Counter-Terrorism and Border Security Bill

Earl Howe Excerpts

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

[Baroness Hamwee (LD)]

Perhaps I can ask both the noble Lord and the Minister a question: first, one to the Minister. Is the requirement for proof found in any other provision for reasonable excuse? I have been looking during the past few minutes; I could not find an example, but I did not get my iPad out to start reading through the whole of the Terrorism Act.

Secondly, I see the attraction of the term “state”. On who has to show what and in what order, we have been referred to Section 118 of the Terrorism Act. The terminology of that is “adducing evidence”. I am not sure whether the term “state” used by the noble Lord, Lord Rosser, is intended to be the equivalent of “adduce evidence”.

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

My Lords, as we have discussed, the offence of entering or remaining in a designated area, which would be inserted as a new Section 58B of the Terrorism Act 2000 by Clause 4, is subject to a reasonable excuse defence. We have already debated the circumstances which might give rise to a reasonable excuse and how these should be catered for within the Bill.

Amendment 18 addresses a different aspect of that provision: the question of how much the evidence is required to establish a defence to the new offence. Related to this is the question of whom the evidential burden is placed on. Section 118 of the 2000 Act sets out how the evidential burden applies to a number of defences to criminal offences within the 2000 Act, including the new designated area offence.

The noble Lord, Lord Rosser, is concerned that the current drafting of new Section 58B(2), which contains the defence to the designated area offence, is out of step with the existing provision in Section 118 of the 2000 Act and will place a greater burden on defendants to make out a reasonable excuse than is envisaged by Section 118.

I understand and respect the noble Lord’s wish to ensure that defendants facing a charge under Section 58B are not placed in a worse position than those charged under other offences with a similar reasonable excuse defence. However, I hope that I can allay that concern and provide a clear assurance that this will not be the case if I explain how Section 118 interacts with the defence to the new Section 58B offence.

The wording used in the defence, which refers to a defendant proving that he or she had a reasonable excuse, is the exact same formulation used elsewhere in various defences to offences contained in the 2000 Act, including the defence to the Section 58 offence amended by Clause 3. It is vital to recognise that this reference in the defence to “prove” should not be read on its own; rather it is subject to the operation of Section 118, which makes further provision on what is required to prove a defence in this context.

Specifically, Section 118 provides that if a defendant,

“adduces evidence which is sufficient to raise an issue with respect to the matter”—

the matter that has to be proved under the wording of the defence—

“the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.

This, together with relevant case law, has the effect that if a defendant puts forward sufficient evidence to reasonably support a suggestion that he or she has a reasonable excuse, then the burden of proof shifts to the prosecution to disprove that defence, which it must do to the normal criminal standard—beyond reasonable doubt. If the prosecution fails to do so, then the jury must assume that the defence is made out.

The precise extent and nature of evidence required on the part of the defendant to invoke the defence in the first instance will be a matter for juries to determine in individual cases. Parliament has set a threshold which is not particularly high; all that is needed is,

“evidence which is sufficient to raise an issue with respect to the matter”.

In practice, a trial judge would be cautious to rule out any proposed defence unless it was plainly incapable of being judged by a jury as a reasonable one. In relation to new Section 58B(2), the evidential burden placed on the defendant will not be any greater than that required in relation to any of the other offences to which Section 118 applies. Furthermore, were Section 118 to continue to apply to new Section 58B(2), the amendment would have no impact in practice. Whether new Section 58B(2) refers to the defendant stating or proving the defence, under Section 118, it will still be for the jury to decide whether the prosecution has disproved the defence beyond reasonable doubt.

[Lord Judge (CB)]

I am extremely troubled by the idea that new Section 58B(2) should have a different form of wording from Section 118. It is a recipe for chaos in the court. Can we not simply address the amendment, take out “prove” and use the words in Section 118?

[Earl Howe]

I am grateful to the noble and learned Lord. I was seeking to make the point that we must not diverge from the wording used originally, otherwise it would cause confusion.

[Lord Judge]

That is exactly how it reads. Any judge looking at this will say, “Good heavens, here is a situation in which, under the counterterrorism Act, the defendant has to prove his defence—not adduce evidence so that the matter can be raised for the prosecution to disprove”. When I read this I thought it must be a typing error, but I knew that that could not be the case.

[Earl Howe]

My Lords, as the noble and learned Lord, Lord Judge, has raised this, I cannot ignore what he has said. If he will allow, after this Committee stage, I will take advice and be in touch with him.

[Earl Attlee (Con)]

My Lords, did not my noble friend the Minister state that other similar offences were drafted in the same way?

