Counter-Terrorism and Border Security Bill

Baroness Howe of Idlicote Excerpts

Monday 17th December 2018 Lords Chamber

Moved by

[Baroness Howe of Idlicote]

46: Clause 26, page 26, line 10, at end insert “, subject to subsection (3A).
(3A) Before section 19 can come into force, the Secretary of State must revise the Government’s counter-terrorism strategy and any guidance under—(a) section 29(3),(b) section 36(7), and(c) section 38(6),of the Counter-Terrorism and Security Act 2015.(3B) The revisions under subsection (3A) must ensure that—(a) there is a clear and consistent definition of when considerations other than terrorism can be considered relevant to the assessment of an individual who is thought vulnerable to being drawn into terrorism, and(b) the definition of when considerations other than terrorism can be considered relevant to the assessment of an individual who is thought vulnerable to being drawn into terrorism is bounded by the requirement to assess the risk of being drawn into terrorism under sections 26(1) and 36(1) of the Counter-Terrorism and Security Act 2015.”

[Baroness Howe of Idlicote (CB)]

My Lords, in introducing Amendment 46, I would like to put on the record my thanks to the Minister for the very useful meeting that the noble Lord, Lord Morrow, and I had with her at the beginning of the month. As a result of that meeting, I have decided not to re-table one of my Committee stage amendments. However, I think it is important to revisit the concerns I addressed in Committee through my Amendments 89 and 91, hence why I am speaking to Amendment 46 today. The basic problem addressed by my amendment is that the guidance documents that are likely to inform the implementation of the duties set out under Section 36 of the Counter-Terrorism and Security Act 2015, as amended by Clause 19 of the Bill before us today, uphold an inconsistent approach to the crucial question of whether—and if so, when—considerations regarding non-violent extremism are relevant.

The wording of Section 36 is very clear that it requires local authorities to assess whether people are vulnerable to being drawn into terrorism. Section 36 does not ask for an assessment to be made regarding whether people will be drawn into any other activity and, specifically, no reference is made to non-violent extremism. In this context, there must be a concern that any suggestion in the guidance that these panels should assess people for anything other than the risk of being drawn into terrorism would involve their acting beyond the parent legislation.

At this point, some might say, “So what? If a Section 36 panel assesses and sanctions interventions relating to people who engage in extremism as well as terrorism, is that such a bad thing?” To my mind, it all depends what you mean by “extremism”. If you mean violent extremism, this clearly falls within the parameters of terrorism and Section 36. Clearly, making an intervention at that point is wholly justified. However, extremism is a potentially much wider concept than violent extremism and is very much a subjective reality in the eyes of the beholder. One person’s extremism will be another’s common sense and vice versa.

Part of the genius of the British political tradition over centuries has been its capacity to make room for people with different world views, some of them more peculiar than others. In this context, it is vital that the guidance that informs the application of Section 36, as amended by Clause 19, does not encourage local authorities to stray into a general assessment of extremism in the round, because this clearly overreaches what is mandated by the legislation and because we must jealously guard our commitment to free speech.

In highlighting this concern, I am not arguing that there is an absolute divide between violent and non-violent extremism, such that it is not legitimate to consider non-violent extremism in implementing Section 36. The proper relationship between non-violent extremism and terrorism for the purposes of Section 36 has been set out very clearly by Mr Justice Ouseley in his judgment in the 2017 case of Mr Salman Butt. He says that intervention on the basis of Section 26, and thus clearly by implication Section 36, can be only in response to,

“active opposition to fundamental British values”,

which,

“must in some respect risk drawing others into terrorism before the guidance applies to it. If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it”.

In other words, non-violent extremism is a relevant consideration only to the extent that it creates a risk that others will be drawn into terrorism. Non-violent extremism that does not sustain this relationship to terrorism is not engaged.

