Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

2nd reading (Hansard - continued): House of Lords & 2nd reading (Minutes of Proceedings - continued): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I congratulate the twin maidens on their enviably assured and elegant speeches. I thank the Minister, noble Lords and the noble Baroness, Lady Barran, for the overly kind comments they addressed to this near-maiden.

The noble Lord, Lord King, referred ruefully to the number of anti-terrorism laws that have come before this House in recent years. He can perhaps take comfort from the fact that he has not been sitting in the Australian federal Parliament, which last time I checked —on Thursday last week—had passed 74 counterterrorism statutes since 9/11. It was my privilege to assist MI5 and counterterrorism policing last year in drawing the necessary lessons from the atrocities perpetrated in London and Manchester. The most important of those lessons relate to the gathering and processing of intelligence, but it is right to ensure also that our laws are in the best possible shape.

In support of the Bill on the whole, I will make two comments. First, whatever its faults, it is based on the criminal justice approach to counterterrorism that has served this country so well. Our freedoms are better protected by the common sense of a jury than they are by an expansion in the range or volume of Executive commands such as control orders, and now TPIMs, which are imposed by Ministers and reviewed in court only months after the event and on the basis of evidence that cannot be shown to the subject.

Secondly, I welcome the conclusion, to which I was reluctantly driven when I was the Independent Reviewer of Terrorism Legislation, that the existing law may not deal sufficiently with radicalisers. Anjem Choudary has been mentioned, with good reason. As many as 25% of British jihadis convicted between 2001 and 2015 were associated with his organisations, outnumbering the 10% linked to al-Qaeda and the 5% linked to ISIS, or Daesh. His organisations also had great influence in northern Europe, yet although the police reported his activities to the Crown Prosecution Service 10 times between 2002 and 2015, no prosecution could be brought, whether for incitement to religious hatred, indirect encouragement to terrorism, inciting terrorism overseas, incitement to murder or proscription offences. In my mind, his eventual conviction in 2016 does not excuse us from seeking to improve the law in this area.

The Bill has some troubling features. I will refer to three of them which have so far been touched on only lightly or not at all. The first relates to proscription offences, which are supplemented or strengthened in Clauses 1, 2, 6 and 9 to 11. Whatever the merit in extending these offences, we should do so only if we can be sure that proscribed organisations are proscribed lawfully because they are, in the words of the Terrorism Act 2000, “concerned in terrorism”. Unfortunately, we have no such certainty; rather, the reverse. In 2013, the Home Office admitted to me that up to 14 proscribed international terrorist groups did not appear to be lawfully proscribed. It allowed me to publish the fact and commenced a programme of deproscription, but as I recorded in my report of December 2016, that initial honourable resolve on the part of the then Home Secretary soon foundered, I suspect under the influence of another great department of state. So it is likely that at least 14 international groups remain proscribed despite not meeting the statutory requirements for proscription.

We do not know how many of the 14 Northern Irish groups, every one of which has been proscribed continuously throughout this century, are in the same position. There, as the Committee on the Administration of Justice pointed out, the flags of proscribed organisations fly everywhere and their symbols cover memorials, appear on gable walls and decorate banners hanging from lamp posts. The law is applied to them only partially and occasionally, inadvertently injecting an unwanted political element into the exercise of police and prosecutorial discretions. It is true that proscribed organisations are eligible to seek deproscription, but this is a rarely invoked and extremely costly process, as was shown by the PMOI case—the only one in which such an application has ever gone to trial.

Then, to make it worse, the Government abandoned the regular reviews that they used to conduct until 2013, despite those reviews having been described by a High Court judge in the PMOI case as,

“certainly a practice that the Secretary of State should continue to adopt”.

As I wrote at the time, they seem to have discontinued these reviews out of embarrassment at their own inability to act on their conclusions.

It is surely unjust to expose a person to prosecution for a proscription-related offence when the organisation that he or she is said to support does not meet the statutory conditions for proscription. There are solutions to this, but would the Minister accept in the meantime that we are confronted with a tricky problem that is exacerbated rather than relieved by the Bill?

My second point, much more briefly, is on Clause 4, which would create the so-called designated area offence. I was quoted on Report in another place as a vigorous opponent of this idea, but, to set the record straight, the comments in question came from my former special adviser Professor Clive Walker and, despite their distinguished source, were never adopted by me. But some of his words at least ring true. I have spoken, as I know others have, to organisations and individuals engaged in humanitarian and peacebuilding activity in conflict zones who are not at all reassured by the discretions that Clause 4 would confer on the Secretary of State and prosecutors. The Government have cited Australian and Danish precedents for this law, so I hope that the Minister will consider adopting either some more precise conditions for designation and defences, as in Australia, or a pre-authorisation regime, as in Denmark, or both.

My third point is on the new Schedule 3 port power. When I was independent reviewer I noted that, over a five-year period, between 13% and 25% of all intelligence reports resulting from stops under the existing Schedule 7 were concerned not with terrorism, which is the object of Schedule 7, but with nuclear proliferation or espionage. Ports officers sometimes expressed to me their unease at being invited to stop people who could be described as possible terrorists only on the most elastic interpretation of that already broad definition. The case of David Miranda is a well-publicised example.