[Earl Howe]

My Lords, my noble friend is quite right. “Prove” is used in some six other sections of the 2000 Act, including Sections 57, 58 and 58A, so it is not inconsistent with the generality. However, as the noble and learned Lord has picked this out, I can do no other than to take the point very seriously, and I undertake to do so. If he will suspend his scepticism for a moment, I want to make the point that, in addition to creating an inconsistency between the designated area offence and others with a similar reasonable excuse defence, this would also unsettle a well-established legal position with which the courts and prosecutors are very familiar, and on which there is clear case law.

I very much hope that, on this basis, the noble Lord will be content to withdraw his amendment, subject to the undertaking that I have just given.

[Baroness Hamwee]

Before the noble Lord responds, I am not sure whether I heard the Minister correctly. It sounded as if he said that the requirement for proof elsewhere was proof on behalf of the prosecution. I may well have misheard him, but I am making the point now because that would not be an answer to this point, which is about proof by the defendant.

[Earl Howe]

My Lords, if I misspoke or misread, I apologise. I was seeking to say that, as long as a defendant puts forward sufficient evidence to reasonably support whatever suggestion he is making—that he has a reasonable excuse—then the burden of proof shifts to the prosecution to disprove that to the criminal standard.

--- Later in debate ---

[Lord Judge]

I agree and have nothing to add.

[Earl Howe]

My Lords, as the noble Lord, Lord Anderson, has helpfully explained, these amendments relate to the legal test for designating an area under Clause 4. That test currently requires that it be necessary for purposes connected with protecting the public from a risk of terrorism to restrict UK nationals or residents from entering or remaining in the area. The noble Lord’s amendments would add a second limb to this test, which would require that a proscribed terrorist organisation is engaging in armed conflict within the area to be designated.

It is clear from the noble Lord’s explanation that the purpose of these amendments is to help ensure that designations are proportionate and that they are made only in circumstances where they are genuinely necessary. As the noble Lord has explained, they would more closely follow the approach taken in Australian and Danish law, where those countries have established similar powers.

I completely understand the sentiment and the intention behind these amendments. Nevertheless, I respectfully disagree that they are necessary to secure this outcome. I also do not consider that the UK is bound to follow the approach taken by other countries, which may have different legal frameworks and may be facing different configurations of terrorist threat, rather than seeking the approach that works best for us. As your Lordships would expect, when drafting Clause 4, we looked carefully at the approaches taken by Australia and Denmark, including the legal test for designating an area. We have concluded that the right approach for the UK, and the one that would provide the greatest flexibility while still providing a proper safeguard for proportionality, is the one currently set out in the Bill.

We have no doubt that in most cases in which it might be appropriate to designate an area in future, it is likely that a proscribed organisation will be engaging in armed conflict. Certainly, that has been the experience with the Syrian conflict, which is the closest analogy we have for the type of scenario in which we might wish to use the power. However, we are keen to ensure that the power is sufficiently flexible to be used in currently unforeseen future scenarios.

It is plausible that in the future, there could be an armed conflict or some other situation in an area which gives rise to a clear terrorism-related risk, on the basis of which it is appropriate to restrict travel by UK nationals or residents, but in which a proscribed terrorist organisation is not currently involved. This might be because a grouping of terrorists operating in the area cannot clearly be defined as an organisation. Or it might be because the situation has evolved rapidly—perhaps with an organisation emerging and quickly becoming involved in fighting—and it is necessary to restrict travel urgently before it has been possible to proscribe the organisation. It is also plausible that we may know from sensitive intelligence about the involvement of a specific proscribed organisation in a conflict, but as such intelligence cannot be revealed in public, it may not be possible to prove the organisation’s involvement on open material alone.

As the noble Lord will be aware, regulations designating an area are subject to the made affirmative procedure. As such, Home Office Ministers will need to come to Parliament to explain the basis for the designation, and it would then be for both Houses to decide whether to approve the regulations based on that explanation. In this regard, I note the recommendation by the Delegated Powers Committee that the Home Secretary should be required to lay before Parliament a Statement setting out the reasons why he considers that the condition for designation is met in the case at hand. We are ready to give that recommendation sympathetic consideration ahead of Report.

Given the considerations I have outlined, and the clear and robust necessity test that is already contained within Clause 4, I hope the noble Lord will be persuaded to withdraw his amendment, at least for the time being.

[Lord Anderson of Ipswich]

I thank the Minister for his thoughtful response. It made me wish that we had had a full consultation on this novel offence prior to the introduction of the Bill, or at the very least that we had not seen it introduced to the Bill at such a late stage. However, we are where we are. I concede nothing but will consider carefully what the Minister has said.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I support Amendments 26 and 27 in the names of the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Judge. The rigour that these amendments bring is similar to that in the amendments that the noble Lord will attempt to introduce when we get to proscribed organisations. It seems something that he feels, from his experience as a former reviewer of terrorism legislation, is very much lacking.

