeared to work well, but many did not.

A person is referred for political re-education through the Prevent strategy for opposition to so-called “fundamental British values”. I think it is the Government who are undermining fundamental British values and I should be referring them to Prevent. The Government are challenging informed debate and transparent government. They cannot continue to justify Prevent with their internal Home Office reviews; it is time to shine the light of public scrutiny on the whole process.

I must ask: why would the Government say no to this amendment? If the Prevent strategy is a success, if it does not discriminate against Muslims, ethnic minorities and campaigners of all sorts, and if it does not infringe too far our rights and freedoms, what is the problem with holding a proper review and what is there to hide? An independent review would surely prove the Government’s case and force all doubters, like me, to back down. The Government would be celebrating Prevent in all its glory, not trying to cover up the facts.

In the absence of reliable assessments of the Prevent strategy, we are forced to conclude the exact opposite. The fears expressed by the Muslim Council of Britain—that Muslims are being disproportionately targeted and are increasingly fearful of unjustified state intrusion in their lives—must therefore be accurate. The concerns of social workers, teachers and academics that they have been conscripted as oppressive counterterrorism officers must be taken seriously, and the idea that the Government are wasting money and scarce police resources on chasing people who pose absolutely no threat of harm must be assumed to be true.

The Prevent definition of “extremism” is,

“vocal or active opposition to fundamental British values”.

Such a broad and meaningless definition means that too many people are getting caught in a trap. I urge the Minister to adopt this amendment and prove to us sceptics that Prevent is operating lawfully and effectively. As is often said in support of the Government whenever they want to curtail our rights, “You have nothing to fear unless you have something to hide”. I therefore have to ask: what are the Government hiding?

--- Later in debate ---

[Baroness Williams of Trafford]

I shall read it with interest.

[Baroness Hamwee]

This has been an interesting debate. I do not think anyone other than the Minister has opposed the amendment, even if the routes to support it have been slightly different. The amendment is not about scrapping Prevent, nor is it about particular projects. I am sorry that the Minister felt the need to be so defensive. We have rightly been reminded of the breadth of what underlies terrorism by the noble Baroness, Lady Manningham-Buller. We might not always agree on the means, but of course we agree that the Government’s commitment to do all they can to protect the community and divert people from terrorism is a hugely important objective. The Government assert that a review would not lead to a different outcome. I do not know how one can assert that. I prefer to go down the route that we must not miss opportunities, which is in effect what the noble Baroness, Lady Barran, said, and that the strategy is too important not to do it as well as we can, as the noble Lord, Lord Anderson, said.

The Minister has, perhaps understandably at this point, not responded to the suggestion about extending very slightly the remit of the Independent Reviewer of Terrorism Legislation. I wonder whether after today she might be able to respond to that. It seems a very useful opportunity for the Government to consider it. As several noble Lords said, challenge can be useful. The more the Government oppose the proposition of a review, the more worried I become because I do not know what we do not know. I would prefer the reassurance of a review, which is in the circumstances quite a moderate proposal. We are only in Committee, and no doubt there will be some further discussions. I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Stop and Search Powers

Baroness Hamwee Excerpts

Monday 12th November 2018 Lords Chamber

[Baroness Williams of Trafford]

As the noble Lord, Lord Rosser, rightly pointed out, the move to a much more intelligence-led stop and search has been more effective. But on the point about the number of black people being stopped and searched, we are quite clear that nobody should be stopped on the basis of their race or ethnicity. Forces must make sure that officers use those really quite intrusive powers in ways that are fair, lawful and effective.

The figures cited by the noble Lord, Lord Paddick, were highlighted by the Race Disparity Audit. I am sure he knows that. They make clear the importance of the transparency introduced by the reforms to stop and search which enable forces to monitor and explain the use of the power. He has just outlined a couple of forces in which there is a huge increase in the proportion of black people stopped and searched compared with the rest of the population. It is absolutely right that the police must explain the use of the power and make efforts to improve it.

[Baroness Hamwee (LD)]

My Lords, is the Minister able to answer my noble friend’s question about knife crime?

[Baroness Williams of Trafford]

My Lords, I apologise; I did not deliberately leave it out. The noble Lord is right to make that point. We are acutely aware of it, as is the Home Secretary. Recent stories in the papers have not made for good reading. There are several reasons why knife crime is on the increase, not least the link to drugs, I am afraid. Through the Offensive Weapons Bill and the strategy that we have recently produced, we are absolutely determined to tackle it.

Immigration: Appeals

Baroness Hamwee Excerpts

Tuesday 6th November 2018 Lords Chamber

[Lord Marlesford (Con)]

My Lords—

[Baroness Hamwee (LD)]

My Lords—

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, we have not yet heard from the Conservative Benches.

Brexit: Arrangements for EU Citizens

Baroness Hamwee Excerpts

Monday 5th November 2018 Lords Chamber

[Baroness Williams of Trafford]

The noble Lord is absolutely right to point out that some people might come here and then leave and then come back again. Five years’ continuous residence in this country will entitle people to settled status, but they can apply for pre-settled status if they have been here for less than five years. On the point about getting settled status, leaving and then coming back again, I will have to get back to him because I do not know the answer.

[Baroness Hamwee (LD)]

My Lords, the original Answer refers to applications that will be needed, and those will not be entirely straightforward for everyone. I appreciate that pilots are going on at the moment, but people such as those mentioned by the noble Lord, Lord Harris of Haringey, might well not find it easy—indeed, find it a deterrence—facing the bureaucracy and dealing with the authority that this involves. Can the Minister confirm that the Home Office will consider sympathetically a different way of dealing with people in this group and the possibility of waiving the fee for them?

[Baroness Williams of Trafford]

My Lords, it is very important to outline that anybody who is vulnerable in any way—including victims of modern slavery, sex-trafficking or whatever it might be—will get the support that they need from the appropriate authorities when they arrive here. I cannot stand at the Dispatch Box and say that fees will be waived because, as far as I know, they will not be. However, I can say that people who need our support will get it when they arrive here in very vulnerable situations.

Counter-Terrorism and Border Security Bill

Baroness Hamwee Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have various amendments in this group, but I start with a general point: all the amendments in the Marshalled List where mine is the first name were proposed by the Joint Committee on Human Rights, of which I am a member, and I have been tasked by the committee to raise them with your Lordships. I take this opportunity to thank not only the committee but its officials, who have done a huge amount of work on the Bill, particularly Samantha Godec. Having said that, I have no doubt that my noble friends will agree with much that I have to say, but I leave that to them. I suspect that I will not be able to refrain from commenting on some other amendments.

The committee has put forward amendments that seek to ensure that the Bill restricts rights only to the extent necessary and proportionate—terms with which noble Lords will be very familiar. I make it clear, though I hope it does not need saying, that this is by no means wholesale opposition to the Bill. We recognise that the Government need powers to defend national security, but when powers engage human rights or interfere with them, they must be clearly prescribed, necessary in pursuit of a legitimate aim and proportionate to that aim. The committee was concerned that the Bill legislates close to the line and sometimes crosses it, taking the criminal law further into private spaces. It looked, as noble Lords would expect, for the right balance between liberty and security.

Among the evidence that we received was a long paper from Professor Clive Walker, adviser to successive Independent Reviewers of Terrorism Legislation, who commented:

“It can readily be demonstrated that the United Kingdom already has the most extensive counter terrorism code in Europe if not the world”.


That was a point made by Max Hill before he became the independent reviewer; he has said several times that we have sufficient offences, we do not need any more. The obligation on us is obviously to identify whether there are gaps that need to be filled, and whether we agree with the Government about that. Professor Walker also made the point, which I think is worth repeating at this point—I am not seeking to make a Second Reading speech—that,

“criticism should be made of the failure on the part of Home Office to issue any consultation paper prior to the CT&BS Bill”.

He wrote about the value of a pre-legislation phase, allowing not only for public scrutiny but for other independent proposals, and said how well that worked in the case of the Sanctions and Anti-Money Laundering Act.

My name is attached to Amendments 3 and 5 in this group and I have also given notice that I oppose Clause 1 standing part of the Bill.

