Counter-Terrorism and Border Security Bill

Baroness Williams of Trafford Excerpts

2nd reading (Hansard): House of Lords
Tuesday 9th October 2018 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the Bill be now read a Second Time.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, no Government take any pleasure in having to put before your Lordships’ House another counterterrorism Bill. Like its predecessors, this Bill is borne out of necessity. Regrettably, the threat to this country from terrorism is ever present. Indeed, the threat level has been at severe or higher for over four years, meaning that a terrorist attack is highly likely. The police and security services now assess that over the last two years we have seen an enduring shift in the threat, rather than simply a spike.

It is easy to reel off statistics. Seventeen Islamist or far-right terrorist plots have been thwarted since March 2017; as of June, there were some 3,000 subjects of interest known to the police and intelligence agencies, and 412 arrests for terrorism-related offences in 2017. But dry statistics can never bring home the pain and sorrow suffered by individual victims of terrorism. Over recent weeks, we have heard the harrowing testimony at the inquest into the deaths of the five victims of last year’s terrorist attack on Westminster Bridge and at the gates of this very building. In this and the four subsequent attacks in 2017, in Manchester, London Bridge, Finsbury Park and Parsons Green, a further 31 innocent victims lost their lives, and in total over 200 others were injured. The family and friends of those who lost their lives will have to live with this painful loss for the rest of their lives, while the victims who survive have to deal with the ongoing mental anguish and, in some cases, life-changing physical injuries.

As a Government, we must do all we can to prevent such tragedies happening again, although regrettably there can be no guarantee that every plot will be foiled. One way we can do this is to make sure that our counterterrorism legislation remains fit for purpose. Much of the current legislation dates back to Acts passed in 2000 or 2006. In the intervening years, the nature of the threat has evolved. We have seen new patterns of radicalisation, the widespread use of social media to spread hateful ideology, and the draw of the so-called caliphate in Syria. We have also seen more rapidly evolving plots using everyday items such as vehicles and knives as weapons, which although still deadly are less sophisticated and complex than the plots of previous years. This has led to a lowering of the barriers to entry and a decrease in the time taken to plan and prepare by those with murderous intent.

Against this evolving threat, it is only right that we should bring our counterterrorism legislation up to date so that our law enforcement and intelligence agencies have the necessary, but proportionate, powers to help counter the threat as it manifests itself today, and not the one they had to contend with nearly 20 years ago. The provisions in Part 1 are directed to this end. In reviewing existing legislation, we have listened carefully to our operational partners: the police, prosecutors and the intelligence services, but also the current and former Independent Reviewers of Terrorism Legislation—I am pleased to see the noble Lord, Lord Anderson of Ipswich, in his place. We have also listened and responded to the debates on these provisions during the passage of the Bill in the House of Commons.

The Bill closes a number of gaps in existing terrorism offences. Under Section 12 of the Terrorism Act 2000 it is already an offence deliberately to invite support for a proscribed terrorist organisation, whether expressly or by implication. However, there are demagogues who, without intending to encourage others to support such groups, or at least without the prosecution being able to prove such an intention, nevertheless recklessly choose to voice their own support, knowing full well that the effect of their words will be to do just that. It is right that the criminal law should bite in such cases.

The Bill also updates Section 13 of the 2000 Act which criminalises the display, in public places, of a flag or other emblem of a proscribed organisation in such a way, or in such circumstances, as to arouse a reasonable suspicion that the person is a member or supporter of a proscribed organisation. The provision in Clause 2 makes it clear that the publication of an image of such a flag or emblem online, in circumstances which arouse that reasonable suspicion, comes within the ambit of Section 13. So, for example, a person would commit the offence if he or she posted on social media a picture of themselves taken in their bedroom and displaying a Daesh flag in the background, thereby making the image available to the public, and, if taking all the surrounding circumstances into account, such a display aroused a reasonable suspicion that he or she was a member or supporter of Daesh.