I am glad that the object of the Schedule 7 power is being extended to counterproliferation and counter- espionage, but the Schedule 3 powers do not stop there. It is proposed that they might be used to determine whether a person appears to have engaged in “hostile activity”, including acts that threaten the economic well-being of the country in the interests of a foreign state, whether or not those acts constitute criminal offences. That is far too broad a basis on which to allow these extremely extensive no-suspicion powers to be exercised. Then there are the additional powers exercisable at the Irish border under paragraph 2 of Schedule 3, which will also need to be elucidated.

Each of my three points echoes concerns expressed by the Supreme Court in the 2013 case of R v Gül about the very broad discretions already given in this area to prosecutors and to police. In particular, the court warned against Parliament delegating to the DPP or to the Attorney-General the power to decide whether an activity should be treated as criminal for the purpose of prosecution. That, as the Supreme Court puts it, leaves citizens unclear whether their actions or projected actions will be judged to be criminal and risks undermining the rule of law. I do not wish to embarrass the noble and learned Lord, Lord Hope, but he put his name to that judgment.

I will keep those comments in mind throughout our scrutiny of this important Bill. Flexibility is useful, but when behaviour is criminalised we all need to know where the line is drawn.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, this has been an interesting and well informed debate. We also had the joy of listening to two excellent maiden speeches. While listening to the noble and learned Lord, Lord Garnier, I wrote down the words, “Amusing and informative”. Unlike during his previous maiden speech, noble Lords were riveted by what he had to say. I am sure the noble and learned Lord will prove that he has his uses in this House. “Generous and thoughtful” is what I wrote while listening to the speech from the noble Lord, Lord Tyrie. His electoral record in Chichester speaks volumes about the esteem in which he is held generally. Judging by what he said this evening, I am in no doubt that he will be fearless in his future contributions in the House. I also thank the Minister for comprehensively introducing the Bill.

I pay tribute to the police and the security services. During consideration of previous legislation, I had the privilege of going both to GCHQ and to the security services headquarters. I was impressed not only by the capability of those working in the services but by their integrity. The noble Lord, Lord Hogan-Howe, and others talked about the numbers involved—the number of suspects and the number of operations going on—which just goes to prove how successful the police and the security services have been, despite the tragic events that we have seen in recent years.

I am not wrong in saying that there has been a general consensus, on all sides of the House, that the legislation—whatever it ends up as—needs to pass the test of being necessary and proportionate. The noble Lord, Lord King of Bridgwater, the noble Baroness, Lady Howe of Idlicote, and even the noble Baroness, Lady Manningham-Buller, all suggested that that was necessary. There were perhaps two notable exceptions to that consensus, as that was not something that the noble Lords, Lord Blair of Boughton and Lord Tebbit, would support.

I say to the noble Lord, Lord Tebbit, in particular that I was the police spokesman after the bombings on 7 July 2005. I was in this House when the terrorist incident happened in which one of our police colleagues was killed. I was at home, a 10-minute walk away from London Bridge, when that attack happened. That is not the first-hand, tragic experience that the noble Lord has had, and I completely understand that his experience has deeply affected him. We should not lose sight of the impact that these incidents have had on the victims.

So there is a consensus, generally. Clearly, as the noble Lord, Lord King, said, there may be some differences of opinion as to what is necessary and what is proportionate. Obviously, we accept that this legislation has already been through the other place. But, as the noble Lord, Lord McInnes of Kilwinning, said, some in the other place said that they agreed to the legislation being passed subject to it receiving scrutiny in this House, and that is clearly what we must do.

We on these Benches will support any necessary and proportionate measure that makes the United Kingdom safer or will help defeat terrorism, but we will not support measures that we consider to be disproportionate and counterproductive. Colleagues on these Benches, particularly my noble friend Lady Hamwee, highlighted evidence from the Joint Committee on Human Rights—concerns that not only we share but the current Independent Reviewer of Terrorism Legislation, Max Hill, also shares. We offer a similar view to his. There are some good, pragmatic measures in the Bill, but there are others that go too far.

As the noble Baroness, Lady Jones of Moulsecoomb, suggested, only in the most extreme cases should the police be given such wide discretion that they can arrest someone engaged in potentially completely innocent activity where the person arrested has to rely on a reasonable excuse defence. Having a reasonable excuse defence in legislation is no protection from an innocent person being arrested and potentially charged.

I echo the concerns of the noble Baroness, Lady Warsi, and the right reverend Prelate the Bishop of Newcastle. If I understand my noble friend Lord Thomas of Gresford correctly, with “reckless”, either it is an objective definition of reckless, in which case we are into the realms of people being arrested for what they think or simply for expressing their view, or we are looking at a subjective definition of reckless, which is what the current law says. In that case, the provision is superfluous to what is already in existing legislation. Clearly, we need to consider these issues carefully.