[Lord Faulks (Con)]

The noble Baroness has indicated to the House that she speaks, in effect, on behalf of the Joint Committee on Human Rights, and we are all grateful for its report. Can she help the House in that context with one thing? The Joint Committee on Human Rights, of course, has particular reference to the provisions of the Human Rights Act and the articles of the European Convention on Human Rights. Does she and her committee consider it important also to consider the rights of citizens affected by, or potentially affected by, acts of terrorism or encouragement to terrorism, whether it be their rights under Article 2 or Article 8 of the convention? These are, of course, also human rights.

[Baroness Hamwee]

Indeed they are, my Lords, and that was why I very deliberately mentioned security as well as liberty in my opening words. It would be wrong to give the noble Lord an assurance that we specifically discussed those rights in the same way or at the same length as other rights, but I have been in enough meetings of the committee to know that that is a backdrop to the other rights we address. I hope that reassures him. It may not, but I did say that we were not opposing this Bill in any wholesale way.

Amendment 3 would leave out paragraph (b) and instead insert a reference to intention,

“to encourage support for a proscribed organisation”.

Other noble Lords have referred to that at some length. I agree with the point about context made by the noble Baroness, Lady D’Souza—whether this is the point at which to agree with her or not, I do not know. But I do think context assists one to understand what is in the mind of a person making a statement or undertaking an act.

Regarding Amendment 5, I am grateful for the support of the noble Lord, Lord Carlile. His point about open discussion is an important one. I know that he balances the importance of transparency and free debate on these matters. I agree with the noble Baroness, Lady Jones, about “support” and “supportive”. In debate and correspondence, the Government have relied on Section 4 of the 2000 Act as providing a route to apply to the Home Secretary for de-proscription. I do not challenge that, but do not think it is by any means a complete answer to this. The defence in the 2000 Act only protects statements of support related to a de-proscription application. It is not a defence for those taking part in debate outside those proceedings.

The clause creates a new offence, and the Minister in the Public Bill Committee in the Commons said:

“Dealing effectively with the power of inspiration or incitement is not new”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 28/6/18; col. 71.]


I do not read this clause as being about incitement or inspiration. Recklessness is lesser than that.

I have a specific question for the Minister about new subsection 1A(b), which refers to a person to whom a statement, or whatever, is directed. I would like to understand the term “directed”. Are you directing something if it is not addressed to a named person or an identifiable/identified group? If you tweet or post something on Facebook, accessible to the world, are you directing that? The Minister in the Commons made a point similar to the one made by the noble Lord, Lord Carlile. He gave the example of walking down a high street swinging a baseball bat. Are the people who might see a tweet equivalent to the pedestrians in the high street?

[Viscount Hailsham]

Surely “directed at” is really equivalent to “published”, and the world at large is published, too.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I asked what it means. The noble Lord, Lord Faulks, has given his view. If it means “published” perhaps it should say “published”, which is well understood, not only by lawyers but by ordinary people—I was going to say “normal people” but I should not say that. I hope none of us is abnormal. If that is the answer, it would be very helpful to know. I am grateful to the noble Viscount for adding to the debate.

To finish the point on direction, there was also a comment about intent meaning to invite support, as in the existing Section 12(1). Does the Minister have any comments on that term and its relationship to this new provision?

Finally, the committee was concerned about a lack of clarity in this provision on the boundaries of a debate. We agree with the Minister that it is hard to define valid debate, but we believe that the lack of clarity and the low threshold of recklessness risk a chilling effect on free speech and a disproportionate interference with the right to free speech.

[Earl Attlee (Con)]

My Lords, my Amendment 6 is in this group. I am grateful for the support from the Opposition Front Bench. I am confident that the Government will have thought very carefully about the need for Clauses 1 to 6, so I support them and share the view of the noble Lord, Lord Carlile. I will leave it to other noble Lords to scrutinise the principles, but I understand the concerns that have been—and will be—raised by other noble Lords when speaking to their amendments.

I have put my name to Amendment 5 and I agree with all that the noble Lord, Lord Rosser, has said. The decision to proscribe a group is not taken lightly. Nevertheless, in a free and democratic society, it is a major step to take and it should be possible to question it. One might want to suggest that proscription is acting as a recruiting sergeant for the group concerned. Under Clause 1, there would be a danger of that suggestion being regarded as a,

“belief that is supportive of a proscribed organisation”,

because it supports the de-proscription. There is also a very fine dividing line between stating that HMG’s policy is flawed and supporting a proscribed organisation.

Earlier this year, I tabled amendments to the Data Protection Bill dealing with press regulation. Some thought that I and other noble Lords were somehow anti-press and against freedom of speech. Nothing could be further from the truth, as we shall see. My Amendment 6 inserts an exemption for opinions or beliefs that are,

“published or broadcast for the purposes of journalism”.

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The noble Baroness, Lady Hamwee, asked for a definition of “directed” in the context of the person to whom the defendant “expresses an opinion or belief”. “Directed” means conveyed to or aimed at that person or persons, who may not need to be known to the defendant. If such an expression of a belief is tweeted or otherwise uploaded on to a social media platform, it is directed to those who would see such an expression—that is, those following the defendant’s twitter feed.

[Baroness Hamwee]

The noble Baroness used the word “aimed”. I thought that “directed” may have meant “targeted” as distinct from “published”, which is a wider concept. Saying that it is “aimed” takes me, at any rate—and maybe other noble Lords—back to my same question. Of course, after today’s debate, I shall read what the noble Baroness has said. It is a difficult issue.

[Baroness Williams of Trafford]

My Lords, we are dealing with many difficult issues here. I thank the noble Baroness. We will, of course, have further discussions.

Amendment 1 would raise the threshold for commission of the offence from a single instance of the prohibited behaviour to a pattern of behaviour. Given the seriousness of this type of behaviour and the potential harm that can be caused, I cannot agree that the amendment is appropriate. I point out that there is no requirement for there to be a pattern of behaviour in the existing Section 12(1) offence. I therefore do not see a case for adopting a different approach for the new Section 12(1)(a) offence.

I also fear that the amendment would run into similar issues with definition and certainty to those which were raised in the House of Commons in relation to the three clicks element of Clause 3, and which ultimately led to the Government’s removing that provision. For example, how many instances constitute a pattern of behaviour and how far apart can they be?

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Moved by

[Baroness Hamwee]

7: Clause 2, page 1, line 15, leave out subsections (2) and (3)

[Baroness Hamwee]

My Lords, I shall also speak to Amendment 8 in this group. Clause 2 amends Section 13 of the 2000 Act to criminalise the online publication of an image depicting clothing or other articles which,

“arouse reasonable suspicion that the person is a member or supporter of”—

maybe even supportive of—“a proscribed organisation”. At least we are not taxed with whether that is directed at anyone.

In their response to the Joint Committee’s report the Government told us that they do not believe that legitimate publications will be caught, as the offence bites only where the publication arouses reasonable suspicion of membership or support. However, in our view the arousal of reasonable suspicion is a low threshold to make out an offence. We are concerned that the clause risks catching a lot of conduct that, in common-sense terms, should not be caught. The amendments are, of course, alternatives: they would either leave out subsections (2) and (3) or, in Amendment 8, amend subsection (3) rather than omitting it, to provide that there is no offence,

“if there is a reasonable excuse for the publication of that image, such as”—

whether this is the best way to give examples or not I do not know—

“historical research, academic research or family photographs”.

In other words, those are not exclusive. Amendment 8 also specifies that there be no intention,

“to support or further the activities of a proscribed organisation”.

In other words, it would create a defence of reasonable excuse.

The Minister in the Public Bill Committee relied on the “reasonable suspicion” provision. I do not think that is the whole point. He also relied on there having been no prosecutions of journalists or researchers under the existing provisions which use similar wording. Of course that is of some comfort but, as I said at Second Reading, I do not think we should rely on the public interest test for prosecutions: I hope that the collective brainpower of this House can get us to a point where the wording is correct without our having to look at the public interest test. I beg to move.

[Lord Carlile of Berriew]

My Lords, in my view it is very important that photographs which may have a dramatic effect on the opinion of those who view them should be dealt with in the way described in this clause. They may, for example, include photographs derived from execution scenes which are both disturbing and, unfortunately, very influential.

