Overseas Operations (Service Personnel and Veterans) Bill

Lord Anderson of Ipswich Excerpts

Consideration of Commons amendments
Monday 26th April 2021 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, I begin by congratulating my noble friend Lord Robertson of Port Ellen on leading the opposition to the original proposals contained in the Bill. He did so with great skill and persuasion. At the same time, I thank the Minister, who clearly listened avidly throughout the proceedings in connection with these matters. I think it is fair to say that she did not always give the impression of being enthusiastically in favour of the provisions of the Bill. The noble Baroness was brought up in the Roman law traditions of Scots law. In those circumstances, the expression “pacta sunt servanda”—promises have to be kept—will come as no surprise. I suggest that this remark should be reproduced above the desk of every policymaker in government. I am at some pains to understand who in the Government endorses proposals which are, prima facie, contrary to law. I say that not only in relation to the topics the House is discussing today but also drawing your Lordships’ attention to Part 5 of the internal market Bill in which this House and the other place were encouraged by the Government to create circumstances in which the Government could break the law without any adverse reaction. It seems to me that there is a unit of opinion—or, perhaps, some powerful policymaker—somewhere in the Government which does not appear to have sufficient understanding of the important fact that, for a country which argues as frequently as it can for the rules-based system, our ability to do so is substantially undermined if we are not shown to be adhering to that very system. If you want to preserve your reputation, you cannot play ducks and drakes with the law.

The Government may have been saved the consequences of the original provisions, but it is important to remember that, as the Minister and the noble Lord, Lord Robertson, made clear, they had excited the concerned interest of the United Nations and the International Criminal Court. The UK is a permanent member of the Security Council of the United Nations. How embarrassing would it be if it was thought that this country had departed from the provisions of the United Nations charter and conventions made under and in respect of it? As the noble Lord, Lord Robertson, pointed out, there was a discussion about whether the United Kingdom should join the International Criminal Court—I remember it. The balance of opinion was that it should and, if my recollection is correct, the United Kingdom was a founder member. How equally embarrassing it would be if, as a former original member of the International Criminal Court, the United Kingdom had to be brought before it.

There is a benevolent outcome in this matter, but it will take some time. We may have saved the Government from the consequences of the original provisions, but we will not save ourselves from damage to the reputation of this country. We should be very sure that, from now on, we will do everything in our power to make certain that that reputation is justified and, in particular, that our legitimate claim that we embrace the rules-based system on all occasions can be shown to be endorsed, not just in principle, but in practice as well.

[Lord Anderson of Ipswich (CB)]

It is a pleasure to follow the noble Lord, who speaks with such great authority in this area. I spoke about war crimes at Second Reading and again in Committee, and supported, though did not sign, the amendment in the name of the noble Lord, Lord Robertson, that was carried on Report. I came in today because I thought it was important to emphasise that the omission of war crimes from the list of exclusions, which I understand to have been the Government’s position until just now, was not some minor footnote to the noble Lord’s amendment. It tore the heart out of it because it destroyed its objective of protecting our troops from prosecution in the ICC. For that reason, I was delighted to hear just a few minutes ago that the Government have finally agreed not to oppose Motion A1.

It was of course right in principle to exclude genocide and crimes against humanity from the presumption against prosecution, but the practical implications of doing that were, frankly, negligible. After all, the crime of genocide requires,

“intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Crimes against humanity qualify as such only when they are

“part of a widespread or systematic attack directed against any civilian population”.

Not even in the extravagant imagination of Mr Phil Shiner could British forces be accused of these most serious of crimes. Of course, the original concession also extended to torture. That could have practical effects because British servicemen are, unfortunately, sometimes accused of that crime. It is right that the presumption against prosecution should not apply after five years to that very serious crime.

However, torture is only one war crime among the dozens listed in Article 8(2) of the Rome statute. Let me remind noble Lords of just some of the others: wilful killing; inhuman treatment; causing great suffering; the destruction and taking of property; unlawful confinement; attacking civilians; excessive incidental death, injury or damage; attacking undefended places; killing or wounding a person hors de combat; and outrages upon personal dignity.

In contrast to genocide and crimes against humanity, it is, I am afraid, quite possible to imagine such crimes being alleged—perhaps credibly—against British service personnel. The noble Lord, Lord Robertson, mentioned the letter sent last Friday from the ICC chief prosecutor to David Davis MP, in which she said:

“Some of the most serious cases pending before the competent investigating and prosecuting authorities in the UK, including those examining pattern evidence and command responsibility, concern such alleged crimes.”


If this Bill were to result in a decision not to prosecute after five years had passed, this latest letter puts it beyond doubt that such cases would be considered admissible before the ICC on the basis that the UK was unable or unwilling to prosecute. I respectfully suggest to the Minister that prosecutors could well take on cases of this kind that were deemed sufficiently strong, not least because the prosecution of British service personnel would be a firm warning to other states within the jurisdiction of the ICC that might be toying with the idea of following the dismal international lead set by the original version of this Bill.

For these reasons, I congratulate the noble Lord, Lord Robertson, and his supporters on holding their ground, the Minister on her efforts and the Government on finally agreeing to do the right thing.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Anderson of Ipswich Excerpts

Committee stage & Lords Hansard
Tuesday 9th March 2021 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, I will not seek to replicate the eloquence and experience of noble and noble and learned Lords, including noble friends who have spoken before me. Instead, I will take on the challenge of addressing the noble Lord, Lord Lancaster, directly, because he is the person with whom I most disagree. From his comments in the previous group, I think he is particularly concerned about lawyers in this context. Perhaps he shares some of the concerns of his colleagues in the other place about warfare and a lack of warmth and respect for our Armed Forces.

