Public Order Bill

Debate between Lord Anderson of Ipswich and Lord Paddick

3rd reading
Tuesday 21st February 2023 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I want to say three things. First, I pay tribute to the noble Baroness, Lady Sugg, for the remarkable job she did after the contentious committee hearing on this clause. She forged a result which, although certainly not perfect, and which continues to evoke strong feelings, had the support of a very great majority of your Lordships.

Secondly, I thank the Minister for taking on board Amendment 9, which is surely not controversial but mends the hole in this Bill by ensuring that the same incidents are not taken into account for successive serious disruption prevention orders.

My third point is also addressed to the Minister, but I suspect more particularly to his ministerial colleagues. On both stop and search and serious disruption prevention orders, your Lordships’ House has not obstructed clear government policy but has found a way—with the benefit of our collective experience—to leave the police with the powers the Government say they need, while removing the excessive and unnecessary elements of each power. The things we removed are no-suspicion stop and search and the power to trigger SDPOs on the basis of activity that does not meet the criminal threshold.

I remind the Minister that all this was passed with overwhelming Cross-Bench support. All three amendments on these subjects were signed or supported by two Lord Chief Justices, two further judges of our highest court and a former Commissioner of the Metropolitan Police, my noble friend Lord Hogan-Howe, who, in my experience, knows exactly what he is talking about on these issues. The three amendments collectively attracted 162 Cross-Bench votes, with only eight against. Of course, these Benches are only a small part of the House, but not one, I hope, that anyone would willingly confuse with a crypto-anarchist front. I believe that the Minister, with his own policing experience, will see the force of these views, and I ask him to convey that to his colleagues in the Commons. I hope that this Bill can become law without tiresome ping-pong and with these amendments in place.

[Lord Paddick (LD)]

My Lords, we wholeheartedly support all the amendments in this group. Noble Lords often talk about the tremendous work the noble Baroness, Lady Sugg, has done on this Bill, although I realise they have not said it in those terms.

It may come as a surprise to Members of this House that I consider myself to be a Christian. I rather overdid it: I was baptised as an infant; then I became a Baptist and was baptised by total immersion; and then I went to Oxford and was confirmed in the Church of England. It was belt and braces as far as I am concerned. This legislation is not anti-Christian and, in respect of people who privately pray, my understanding is that prayer works very effectively outside of a 150-metre radius of an abortion clinic.

I have to apologise to the House: I should have been on my guard on Report. I refer to the debate on 7 February, when the Minister talked about the Government having tabled amendments

“which seek to allay some of the concerns expressed by your Lordships.”

I think the Minister knows what is coming. He went on to say that the second amendment, Amendment 58,

“reduces the relevant period of past conduct which is considered for SDPOs from within five years to within three years … It is the Government’s view that these amendments represent a substantive offer and address the main criticisms of SDPOs”.—[Official Report, 7/2/23; cols. 1147-48.]

Regrettably, when it came to Amendment 58, the Minister “not moved” his own amendment. I was not quick enough to intervene to rescue it, so that amendment is lost. It was not part of an amended part of the Bill, so it cannot be amended here at Third Reading, and it cannot be amended in the Commons either. As I said, I apologise for not being quick enough to spot that mistake. Having said that, we support all the amendments before the House today.

Public Order Bill

Debate between Lord Anderson of Ipswich and Lord Paddick

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I have added my name to the other amendments in this group. If noble Lords will indulge me, as is usual with the first group of amendments, I will remind them why we have arrived at this point. The Government had already included draconian anti-protest measures in the Police, Crime, Sentencing and Courts Bill—including giving the police power to place restrictions on meetings and marches if they might be too noisy, including one-person protests—when, just before the Conservative Party conference in 2020, Insulate Britain began a series of protests, including dangerously and recklessly blocking motorways. Allowing a sentence of imprisonment for highway obstruction was proposed and agreed by this House, and now many Stop Oil protestors have been either sent to prison or remanded in custody pending trial.