In general terms I support this clause. I have a reservation about the Northern Ireland situation, and ask the Minister to reflect on this before Report and possibly consult more widely. I have travelled extensively in Northern Ireland, both when I was Independent Reviewer of Terrorism Legislation and subsequently. I have been taken to scenes where there is imagery which is now internationally regarded as works of art. I have been taken to scenes where there is imagery which may on the face of it be very distasteful, but plays an extremely important part in the history of the community concerned and in the extraordinary settlement that has taken place in Northern Ireland as a result of the Good Friday agreement, and I would not wish anything to be done that might disrupt that. It seems that the Secretary of State for Northern Ireland and the Police Service of Northern Ireland should be consulted to determine the issues raised in those amendments, before we become too dogmatic about them.

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[Baroness Williams of Trafford]

As the noble Lord has just explained, it is about the whole context in which this happens. In any case, it will of course be the police and the Crown Prosecution Service that will determine those normal tests for prosecution, and of course ultimately the courts.

The noble Lord, Lord Marks, made the point about the viewer and the publisher. I had hoped that my words would explain that but they do not. I will take back what he says, and I am sure he will challenge me on it on Report. However, I hope the approach provides no less certainty to such individuals that they will not be caught by the new offence than would the proposed reasonable excuse defence, and it offers the advantage that the same formulation has been in force since 2000 in relation to the existing Section 13 offence, which would already be likely to cover many of the circumstances where the item depicted in the image is situated in a public place. As I have said, it is when the item is not located in a public place that the gap begins.

After 18 years that formulation is well understood by the police and the courts. Proof of its effectiveness lies in the simple fact that during that period we have not seen prosecutions of any journalists or academics who have published reports or books containing such images. That should give us some comfort. Nor have we seen any complaints that such people have been inhibited or discouraged from pursuing their legitimate professional activities by the existence of the Section 13 offence. I have sympathy for the objective behind the amendment but I hope that, for the reasons given, noble Lords will agree that it is not necessary. I hope that having heard the arguments for the Section 12(1A) offence and my assurances about the scope of the offence and the effectiveness of its existing safeguards, the noble Baroness will be content to withdraw the amendment.

[Baroness Hamwee]

My Lords, I thank the Minister for her response. This is not intended as a criticism, but in introducing her response the numbering of the amendments went a little awry. I suspect that her briefing was written before the Marshalled List was put together. I say that only for people who may be reading Hansard after today.

The noble Lord, Lord Carlile, made the point about consultation that I made in rather a broader way at the beginning of this afternoon’s proceedings: people who have knowledge of particular circumstances have things to contribute to the legislation that we end up with. I agree with his point about consultation. The Minister says she will deal with Northern Ireland under the next grouping. I hope that consultation, as it is considered under the grouping, can go wider than the PSNI and the prosecution service, which were specifically mentioned, because more people will have things to contribute than just those two organisations. The noble Lord makes an important point.

He used the example of scenes of execution. That is not what the amendments here are aimed at but it makes me wonder whether there is something about intention in all this that we might explore afterwards. A scene of execution is a very extreme example—much more so, I think, than a freedom fighter flag.

The Minister used the term “updating”. I wonder whether what we are talking about here is more about prompting an investigation than creating an offence in itself. I can see that one might want to pursue the sort of situations that she has referred to but, like my noble friend Lord Paddick, I think the words “in such a way” and “circumstances” are very wide.

Pretty much the Minister’s final point was that it would be for the police and the CPS to determine. When I moved my amendment, I said that I really do not want to find us continually relying on the public interest test; we ought to be able to do better than that. My noble friend Lord Campbell, who came into this debate and heard the Minister’s comment, did not hear my introduction but I absolutely agree with him that it is for the courts to determine. One should not be looking at the public interest test as a way of getting out of a difficult situation.

Of course, at this point I shall withdraw the amendment, but I am sure we will look again at the detail of this situation. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

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The noble Baroness, Lady Hamwee, asked whether we had consulted any other organisations, and I was not quite sure which she might have had in mind.

[Baroness Hamwee]

I was not so much asking as supporting the noble Lord, Lord Carlile, in his earlier suggestion that there should be consultation regarding works of art and works of historic value in Northern Ireland. I simply referred to the amendment suggesting that those organisations may not be the totality of those who would have views on the points he made.

[Baroness Williams of Trafford]

After the debate, I shall go back and check, but those are the ones we have consulted on this aspect.

Of course, this will be a discretionary police power like any other, and its application in Northern Ireland will be an operational matter for the PSNI, but we will consult and update those partners further, as necessary, prior to the provision coming into force.

The change that Clause 2(4) makes to Section 13 of the 2000 Act is to confer a power on the police to seize flags or other articles associated with a proscribed terrorist organisation as evidence of an offence under Section 13(1). This is intended to ensure that the police and CPS have the best evidence to pursue a prosecution.

Of course, the police already have powers to seize evidence following an arrest, but in the context of policing a march or demonstration, it might not always be an option if the legal tests in the PACE Act 1984 for making an arrest are not satisfied, or arrest may not be the appropriate policing response at that time.

In such a case, if the police wish to take action against a person displaying such a flag, instead of arresting the individual, the officer may choose to report them for summons on suspicion of committing an offence under Section 13(1) of the 2000 Act.

I think I may have been given papers which are forcing me to repeat what I just said.

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[Lord Rosser]

Clause 3 provides for a new offence of obtaining or viewing information online of a kind that is likely to be useful for committing or preparing an act of terrorism. Section 58 of the Terrorism Act 2000 already criminalises collecting, recording and downloading such material. The new offence broadens the type of activity that is potentially criminalised from actively downloading to simply having sight of information, and attracts a maximum of 15 years in prison.

The difficulty once again is that while those we want to catch may well fall foul of the new offence, it is a distinct possibility that those we do not may also get caught up when pursuing their legitimate business, or will be deterred from undertaking some of their legitimate business at all by the thought of getting caught up. As with the previous debate, this could include journalists, academics and those engaged in other research activity, as well as those looking by mistake at information online of the kind likely to be useful for committing or preparing an act of terrorism, or without any intent to act on the material in a criminal manner.

Originally, the Government proposed in the Bill that the new offence should be committed after material had been viewed three or more times—the so-called three clicks test. That was subsequently changed to provide instead for a reasonable excuse defence, which would include cases where the person did not know and had no reason to believe that the information was of a kind likely to be useful to a person committing or preparing an act of terrorism. However, the change could also be interpreted as meaning that an offence could be committed after one click or viewing, rather than three.

The purpose of Amendment 11, therefore, is to minimise the possibility of people carrying out their legitimate business being caught by the new offence by providing that a person commits an offence only if they view or otherwise access material,

“as part of a pattern of behaviour”,

in relation to the offence of accessing the material in question online.

As I said in an earlier debate in which the amendment in question added the words,

“as part of a pattern of behaviour”,

if this amendment does not find favour with the Government, I hope the Minister will say what steps they intend to take to ensure that those with legitimate business in relation to material covered by the clause do not find themselves in difficulty under the terms of the new offence. I beg to move.

[Baroness Hamwee]

My Lords, I have Amendments 12 and 13 in this group. The JCHR accepts that technology has moved on since 2000 but has expressed concern that viewing material online without any associated harm was an unjustified interference with the right to receive information. It was concerned too that the defence of reasonable excuse does not provide an explicit safeguard for legitimate activity. The noble Lord has rehearsed the history of this clause, and the Government’s current position, having excluded the three clicks provision, provides that a reasonable excuse includes but is not limited to situations where,

“the person did not know, and had no reason to believe”,

and so on. We are not reassured that there will be adequate protection for legitimate conduct, so we have proposed Amendment 12, on intention,

“to commit or encourage acts of terrorism”.

At the end of Committee, we will have to collate all the references to intention and recklessness to see whether each of us has been consistent in our arguments, which we may not have been. We want to insert a mens rea of intent.

Amendment 13 adds the phrase,

“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.

If that wording sounds familiar, we have just been through it in Clause 2, so I refer the Minister to my argument then in defence of adding these words.

[Lord Paddick]

My Lords, I rise to support the amendments in this group. Section 58 of the Terrorism Act 2000 already makes it an offence if a person collects or makes a record of information of the kind likely to be useful to someone committing or preparing an act of terrorism, or possesses a document or record containing such information. Some examples will be of obvious use to terrorist activity—instructions on how to make a bomb, say—but others are not so obvious.

I walk every morning from St James’s to the House around the time of the changing of the guard. It would be useful for me to know which days the ceremony is being mounted so that I could avoid the crowds, but it would also be useful to a person preparing a terrorist attack on the soldiers taking part in the ceremony. The difference between my actions and the terrorist’s actions are simply the purpose to which that information is being put.