I would like to reply to him in the following way in case it helps us develop some common ground in scrutinising this legislation. For pretty much the whole of my career as a human rights lawyer and campaigner, I have been accused—I would say falsely—of being soft on crime, soft on those suspected of crime and soft on those accused of crime. I would say that I am not soft: I just believe that people should be protected from false accusations and charges by due process, and that a miscarriage of justice—a wrongful conviction —delivers more, not fewer, victims. That has been my view, whether the person accused is in civilian life or in uniform, so I have not given up—nor have other lawyers in this debate or in the country at large—on the jealous protection of due process just because the people who are accused may be members of our military.

The concerns expressed by everyone on this group of amendments, and many on the earlier group, are about this part of the Bill addressing prosecutions—which have not been a problem—instead of investigations. That is why the noble Baroness, Lady Smith, wished that we could have got to the meat—the heart—of the debate sooner, but that is not in the natural order of things. Legislators, as opposed to Governments, are not in a position to do what is really required, which is to redesign and devote investment to a robust investigative system that is suitably independent, swift and resourced. Instead, we have these amendments, which probe what fair and robust investigations would look like to safeguard —I stress, safeguard—military personnel from the concerns that they have expressed over many years from the shadow that hangs over them. That is why the amendments are well put, if only in the first instance as probing.

The noble Lord, Lord Lancaster, said that he did not really see the value of Amendment 3, in the name of my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford—who spoke so ably earlier on—because it would replace Clause 2, which is about prosecutions being “exceptional”, with a new, perhaps more convoluted form of words, which he might think is trees and not wood, about the dangers of being “materially prejudiced” by the passage of time. “Exceptional” is not desperately helpful as a new test when prosecutions have been so truly exceptional up to now. Prosecutions have not been a problem. No one is suggesting that lots of vexatious prosecutions have been a problem but merely that people have been worried about them because of shoddy, lengthy and delayed investigations. The status quo is for prosecutions to be quite exceptional. We are not seeing very much by way of guidance to prosecutors in the current Clause 2, which says that such prosecutions, as part of a triple lock, should be exceptional.

Further, we still have a Human Rights Act, and this legislation has to be predicated on the fact that that will continue—certainly, CHIS legislation was tightly predicated on that proposition. There has been case law during the tenure of the Human Rights Act showing that, if it is necessary to do so to comply with human rights, “exceptional” can be read as something that is much more routine. If, as some of us believe, this legislation, unamended, would give rise to violations of victims’ human rights, “exceptional” in the current Clause 2 would have to be construed by courts as something that is quite possibly less than exceptional and therefore not the position that the noble Lord, Lord Lancaster, would like. Amendment 3 as proposed by my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford, is much more precise about what is sought to be avoided in the interests of the accused, which is a test that they not be materially prejudiced by the time elapsed. We are supposedly here to reassure armed personnel, who we know are very concerned about time elapsing, and their chances of a fair trial being prejudiced by that, because of the shoddy, delayed and repeat investigations that we have seen.

If I were serving in the military, I would take much greater comfort from protections in relation to these investigations in general, but, if we are going to look at provisions of this kind—which I do not support, because I do not support the presumption against prosecution—this concept of being materially prejudiced by the passage of time, through no fault of my own, should give far greater comfort to me as an accused than would the word “exceptional”, which could become devoid of content.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, when the Minister introduced this Bill at Second Reading, she said that she detected broad sympathy with its objectives. If she meant the objective of protecting our veterans against repeated and delayed reinvestigations for which there is no new or compelling reason, I am quite sure she was right. The noble Lord, Lord Dannatt, mentioned Major Bob Campbell, as has the noble Lord, Lord Faulks, today. Major Campbell was investigated multiple times over 17 years in relation to the death of an Iraqi teenager—eight times according to the noble Lord, Lord Dannatt, and 11 times according to the noble Lord, Lord Faulks—before being finally exonerated last year by an inquiry led by the noble and learned Baroness, Lady Hallett.

That multiplicity of investigations is something that surely no noble Lord would wish to defend, although the fact that the ICC prosecutor looked carefully at the case and decided not to proceed only because there had been a thorough investigation by the state should be a warning against any complacency that we can weaken our standards of investigation while still keeping the ICC at bay.

Amendment 28 seeks to attack the problem of multiple investigations directly by injecting an element of independent quality control into the investigations process. It would require further investigations to be conditional on compelling new evidence emerging and on an allocated judge advocate considering the totality of the evidence to be sufficiently strong. Like the Henriques review, which I welcome, Amendment 28 has the advantage of straightforwardly addressing the issue of repeated inconclusive investigations. I would, however, voice two reservations, with ICC-proofing in mind. First, is a judge advocate a sufficiently independent figure to apply the filter? Secondly, a high bar is set by the requirement of “compelling new evidence”, a bar which one would not normally expect to be surmounted without the conclusion of precisely the further investigation for which this test would be a precondition. Perhaps I might suggest “there is a compelling reason” as more realistic wording for proposed new subsection (2)(a).

Amendment 17 seeks to address slow investigations. Proposed new subsections (3) and (5) would put some time limits into the process. That, again, strikes me as a solution which, whether appropriate or not in all its detail, is at least directed to a real problem. Let us take the case of Baha Mousa, who died in British custody in 2003 after being hooded, deprived of food and water, and beaten, sustaining at least 93 injuries. The first round of prosecutions, to which the noble Lord, Lord Lancaster of Kimbolton, referred earlier, was characterised by a closing of ranks and achieved only a single conviction, in 2007, on a guilty plea by a corporal to a charge of inhumane conduct. There followed a three-year public inquiry, led by Sir William Gage, which in its three-volume report of September 2011 made detailed findings about the circumstances of Baha Mousa’s death and identified 19 soldiers directly involved in his abuse. The Iraq Historical Allegations Team was tasked in May 2012 to review that report with a view to assessing whether more could be done to bring those responsible to justice.