However, the then Home Secretary felt that she had to say something to appease Tory supporters at the Conservative Party conference: that she would introduce even more draconian anti-protest measures. Despite the PCSC Bill having already passed through the Commons, the Government introduced these even more draconian anti-protest measures, those we have before us today, as amendments in Committee of the PCSC Bill in this House. Apart from custodial sentences for highway obstruction, this House rejected all these measures on Report of the PCSC Bill.

Apart from the new stop and search powers, which some police officers and His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services suggested the Government might introduce, but which the Home Office left out of the original PCSC Bill, none of the measures that we are being asked to agree to today in this Bill was requested by the police, none of the measures was supported by HMICFRS, and some that were considered, such as serious disruption prevention orders, were rejected as contrary to human rights, unworkable and likely to be ineffective.

I have Amendments 8, 29, 40, 55 and 60 in this group, which all relate to reasonable excuse. We saw, with the arrest and detention by the police of a journalist who was reporting on recent protests, the potential danger of only allowing a reasonable excuse defence to be deployed once charged, as the Government propose in this Bill. In other legislation, a person does not commit an offence if they have a reasonable excuse, and therefore cannot be lawfully arrested and detained. I might not go as far as the noble Baroness, Lady Chakrabarti, in saying that it should be for the prosecution to prove that the protestor did not have a reasonable excuse. I am reminded of the wording of Section 1 of the Prevention of Crime Act 1953, where

“Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence”.


If the Government are looking for compromise, as they should in the face of the opposition already expressed to these measures in this House in its consideration of the PCSC Bill and in the views expressed on this Bill at Second Reading, maybe this should be an option that they consider.

This is even more important than the offensive weapon example, in that these are basic human rights under Articles 10 and 11 of the European Convention on Human Rights—the rights of expression and assembly. To allow people who are exercising their human rights, who have a reasonable excuse for what they are doing, to be deprived of those rights by being arrested and detained, as the Government propose, but where the reasonable excuse for exercising their rights can only be considered once they have been charged, cannot be right.

In Clause 3(2), for example, the proposed legislation says, in relation to tunnelling,

“It is a defence … to prove that they had a reasonable excuse for creating, or participating in the creation of, the tunnel.”


Clause 3(3) says,

“a person is to be treated as having a reasonable excuse … if the creation of the tunnel was authorised by a person with an interest in land which entitled them to authorise its creation.”

I am sure that the Minister will correct me if I have this wrong but, say a landowner instructs workers to build a tunnel on her land, which she owns, before it is subject to a compulsory purchase order to facilitate a development, in order to disrupt the development, which she objects to, she and her workers can be arrested, detained and charged, and only then can they deploy the reasonable excuse defence that the Government provide for in the Bill. How can that be right?

In relation to the obstruction of major transport works, the Bill provides specifically, in Clause 6(2)(b), that if the action

“was done wholly or mainly in contemplation or furtherance of a trade dispute”,

the person has a reasonable excuse, but Clause 6(2) says that

“It is a defence for a person charged with an offence”.


Again, the Minister will correct me if I am wrong, but does that mean that lawful pickets, on a picket line, can be arrested by the police, detained, and charged and can deploy the reasonable excuse defence only once charged? The Minister may say that the police would not arrest those engaged in lawful picketing—even though the proposed legislation would allow it—but, presumably, the Minister also believes that a mainstream journalist, with an accredited press pass, reporting on a protest, would not be arrested and detained for five hours by the police, and would also deny that. Similar arguments apply in relation to Amendment 60 to Clause 7.

We have seen from the arrest of the journalist that the police cannot always be trusted in every circumstance to use their judgment and not use the powers given to them in legislation. If someone has a reasonable excuse for their actions—we will come to a discussion of what amounts to a reasonable excuse in the next group—such as an accredited press card holder reporting on a protest, they should not have a defence once arrested, detained and charged, but the police should not be allowed to arrest and detain them in the first place. That is the desired effect of the amendments in this group and we strongly support them.