Subsection (4) inserts a proposed new subsection (3A) after Clause 58(3) describing a reasonable excuse defence that at the time of the person’s actions, they did not know, or had no reason to believe, that the document or record in question contained or was likely to contain information of a kind likely to be useful to a person committing or preparing an act of terrorism.

I know that the days on which the changing of the guard takes place is information likely to be useful to a person planning a terrorist attack on soldiers taking part in the ceremony, and I know that when I look at it. A reasonable excuse defence would not necessarily stop police being able to arrest and detain me for looking up when the changing of the guard takes place, even if the CPS decided that it was not in the public interest to charge me.

It may be considered to be a trivial excuse but it shows the breadth of this original offence. Indeed, the Independent Reviewer of Terrorism Legislation warned against Clause 3, saying that it risked criminalising those who view material such as bomb-making instructions,

“in disgust, shock and disapproval”.

Amendment 11, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, seeks to ensure that the one click offence is mitigated by providing that it must be,

“part of a pattern of behaviour”.

While I support that amendment, for the reasons I have already given, it does not go far enough. I have therefore added my name to Amendments 12 and 13, in the name of my noble friend Lady Hamwee. The former refers to an intention,

“to commit or encourage acts of terrorism”,

and the latter includes the following phrase:

“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.

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[Baroness Hamwee]

My Lords, as the noble Lord, Lord Kennedy, has said, Amendments 15 and 16 are the same. What constitutes a reasonable excuse will obviously be a matter for the jury. I accept that one cannot identify reasonable excuses in the abstract without knowing exactly in what circumstances a person undertook a particular action, but citizens should know when it is likely that they will be committing a crime. I think that that is accepted in the ECHR memorandum on this clause, where the Government say:

“There should be some degree of latitude for a person legitimately to explore political, religious or ideological matters, and the criminal law should acknowledge that, without the person actively seeking it, this may lead him to online material that crosses the line into that which is likely to be useful to a terrorist”.


Having some guidance would give a framework for the citizen to assess the matter.

At this stage, I shall not oppose Clause 3 standing part of the Bill—the intention to do so appears in a separate group—because we have covered more ground than I had anticipated. However, I will say now that it occurred to me that there might be a point of comparison between Clause 3 and legislation on child sexual exploitation. The Criminal Justice Act 1988 creates an offence of a person having an indecent photograph or pseudo-photograph of a child in his possession, and possession includes a physical and a mental element. I understand that the CPS guidance states that a person who views an image on a device which is then automatically cached on to the device’s memory would not be in possession of that image unless it could be proved that he or she knew of it. At first blush at any rate, it looks as though Clause 3 goes further than that provision, which requires possession, control or custody of images as opposed to viewing them.

Coming back to Amendment 15, I hope that the Government can give serious consideration to some way of assisting members of the public on this whole matter. Guidance will not override the provisions of the legislation but it can be what it is intended to be—that is, helpful.

[Lord Judge]

My Lords, I respectfully introduce a note of caution about Amendments 15 and 16. We are dealing with the creation or amplification of criminal offences. The issuing of guidance by the Secretary of State in legislation of this kind would be very unusual and it would not, in the end, add certainty to the situation. Guidance has no statutory force, and someone looking at guidance might nevertheless find himself being prosecuted. Alternatively, someone who could not bring themselves within guidance might be prosecuted.

The real point is this: guidance may be helpful but if it is not statutory, it has no legal effect. If we wish to introduce issues here, we should do as my noble friend Lord Anderson does in the next clause, where he seeks to define, in primary legislation, a number of situations in which an offence is not committed.

My final point—I find this extremely alarming—is the idea that a Secretary of State, using executive powers, should issue guidance about how the law should be implemented. Either the law is clear or it is not, and guidance does not make it any clearer. Such a measure would—I think probably for the first time in criminal justice legislation—give an enormous power to the Secretary of State to say, without any parliamentary control, “This may not come within the ambit of the offence but that may”, and so on. That should not happen.

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[Baroness Hamwee]

My Lords, before the noble Lord responds, I was wondering, as the Minister was speaking, why the Government decided to include new subsection (3A). It applies only to the subsection (3) but, if it is required for that subsection, was there something in the operation of the earlier provisions of Section 58 that has prompted this? New subsection (3A) provides that:

“The cases in which a person has a reasonable excuse ... include (but are not limited to) those in which … the person did not know, and had no reason to believe, that the document or record in question contained … information … likely to be useful to a person committing or preparing an act of terrorism.”


The Minister may not be able to respond to that now, but it goes to the heart of the debate.

[Earl Howe]

My Lords, I recognise the noble Baroness’s point. I understand that that provision went into the Bill when the three clicks provision came out. It was intended to provide a measure of reassurance in substitution for the three clicks idea that someone who acted in complete ignorance would not be caught. Frankly, one can argue it both ways—to leave it in the Bill or to take it out—but, on balance, we felt that it was right to put it in the Bill for that added measure of reassurance.

[Baroness Hamwee]

That is an interesting response and I will have to think about it. I share the concern of the noble and learned Lord, Lord Judge, not to involve the Executive where it should not tread. There could be parliamentary scrutiny. We have become possibly too reliant on codes of this and that to flesh out what lies underneath legislation—it is not something I much like, and I have obviously been sucked into it. So we could have parliamentary scrutiny if we had a statutory instrument, but we could also list in the Bill the sorts of examples we have talked about, in the way that the amendment from the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, seeks to do in Clause 4. I think that that is a particularly good way of going about it.

I do not suppose the Minister can answer this, but his reference to the Independent Reviewer of Terrorism Legislation prompts me to ask about progress in appointing the new reviewer. He is indicating that he cannot answer, and I did not expect him to, but it is a point that was worth making at some stage in this debate.

[Lord Kennedy of Southwark]

My Lords, I thank all noble Lords for their contributions to this debate and the noble Earl, Lord Howe, for outlining the position of the Government on this group of amendments. I appreciate his detailed response, which is beneficial to the Committee.

I will reflect on all the responses and comments—particularly the wise comments from the noble and learned Lord, Lord Judge. Those comments could be interesting for guidance on other legislation before the House on which the Government take a contrary view. However, we shall discuss that in a few weeks’ time. At this stage I beg leave to withdraw the amendment.

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[Lord Faulks]

My Lords, I accept entirely that it is better, if at all possible, to clarify what constitutes not so much a defence but in which circumstances there will not be an offence, which I think is the way Amendment 17 is framed. If I understand it correctly, the answer to most of the objections lies in the word “solely” because, of course, if there is evidence of mixed reasons for someone being in an area, these provisions would not have a proper ambit at all. However, I share the reservations of my noble and learned friend Lord Garnier about visiting a dependent family member.

I want to raise a more general point about what Clause 4 intends to do. It is concerned with the designated area and the Government are not concerned primarily about protecting people visiting the area and ensuring their safety. Of course, journalists and those working for humanitarian purposes risk their own safety very considerably by going into such areas. The Government are concerned—perhaps my noble friend the Minister will confirm this—to prevent the risk of terrorism, as the Bill is headed. When looking at the risk of terrorism, the Explanatory Notes state:

“Such a risk may arise, in particular, if a conflict in a foreign country, potentially involving a proscribed terrorist organisation, acted as a draw to UK nationals or residents to travel to that country to take part in the conflict or otherwise support those engaged in the conflict”.


In other words, we want to stop people fighting against the United Kingdom. That, I suggest, is what this is really about, although my noble friend may disabuse me of that. If so, this is quite a convoluted way of achieving the aim of preventing an individual or individuals assisting or fighting against the United Kingdom. I shall raise this point again on Wednesday under my own amendment concerning the possible introduction of the offence of treason, because that is what it would be. Although this is a useful provision and I can see what it is driving at, I respectfully wonder whether it is really the answer to the evil it is aimed at in this case.

[Baroness Hamwee]

My Lords, I tabled Amendments 21 and 22 in this group. I was not surprised, given the authors, to be more attracted to Amendment 17 than to my own amendment, but I have a couple of questions related to points already raised. I too wonder about the word “solely”. If, for one or more of the reasons listed, someone went for a reason authorised by the legislation or in regulations but did something outside them, might that cause a problem? Perhaps more importantly, I also have a question about the registered charity, regarding the jurisdiction in which it would have to be registered. It is important to address the position of charities, not just for charity workers but because the trustees will have a duty of care towards their staff. They will have an important interest in ensuring that what their staff are doing is appropriate within what the law allows.