We are also strengthening the existing offence, in Section 58 of the 2000 Act, of collecting or possessing information likely to be of use to a terrorist. Here again, we need to ensure that the criminal law reflects how people now make use of the internet. If someone were to download a document containing information likely to be useful to a terrorist, it would be in their possession and they would therefore be committing the Section 58 offence. If, instead of downloading the document, they were to view it online or to stream a video or audio recording containing the information, without any record being made on their device, the offence would not apply. This cannot be right. This loophole is a clear illustration of how criminal law has not kept pace with the digital age. Clause 3 therefore provides that a person who views or otherwise accesses terrorist material online is within the ambit of the Section 58 offence. But it is not the intention here to criminalise a person who unintentionally views such material, so the clause provides that it is a defence for a person to show that they did not know, or had no reason to believe, that the material is likely to be useful to a person preparing or committing an act of terrorism.

This part of the Bill also helps us to respond more effectively to the threat posed by foreign terrorist fighters—an issue which I know is of great interest to my noble friend Lord Marlesford. We already have a number of powers to disrupt travel to conflict zones overseas but here, as elsewhere, we need to ensure that the coverage is as comprehensive as it should be. Accordingly, the Bill provides for a new offence of entering or remaining in a designated area overseas. The Home Secretary may make such a designation where he or she is satisfied that it is necessary to restrict UK nationals and residents from travelling to, or remaining in, the area for the purpose of protecting the public from risk of terrorism. Any regulations designating an area will be subject to the affirmative procedure; consequently, after they have been made and come into force, they will need to be debated and approved by both Houses if the designation is to remain in effect.

The designated area offence will be subject to a reasonable excuse defence. We are clear, for example, that the defence would apply to a person travelling to a designated area for the purpose of providing humanitarian aid or to carry out work as a journalist. This defence will operate in the same way as the existing reasonable excuse defences in the Terrorism Act 2000. Accordingly, once a defendant has raised the defence, the onus will be on the prosecution to disprove the defence to the criminal standard.

The Bill also seeks to tackle the phenomenon of foreign terrorist fighters by extending the reach of the UK courts. It is not for the law enforcement agencies in this country to police the world but, when someone has travelled from the UK and committed a terrorist offence abroad, it is right that they should be brought to justice if they return here. Many terrorist offences are already subject to extraterritorial jurisdiction. We are now extending the jurisdiction of the UK courts to cover further terrorism offences committed abroad, including activity that we have seen conducted by those who have joined Daesh, such as the dissemination of terrorist publications to individuals back in the UK and the possession of explosives for the purposes of an act of terrorism.

It is not enough that we prosecute and convict those who commit terrorist offences; we also need to ensure that the punishment properly reflects the seriousness of the crime and that our communities are protected by the courts having the scope to hand down appropriately lengthy sentences. New sentencing guidelines which came into force in April will go some way in this direction, but the Sentencing Council and the courts necessarily have to operate within the current maximum penalties set out by Parliament.

Having reviewed the maximum penalties for some terrorism offences, we are satisfied that they no longer adequately reflect the seriousness of the offending behaviour and the high level of harm that can be caused. Accordingly, the Bill increases to 15 years’ imprisonment the maximum penalty for four offences, namely: collecting terrorist information; eliciting, communicating or publishing information likely to be useful to a terrorist about a member of the Armed Forces; encouragement of terrorism; and dissemination of terrorist publications. In response to representations from Max Hill QC, the outgoing Independent Reviewer of Terrorism Legislation, we are also increasing to 10 years’ imprisonment the maximum penalty for the offence of failure to disclose information about acts of terrorism. As now, it will be for the courts to determine the appropriate sentence in each individual case.

In addition, we are bringing preparatory terrorism offences within the scope of the extended sentence regimes in England and Wales, Scotland and Northern Ireland. Where an extended sentence is imposed by the court, the offender is not released automatically at the halfway point of the custodial term, and is instead only released ahead of the end of the custodial term when the independent Parole Board considers it safe to do so. They are then subject to an extended period on licence.

These changes to the sentencing regime will be further reinforced by a strengthening of the notification requirements, which can apply for up to 30 years following conviction. Registered terrorist offenders will be required to notify the police of a wider range of information, including banking and passport details and details of any vehicle they have use of, to enable the police to better manage the risk of reoffending.

As I said, the Government greatly value the work of the Independent Reviewer of Terrorism Legislation, and we are fortunate to have in this House two former occupants of that office. I look forward to hearing the speech of the noble Lord, Lord Anderson, and I hope that we will also be able to hear from the noble Lord, Lord Carlile, during the course of the Bill.