Amendment 29 appears to be perhaps a way of getting round the problem of there being intelligence that cannot be put into the public domain around decisions made in connection with this clause, in that the Intelligence and Security Committee of Parliament has the necessary clearance to review that evidence. Perhaps the noble Earl could comment on that.

[Earl Howe]

My Lords, Amendments 26 and 27 would add to the existing requirement in the Bill that the Secretary of State keep under review any designation made under Clause 4 and revoke it if the legal test for designation is no longer met in respect of it. As the noble Lord, Lord Anderson, explained, they would specify that such reviews must take place on an annual basis and would prescribe the options open to the Secretary of State when conducting such a review, as well as requiring the outcome of the review to be published.

I should start by saying that I am in full agreement with the principle that any designation under Clause 4 should not be indefinite, that it should be kept under review and that it should be revoked as soon as it is no longer necessary.

In saying that, perhaps I can take the opportunity to correct something stated by my noble friend Lady Williams when she said earlier that the list of proscribed organisations is subject to regular review. This was an inadvertent slip by my noble friend, for which, on her behalf, I apologise. I understand that she has already approached noble Lords privately to make that correction, but I do so on the record.

Where I depart from the noble Lord’s views, much as I respect them, is that I believe the current drafting of the Bill is the most effective way of delivering the objective. In particular, I cannot agree that a rigid requirement for an annual review is needed or is appropriate. I say that, first, because the type of situation in which this power is expected to be used may be fluid and rapidly evolving, but it may equally be one where there is an obvious and enduring threat. In the former case, an agile review, more frequent than once a year, may be appropriate—I accept that the amendment would not preclude this. In the latter case, an annual review may simply be unnecessary, and may be a poor use of the time and resources of those in government and the security and intelligence agencies tasked with protecting us from the terrorist threat.

I note in this regard that the Australian legislation sunsets a designation after three years, but with the option of an area being redesignated. If we were to go down this road—as the noble Lord, Lord Rosser, seeks to do with his Amendment 28—three years strikes me as more appropriate in this context compared with the annual review provided for in these amendments. Once again I have in mind the Syrian example, where the nature and extent of the threat, and the involvement and intent of UK nationals and residents, is self-evident and has indeed been proactively publicised by its protagonists over an extended period of time.

However, secondly, I say this because, regardless of its frequency, a formal review process at a fixed point is not likely to be appropriate. In all cases where the level of terrorist threat is so high that it is appropriate to designate an area under Clause 4, as your Lordships would expect, the Government and the security and intelligence agencies will keep the situation in that area under extremely close and continuous review.

This will be a comprehensive ongoing assessment across the full spectrum of government. It will involve consideration and ongoing review of every aspect of the Government’s response to the situation, including their use of legal powers and any designation under Clause 4. In reality, this is a closer and more effective consideration than that envisaged by the amendments of the noble Lord, Lord Anderson. It will enable the Government readily to identify if the situation on the ground has changed such that the legal test for designating the area is no longer met, and to take prompt action should this be the case.

I remain to be persuaded that the more elaborate annual process provided for in these amendments would serve the public interest, or would be an effective use of resources, or would lead to any more rigorous or effective a review of whether a designation remains necessary. As I have indicated, I can see more merit in a backstop three-year sunset clause with the option of redesignation. I am ready to consider this option further ahead of Report.

Amendment 29 would require that before a Motion to Approve any designation regulations may be tabled, the regulations must have been reviewed by the Intelligence and Security Committee, and the committee must have laid before both Houses a report providing a recommendation on whether the regulations should be approved.

I recognise and appreciate the constructive spirit in which this amendment is intended and I am happy to make clear that I share the view that Parliament should have as well informed a debate as possible on any regulations made under this power. However, I am not persuaded that involving the Intelligence and Security Committee in this way is the right approach or would be an appropriate extension of the committee’s role, which is what it would amount to. The Intelligence and Security Committee has a specific statutory remit under Section 2 of the Justice and Security Act 2013, which focuses on the administration and operation of the intelligence agencies. This is extended to certain aspects of the Government’s activities in relation to intelligence or security matters by means of a memorandum of understanding agreed under Section 2(2) of the 2013 Act.

Section 2(3) of the 2013 Act specifically excludes from the committee’s remit any matter that is,

“part of any ongoing intelligence or security operation”.

This clearly and intentionally establishes the committee’s role as one of retrospective oversight and review—not one of real-time authorisation, approval or review of operational decisions or the use of powers.

This reflects the long-standing principle that national security and the exercise of executive powers in this area is a matter for the Government of the day. There should of course be effective and robust oversight of decisions the Government have made—including, where appropriate, by the Intelligence and Security Committee and, in the case of this power, through debates in Parliament on any regulations designating an area, as well as by the Independent Reviewer of Terrorism Legislation. However, that is of a very different nature from the role proposed for the Intelligence and Security Committee in this amendment, which would be a significant extension of the committee’s role. I do not know if it is one that the committee would necessarily welcome, and it is not one that the Government consider appropriate.