[Lord Anderson of Ipswich (CB)]

My Lords, I put my name to Amendments 1 and 7 in the name of the noble Baroness, Lady Chakrabarti, and I support to similar effect Amendment 8 in the name of the noble Lord, Lord Paddick, which coincides with that proposed by the Joint Committee on Human Rights. They relate, of course, to the locking-on offence in Clause 1, which, as the noble Baroness said, is an offence for which the actus reus is extraordinarily broad. You do not have to attach yourself to railings to commit it; it is enough to “attach an object”—any object—

“to another object or to land.”

Nor is there any requirement that serious disruption be caused; it is enough that the act

“is capable of causing, serious disruption”,

a term undefined, at least so far, and that you are “reckless” as to whether it does so.

When I raised this point at Second Reading, the Minister was good enough to say that he would write to me on it, and I thank him for doing so. He makes the point in his letter that the defendant has personal knowledge of the facts, making it reasonable for him to have to establish them. I agree with that: no one, I understand, objects to the evidential burden resting on the defendant, and I apprehend that that is what the noble Lord, Lord Paddick, was just saying, but it is clear from the letter that the Government’s intention is to go further and to place the legal burden on the defendant of proving lawful excuse.

The letter explains that there are times when the evidential and legal burden of proof may legitimately fall on the defendant, notwithstanding the presumption of innocence. One of those times, as the Minister said, is when you are carrying a bladed article in a public place. You may then be expected to prove that you had good reason to avoid conviction under Section 139(4) of the Criminal Justice Act 1988. But as the court said in the relevant case, L v DPP:

“There is a strong interest in bladed articles not being carried in public without good reason”.


The public interest in objects not being attached to other objects is less strong, to put it mildly, particularly against the background of the fundamental right to protest.

As Lord Bingham went on to say in Sheldrake, now the leading case on reverse burdens, security concerns do not absolve the state from its duty to observe basic standards of fairness. There are cases not referred to in the Minister’s letter, such as DPP v Wright, a Hunting Act prosecution, in which it was held to be oppressive, disproportionate, unfair and unnecessary to impose a legal burden on the defendant. Then there is the point well made by the Joint Committee on Human Rights: if the reasonable excuse is an afterthought, rather than an ingredient of the offence, protesters will be liable to be arrested whether they had a reasonable excuse or not. It is undesirable in principle for the possible defence to arise for consideration only after arrest or charge.

The curious thing about this debate, it seems to me, is that it is unlikely to affect the ease of conviction one way or the other. Once it is accepted that a protester may legitimately be asked to bear the evidential burden, then the legal burden, whatever the legal significance of the point, will rarely matter much in practice. The court will take its own view on whether the excuse is reasonable or not and not usually spend much time on the technical issue of burden of proof. Indeed, that was another point made by Lord Justice Pill in the L v DPP case, on which the Government relied in the Minister’s letter to me. In other cases where the Government have overstepped the mark by putting a legal burden on the defendant when they should not have done so, Section 3 of the Human Rights Act has come to their rescue, by enabling the reverse burden to be interpreted as a merely evidential burden that does not get in the way of the presumption of innocence. That emergency cord will not be available to the Government if the courts rule against them on reverse burden after the Bill of Rights has removed Section 3, as appears to be their intention.

I approach this issue in a spirit not so much of crusading zeal as of some bafflement that the Government would take such a legally risky course for so little practical advantage. I suggest that the orthodox approach to these offences is also the fairer approach for members of the public, and the safer approach for police, prosecutors and the Government. The prosecution should simply have to prove its case in the normal way.

Counter-Terrorism and Sentencing Bill

Debate between Lord Anderson of Ipswich and Lord Paddick

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

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

My Lords, the noble Baroness, Lady Hamwee, appears to be right that the legislation in its current form does not place express limits on the use of information obtained from a polygraph for the purpose of extending a TPIM, yet my enthusiasm for Amendment 20 is limited. The reality is that TPIMs can be made and extended on the basis of a wide range of intelligence fragments, some of which may be little more than straws in the wind. It may none the less be important to take such matters into account. I think back to the Manchester Arena bomb and the ambiguous and potentially unreliable intelligence that, as I reported at the time, might, if it had been interpreted in a different way, have resulted in some sort of pre-emptive action.