--- Later in debate ---

[Lord Thomas of Gresford (LD) [V]]

My Lords, the noble Lords, Lord Robertson and Lord Browne of Ladyton, and my noble friend Lord Campbell of Pittenweem have made powerful speeches with which I totally agree. I will confine myself to looking more closely at the nature of the offences we are discussing.

The United Nations convention on genocide of December 1948 came about as the result of campaigning by Raphael Lemkin, who coined the term in 1943 after witnessing the horrors of the Holocaust, in which every member of his family except his brother was killed.

Article II of the convention defines genocide as an act

“committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

The acts include

“Killing … Imposing measures intended to prevent births within the group … Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.

No one in this country has ever been accused of genocide.

It is different with war crimes. I watched a corporal in the British Army plead guilty to a war crime in the Baha Mousa case, namely torture. He was acquitted of murder and received a sentence of 12 months’ imprisonment.

War crimes are defined as grave breaches of the Geneva conventions—

“acts against persons or property protected under the provisions”

of those conventions. They include wilful killing, torture, wilfully causing great suffering, unlawful deportation, the taking of hostages and other acts. To suggest that, where there is evidence sufficient to found a conviction on any of these matters, a prosecution could be avoided by a presumption against prosecution, is grotesque: “rotten law”, the noble Baroness, Lady Chakrabarti, said a moment ago, and I totally agree with her.

The thought that, if the DSP had decided there was sufficient evidence that a prosecution was in the public and the service interest, the Attorney-General could nevertheless block a prosecution, holding their hands up and saying that it was not a political decision, is equally demeaning. As the noble Lord, Lord West of Spithead, put it, it is a disgrace that it should be included in a Bill to be passed by Her Majesty in Parliament.

The picture is that there is somebody in government who has decided as a matter of policy that he or she could not block the prosecution of sexual offences with a presumption of prosecution. Why? What is the justification for selecting that category of offences when we have the types of offences not excluded? It is an arbitrary choice, as the right reverend Prelate the Bishop of Leeds put it. Why is there this anomaly? I look forward to the Minister’s reply. It is a mistake, is it not? I certainly hope so.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, the purpose of these amendments is familiar by now: to ensure that our service personnel are protected from the risk of prosecution in the International Criminal Court. To anyone who believes that this risk is illusory or negligible, I recommend not only the legal opinions variously expressed by my noble and learned friend Lord Hope, by former Judge Advocate Blackett and by the Joint Committee on Human rights, but the 184-page final report of the outgoing prosecutor of the ICC, dated 9 December 2020 and entitled Situation in Iraq/UK.

The noble Lord, Lord Browne of Ladyton, has already mentioned this report, so I will refer to only two things in it: the conclusion that there was a reasonable basis to believe that war crimes including torture were perpetrated by British forces in Iraq between 2003 and 2009, and the last words of its final page, an ominous warning that the prosecutor’s office would in the future consider

“the impact of any new legislation on the ability of the competent domestic authorities to consider new allegations arising from the conduct of UK armed forces in Iraq”.

The prosecutor’s words are reinforced by the recent letter referred to by the noble Lord, Lord Robertson, and echo the Australian Brereton report of November 2020—which I mentioned at Second Reading—which pointedly observed of this Bill:

“There is a large question as to whether such a law would meet the requirements of Article 17 of the Treaty of Rome.”


Of the approaches we are offered in this group, I prefer Amendment 14, on two grounds: first, as my noble and learned friend Lord Hope has pointed out, because of its less vulnerable position in the body of the Bill; and, secondly, because Article 14, if I am not mistaken, maps more precisely on to the jurisdiction of the ICC. It applies to war crimes as broadly defined in Section 50 of the ICC Act 2001 and Articles 5 and 8.2 of the Rome statute.

Amendment 39, by contrast, would exclude from the presumption against prosecution only war crimes falling within Article 8.2(a) of the Rome statute: grave breaches of the Geneva conventions. That would leave within the scope of the presumption against prosecution the 26 categories of war crimes in international armed conflict that are listed in Article 8.2(b). Therefore, under Amendment 39 there would appear to be at least some risk of ICC intervention in any case that could be brought within those categories.

That was the dry contribution of just another lawyer to a debate that has seen the case for these amendments advanced with astonishing force on the very highest military, legal and political authority. The contrary case seems to be made only weakly in the Minister’s letter of the other day. Like other noble Lords, I admire the Minister greatly, and for that very reason permit myself to wonder whether the Government will really persist in opposing these amendments.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is very unusual for a Green to be among the majority. I will take great delight in that.

I cannot compete with the erudition and rationale of noble Lords who have spoken already, but I will draw attention to the fact that the Government are trying to create this triple lock against prosecution as a safe harbour for military criminals—regardless of how serious their crime—and then, out of nowhere, the Bill says, “Ah, well, these protections apply to any crime, but not sexual offences.” I am fascinated to find out the real reason for excluding sexual offences in this way. Five years after their offence, a murderer, a torturer and a thief all get protected, but an accused sexual offender gets prosecuted regardless. Even if the murderer, torturer or thief actually did it, they can get off, but an innocent person accused vexatiously of sexual offences would be prosecuted. It really does not make sense to make this exception of one category of offences.

It is not just rape; the list in Schedule 1 includes things such as

“possession of extreme pornographic images”,

“outraging public decency” and any offence under the Sexual Offences Act 2003, such as Section 71, which criminalises sexual activity in a public lavatory. A soldier could have consensual sex in a public toilet, kill their partner and face the outrageous prospect under this Bill of being prosecuted only for having sex in the toilet—they might be protected from the murder charge.