I turn to the phrase,

“visiting a dependent family member”.

I wonder about the word “dependent”. A sick mother would be unlikely to be dependent if the son or daughter is not there supporting the family member. Perhaps one might look at extending that. However, I like the approach. I do not think it is an alternative to what is set out in Amendment 22. That would provide for regulations for authorisation—not just the grounds for applying for authorisation but also the “procedure for applying”, the “timescales for determining” it, which might be important in particular circumstances, and “rights of appeal”, which should be dealt with by some means or other. As I say, this is not an alternative; rather, there are procedural points in this that should be addressed.

I am grateful to the organisation Bond for briefing me about the position in Australia and Denmark, to which the noble Lord referred. It has put a note at the end of its briefing to remind me that the proposal for the restrictions was promoted at the exact time that nine people were arrested for travelling to Syria to become foreign fighters—proving that the existing legal provisions are “rather effective”, to use its words.

I am aware that in Australia there is an overarching exemption for the International Committee of the Red Cross, but I understand that it can be extended to other humanitarian organisations. I do not know whether any noble Lord taking part in this Committee knows how far that has been extended. I take the points about monitoring and, while putting forward these provisions, I am aware that we must balance that against the administrative burden, to which I suspect the Minister may refer. There will be an administrative burden but the benefits that could be achieved by amendments such as the ones we have been debating outweigh that. I simply wanted to anticipate that argument.

[Baroness Manningham-Buller (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Anderson. We should be grateful to the Parliaments of Australia and Denmark for the prior work they did, which he has refined.

I have only three small points to make arising out of the debate. The first relates to the point from the noble Baroness, Lady Hamwee, on prior authorisation. In addition to the point made by the noble Lord, Lord Anderson, about the difficulty of monitoring compliance, and the point made by the noble Baroness, Lady Hamwee, which I am sure is relevant, of the administrative overheads of doing that, there is a practical problem of the risk of authorising people who travel to a designated area and have no intention at all of meeting any of the criteria in the noble Lord’s list.

To make a minor point on dependent family members, later on in the Bill we will talk about the Prevent strategy. One of its purposes, whatever people think about it—views are divided—is to prevent young people being drawn to terrorism. I can absolutely imagine circumstances where a parent might wish to go to a designated area to try to retrieve a dependent family member or young person who had been drawn into this and rescue them from involvement.

Finally, the view from the noble Lord, Lord Faulks, that we are doing this only to stop them fighting us is an oversimplification. There is much more going on here. There is a real concern that people will not just come back and conduct terrorism here or elsewhere in the world, or fight us or others there, but learn techniques, radicalise and train new generations of people. It is much broader than simply attacking us. We need to bear that in mind when considering what we are trying to do here.

Immigration

Baroness Hamwee Excerpts

Thursday 25th October 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement made earlier in the House of Commons. I shall not launch into a tirade against the Home Office and its leadership for yet another display of its own all-too-often uniquely insensitive way of handling immigration issues, or its belief that simply by announcing that the “hostile environment” has now been rebranded the “compliant environment” all the problems will be solved, or the impact on the department’s culture of the infamous net migration target of below 100,000. I think that we have reached the stage of despair. I will confine myself to asking a number of questions. The Statement makes reference to,

“an urgent internal review into it, which I am publishing today”.

Is the full review being published, or have any parts of it been removed before publication?

The Statement says that the law is that the provision of DNA evidence should always be voluntary and never mandatory. If that is a muffled way of saying that the Home Office acted illegally, does it mean that the Home Office is now liable to legal action from those who were told that it was mandatory for them to provide DNA evidence and because of that did so?

What form and level of compensation and reimbursement do the Government intend to offer to those affected by what the Statement describes as the unacceptable demands for the provision of DNA evidence? If the Home Office has in its records DNA evidence obtained through unacceptable demands, has that evidence now been deleted and, if not, why not?

According to the Statement, the internal review,

“outlines a number of areas in which guidance was unclear or wrong”.

At what level in the Home Office would such guidance, which presumably includes guidance on what actions are within the law and which are not, have been cleared? Is it at ministerial level, Permanent Secretary level or legal officer level?

Immigration cases where the provision of DNA evidence had been made a requirement were brought to the attention of the Home Office at the end of June. Why has it apparently taken so long for any Statement to be made—some four months?

The Statement makes reference to Operation Fugal, in connection with which the majority of cases so far identified have been found. The other areas relate, almost unbelievably, to adult dependent relatives of Gurkhas and Afghan nationals formerly employed by the UK. The Statement says that, so far, it is known that three schemes have been affected. Are those the three areas to which I have just referred or are they three others and, if so, which schemes?

It is almost inevitable that, at times, something will go wrong in the performance and delivery of a department’s business—no organisation can be perfect the whole time—but there seem to be rather too many problems at the Home Office. No doubt the substantial reductions in personnel have contributed—they certainly have not helped—and the approach to pay increases in the Civil Service in recent years will not have exactly boosted morale. But what is disturbing is the time it takes for some of these problems to come to light. This is once again an issue in this case.

The internal review has apparently covered oversight arrangements relating to the use of DNA, which I presume were not as effective as they should have been, but where does responsibility for having effective governance arrangements within the Home Office lie? Which committee or board within the Home Office has responsibility for ensuring that effective governance arrangements exist which will at least prevent serious misuse of powers taking place for any length of time, if not stop them occurring in the first place? Who chairs that board or committee with that overall responsibility? Indeed, is there a board or committee with that responsibility? What is the role of the Home Office Audit Committee, if any, in this regard? What is the role of the Home Office board, if there is one, and the role of its non-executive directors in this area of effective governance arrangements? I hope that the Minister will be able to say or write something about where responsibilities lie higher up the food chain in the Home Office in that regard, if not today then at a later stage.

The apology in the Statement from the Home Secretary for what has happened is welcome. His Statement commits him to a review of the structures and processes that we have to ensure that they can deliver an immigration system which is fair, humane and fit for the new immigration system that the Government say they will bring in for when we leave the European Union. I do not doubt for one moment the Home Secretary’s sincerity, but words are easy. It is when it comes to implementation and delivery that it all too often seems to go wrong at the Home Office. That is the issue that he has to solve in any revised or new immigration system, as well as making sure that the existing system can cope with all the applications from EU nationals living in the UK seeking to settle their status post Brexit.

[Baroness Hamwee (LD)]

My Lords, I too thank the noble Baroness for repeating the Statement. In the interests of time, I have edited the questions that I wish to ask so as not to repeat those of the noble Lord, Lord Rosser, which were all very good and pertinent.

The Minister tells us that this is in effect an apology to those affected. Will the Home Secretary contact the individuals affected to give them a personal apology? That seems the proper thing to do, because the events that we have heard about must have been quite devastating for some of those affected. Instructions have been given that officials must not seek DNA evidence on a mandatory basis. Can we be assured that “mandatory” will be given quite a wide meaning? If I were told that I was unlikely to be believed if I did not provide DNA evidence, I would regard that as mandatory, or something very close to it. A new task force has been set up, and we have heard about the external oversight, but is the task force comprised of Home Office officials? Is it they who will give advice and support, and are those affected going to be told that that advice and support will be available to them?

On reimbursement, the words in the Statement are, “looking to reimburse”. I am not suggesting that an attempt has been made to find weasel words—it is a fairly common way of saying “we will reimburse”—but I would like to hear that this is a little more than a hope, and without requiring the release of the claim, which I think was the point touched on by the noble Lord, Lord Rosser.

During the Joint Committee on Human Rights inquiry into what happened in the case of the Windrush generation—I am a member of that committee—we were concerned to know what action was taken when errors were discovered, with regard to individuals. That is perhaps another way of asking what sort of internal audit is in place and what steps are taken when it is found that mistakes have been made by individual officials. In saying that, I am not seeking to blame officials: I believe that those who operate the system seek to apply what they understand to be Home Office policy, sometimes expressed, sometimes implied.

The Statement refers to,

“how to address the root causes”,

of the problem. The “committed people”—I use the Home Secretary’s term—who operate the system will naturally seek to achieve what the politicians are aiming for: they take the detail and the tone from them. I think that happened in the case of the Windrush generation, and the hostile or compliant environment is not, to use the words of the Statement again,

“fit for the modern world”.