An intelligence picture is typically a complex mosaic of multiple indications and assessments, of which polygraph material, depending on the circumstances, will not necessarily be the least reliable component. While it seems to me both unlikely and undesirable that a TPIM would ever be extended predominantly on the basis of polygraph material, I am wary of Parliament seeking to dictate the relative weight that is to be given to different sources of intelligence. The Executive and the courts are the bodies with expertise in this area, and I suspect that we should leave it to them.

I look forward to hearing what the Minister has to say about Amendment 19, which seems not without merit.

[Lord Paddick (LD) [V]]

My Lords, my noble friend Lady Hamwee has explained Amendments 19 and 20 to the House, and it would serve little purpose to repeat that as we will not be dividing the House on them.

As my noble friend has said, compulsory polygraph tests for those convicted on licence from prison are one thing, but such tests for those not convicted of any offence, who have a right to silence when being questioned, is quite another. It is a long-established principle that a suspect in criminal proceedings should be protected from any adverse consequences of remaining silent. Clause 38 allows the Secretary of State to impose a requirement for an individual subject to a TPIM to participate in polygraph sessions and to comply with instructions given to the individual by the polygraph operator. Although any statement made by the individual while participating in the polygraph session cannot be used against them in any proceedings for an offence, a failure to answer questions could be taken as contravening a measure specified in a TPIM notice—that is, to comply with the instructions of the polygraph operator, so, in this case, the instruction to answer questions. Remaining silent during a polygraph session could therefore be an offence under Section 23 of the Terrorism Prevention and Investigation Measures Act 2011, for which the individual is liable on conviction to imprisonment for a term not exceeding five years.

If the person is convicted of a terrorism offence and is on licence and subject to a TPIM—unlikely but possible—it would be possible for them to be subjected to polygraph tests under Clause 32 of this Bill, and a failure to answer questions in those circumstances would be a breach of the licence. While we have reservations about that, we do not object to it being part of the Bill. However, if the person is not convicted and is subject to a TPIM, they have the right to silence and to be protected from any adverse consequences of remaining silent. Potentially being imprisoned for five years for failing to answer questions during a polygraph session is an adverse consequence, and we therefore intend to test the opinion of the House on whether Clause 38 should be part of the Bill.

--- Later in debate ---

[Lord Paddick (LD) [V]]

My Lords, I move Amendment 23 in my name and that of my noble friend Lady Hamwee. This House voted for there to be a deadline for the publication of an independent review of the Government’s Prevent strategy in what became Section 20 of the Counter-Terrorism and Border Security Act 2019. In this Bill, the Government seek to remove any deadline for the publication of this review. In Committee, the Minister said that the Government hoped that the report would be published in the autumn of this year and that he hoped to get confirmation of this from the newly appointed independent reviewer of Prevent. On the basis of the estimate given by the Government in Committee, our Amendment 23 seeks to reinstate the deadline but with a generous margin of publication by the end of the calendar year. I beg to move.

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

My Lords, there seems to be a recurring issue with the timeliness of independent reviews in the field of national security. The chief problem as I observe it relates not to the speed with which independent reviewers do their job but to the speed with which those reviews are commissioned on the one hand, and the speed with which reports are published and laid before Parliament on the other.

As to delays in commissioning, in addition to the remarkably long time that it has taken to replace my noble friend Lord Carlile as the independent reviewer of Prevent, I note that it was only on 25 February this year that the long-awaited review was announced of closed material procedures under the Justice and Security Act 2013. That review was required by Section 13 of that Act to be completed as soon as reasonably practicable after June 2018. Yet, despite regular inquiries by the indefatigable Angus McCullough QC and others, and at least one Written Question in my own name, it was commissioned only two and a half years after that point. That seems simply unacceptable.

On the second of those points, there is the pre-election saga of the Russia report of the Intelligence and Security Committee, on which I made my views clear at the time, and an occasionally elastic interpretation of the Secretary of State’s statutory duty to lay reports of the Independent Reviewer of Terrorism Legislation before Parliament “on receiving a report”.