A number of counterarguments have been made in response to my highlighting these concerns. In the first instance, it has been said that the Prevent duty guidance and counterterrorism guidance are not relevant because the guidance that had been specifically developed for implementing Section 36 is the Channel duty guidance. I accept that the Channel duty guidance has been specifically drafted with Section 36 in mind. I expect that local authorities would turn to this in the first instance. What I do not think stands up to scrutiny, however, is the suggestion that local authorities will not consult other guidance documents. I will not repeat everything I said on this in Committee, but I remind the House that the Channel guidance encourages its readers to look at the Prevent duty strategy and the counterterrorism strategy under the heading “Other Useful Guidance”.

In the second instance, it has been suggested that the Channel duty guidance, the Prevent duty guidance and the counterterrorism strategy all adopt a clear and consistent approach to the relationship between terrorism and non-violent extremism, such that one can be confident that there will be no confusion about when, on the basis of Section 36, it is appropriate for a local authority to intervene. I have acknowledged that parts of these documents are clear on this question. My difficulty is that other parts are far from clear, and this is leading to confusion.

For instance, in the Prevent duty strategy, the glossary definition of extremism does not depend on any necessary connection to terrorism. It says that for the purpose of the strategy, extremism is,

“vocal or active opposition to fundamental British values including democracy, the rule of law, individual liberty and mutual respect, and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our Armed Forces, whether in this country or overseas”.

Although there is a reference to calling for the death of members of the Armed Forces, that is not necessary to fulfil this definition of extremism, and so it does not reflect what the law says as set out by Mr Justice Ouseley.

The counterterrorism strategy, meanwhile, provides a definition of terrorism specifically for the Channel programme that is completely beyond Mr Justice Ouseley’s definition of the law. Paragraph 124 of the strategy states:

“Channel is … run in every local authority in England and Wales, and addresses all types of extremism”.


The suggestion that Channel interventions can be made with respect to all types of extremism clearly suggests that this provides a basis for intervention in relation to non-violent extremism where there is no relationship to violent extremism and terrorism.

The Channel duty guidance is also confused. Part 4 makes the necessary connection to terrorism very clear. It states:

“Preventing terrorism will mean challenging extremist and non-violent ideas that are also part of a terrorist ideology”.


In other words, content that the state deems extreme but is itself non-violent must be connected with terrorism in that it must be part of terrorist ideology to be a relevant consideration. However, paragraph 5 then uses a different definition of extremism, in which there is no necessary connection with terrorist ideology. This seems to open the door to anything the state deems extreme without needing to be part of a terrorist ideology. This confusion is further reflected in the more detailed definition of what extremism is that is provided in paragraph 51, where again we see no necessary connection to terrorism.

The lack of any consistent clarity about when consideration of non-violent extremism is appropriate in discharging Section 36 responsibilities with respect to terrorism is a real problem, because the resulting confusion is impacting on practice, as noted by Mr Justice Ouseley in paragraph 29 of his judgment. Here he is not simply saying that he thinks there is a risk of confusion. He is saying that he is encountering that confusion as people misapply a felt obligation to prevent people being drawn into non-violent extremism. The paragraph says:

“However often that phrase is used, it starts, in my judgment, from a fundamental misreading or misunderstanding of the guidance. The guidance is about the s26 duty; it is therefore about preventing people being drawn into terrorism through non-violent extremism. Non-violent extremism which carries no risk of drawing people into terrorism is not subject to the guidance. Once the risk is established that a non-violent extremist does pose such a risk, the guidance applies. It is not at issue that preventing people being drawn into terrorism is a legitimate aim”.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I thank the noble Baroness, Lady Howe, and the noble Lords, Lord Morrow and Lord Stunell, for their points. All I can say on the back of the point made by the noble Lord, Lord Stunell, is: thank God we do not live in the 17th century.