Likewise, the Bill singles out slavery, but only slavery for sexual exploitation—take as many slaves as you like, after five years you will probably get away with it, but you might get prosecuted for any slaves who are sexually exploited.

It staggers me that the Government have chosen this specific exemption to their messy triple lock. Of course I support it, but we must have those other exemptions as well. I ask those noble Lords who have spoken so strongly on this issue: where were they during the spy-cops Bill, when we heard criminals—police spies and police agents—being given immunity from all these crimes? In any case, it all loops back to the obvious conclusion that this Bill is ridiculous. It creates obvious and unacceptable injustice and needs to be scrapped entirely.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Anderson of Ipswich Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I applaud the motivations behind the Bill, which are to address vexatious claims and repetitive investigations, yet, along with other noble Lords, I have difficulty in seeing how either objective is furthered by what is described as the presumption against prosecution in Part 1 of the Bill. It is common ground, I think, that there is no problem of vexation prosecutions of service personnel; indeed, prosecutions have been conspicuous by their rarity. Nor does Part 1 have anything to do with civil claims or the Human Rights Act. Its effect would be to prevent prosecutions after five years for even the most serious criminal offences, save in exceptional circumstances and with the permission of the Attorney-General. Its specific purpose is to prevent the prosecution of cases that would currently be brought to trial after an independent prosecutor had judged the exacting evidential and public interest tests to be satisfied.

The Brereton report of last November illustrates what this would mean in practice. It found evidence of 39 murders of civilians and prisoners of war in Afghanistan between 2009 and 2013 involving 25 Australian service personnel: crimes committed on overseas operations, but not in the heat of battle. If Australia had a similar law to Part 1 of this Bill, who is to say that any of those people would be prosecuted? The matters to be given particular weight under Clause 3 are all factors that militate against prosecution. Nor would the severity of the crime establish exceptionality, given what will rightly be said to be Parliament’s clear intention, if we pass the Bill unamended, that even torture, war crimes and genocide should be subject to the presumption against prosecution.

Part 1 is indeed particularly problematic in its application to crimes which fall within the jurisdiction of the International Criminal Court. It is not just the obvious injustice of a law which would allow a soldier to be prosecuted for the sexual assault of a civilian but not, despite equally strong evidence, for her murder; nor is it just the risk that the Bill would violate our obligations to prosecute under the treaties listed at paragraph 57 of the Joint Committee’s report, including, but not limited to, the torture convention; it is also what Judge Advocate-General Blackett described to the Defence Secretary in a leaked letter, since echoed by the ICC prosecutor’s office, as the increased likelihood of UK service personnel being brought before the ICC.

The noble and learned Baroness, Lady Scotland, said in this House on 15 January 2001, during debate on what became the International Criminal Court Act:

“If there should ever be any allegation that a British citizen or member of the British Armed Forces has committed one of these crimes we shall be able to launch our own investigation. Any such accusations will be tried in British courts.”—[Official Report, 15/1/01; col. 927.]


If the Judge Advocate-General is correct, Part 1 of the Bill dilutes that promise. How counterproductive it would be, and how shaming, if, by reducing the scope for prosecutions in this country, we were to increase the scope for prosecutions in The Hague.

The timely prosecutions of those at the appropriate level of command and the nipping in the bud of vexatious civil claims would both be made easier if investigators got it right first time around, undefeated by the “wall of silence” or by attempts at cover-up. As Mark Goodwin-Hudson, NATO civilian casualty and mitigation team lead in Afghanistan, told the Bill Committee, the best way to stop what he called the “spiralling of reinvestigation” would be

“the ability to conduct accurate and timely investigations in theatre”.

I therefore welcome the Government’s announcement last October of a review led by Sir Richard Henriques, which

“will consider options for strengthening internal investigation processes and skills”.—[Official Report, Commons, 2/11/20; col. 17.]

I shall welcome it even more if the Minister can confirm that the remit of the Henriques review extends to the independent element of the investigation, and to recommending any statutory changes that might be needed to reinforce the powers and independence of the service police.

Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

Report: 1st sitting: House of Lords
Monday 3rd December 2018 Lords Chamber

[Lord Rosser]

Clause 4 inserts, in new Section 58B of the Terrorism Act 2000:

“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.


We have been told by the Government that the wording in this new section does not mean exactly what it says and that the burden of proof that they had a reasonable excuse will not rest with the person entering or remaining in the designated area. However, the Government have so far resisted the idea that, if that is the case, it would be better that this new section actually said what it apparently means—which, I understand from the Government, is that the person concerned would have to provide only some evidence that they had a legitimate reason for being in the designated area and it would then be for the prosecution to prove beyond reasonable doubt that that was not the case for the defence to fail.

Our amendment intends to set that out as the position and puts in the Bill wording used in the Terrorism Act 2000, which the Government say is what would apply, rather than the wording on its own in new Section 58B, which I quoted earlier. The amendment would add to new Section 58B the following words:

“If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.


The wording in our amendment clarifies what the proposed wording currently in the Bill actually means when it refers to the person charged having to prove that they had a reasonable excuse for entering or remaining in the designated area. I hope that the Government will feel able to accept the amendment—or, if they cannot, will agree to bring forward their own wording at Third Reading. Surely it is in everyone’s interests to make legislation as clear as possible to all in its meaning. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, the burden of proof should be on the prosecution and should be seen to be on the prosecution. Lawyers who know where to find Section 118 of the Terrorism Act 2000 may be untroubled by the point made by the noble Lord, Lord Rosser. However, the existence of that section is not widely known. Indeed, only last week I found myself in that great deliberative assembly, Twitter, correcting the damaging and widespread misapprehension, advanced in good faith, that the Terrorism Acts reverse the burden of proof. I support the idea behind the amendment, although—as I am sure the noble Lord, Lord Rosser, would accept—if it is to produce clarity, it would have to be applied a little more widely to a variety of existing offences under the Terrorism Act, including Sections 57 and 58.