In the Public Bill Committee on the original TPIM Bill in 2011, James Brokenshire, during his first stint as Security Minister, said on this subject:

“There is no desire to sit on reports. It would be foolish and inappropriate for Government to do so, particularly with a report from an independent reviewer … It is not our intention to sit on reports; that is not the practice. If it gives comfort to the Committee and to the public, reports received from the independent reviewer will be published on receipt or promptly—whatever the appropriate phrase is. That is what I expect to happen, and I would expect any successor of mine to take the same approach.”—[Official Report, Commons Terrorism Prevention and Investigation Measures Bill Committee, 30/6/11; col. 253.]


Will the Minister take this opportunity to endorse the principled approach set out by James Brokenshire almost 10 years ago and apply it not only to reports of the Independent Reviewer of Terrorism Legislation but to the report of the independent reviewer of Prevent? If he can, he will go some way to setting my mind at rest not only on the subject matter of this amendment but more generally.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Anderson of Ipswich and Lord Paddick

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

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

My Lords, I shall speak to Motions A, C and E on the basis that each of them relates in some way to an earlier amendment in my name.

Motion A concerns Amendment 1, which I originally moved in Committee. Like the noble Baroness, Lady Hamwee, I would have preferred the requirement that belief be reasonable to have been included in the Bill. However, I welcome the fact that it will at least now be plainly stated in the code of practice at paragraphs 3.10 and 6.4 in terms that improve significantly on the earlier suggested amendment—memorably described by my noble and learned friend Lord Thomas of Cwmgiedd as the “worst of both worlds”. The new paragraphs will say plainly that

“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”

Something similar has been said from the Dispatch Box, but authorising officers will perhaps have the code of practice more readily to hand than the Official Report. I welcome the new wording and, like the noble Baroness, Lady Hamwee—who, with the noble Lord, Lord Paddick, took over this amendment on Report—I do not oppose Motion A.

I turn to Motion C on the availability of compensation for the victims of authorised crimes. Lords Amendment 3, which your Lordships passed on Report by a majority of 91, provided that there was no bar to the criminal injuries compensation schemes in Great Britain and Northern Ireland being available to victims of authorised crimes. Without such a clause, it was at least possible that Section 27 of RIPA, which renders authorised activity lawful for all purposes, would have prevented such recourse. The Commons rejected that amendment, with the stated basis being that it was

“inappropriate to create an exception to the effect of criminal conduct authorisations.”

I am pleased that the Government have thought again. Their new clause is, so far as I can see, simply a competently drafted version of mine. It will mean that, should an act of violence ever be authorised, the innocent victim will not be disqualified from compensation by the fact that the perpetrator was a CHIS. It improves the Bill in a specific but potentially significant way.

Finally, Motion E originates in an amendment from my noble and learned friend Lord Thomas of Cwmgiedd. That amendment would have improved my own Amendment 5 on real-time notification, which now constitutes Clause 3 of the Bill, by underlining what I believe in any event would be the practical reality: that the disapproval of a judicial commissioner will normally result in the cessation of all further activities undertaken pursuant to an authorisation. My noble and learned friend’s amendment was not agreed to in the other place, but he has negotiated in its place an acceptable alternative in the form of an amendment to the code of practice. It begins:

“Where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken”—


not whether any action should be taken, but what action should be taken, which implies that some action will be taken.

IPCO must then be informed of that action as soon as reasonably practicable, and the Investigatory Powers Commissioner retains full discretion to take what further steps may be thought appropriate—including, as the Minister expressly confirmed on Report, passing the file on to the Director of Public Prosecutions or his equivalent in Scotland and Northern Ireland. As the Minister clarified on 11 January, at cols. 497-98 of the Official Report of your Lordships’ House, if the authorisation is determined not to have met the statutory requirements of necessity and proportionality, nothing in this Bill or in RIPA itself prevents the prosecution either of those responsible for authorising the crime or of the person who committed it.

The consequences for anyone who has unlawfully issued a criminal conduct authorisation are therefore real and give the lie to any suggestion that the real-time notification procedure is without teeth. Successive Investigatory Powers Commissioners have been among our highest-ranking and most experienced judges, well capable of deploying both the bark and the bite. This Bill, read with its code of practice, equips them for both.