Setting aside more fundamental questions of principle, I can see the amendment also giving rise to difficult practical issues—for example, around the speed with which the committee would need to prepare reports given the need for regulations to be approved within 40 sitting days; and around the extent of redactions that might be needed in such reports to protect sensitive intelligence, which might have informed the committee’s considerations but which could not be shared more widely to inform the consideration by Parliament.

I am, however, happy to give a clear assurance that the Government will always provide Parliament with as much information as possible about the reasons why any designation under Clause 4 is necessary. This will, of course, be constrained to some extent by the need to protect sensitive intelligence which cannot be revealed in public. However we recognise that this does not mean that Parliament will simply take on trust that a designation is necessary. We will always need to make a clear case for it.

I hope these arguments have reassured noble Lords that the current drafting of the Bill will deliver the outcomes they seek. I hope too that the Committee will take comfort from the fact that we will consider further Amendment 28. In the meantime, I ask the noble Lord, Lord Anderson, to withdraw his amendment.

[Lord Anderson of Ipswich]

I thank the Minister for his very courteous response. I also thank the noble Baroness, Lady Williams, for her welcome and frank correction. I think we are now agreed that the former practice of annual review of proscribed organisations conducted by the Home Office was discontinued in 2013-14. I am not aware of such a practice ever being adopted by the Northern Ireland Office—but we may come to that in due course.

I thought the Minister might respond to my amendment by suggesting it unthinkable in practice that reviews of area designations would be any less frequent than once a year. He made the point, with which I agree entirely, that one sometimes has to be quite agile. Indeed, my amendment was consistent with reviews taking place, where necessary, on a more than annual basis. With respect, I found it harder to agree with the Minister where he referred to the type of enduring threat which I think he was saying might justify a review as seldom as once every three years. This is a very heavy new power, unprecedented as far as I know in our history, whereby British citizens are simply prohibited from traveling to certain parts of the world. I ask the Minister to consider whether it can really be the case either that no timed review of this power should be required or that, if a time is to be affixed to it, it should be an interval as great as every three years. That seems a very long time for these important rights of travel to be withheld. I hope that I do not sound discourteous, but the Minister will understand that I still have concerns. None the less, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Stunell (LD)]

I should like to add to the remarks of my noble friend Lady Hamwee by making two points. First, if one looks at the current situation in Syria, there are clearly many women there who do not have the freedom to leave. Will they have committed an offence simply by virtue of being held as virtual or real captives? These are aspects which need to be looked at quite seriously.

I want also to make the darker point that, at the moment, we are focusing on the Middle East and terrorism as we appreciate it there. However, if this legislation had been in force in 1936 or 1937, I wonder what would have been the realpolitik of designated areas within Spain. We need to understand that legislation passed for one reason can sometimes be adapted and used in a completely unforeseen way or, as I am perhaps suggesting, in a foreseeable way. I would like to hear what the noble Earl might have to say about these two points.

[Earl Howe]

My Lords, it is probably best if I write to the noble Baroness in response to her specific questions. The broad answer is that we have thought of the practicalities. As regards informing people who are already in the designated area that it has been designated and that they therefore have 28 days to leave, there would be FCO travel advice that would almost certainly have pre-existed the designation. The regulations would be given significant publicity, including as part of the requested debate of the designation regulations. There would be a notice on the government website and we would consider other methods of publicity depending on the area being designated.

On the question of the noble Lord, Lord Stunell, about innocent people who have already been caught up in events and the situation within a designated area, the reasonable excuse defence would kick in. As we said in our earlier debates, where it is perfectly obvious that someone is in a designated area for an innocent reason, it is almost unthinkable that the authorities would spend time trying to make a case against them. Their reasonable excuse would be advanced and the circumstances of the case, if they are innocent, would be obvious from the outset. As I have said, we have had the reasonable excuse defence in place for 18 years and, as far as I am aware, there have been no instances of innocent people being arrested or convicted.

That is as far as I can go at the moment, although I am conscious that I have not completely covered the issues raised. However, I will write and copy my letter to all noble Lords who have taken part in this debate.

[Baroness Hamwee]

My Lords, when the Minister writes, could he confirm that the “one month” in new Section 58B(3)(b) is 28 days? He said 28 days; the wording is “one month”. I am sure somewhere we are told whether it is a calendar month or 28 days, but perhaps he could let us know.

[Earl Howe]

I must correct myself. I did not mean a lunar month; I meant a calendar month.

[Baroness Hamwee]

So it could be different depending on the month.