[Lord Paddick]

My Lords, I agree with both noble Lords. The amendment seems to be common sense. As the noble Lord, Lord Anderson of Ipswich, said, while Section 118(2) places the burden of proof on the prosecution to disprove the reasonable excuse, you have to hunt pretty far to find it. Currently it does appear, if one takes an ordinary, common-sense meaning from what the legislation says, that the burden is actually reversed.

--- Later in debate ---

[Lord Anderson of Ipswich]

My Lords, although, I hope, properly grateful for Amendment 11, I support Amendment 15. Also in this group, I support Amendment 12 on peacebuilding, and the Government’s Amendment 18 on the sunset period, subject to Amendment 19 in my name. I shall take them in that order.

Amendment 15 tracks the Government’s Amendment 11 with one important difference—the carving out of conduct rather than the provision of a reasonable excuse—in that it echoes the amendment that I tabled in Committee with the support of the noble and learned Lord, Lord Judge. I do not believe that Amendment 15 makes the job of the police or the CPS any more difficult. Where it is not clear whether the reason advanced for travel is true, there should be no more obstacle to a suspected person being questioned and, if necessary, prosecuted under this scheme than there is under the Government’s Amendment 11. However, the listed grounds are reasons to travel to dangerous areas, not excuses. The Australian law recognises this and so should ours. The only fault in Amendment 15, if I may say so, is that it makes no reference to peacebuilding, which brings me to Amendment 12, which I support and to which I would have put my name had I been alert enough to see it in time.

As the noble Lord, Lord Judd, and others have said, there are charitable groups based in this country with a remarkable track record in peacebuilding and conflict resolution, which might include talking to or negotiating with active terrorist groups in areas where conflict is never far away. I should like to share the conviction of the noble Baroness, Lady Hamwee, and the noble Earl, Lord Attlee, that their work can be described as humanitarian, but this should surely be put beyond doubt, as the noble Lord, Lord Hylton, said. Their efforts and even their successes are not always well publicised but they are no less useful and important for that.

I had the privilege of speaking for such groups for several years—notably the group Conciliation Resources—and helped them to initiate a dialogue with the Home Office, the purpose of which, perhaps partially achieved, was to allay some of their fears of contravening the existing anti-terrorism law. However, the new designated area offence could hit some of their most sensitive and valuable work if they are not exempted from its scope or at least, as a second best, brought expressly within the scope of reasonable excuse. That is why my amendment in Committee, now overtaken by Amendments 11 and 15, made express reference to peacebuilding.

It is hard enough for charitable trustees to manage the physical risks to their staff of this kind of work, and it would be wrong to add to those risks the possibility of being convicted or imprisoned in the UK for doing it. Surely no one engaged in such work would really be prosecuted for it, so why not acknowledge that in the law?

I turn to Amendments 18 and 19. Once an area has been designated, it will be a brave Secretary of State who gives priority to its dedesignation. It is important to acknowledge the freedom of travellers, including adventurous ones, to go to places that are still at least moderately dangerous, but one can imagine how aversion to risk might in practice be given priority.

For that reason, in Committee I tabled an amendment that would have provided for annual review. It was a little more elaborate than Amendment 17 but with the same aim in mind. Although that way of doing it did not find favour with the Government, I welcome the sunset provision in Amendment 18, as well as the Minister’s words regarding the rigour of the review that will take place under new Section 58C(4). My reservation, which I have expressed in Amendment 19, is that three years seems too long to wait for the sunset.

It is hard to believe that annual review would be unduly onerous, as the experience of Australia and Denmark has been that very few areas are designated and as one would hope that, if the Government were doing their job, the degree or risk attached to those areas at any given moment would be well known. However, Amendment 19 goes for the very moderate option, as I hope your Lordships will see it, of two years.

I am sure that the Minister will respond that the provision is modelled on the Australian criminal code, which provides at Section 119.3(4) for a three-year sunset. However, the Australian law has other protections that are not present in Clause 4: a ban on designating an entire country; an express duty on the Minister to revoke a designation if he ceases to be satisfied that a listed terrorist organisation is engaging in hostile activity there; and provision for Australia’s Parliamentary Joint Committee on Intelligence and Security—the equivalent of the Intelligence and Security Committee of this Parliament—to conduct its own review of declarations.

Therefore, I invite the Minster, whether today or subsequently, to look kindly on what I venture to call an improvement to the welcome Amendment 18.

Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Baroness Hamwee]

My Lords, since the Joint Committee on Human Rights is meeting at this moment it has not been possible to take its view on this amendment but I think it must follow from my comments on Clause 1 that it would not be enthusiastic, as these provisions obviously have to be read together. I was amused that the Minister said, as did the noble Baroness’s letter to noble Lords of 24 October, that the Government have identified further offences. They are not quite offences yet, are they? It would perhaps be fairer to say that the amendment is consequential on Clause, but that is a minor point.

[Lord Anderson of Ipswich (CB)]

My Lords, I oppose this amendment and, in doing so, I will seek to explain why the issues are rather different from those considered under the previous group. If Amendment 32 is passed then Section 12 of the Terrorism Act 2000, as supercharged by Clause 1, will apply to any person anywhere in the world who expresses an opinion or belief that is supportive of an organisation proscribed in the UK and who is reckless as to the consequences. The deficiencies of our deproscription regime, with which I have already wearied your Lordships, are multiplied when coupled with the indiscriminate grant of extraterritorial jurisdiction in this context.