In short, we have a solution on each of these three amendments which is largely satisfactory. I thank the Bill team and the Minister for their constructive and courteous engagement with operational partners over many months. The Bill is not perfect—given the intractable subject matter, that is not surprising—but it has been very significantly improved by your Lordships. We can fairly say that we have done our job, and I look forward to seeing the Bill on the statute book.

[Lord Paddick (LD) [V]]

My Lords, I will speak to the two Motions on which the House will divide. Motion B asks that this House do not insist on its Amendment 2, which placed in the Bill a list of offences that a criminal conduct authorisation could not authorise. This amendment was suggested by the Joint Committee on Human Rights and was championed by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs. The Commons disagree because doing this

“would place sources, and the wider public, at risk.”

As the Minister explained, the argument goes that sources could be tested against such a list to discover whether they were a CHIS and, further, that pursuant of testing to see if a person was a source, they would ask other people who were not CHIS to commit crimes listed in Lords Amendment 2.

Those arguments were demolished by the noble Lord, Lord Anderson of Ipswich, in Committee—and the Government have, to date, failed to address them. Australia, Canada and the United States of America have similar lists and they do not present the sort of difficulty in those countries that the Government claim would occur here. In a blatant act of whataboutery, the Minister responded that these countries were different because we have the Human Rights Act and they do not. On Report, the noble and learned Lord, Lord Hope of Craighead, comprehensively demolished the argument that the Human Rights Act was sufficient, but that is not why the Commons disagrees with Amendment 2.

What has the Human Rights Act got to do with the Commons disagreement? A list is published in each of the countries—Australia, Canada and the USA—of offences that CHIS cannot be authorised to commit, and the reasons the Commons has given for rejecting this amendment do not arise in those countries. Their CHIS are not tested against the list and there is no evidence that others are tested against it either. We are not talking about a hypothetical situation of “What if there was a list of prohibited offences?” but about the fact that this has been tried in practice for many years in similar jurisdictions and the Commons’ stated concerns do not exist.

The noble Lord, Lord Anderson of Ipswich, then went on to explain why he believed publishing a list is not a problem in those jurisdictions and why it would not be a problem here. If a gang tested a member by asking them to rape and the gang member refused, it could be that the gang member has scruples that he is not prepared to set aside. I could add to the noble Lord’s example and say that the gang member may be incapable of performing an act of rape in front of an audience or that his sexuality gets in the way of his being able to rape the man or woman he is being asked to rape. There are a host of more likely explanations as to why the gang member might not commit a serious crime other than that he might be a covert human intelligence source refusing to do so simply because he is a CHIS.

To paraphrase the noble Lord, Lord Anderson, a former Independent Reviewer of Terrorism Legislation, also with direct experience of Northern Ireland, he said he found it hard to understand why a shortlist bearing no relation to the types of crime that would routinely be authorised should increase the risk to a CHIS or other members of the public or make it more likely that he would be successfully outed as a CHIS by the criminal group in which he is embedded. As a police officer of over 30 years’ experience, including direct experience of managing police informants, I do not understand either.

Extradition (Provisional Arrest) Bill [HL]

Debate between Lord Anderson of Ipswich and Lord Paddick

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 15th June 2020 Lords Chamber

[Lord Paddick [V]]

My Lords, I speak in support of the amendment in the name of my noble friend Lady Hamwee, and I agree completely with the comments of the noble and learned Lord, Lord Judge. The trouble with an amendment of this simplicity is that all one can do is repeat the arguments in a slightly different way.

It makes complete sense that Parliament should have the ability to consider each country on its merits in this case, as it is so obviously open to abuse, and the regulations that allow additions are not amendable. Echoing the views of my noble friend Lady Ludford, I think that, our having left the European Union, future Governments will be keener than ever to secure trade deals with other countries, for example. It may be that those other countries demand, quid pro quo, that we accede to their extradition requests, even though there may be reservations about a country’s criminal justice process. This amendment is necessary, and I support it.