That is why the Liberal Democrats have recently agreed as our policy that processing immigration and asylum applications should be taken away from the Home Office, with a new dedicated unit set up. This scandal is an example of why it is important to ignore political pressure and work fairly and lawfully in processing applications.

[Baroness Williams of Trafford]

I thank the noble Lord and the noble Baroness for their questions. Any that I do not thoroughly answer today, I will follow up afterwards.

The noble Lord, Lord Rosser, asked whether a full review would be published, or a partial one. The answer is yes to a full review. The noble Lord will of course appreciate that names below senior civil servant rank have been redacted. He asked whether evidence had been deleted. That is precisely one of the things that the Home Secretary has asked officials to urgently establish. He also asked whether the three schemes are different. The three cohorts to which I and my right honourable friend the Home Secretary referred are the Gurkhas, the Afghans and the cases in Operation Fugal, which are family migration cases in the main.

He also asked whether the Home Office acted illegally and what were the consequences. We have accepted, as my right honourable friend the Home Secretary accepted today, that we should not have required DNA. Obviously, the consequences for individuals will vary according to individual circumstances. In answer to him and to the noble Baroness, Lady Hamwee, we will be looking to reimburse individuals who suffered loss because we required DNA. The noble Lord asked about governance and accountability. My right honourable friend the Home Secretary made it clear that he is going to review the structures and processes in the immigration system.

The noble Baroness, Lady Hamwee, asked whether we had reached out to those affected. As I set out in the Statement, my right honourable friend the Home Secretary has set up a task force within UKVI to review and conclude all outstanding Operation Fugal cases. Our intention is to complete this work by the end of October wherever possible. However of course some cases will take longer because of outstanding criminal proceedings, or where we have required or requested further information to help us make a decision. We have set up a telephone hotline to enable those who need to to speak directly to members of the task force. The hotline will not be a freephone number, but we will quickly establish an individual’s contact details and basic information and call them back at our expense. The cases that officials have identified to date which were refused solely because of, or with reference to, non-provision of DNA will be reviewed by the end of October, and, where it is considered that the application still falls to be refused on credibility grounds, a new decision letter will be issued making clear the grounds for refusal.

The noble Baroness asked whether everyone who had to pay for one—I presume that she means a DNA test—will be compensated. As I have said, we are looking to ensure that anyone who suffered financial loss will be reimbursed. My right honourable friend the Home Secretary will be providing more detail on how this will be done as soon as possible. She asked whether “mandatory” would be interpreted widely. We will make clear through guidance that applicants can provide a range of evidence to demonstrate relationships. If people wish to, they can volunteer DNA evidence, and sometimes they may want to do that, but it will not be mandated: they will not be required to. She also asked whether the task force would be reviewing guidance. The task force will be operationally focused, and separately the Home Secretary has asked officials to review all relevant guidance and make sure that it is correct and up to date. As she will have heard in the Statement, some of it already has been. She asked how many people were in the task force. Did she not? Well, I will tell her. About 40 people are involved in the task force, and that will be adjusted according to need. They will be reviewing cases and responding to hotline queries.

Youth Crime: London

Baroness Hamwee Excerpts

Monday 22nd October 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I declare an interest as a trustee of Safer London, as mentioned by the Minister. Does she recognise what is behind the following tweet from a young person today:

“We’re desperate to see police patrols. Friendly neighbourhood officers who know the community. All we now get is aggressive cops jumping out of bully vans”?


Does the Minister realise the impact of the loss of community policing and local intelligence both on young people’s fear, which often leads to their carrying knives, and on stop and search?

[Baroness Williams of Trafford]

My Lords, I pay tribute to the work that the police do. Of course, the PCC decides how to allocate funding to the various types of policing mentioned by the noble Baroness. I also point out the initiative to reduce moped crime, which noble Lords were so concerned about. There has been a 32.6% fall in that type of crime. That is not to undermine exactly what noble Lords are saying, which is that certain types of crime are increasing, but the police are working to reduce crime in local areas in the way that it presents itself.

Crime (Overseas Production Orders) Bill [HL]

Baroness Hamwee Excerpts

Report stage (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

Moved by

[Baroness Hamwee]

5: Clause 1, in subsection (5A), after “2010” insert “and it has been ratified in accordance with that Act”

[Baroness Hamwee (LD)]

My Lords, we welcome the Government’s significant movement towards the use of the treaty procedure, which we and, I believe, the Labour Benches argued for at the previous stage. I was concerned that the amendment was incomplete, and the Minister has explained why her amendment refers to “laying” the treaty, but not the other provisions of Section 20 and several subsequent sections of the Constitutional Reform and Governance Act.

As the Minister has told the House, it is quite a complicated and potentially long drawn-out procedure. I accept that, but it is long drawn-out because it is designed to give Parliament a proper opportunity to have input into the final product of the treaty, with various stages for its consideration, ending up in ratification. The Minister, in arguing on the first group of amendments, stressed the importance of the procedure. She has just said that the Government might want to make a designation before ratification. It seems to me that this nullifies the impact of the procedure process, and assumes that Parliament will ratify—in other words, will vote as the Government tell it to, which is precisely the arrangement we do not want in place.

The Minister has, however, just talked about the treaty not coming into force until ratification—she is nodding at that, for which I am grateful. I wonder whether she would be prepared to have a discussion—she has been prepared for lots of discussions on the Bill already, for which we are grateful—about an amendment we might table at Third Reading to tidy this up, encapsulating what she has just said to the House about delaying the process until the parliamentary process has been completed. I had better move this amendment, and then we can debate it.

[Baroness Williams of Trafford]

My Lords, I am sorry that I have not been very clear. I am very happy, should the noble Baroness wish to withdraw Amendment 5 and accept Amendment 4, to have a discussion before Third Reading—we have discussed our way through this Bill—but in the meantime I ask her to withdraw Amendment 5.

[Baroness Hamwee]

Of course I am happy to do that. I am sorry, I thought that was implied. I do not wish any more exercise on noble Lords than we need to have during the course of this afternoon. I look forward to that discussion and I beg leave to withdraw the amendment.

Amendment 5, as an amendment to Amendment 4, withdrawn.

--- Later in debate ---

[Lord Rosser]

The Bill extends the ability of law enforcement agencies through overseas production orders to obtain electronic data held by service providers overseas for the purposes of fighting serious crime, including terrorism. Since the assumption is that an agreement with another country will be reciprocal, the terms of the Bill when implemented will also, in reality, allow law enforcement agencies in that other country with which we have a reciprocal agreement to more easily obtain electronic data held by service providers in this country. But the Bill does not appear to provide adequate safeguards against confidential journalistic material being handed over in a way that results in sources losing their anonymity. We thus appear to have a Bill that potentially compromises the position and values of our free press. If sources of information do not feel that their anonymity will be protected, they are much less likely to provide information to journalists—information that might bring to light corruption, fraud, sexual offences, adverse environmental activity or failings by large organisations or government, for example, that those involved might wish to keep secret.

Clause 12 requires that where an overseas production order is made in respect of confidential journalistic data, it must be made on notice. The agency applying for the overseas production order would have to judge whether the material sought was ordinary or confidential journalistic material, but there is no guarantee under the Bill as it stands that the journalist, or indeed media organisation, will be able to make representations to the court. There is no requirement in the Bill for the journalist or media organisation that acquired the confidential material to be informed. The judge has a discretion to notify the journalist but not a duty. Without a requirement to notify the journalist or media organisation, take representations from them and have regard to what they say, there is no means by which journalists or media organisations can seek to protect their source.

This amendment seeks to address this concern by providing the right of journalists or media organisations to be given notice that an order in respect of confidential material is being sought, and to then be able to make representations to oppose the making of an order involving such journalistic material. It would also provide that the judge must be satisfied that there is a public interest that overwrites the confidentiality of the data sought before an order is made. If the Government have concerns that there might be journalists whom they would not wish to inform of an application for an order, then the advice could be given to the media organisation for whom that journalist worked.

The amendment seeks to ensure the continuation of an important safeguard. I beg to move.

[Baroness Hamwee]

My Lords, from these Benches we had an amendment in Committee requiring the court to be,

“satisfied that … data … is not confidential journalistic data”.