To illustrate the point, I invite your Lordships to look to the Republic of Ireland, whose citizens would be criminalised by a law of this Parliament for expressing supportive opinions about organisations now committed to peace but in which their grandfathers or grandmothers once fought for freedom. I shall give one example: Cumann na mBan, the Irish republican women’s organisation. It was once aligned with the IRA and is still proscribed in this country, despite no evidence of which I am aware that it has been concerned in terrorism during this century at least. The commemoration of its centenary in 2014 in Dublin was a significant national event. The speakers included President Higgins of Ireland, who spoke stirringly and approvingly of the vision that animated the women of Cumann na mBan. The Minister will of course assure us that no one is going to seek extradition of Irish citizens who expressed opinions supportive of this proscribed group but, as noble Lords have done in relation to other clauses of the Bill, I must question whether this repeated heavy reliance on the discretion of our authorities is an adequate substitute for crafting a properly defined law.

This amendment comes in very late and, as the noble Baroness, Lady Hamwee, said, without the benefit of JCHR scrutiny. Whatever view noble Lords may take of Amendments 31 and 33, I strongly question the wisdom of extending extraterritorial jurisdiction unqualified by limitations of citizenship or residence to countries where conduct caught by the expanded Section 12 is not a crime. However it is applied in practice, this amendment might be thought to have a regrettably colonial flavour, not just in Ireland but in other parts of the world. I have no doubt that it is unintended, but it is no less unfortunate for that. This amendment seems to have been an afterthought. I suggest that this is one of those occasions where the first thoughts were the best. I invite the Minister to withdraw the amendment or, at the very least, to qualify it in the ways suggested in Amendment 33.

[Lord Rosser]

I shall be very brief. I await the Government’s response to the points made by the noble Lord, Lord Anderson of Ipswich, with interest.

I would like to pursue another point he raised in his contribution. Bearing in mind that this amendment, which adds offences, is coming in at a very late stage in proceedings, is this a result of a perceived oversight on the Government’s part or does it represent a significant rethink of policy?

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, this group also includes the question as to whether Clause 7 should stand part of the Bill. I speak in favour of the proposition that it should not and in support of my noble friend Lady Hamwee’s amendment, to which she has just spoken.

At Second Reading I mentioned the dangers of sentence inflation. It is not just many of us in this House who, in the course of numerous debates on prisons, have talked about the dangers of overcrowding and the fact that it is caused to a very large extent by sentence inflation, both statutory and as demanded by public opinion and the press. Senior judges, including the Lord Chief Justice, the organisation Justice, the Howard League and many others have spoken about the dangers of a prison system in crisis—overcrowded, understaffed, violent beyond anything we have ever known before, with little opportunity for education and training or reform, and very little success in reforming offenders.

I echo the point made by my noble friend that there is absolutely no evidence of a deterrent effect of longer sentences when long sentences are already passed. That is as true of terrorism as other areas. However, there is plenty of evidence of the effect of prison sentences and the experience of being in prison for terrorist offences in radicalising other prisoners. A collection of studies edited by Andrew Silke, published in 2014 under the title Prisons, Terrorism and Extremism: Critical Issues in Management, Radicalisation and Reform, contains considerable evidence on the risks of imprisonment in this area. The danger, without wishing to overdramatise it, is that our prisons become academies of terrorism.

The problem has been recognised by the Government. They have introduced two so-called separation centres, the first at Frankland, the second at HMP Full Sutton. A third is opening shortly. But there is limited evidence that these centres will do anything but encourage subversive prisoners to draw strength from each other in furthering terrorism elsewhere. The number of inmates involved in the separation centres will be very small; I understand that a figure of 28 is intended. There are very large numbers of those convicted of terrorist offences in prison and a very large population of prisoners who are liable to be converted to terrorism when they might not have those tendencies so far.

The Parole Board has raised particular concern about radicalisation in prisons. I quote the report of the House of Commons Justice Committee of 21 February this year:

“The Board also raises concerns about radicalisation in prisons, a problem that it suggests will remain regardless of whether the Government decides to segregate prisoners or continues to spread them around the prison estate. In the Board’s assessment, there are concerns that increasing the penalties for less serious offenders will result in them becoming more likely to commit terrorist acts when they are released. The Board goes on to observe:


‘Most of the rest of Europe is devising interventions in the community to deradicalise less serious offenders. These programmes are more likely to be successful in the community than in prison where the influence of extremist inmates is likely to be stronger’”.


Before this legislation is introduced one would expect some evidence from the Government to support the case for longer sentences; certainly before the legislation is passed we should look for that evidence. But there is none produced by the Government. Page 14 of the Explanatory Notes merely sets out the new sentences proposed, without a word of justification. I remind your Lordships what they are. For failure to disclose information about acts of terrorism, the maximum sentence would double from five years to 10; for collection of information of a kind likely to be useful to a person committing or preparing an act of terrorism, the increase would be from 10 years to 15; for eliciting, publishing or communicating information about members of the Armed Forces of a kind likely to be useful to a person committing or preparing an act of terrorism, there would be an increase from 10 years to 15; for encouragement of terrorism, an increase from seven years to 15, and for dissemination of terrorist publications, an increase from seven years to 15. The last two represent a more-than-doubling of the existing maximum sentences. As my noble friend Lady Hamwee pointed out, the Joint Committee on Human Rights said simply that,

“the increase in sentences does not appear to be supported by evidence to suggest why it is justified or proportionate. We recommend that the Home Office provide further evidence (if they have such evidence) as to why they consider the current maximum sentences to be insufficient and how this increase is necessary and proportionate”.

We have not had it.