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

My Lords, in Committee, my noble and learned friend Lord Hope of Craighead said of this amendment that it meets the problem of the non-amendable instrument, without at the same time creating an insuperable difficulty for the Government, and that it enables a debate to take place that would have a real point to it. The fact that there may be precedents in other Acts of Parliament for lumping countries together in statutory instruments seems to be neither here nor there.

This amendment ought really to be welcomed by the Government. It removes the possibility that acceptable countries will be excluded because they have been yoked together with a country that Parliament finds unacceptable. The amendment is a sensible and practical safety valve, which is why I put my name to a previous edition. If the noble Baroness, Lady Hamwee, decides to test the opinion of the House, I shall vote for the amendment.

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Paddick

Monday 17th December 2018 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, Schedule 3 to the Bill will confer a bristling armoury of powers on ports police: the power to detain travellers for up to six hours; a requirement that questions be answered and passcodes surrendered, on pain of prosecution and possible imprisonment; powers to take samples and strip search; and the power to download and retain the entire contents of laptops and mobile phones. In Committee, I expressed unease at the prospect of some 1,400 ports officers up and down the country being entrusted with these powers and the right to use them without any need for suspicion for the purpose of determining whether members of the travelling public appear to be engaged in activity that, while reprehensible, is perfectly lawful.

At that stage, three examples were given of activity that was said to be detrimental to national security without amounting to serious crime. Each of them fell squarely within the scope of the Official Secrets Acts 1911 and 1920 and could thus have quite legitimately been the subject of questioning under a law formulated according to these amendments. I continue to believe that strong coercive powers of this nature should, as a matter of principle, be available only in the context of criminality and that the best way to address any deficit is by amendment or addition to our national security legislation. However, since Committee, two further examples have been put to me on which the Minister may choose to elaborate that suggest at least one respect in which our existing law is inadequate to protect against threats to our national security. So until that gap has been filled, a pragmatic case, I accept, has been advanced for extending the Schedule 3 power beyond serious crime.

Furthermore, government Amendment 34C has addressed the most obviously objectionable feature of the clause, and that is its unqualified recourse to the nebulous—if I may use that word—notion of threats to,

“the economic well-being of the United Kingdom”.

I understand that further assurances are to be offered in the draft code of practice that will be laid before this House after the passage of this Bill.

Finally, I take comfort from paragraph 62 of Schedule 3, which the Minister mentioned in the previous debate, which requires the Investigatory Powers Commissioner—currently Sir Adrian Fulford, a serving Lord Justice of the Court of Appeal—to keep under review the operation of the relevant provisions, and provides for the publication of the commissioner’s annual review. Annual reviews over the many years of the equivalent power under Schedule 7 to the Terrorism Act have given rise to a number of changes to the code of practice and to legislation, and have been extensively relied on in the courts.

Will the Minister confirm that the necessary additional resources will be made available to the Investigatory Powers Commissioner for the performance of that task by him and his office? Will she confirm that that will be the case even if the number of stops should turn out greatly to exceed the current estimate of 100 per year? She will remember that, according to figures—provided to me by the Metropolitan Police and published in December 2016—on the intelligence reports filed after Schedule 7 stops between 2009 and 2015, an annual total of between 5% and 8% related to counterespionage and between 8% and 17% related to counterproliferation. That was despite the fact that at that stage no specific power existed for questioning travellers in order to determine whether they were spies or proliferators. It would seem that quite large numbers of people who might have fallen within those categories were stopped and questioned. If remotely accurate, those figures are suggestive of the possibility that the Schedule 3 power could be used up to a few thousand times a year rather than merely several dozen. I appreciate that the Minister does not have a crystal ball, but the need for proper resource to report on this extremely sensitive power is clear and I hope that she will acknowledge that.

On that basis, I support government Amendment 34C and do not propose to press Amendments 34A, 34B or 34D. I beg to move.