We were concerned that the Government had not consulted the NUJ or other organisations; I wonder whether they have had an opportunity for a discussion since then. The News Media Association certainly made its views clear with its concern about what it described as an artificial distinction between “journalistic material” and “confidential journalistic material” and what might flow from that distinction.

New subsection (8C)(b) proposed in Amendment 6 seems to make all data held by a person acting as a journalist “confidential journalistic data”. I see the attraction in that but I wonder whether this is the place to treat material differently from how it is treated elsewhere in UK law—in other words, I wonder about making that provision apply for the purposes of this piece of legislation only, which is a fairly small piece of the jigsaw of legislation that applies to journalism. Can the noble Lord, Lord Rosser, confirm when he winds up whether I have read this correctly: is he eliminating a distinction in this piece of legislation only, and only in the circumstances to which it will apply?

With regard to Amendment 11, we support a requirement to give notice of an application. We had an amendment to that effect in Committee, and we have amendments in the next grouping that are an attempt to respond to the Minister’s comments on the issue then.

--- Later in debate ---

Moved by

[Baroness Hamwee]

7: Clause 5, page 6, line 7, leave out “the judge has reasonable grounds for believing”

--- Later in debate ---

[Baroness Hamwee]

My Lords, Amendment 7 is an amendment to Clause 5, which deals with the contents of an order. If my amendment were agreed to, subsection (2) would read:

“The judge must not specify or describe in the order electronic data that … consists of or includes excepted electronic data”.


The clause would not include the phrase,

“the judge has reasonable grounds for believing”,

includes excepted data. That may sound as if I am dancing on the head of a pin but I think it is quite an important issue. In Committee I explained that I was seeking a formula that was objective. The Minister responded by referring to the phrase “reasonable grounds” being used elsewhere in the Bill. Indeed, the clauses that she mentioned, Clauses 1 and 7, include that phrase but they are not about an order; they are about the basis for making an application, which I suggest is a rather different matter.

I accept that, as she said, the contents of data may not be known until they are produced, but without our amendment, or some such amendment, the judge could make an order that it later turned out did include excepted data. I was looking for an objectively based exception because how otherwise do you appeal? Would you be appealing against the judge’s reasonableness? That would not be the same as appealing on the basis that the data was excepted. I would find it very uncomfortable to have to appeal against whether or not a judge was reasonable. What really should be at issue is the character of the data, and we are not satisfied that the Bill really addresses that. I beg to move.

[Baroness Williams of Trafford]

I thank the noble Baroness for moving her amendment and for raising this point again. Perhaps my response in Committee was not persuasive enough for her.

The Bill has been drafted to include multiple safeguards so that a person is not required to produce excepted electronic data. “Excepted electronic data” means electronic data that is either an item subject to legal privilege or a confidential personal record. The Government do not want to see overseas production orders being used to obtain such information, nor do we expect our officers to target it.

First, Clause 1(3) sets out that an appropriate officer must not apply for an overseas production order in respect of electronic data where that officer has reasonable grounds for believing that it consists of excepted electronic data. Clause 5(2) includes another one of these safeguards: a judge must not specify or describe data in an overseas production order where he or she has reasonable grounds for believing the data sought includes or consists of excepted data. The wording “reasonable grounds for believing” is important given that there is no guarantee, at the time of considering an application, that either the judge or the applicant can be certain if the data sought will, in fact, contain excepted data.

Let me put it in this context: say the email records of criminal X were requested from June in a certain year because law enforcement agencies believed they had been communicating for criminal purposes with someone else. It would be impossible for either the law enforcement agency or the judge to know for certain that within those emails, there also happened to be correspondence between criminal X and their doctor.

I understand that the noble Baroness’s concerns in Committee were about the objectivity of the judge in allowing an order including potentially excepted data. The Government believe that the term “reasonable grounds for believing” gets us as close to objectivity as practicable. If a judge has “reasonable grounds for believing” that excepted data is included in the data sought in an application, they will not specify that excepted data when making the order. But if they do not have “reasonable grounds for believing”, as long as the other criteria are satisfied, the judge can make the order.

Indeed, should the respondent in receipt of an order know that it includes excepted data, Clause 6(4)(b) ensures that, despite the terms of the order, they are not required to produce that data. The noble Baroness asked in Committee how, if electronic data was within an order, it could be varied or revoked. The fact that the respondent is under no obligation to produce the excepted data removes any need for the respondent to apply to vary or revoke the order. To the extent that the order includes excepted data, it has no effect.

If we return briefly to criminal X, if a judge has allowed an order to be served on a communication service provider where the judge did not know that the emails requested included medical records, but the CSP did, that CSP would not be required to produce those emails. If the CSP provided the emails, knowingly or by accident, the data would then be sifted out by the appropriate body during the sifting exercise. It is therefore reasonable and proportionate for the Bill to retain the term “reasonable grounds for believing”, and it is a sensible reflection of what would happen in practice with overseas production orders.

I hope that, with that explanation, the noble Baroness will feel happy to withdraw her amendment.

[Baroness Hamwee]

My Lords, I am grateful to the Minister. Much of what we said was what we rehearsed in Committee. I have been looking to see whether Clause 6, which deals with the effect of the order, would meet my point. It takes us straight to the provision about the order having effect despite any restriction on the disclosure of information, which we found a difficult provision when we discussed it in Committee.

I will not tax the House by continuing with this at this stage, but I hope that the Minister will understand that I was not simply playing with words; there is real concern that the way that the Bill has been framed raises questions which people may have to grapple with in practice. I hope that they do not have too hard a time. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

9: Clause 11, page 9, line 36, leave out “may” and insert “shall”

--- Later in debate ---

[Baroness Hamwee]

My Lords, Amendment 9 is grouped with Amendment 10. I thought that the point about court rules might get a bit lost in the debate on journalistic data, which is why I separated them when we were asked to approve the groupings.

In the context of journalistic data, in Committee the Minister relied heavily on how rules of court would operate. Clause 11 provides that the rules “may” make provision. I appreciate that rules will be made, because that is the way things are, but drafting styles change. I find this quite difficult; I get left behind with what is the up-to-date style. In ordinary speak—and I understand that attempts are being made to make parliamentary drafting as close to that as it can be—“may” is not the same as “must” or “shall”. I appreciate that there are differences between “may” and “must” elsewhere in the Bill, for instance in Clauses 8(1) and 8(3).

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, the noble Baroness has suggested amendments stipulating that court rules must make specific provision for certain things. Amendment 10 prescribes that court rules must be made relating to service of notice on a data controller, a data subject or where the application relates to journalistic data. I hope that I have already set out how we intend rules to include notice provisions in respect of the respondent and anyone else affected by an order. The rules already made by the Criminal Procedure Rule Committee in England and Wales for applications for production orders under Schedule 1 to the Police and Criminal Evidence Act 1984, and under other legislation, already include provision for the service of notice of applications, and additional special requirements where what is sought is the product of journalism. I refer the House to Part 47 of the Criminal Procedure Rules. The Criminal Procedure Rule Committee has already settled draft rules that, if this Bill passes, would be in terms corresponding with those existing rules.

We expect the court rules to include the same provisions as are currently in place for domestic orders. They would provide that a court must not determine any application for an overseas production order in the absence of the respondent, or other person affected, except in the following circumstances. First, the person has at least two days in which to make representations. Secondly, the court is satisfied that the applicant cannot identify or contact the person. Thirdly, the court is satisfied that it would prejudice the investigation if that person were to be present. Fourthly, the court is satisfied that it would prejudice the investigation to adjourn or postpone the application so as to allow the person to attend. Fifthly, the person has waived the opportunity to attend. In the case of an application which would require the production of confidential journalistic material, the court must not determine the application in the absence of the respondent until they have waived the opportunity to attend. I hope that that satisfies the noble Baroness on Amendments 9 and 10.

[Baroness Hamwee]

My Lords, we have learned about the draft of the new rules and I am grateful for that. It is obviously difficult to take them in simply by listening and not reading them, although I noted the wording that one of the exceptions was that the court was satisfied that the person concerned—I am not sure what the technical term would be—“cannot” contact somebody. That is not the same as “will not” contact: anybody “can” contact someone, so I suspect that there might be a little more reflection on that.