I start by making it clear that when the Government refer in the various documents mentioned by the noble Baroness to Prevent applying to “all forms of extremism”, that means that Prevent applies to far-right extremism as much as it does to Islamist extremism—and, indeed, to Sikh-related extremism, Northern Ireland-related extremism, et cetera. This is a relatively new change, as the Prevent strategy pre-2011 applied only to Islamist extremism. This was clearly inequitable and not reflective of the threat, so it was changed. What is not meant by that expression is that Prevent should apply to all degrees of extremism. All our guidance has tried to be clear that Prevent is of relevance only where the extremism is such that there is a risk of people being drawn into terrorism. That is how the duties are framed in statute, and the point is made many times throughout the two pieces of statutory guidance: the Prevent duty guidance and the Channel duty guidance. I accept that there are occasions in those documents when the full formulation is not used for the sake of brevity and style. However, we believe that, when read as a whole, and in conjunction with the 2015 Act, the true meaning is clear.

I also emphasise that we have not seen any evidence to suggest that practitioners are misinterpreting the guidance documents to try to apply them to those forms of extremism which do not risk drawing people into terrorism, but I appreciate the example provided by the noble Lord, Lord Morrow, and I would be grateful if he would forward it to me. Certainly, the rigorous assessment within the Channel process ensures that no one is likely to be offered support unless that connection to being drawn into terrorism is there. We must not forget that, in any event, Channel support is entirely voluntary.

All guidance reaches a point where it needs to be updated, and we are committed to doing so when the time is right. Since the Prevent and Channel duties were introduced, there has been much good practice and many case studies which a new version would look to contain. Noble Lords may also be aware that just last week the Court of Appeal heard a case relevant to this matter and the Government eagerly await its judgment, which may well have implications for how a future revision of the guidance is drafted. But we do not know how long it will be before the judgment is handed down and it would be a mistake to attempt to revise the guidance beforehand. In addition, the drafting process, collecting good practice and going out to public consultation is likely to take several months.

The process of revising guidance is not a quick one if we are to get it right. The Government accept that it will become necessary to do so at some point in the not too distant future, but it would be damaging to what we are trying to achieve with Clause 19 should implementation of that clause be delayed while new guidance is drafted. The almost inevitable outcome, should such an amendment become law, is that the production of new guidance would be rushed so as to limit that damage, resulting in an inferior product, with much-reduced consultation and input from practitioners. Given that the guidance must be approved by Parliament before being issued, your Lordships’ House would be required to debate an inferior product that I would not wish to lay before it.

While I would not wish to commit the Government to a specific timeframe for producing new guidance, I can say that in any event the guidance will need to be reviewed as part of the post-legislative review process that takes place five years after enactment. The fact that the Act in question received Royal Assent in 2015 means that a review and revision of the guidance will happen no later than 2020. When we revise the guidance, we will be sure to take on board the comments that the noble Baroness has made and make it clear exactly what kind of extremism is covered by the Prevent duty and the guidance, and what is not. Prevent is not and never has been any form of thought police, nor has it been about suppressing dissent. It is of course, as I said earlier, about safeguarding vulnerable people.

I hope I have been able to allay the noble Baroness’s concerns and that she will feel happy to withdraw her amendment.

[Baroness Howe of Idlicote]

My Lords, I thank the Minister for what she has said. I thought when I was speaking that I got an indication that there would be some action within 12 months, but as she spoke I became rather more worried by the time that everything is going to take.

[Baroness Williams of Trafford]

I thank the noble Baroness for allowing me to intervene. Twelve months from now brings us virtually into 2020.

[Baroness Howe of Idlicote]

All right. That is reassuring—to everyone, I hope.

I thank everyone who has taken part in the debate, and I thank the Minister herself for what she has said to us all. I certainly hope that the nature of the problems that we have highlighted during this debate is such that rather more detailed consideration might be given to bringing the whole timetable forward. That would certainly be a great help. The sooner it is done, the better, even if the timetable is really around the 12-month timing. On that basis, I beg leave to withdraw my amendment.

Amendment 46 withdrawn.