[Lord Paddick]

My Lords, I added my name to the amendments in the name of the noble Lord, Lord Anderson of Ipswich. As he said, the Schedule 3 powers are considerable and can be exercised against someone even if the activity they are suspected of being engaged in does not amount to a serious crime. Therefore, we certainly feel that the amendments are valid. However, we accept that the noble Lord has received reassurances from the Government, which I hope the Minister will elaborate on in her response. Clearly, following the comments that we made from these Benches about actions that affect “the economic well-being of the United Kingdom”, the amendments tabled by the Minister provide reassurance on that particular issue.

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Paddick

Report: 2nd sitting (Hansard - continued): House of Lords & Report: 2nd sitting (Hansard): House of Lords
Monday 17th December 2018 Lords Chamber

[Lord Anderson of Ipswich]

My Lords, the amendments in this group have their origins in a fact admitted by the Government, published in more than one of my reports as Independent Reviewer of Terrorism Legislation and, I am afraid, mentioned more than once to your Lordships: at least 14 of the 74 organisations proscribed under the Terrorism Act 2000, not including the 14 Northern Irish groups, are not concerned in terrorism and therefore do not meet the minimum statutory condition for proscription.

The question is: what do we do about that mismatch between law and practice? The pertinence of that question is greatly increased by the fact that a major theme of the Bill is to widen the scope, both substantive and geographical, of the proscription offences—membership, inviting support and so on.

Amendment 32B was designed to apply the law we have, by providing for an annual review of the activities of proscribed organisations—as happened routinely until four years ago—and the de-proscription of those lacking a statutory basis for continued listing. That principled course was chosen by Theresa May, as Home Secretary in 2013, when the irregularity was brought to her attention. With Amendment 32B, action on the conclusion of such reviews would be required by statute and could not be defeated by Foreign Office policy priorities, as was the case on that occasion, and indeed previous ones, judging from my noble friend Lady Manningham-Buller’s speech in Committee.

Since that seemed not to be enough, I tabled Amendment 32A in an attempt to make things easier. This would allow organisations to be proscribed if they are or have been concerned in terrorism, so long as the Secretary of State reasonably believes it necessary for purposes connected with protecting members of the public from a risk of terrorism.

That two-stage formulation is tried and tested. It was used in the Terrorist Asset-Freezing etc. Act 2010 and the Terrorism Prevention and Investigation Measures Act 2011. It would allow the continued proscription of groups which have a powerful history and terrorist brand, but in respect of which ongoing terrorist activity cannot be demonstrated. This could be particularly useful in Northern Ireland, where groups that have laid down their arms do not satisfy the current test but, depending on the Secretary of State’s assessment, could satisfy the new one. More fundamentally, it would have the merit of ensuring that the Government’s actions in relation to proscription are in accordance with the law; currently, they are not. This would be a useful example to set the rest of us.

I convey to the House the apologies of the noble and learned Lord, Lord Judge, who has had to leave his place and I beg to move.

[Lord Paddick (LD)]

My Lords, I rise to support the amendments in the name of the noble Lord, Lord Anderson of Ipswich, to which I have added my name. I really am intrigued to hear what the Minister will say about the fact raised by the noble Lord that at least 14 organisations still proscribed by the Government are not involved in terrorism and are therefore effectively proscribed illegally. The noble Lord’s amendments are designed to rectify that situation, requiring the Government to take action once a review has determined whether organisations currently proscribed should be proscribed or not.

It is not just a question of the organisations themselves; going back to previous measures in the Bill, anybody who supports these organisations could be convicted of a criminal offence, even though they are supporting an organisation that should not legally be proscribed. I am also very interested to hear from my colleagues on the Labour Front Bench why they would not support these amendments were the noble Lord to divide the House. We certainly would support him were he to test the opinion of the House.

[Lord Carlile of Berriew]

My Lords, the first thing to say is that organisations can apply to be de-proscribed; that should be on the record in this part of our debate. As I understand it, only one organisation has applied to be de-proscribed in recent years: the People’s Mujahedin of Iran. It was de-proscribed. The decision before the Proscribed Organisations Appeal Commission, or POAC, was contested on appeal by—

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Paddick

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

[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.

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Paddick

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

[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.