Similarly, in terms of other provisions in the Bill, it is not too difficult to think of circumstances where a teenager innocently takes a selfie in a mate’s bedroom not realising that there is an ISIS flag on the wall behind him and posts that photograph on Facebook. The next thing, that individual is in police custody—a completely innocent action that results in them being arrested.

Under this Bill, it would also be an offence to click on a page on the internet that has,

“information of a kind likely to be useful to a person committing or preparing an act of terrorism”.

Just one attempt to look at the document could result in that individual being arrested, with a potential term of imprisonment not exceeding 15 years. The Minister said that previous legislation covered only situations where documents were downloaded and now we have a situation where people are streaming or simply just looking at documents. Not too long ago, we in this House considered at length internet connection records. Surely that sort of thing will provide the necessary evidence, even if people are looking at or streaming information rather than downloading documents. There is a lot to be considered here in terms of whether the legislation is necessary or whether it goes too far. Of course, it was only at the last minute that that particular provision about looking at things on the internet was changed from being one where someone looks at a page on the internet, goes back to it and goes back to it again before they can be convicted to being a one-click offence.

The other last-minute provision that we have serious concerns about is the Secretary of State designating areas overseas as being illegal for UK citizens or residents to travel to. It could become illegal for a Syrian refugee who is resident in the UK but whose family still lives in Syria to visit them, even though his mother or father could be dying. Again, the Government will say that there is the “reasonable excuse” defence, but how sick does your mother have to be before it is considered reasonable for you to travel to a designated area? There would be no reason in law why you should not be arrested and charged, whatever the circumstances. The Government will say that the police are not going to arrest innocent people, but the history of policing is littered with cases of innocent people being wrongly arrested where legislation has been drawn too broadly. Sometimes they have even been charged and wrongly imprisoned.

Surely there must be a way for academic researchers to get permission in advance in order to look at offending pages on the internet, or that grieving family members or humanitarian workers can get permission to visit these areas in advance. As my noble friends Lady Hamwee and Lord Thomas of Gresford said, should there not be an opportunity to get the “reasonable excuse” defence in first?

Clearly, offences should carry a penalty that both deters and keeps innocent people safe, but sentence inflation, as suggested in this Bill, will simply add to the crisis in the Prison Service, as my noble friend Lord Marks said. Contrary to what the noble Lord, Lord Hogan-Howe, said, this is not about the fact that prisons are full and therefore we should not put terrorists in prison. This is about the difference between prisons being a place where people with extremist views can be rehabilitated and prisons being a place where radicalisation can become endemic because of overcrowding and the lack of ability of prison staff to carry out any sort of rehabilitation. Surely a smaller prison population would be better, in that we know that prisons are places where people, being at their most vulnerable, are more easily radicalised. Keeping people in prison for longer periods of time surely gives more opportunity for that to take place.

As many noble Lords have said, in some communities there is deep suspicion about Prevent, and along with Independent Reviewers of Terrorism Legislation, the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Warsi, we support not only an independent review of Prevent but a recasting of the programme with a much more community-based approach that is incorporated into other safeguarding functions. Those at risk of being radicalised are also in danger of being exploited sexually or being drawn into criminal gangs. Prevent should be part of a broader safeguarding process rather than people being potentially stigmatised as a result.

I have to say that there was a bit of conflict between what my noble friend said and what the noble Baroness, Lady Barran, said in terms of the statistics around referrals to Channel panels. On one reading, it would seem that only a small proportion of people who are referred are actually considered to be at risk of being radicalised, while on another reading it seems to be a rather higher proportion. Again, we need to consider those issues very carefully.

Finally, there is the extension of Schedule 7. We agree with the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson of Ipswich, that Schedule 7 powers and the powers in this Bill should be limited to those who are reasonably suspected of being involved in the commission, preparation and instigation of acts of terrorism.

[Lord Anderson of Ipswich]

On a point of order, I have always accepted that the Schedule 7 power to stop should be exercisable without the need for reasonable suspicion. I said that some higher threshold should perhaps be required for some ancillary powers, for example those to detain and examine electronic devices.

[Lord Paddick]

I am grateful to the noble Lord, but the fact is that at the moment, if you are crossing the UK border, you can have your mobile device or computer seized and examined even without any reasonable suspicion. Extending that to those who are now engaged in hostile activity would seem to make this issue potentially worse.

I understand that the Bill is a response to the Prime Minister promising to harden the country’s defences against all forms of hostile state activity following the attempted assassination of the Skripals, but can the Minister confirm whether that was an act of terrorism covered by the existing Schedule 7?

As I have said, we on these Benches will support any reasonable and proportionate response that makes this country of ours safer. However, we believe that large parts of the Bill are unreasonable, disproportionate and could potentially make us less safe, although we look forward to being convinced otherwise.

Finally, I completely agree with the noble Baroness, Lady Warsi, on the Government’s disengagement with Muslim organisations. Individual members of those communities may have said things that they now regret, but as a result the Government refuse to engage at all with those communities. At the end of the day, a former head of police counterterrorism said that the police and security services alone will not combat terrorism, but organisations working closely with communities will defeat terrorism. If communities are to work with us to defeat terrorism, we need to engage with them.