However, there is evidence on this subject which tends the other way. The Sentencing Council produced a definitive guideline in April this year. It considered all these sentences. Perhaps I may take as an example the offence of the encouragement of terrorism. It looked at levels of culpability, which they rated A to C; for instance, if a person was in a position of trust and had intention to provide assistance to terrorism, that would be the highest rating. It rated harm factors from one to three, so that a category 1 example was where others had either acted on or been assisted by the encouragement to carry out activities endangering life, while the lowest, category 3, example was a statement or publication with non-specific content encouraging support for terrorism activity not endangering life. So the range went from a category 3, culpability C, level of sentencing proposed—of a high-level community order to two years’ imprisonment—to, at the top, a category 1, culpability A, sentence range of four to six years, which is well below the maximum allowable at the moment and does not justify any increase. The council listed in detail aggravating factors—it is clear that such factors are always to be taken into account, whether or not they are listed in the statute—as well as mitigating factors.

The definitive guideline followed a statutory consultation under the Coroners and Justice Act 2009 and was considered by the Justice Committee, which produced in February this year the report from which I earlier quoted. There was no suggestion by the Justice Committee of any increase in the level of sentences for the offences with which this clause is concerned. Only at the top of the statutory limits proposed was there even a suggestion that consideration be given to any increase. It stated that the Sentencing Council might consider an approach where the recommended range was up to nine years when the statutory maximum was 10, but of the offences with which this clause is concerned, only failure to disclose information had a guideline range that went up to the five-year limit.

All that information was carefully considered by the Sentencing Council. It issued its definitive guideline in April and nothing has changed. There was no justification for increases in the ranges. The attacks with which we were concerned in considering the introduction of this legislation all happened before the sentencing guidelines were produced. We would be interested to hear any evidence from the Government to support these radically increased sentences in terms of better outcomes, deterrence, reform or the safety of the public. Without such evidence, we cannot support this clause.

[Lord Anderson of Ipswich]

My Lords, Ministers will know that the equivalent sentences in other European countries for the type of offences that we are talking about tend to be much lower than they are here. Perhaps that is no bad thing.

In light of these issues and the proposed very substantial increases to which the noble Lord has referred, will the Minister say what steps will be taken to address—or at any rate, given the sensitivities, to research—the disparities that have been observed by informed observers between sentencing levels for terrorism offences in England and those in Northern Ireland, where sentences imposed appear to be a great deal lower for conduct that on the face of it looks quite similar?

[Lord Rosser]

This amendment, moved by the noble Lady Baroness, Lady Hamwee, and to which my name and that of my noble friend Lord Kennedy of Southwark are also attached, is another which reflects a recommendation from the Joint Committee on Human Rights. One of the key aspects of the Bill is the proposed increase in maximum sentences for a number of terrorist offences. This was one—but only one—of our reasons for raising concerns about the prospect of innocent parties falling foul of some offences.

The JCHR said that the increases in sentences do not appear to be supported by evidence to suggest that they are justified or proportionate. The committee was particularly concerned that a sentence of 15 years could be imposed for an offence of viewing terrorist material online—even more so in the light of amendments on Report in the Commons that might make a single viewing sufficient for such an offence to be deemed to have been committed. As has already been said, the committee asked the Home Office for the evidence on which it based its decision that the current maximum sentences were insufficient and why it considered the proposed higher maximum sentences to be necessary and proportionate.

The reply from the Home Office, as set out in the JCHR report, stated, among other things:

“The division between preliminary terrorist activity and attack planning is increasingly blurred”.


It did not, according to the committee, explain why existing sentencing powers were inadequate. I hope, like others, that the Government will address this point on existing sentencing powers in their response, as well as the specific terms of the amendment, reflecting the view of the JCHR, which deletes the increase in the maximum sentence from 10 years to 15 years for the “collection of information” offence provided for in Section 58 of the Terrorism Act 2000.

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[Baroness Hamwee]

My Lords, I will speak also to Amendments 40 and 41. Clause 13 inserts a new power of entry and the power to search the homes of registered terrorist offenders, not to look for something specific but to assess,

“the risks posed by the person to whom the warrant relates”.

This is, in our view, a severe intrusion into the private life of not just the registered terrorist offender but his family. In the days of control orders, I became very aware of the impact of certain restrictions on family members, including spouses, children and extended family. I am not suggesting that these powers are the exact equivalent, but the impact on those family members, as well as that on the object of the order, was something of which I became very aware. Being the subject of a search—with the use of force permitted—is not the same, but I do not think that it is completely unrelated.

In response to the JCHR’s initial report, the Government argued that the power may be exercised only as a last resort. I assume that that is a description of Clause 13(2)(c) and (d) and that it requires a warrant and compliance with the powers of entry code of practice. These are safeguards indeed, but the threshold for exercising the power is low. The government response states that the power is to allow the police,

“to assure themselves that the individual does in fact reside at the address they have notified, and to monitor compliance with other aspects of the notification regime”.

Why does the Bill not reflect this, rather than containing the vague requirement of assessing risks?

We on the Committee considered that there should be a clearer requirement that the power is used when it is necessary and proportionate, and when there are grounds for suspicion that the notification requirements have been breached. That has led to the three amendments in this group, which would narrow the power by requiring a reasonable belief that the registered person had breached the notification requirements and ensure, as I have said, that the exercise of the power is both necessary and proportionate. I beg to move.

[Lord Anderson of Ipswich]

My Lords, Clause 13 provides for a search power that Professor Clive Walker—who is, without much doubt, our foremost expert on counterterrorism law and not a man given to either naivety or overstatement—described in written evidence to the Joint Committee on Human Rights as “outrageously wide”. As he pointed out, the clause is to be contrasted with paragraph 6(3) of Schedule 5 to the Terrorism Prevention and Investigation Measures Act 2011—the TPIM Act—which confines the purpose of the equivalent search power to that of determining whether there has been any contravention of the measures specified in the TPIM notice. That is essentially the approach that Amendment 39, which I support, adopts.