I am pleased that this part of the Bill gives effect to two recommendations made by the noble Lord, Lord Anderson, when he was the independent reviewer. First, it introduces a statutory bar on the admissibility in criminal trials of verbal admissions made during an examination at a port under Schedule 7 to the Terrorism Act 2000. Secondly, it provides for the “detention clock” to be paused where a person arrested or detained under the Terrorism Act 2000 is taken to hospital for treatment. This brings the 2000 Act into line with the long-standing provisions in the Police and Criminal Evidence Act. It is right that the police should have the full time allowed under the law to question a suspect before they are released or charged.

Clause 19 is further evidence that this Government are receptive to reasoned arguments for changes to counterterrorism legislation. Noble Lords will recall that what is now the Counter-Terrorism and Security Act 2015 put the Prevent duty and Channel panels on to a statutory footing. I have no doubt that we will hear more about the Prevent programme during the debate today and subsequently, but for now I just pay tribute to the prescience of the noble Baroness, Lady Hamwee, who argued back in 2015 that local authorities, as well as the police, should be able to refer to a Channel panel a person at risk of being drawn into terrorism. It might have taken us three years to take on board that suggestion but I hope that she can take some satisfaction from the fact that her proposal is now being given effect.

Finally on this part of the Bill, I want to mention the amendment to the Reinsurance (Acts of Terrorism) Act 1993 made by Clause 20. That Act enables the Government to extend an unlimited guarantee to the terrorism reinsurer, Pool Re. This in turn enables the insurance market to provide insurance to businesses for loss caused by damage to commercial property from terrorist attacks. The Bill will amend the 1993 Act to enable Pool Re to extend its business interruption cover to include losses from terrorist attacks that are not contingent on damage to commercial property.

The threats to our national security are not confined to terrorism; they also come from hostile state activity, and we have seen recent devastating evidence of this threat in our communities. In March, we saw the poisoning in Salisbury of Sergei and Yulia Skripal and Detective Sergeant Nick Bailey using a military-grade nerve agent. The Crown Prosecution Service has now charged two men for this attack, and the Government have concluded that they are officers in the Russian military intelligence service, the GRU. This was not a rogue operation. It was almost certainly approved outside the GRU at a senior level in the Russian state. The same two men are now the prime suspects in the case of Dawn Sturgess and Charlie Rowley.

The events in Salisbury are part of a pattern of behaviour by the Russian Government, and they are not alone in engaging in hostile activity that threatens the United Kingdom. Given this, the time has come to harden our defences against hostile state activity. As a first step, Part 2 of the Bill provides for a new power to stop, question, search and detain persons at ports, airports and the Northern Ireland border area to determine whether they are, or have been, engaged in hostile activity by or on behalf of a foreign state.

These provisions will serve to address a current gap in our ability to tackle the threat posed by hostile state actors and will mirror in many respects the existing powers to stop and question persons at the border for counterterrorism purposes. Indeed, this is another area where the Bill reflects a proposal made by the noble Lord, Lord Anderson, in his previous role as independent reviewer. In his report on the terrorism Acts in 2015 and subsequently in evidence to the Home Affairs Select Committee, he argued for a power to determine whether a port user is engaged in national security threats such as espionage or proliferation.

No one wants their travel plans disrupted, or to be subjected to intrusive questioning as they enter or leave the country. As with existing border powers in the Terrorism Act, those afforded by Schedule 3 to the Bill will be subject to a number of checks and balances to ensure that they are not used in an arbitrary fashion, but are subject to rigorous independent oversight—in this case by the Investigatory Powers Commissioner. The important safeguards on the face of the Bill will be augmented in a statutory code of practice, and I can give an undertaking to the House today to publish a draft of the Schedule 3 code of practice before we reach Part 2 of the Bill in Committee.

It is incumbent on the Government of the day to keep the people of this country safe and secure from the threats posed by terrorism and hostile state activity. As part of this, it is inevitable that from time to time we need to refresh our laws to ensure they remain up to date for present-day threats. Faced with the horrors of the five terrorist attacks last year, it is inevitable that such events can act as a catalyst for change. It is right, however, that your Lordships’ House should consider the provisions in this Bill dispassionately. Such individual tragedies should not cloud our judgment, but we must remain alive to the fact that the decisions we make as legislators have real world consequences. This Bill will help reduce the risk of tragedies similar to the ones we saw in London, Manchester, Salisbury and Amesbury from happening again, and on that basis, I commend this Bill to the House.