Throughout the Bill’s progress, we have been told that the Government “intend” something or “expect” something. There comes a point when one hears that rather too often not to want to see something on the face of the Bill when it is material to the Bill. However, I am glad to have heard that progress has been made with regard to the rules and I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I think it must be lucky 13 for the Minister. However, I have a question. It may be that I did not properly follow the latter part of her explanation but I come back to “normal speak”. The amendment says that the references,

“include proceedings for the making, variation or revocation of an order”.

Is “include” here a synonym for “mean”? Do we read it as “references mean”? I am sorry to throw that at her at this point. Perhaps I should talk inconsequentially for a moment or two until she receives information via semaphore. The term does suggest that something else might be within the references. I think the Minister is about to get a response to that question.

[Baroness Williams of Trafford]

The answer is yes.

[Baroness Hamwee]

With the leave of the House, I suggest that the Government return to this tiny thing before the next stage.

Amendment 13 agreed.

Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018

Baroness Hamwee Excerpts

Tuesday 16th October 2018 Lords Chamber

[Lord Haskel (Lab)]

My Lords, I am a member of your Lordships’ Secondary Legislation Scrutiny Committee, and somehow it has fallen to me to voice the concerns of the committee. It was I who spoke in the debate in July to which the noble Lord, Lord Paddick, referred. This order was presented to the committee as a matter of administrative convenience: extend the authorisation from one to four months and you reduce administration—simple. Perhaps it is because many of us are parents that we wondered why juveniles were being used in covert activity in the first place. The Explanatory Memorandum spoke of safeguards but not how they would be implemented, and it was silent on the number of juveniles involved. We requested more details, but we were still not satisfied, and so the committee decided to report this regulation to the House, both in our weekly report and in a Motion to Take Note—that was the debate in July.

During this process, it became apparent that juveniles were being used for far more dangerous activities than just checking on shopkeepers selling alcohol to minors, including activities relating to serious crime, drugs and terrorism. These activities put them in danger of violence and sexual assault, and all sorts of associated mental, physical, psychological and educational problems. Together with other noble Lords, we spoke of our concerns in the debate in July. The Minister sought to reassure us with more detailed safeguards, but many of us remained concerned.

Meanwhile, I was contacted by Rights Watch UK. It was concerned that human rights and the rights of the child were being ignored, and suggested that we should refer this to the parliamentary Joint Committee on Human Rights. After the debate, your Lordships’ committee did this, and the Joint Committee took it up with the Government through a series of questions. Its members share our concerns about the safeguarding of juveniles and what they call scope creep. As the noble Lord, Lord Paddick, said, this correspondence continues and there are meetings. This view is shared by another children’s charity: Just For Kids Law. It has contacted me and its lawyers have issued a pre-action letter to the Home Office seeking judicial review on this matter. During this time, there has also been press coverage, and I have received several letters from concerned parents.

As I said, the history is important because, at each stage, the Government have introduced further support for the juveniles and more detailed safeguards. For example, the numbers involved are now recorded; the authorising officer will weigh the intelligence benefits against the potential negative impact on the juvenile; and there will be more judicial and police scrutiny, and at a higher level. However, we remain unsure how consistent this will be across the various police forces and how it will be properly carried out.

The task of your Lordship’s Secondary Legislation Scrutiny Committee is to judge whether these reassurances and changes are sufficient. But it is for the House to decide whether this is a proper activity for juveniles and whether our police, judicial and security services provide adequate support and supervision.

This is not a party-political matter. As the noble Lord, Lord Paddick, explained, it is a security issue, a human rights issue and a rights of the child issue. Before the Government ask us to enact this legislation, with the increased assurances which they have given, I hope they will wait to see what comes out of the human rights correspondence and the judicial review. I feel sure that this is the view of most people in the House, and I look forward to hearing what the Minister has to say.

[Baroness Hamwee (LD)]

My Lords, I am pleased that my noble friend Lord Paddick has moved this Motion. I should declare an interest: I am a trustee of the organisation Safer London, which works to prevent and address young people’s involvement in crime, including running a gang exit programme for the Metropolitan Police and now MOPAC. In that role, I recently undertook some quite basic safeguarding training; safeguarding is of course very relevant to this issue. It seems to me that the thinking about safeguarding has developed; I wonder whether the thinking about the use of young people in the role of covert human intelligence sources has developed in tandem.

I asked somebody who I know through Safer London about this issue, and I was given the following example, which I think well illustrates the concerns that have been expressed. A young woman of 17, who was described to me as “on the edge of care”, whose parents were separated and who had been between boroughs, was exploited by a man who—this is very common—she thought of as her boyfriend. He was selling a group of girls, including her, for sex. The police were looking for information on him and she was left in her situation so that she could provide information. In other words, she was exploited by him and continued to be exploited by him, and was, arguably, exploited by the police. Eventually, she witnessed a murder. She was drawn into it, and not just as a witness, as she was asked to dispose of clothes and other items afterwards. How was her consent to this tested? No significant adult in her life knew of her involvement, and we must ask ourselves what qualifies a police officer to make the assessment that is needed here. This is obviously a question of training, but the officer making the assessment must also be independent from the particular investigation. I, for one—and this is nothing other than common sense—find it hard to believe that officers can easily put aside their loyalties to police colleagues in the investigation for which they have responsibility.

What is the position of corporate parents of a child in care? So many young people who are caught up in crime are, or have been, in care, or have low-level learning difficulties. Crucially, what support is given after the event? This is no doubt one of those muddy situations: a perpetrator may also be a victim, or a victim may be a perpetrator. I am told that it is not that uncommon for the police to offer witness protection in exchange for assistance—or, at least, they are very often asked to do this. As I say, it is quite a muddy situation.

My noble friend’s Motion regrets the lack of consultation with organisations concerned with human rights and the welfare of children. I suspect all of them would have raised similar points, and probably made the point that 16 year-olds are often not very mature, and indeed, neither are 18 year-olds. I do not know where vulnerability stops. To indicate how vulnerable young people might feel, I gather that it is not unusual for someone who was a gang member and is in a young offender institution to request segregation—solitary, in other words—because of fear of other gang members in the same institution.

--- Later in debate ---

The noble Baroness, Lady Hamwee, talked about consultation with organisations involved in safeguarding. There is no requirement to consult publicly on changes to the 2000 order, but we consulted broadly with the operational community, and the Investigatory Powers Commissioner’s Office was also involved in these discussions. All those who use juvenile CHISs have a duty of care to the CHIS. The duty is to safeguard children and young people, and this was taken into account as part of the consultation.

[Baroness Hamwee]

Is the “operational community” operational in the children’s sector or is it police operational?

[Baroness Williams of Trafford]

I understand that it would be police operational, but I will clarify for the noble Baroness whether operators in the children’s sector were also involved.

The updates to the CHIS code of practice in 2014 and 2017 were subject to formal public consultation, with no concerns raised about either the use of juveniles as CHISs or the safeguards that apply. But this provision has been in place for 18 years and it has probably had more scrutiny in the last two months than it ever had during those 18 years—and that is a good thing.

The noble Baroness, Lady Hamwee, also outlined an absolutely harrowing case study. I understand that those issues, if we are talking about the same ones, are being considered by the undercover police inquiry and that the Home Office is co-operating fully with the inquiry. We have responded to requests for information and have given the inquiry access to our files and records.

The noble and learned Lord, Lord Judge, raised the issue of further oversight. I think that I went through that point when we last debated this. It would not be a simple matter; it would be one for primary legislation. Nevertheless, I take his point. I hope he feels that, under the leadership of Governments of different political colours, the safeguards have been enhanced and are robust, and that there is strong and effective oversight in the form of Lord Justice Fulford.

The noble Lord, Lord Kennedy, talked about the public consultations on the provision. It was subject to statutory public consultations—most recently in 2017-18—and views from all were absolutely welcome. It is not incompatible with existing legislation—but, as I have just said, this House has given it more scrutiny than any other.

I have two more scraps of paper. The noble Lord, Lord Paddick, asked about the authorising officer. The authorising officer should, where possible, be responsible for completing subsequent renewals and any other related security or welfare issue—but I do not think that that answers his question. I now know what that question was, and the other scrap does not answer it, either, so I will get back to him on that specific point.

This House has given this really serious issue the time, scrutiny and questioning that it deserves, after 18 years of it passing largely unnoticed by either House of Parliament. I thank the noble Lord, Lord Haskel, for raising this in the first instance and the noble Lord, Lord Paddick, for raising it today.