I echo the noble Baroness’s point that there is a human element to this. The families of convicted terrorists, through their support and influence, are often important factors in turning offenders away from violence. The extreme anxiety experienced by the wife of a control order subject whose house was subject to frequent unannounced searches, and the upset and trauma caused to her young children, were movingly conveyed in an article from which I quoted in my final report on control orders in 2012. I felt justified in doing so, not to give publicity to an unreliable witness—something which, like my predecessor as independent reviewer, the noble Lord, Lord Carlile, I was always astute not to do—but because the woman in question had recently been described in a High Court judgment by the highly experienced Mr Justice Mitting as an impressive witness and a person whose evidence he accepted without reservation.

The risk of upsetting or alienating such people is surely evident. I have never heard it suggested in several years of, I hope, careful oversight that the powers to enter and search premises occupied by potentially extremely dangerous TPIM subjects are insufficient, so I am puzzled as to what prompted this further turn of the ratchet—at least on paper, even if reassuring words are spoken about how it may be used in practice.

It is important that the power of entry and search should not be used as an instrument of harassment and destabilisation. This reasonable amendment would help to ensure that.

Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

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

Moved by

[Lord Anderson of Ipswich]

24: Clause 4, page 3, line 43, leave out “condition is” and insert “conditions are”

[Lord Anderson of Ipswich (CB)]

My Lords, Amendments 24 and 25 would recognise the highly exceptional nature of the designated area offence by ensuring that there is an additional limitation on the designation of areas as out of bounds. Their effect is to make the designation of areas dependent on a proscribed organisation being engaged in armed conflict in that area. I understand that in both Australia and Denmark, where similar conditions are in force, the designations actually made have been extremely limited in their scope, confined in Australia to Mosul district and Al-Raqqa province and in Denmark on a similar basis. The Australian independent monitor, to whose report on their law I referred earlier, expressed no objection to the condition that a listed terrorist organisation is engaging in hostile activity in that area of a foreign country, which is how it is phrased there. He translated the Danish law as referring to “armed conflict”.

On Report, the Security Minister referred to the possible use of the Clause 4 power in Syria, parts of Africa and parts of the Philippines. He acknowledged, quite rightly, the importance of full parliamentary scrutiny of any designation. However, Parliament may not be privy to the full security picture and if this highly restrictive offence is to be justified at all, it must surely be to protect British citizens and residents from the physical or psychological consequences of being in war zones where terrorist organisations are operating. I hope that the Minister will consider making this clear on the face of the Bill. I beg to move.

[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.

[Baroness Hamwee]

Before the noble Lord withdraws his amendment, does he share my concern about the creation of a provision where the boundaries are so woolly and grey? His amendment would have the benefit of being quite clear about proscribed organisations—everyone would know where they were. Essentially we have heard the Minister say that the Executive and the agencies that support them will know things that the rest of us do not know and will stop travel in a situation that they cannot necessarily describe. I am not entirely sure how in that situation Parliament can scrutinise the decision through the procedure to which we have been referred.

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[Lord Anderson of Ipswich]

The noble Baroness makes a very good point. It put me in mind of debates on the proscription of new organisations—which I have often read but never participated in—where Ministers very properly come before Parliament, often only to explain that there is a lot of information that they cannot divulge because it is confidential. What the Minister had to say in that regard perhaps rather strengthened that apprehension on my part. I am grateful to the noble Baroness but I think that at this stage all I can do is beg leave to withdraw the amendment.

Amendment 24 withdrawn.

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Moved by

[Lord Anderson of Ipswich]

26: Clause 4, page 4, line 6, after “must” insert “at least once in every calendar year, starting in the calendar year following its designation,”

[Lord Anderson of Ipswich]

My Lords, the amendments in this group are in the nature of a tightening up. New Section 58C(4) introduced in Clause 4 provides for designations to be kept under review but no time limit is placed on that process. It is unsatisfactory to put no time limit on this in circumstances where designation constitutes a significant and unprecedented legal impediment to freedom of travel and where there might be political factors which, in the absence of a strict statutory requirement, could militate against the removal of designations.

There are precedents for timed reviews in matters of this kind—for example, in the sanctions field and in the former practice of reviewing the basis for the proscription of terrorist organisations on an annual basis. It is precisely because that practice lacked statutory backing that it most unfortunately fell into disuse after 2014—a point to which I propose to return in the context of Amendment 59. I beg to move.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 26, in the names of the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Judge, would put on the face of the Bill that at least once in every year there must be a review of a designation. This would be far more preferable than simply having the rather less clear and less direct wording currently in the Bill, to “keep under review”. As the noble Lord, Lord Anderson, said, these are very much tightening-up amendments.

Amendment 27 would, again, put on the face of the Bill a much clearer process for reviewing a designation, determining whether it still satisfies the condition for designation in the first place. The amendment would also make provision for changes or revocation to take place and would require each decision to be published and a record to be laid before Parliament. Again, I think that this is a much better way to address these issues. It would provide more clarity and leave less room for confusion than could be the case at present.

Amendment 28, in my name and that of my noble friend Lord Rosser, seeks to require the Government to address whether the regulations are still relevant and appropriate through the regulations automatically lapsing three years after coming into force. Amendment 29, again in my name and that of my noble friend Lord Rosser, would place a duty on the Government to bring these regulations to the attention of the Intelligence and Security Committee and for it to lay before Parliament its report on whether or not they should be approved.

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[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.

Amendment 26 withdrawn.