Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Rosser

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.

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Rosser

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

[Lord Rosser]

My Lords, as has been said, the Bill provides for a person to be questioned and detained under Schedule 3 powers and makes it an offence to refuse to answer questions in examinations. The draft code of guidance, which we have now seen, recognises that there may be a preliminary stage of questioning during which people may be screened before an officer chooses to officially question them under the schedule. During screening, a person is not required to answer a question they do not want to and the code of practice states that a person must be told when the screening ends and an official examination begins. The purpose of this amendment is simply to put the screening process, the right of a person not to answer questions and, equally importantly, the right of a person to be told when screening ends and questioning begins on to the face of the Bill.

The screening does not appear to be an insignificant process. The draft code of practice, which we have sought to enshrine in the amendment, sets out the kinds of questions that can be asked and the issues that can be raised during the screening process. It states that there is no requirement for officers to keep a record of a screening interaction unless the person is subsequently selected for a Schedule 3 examination. There will be circumstances in which there is a requirement to make a record of a screening interaction. Indeed, it also says that while the screening of persons should take only a few minutes—I do not know what “a few minutes” is in this context—it states:

“If it appears that this period will take significantly longer, the examining officer must conclude the screening process and either commence a Schedule 3 examination or notify the person that they have no further questions”.


Again, in a situation where they run out of time and decide to commence a Schedule 3 examination, a record of the screening interaction must be made.

It is not clear to us at the moment why no reference to this process has appeared in the Bill. One purpose of the amendment is to get an answer to that question since it would appear to be a part of the process under Schedule 3, which we have been discussing. I beg to move.

[Lord Anderson of Ipswich]

My Lords, for every person who is subject to a Schedule 7 examination, as I often used to report, some 10 to 20 others are asked light-touch screening questions on a consensual basis, as a result of which it is determined that a Schedule 7 examination is not necessary. The prevalence of screening questions may explain the discrepancy between the low and rapidly declining incidence of Schedule 7 examinations, on the one hand—I think they are running at around a quarter of the level they were when the noble Lord, Lord Carlile, handed over the post of independent reviewer to me—and, on the other hand, the perception of some people that they are stopped on a routine basis when they travel abroad. I reported in 2016 the example of a security-cleared government lawyer with a Muslim-sounding name who had been stopped by police on each of the last five occasions that he had left the country and on the majority of occasions when he re-entered it. On each occasion, as he acknowledged, he was stopped for screening questions only. Because screening questions are not recorded, there was of course no way of alerting ports officers of the previous fruitless stops.

I agree with the noble Lord, Lord Rosser, that the parameters applicable to screening questions need to be clearly set out under Schedule 3 to the Bill, as under Schedule 7. The draft code of practice, which I thank the Minister for providing well in advance, goes a long way towards doing that, although I am not sure that it cracks all the old chestnuts, one of them being how, if at all, one can administer screening questions to a coachload of people who are on their way to a possibly troubled part of the world.

As to whether screening questions should go into statute, the noble Lord is not alone in his provisional view. Senior ports officers have said to me—as I have recorded in the past—that if screening questions appeared in Schedule 7, we would all know where we stood. Against that, one thinks of the provisions in PACE Code C relating to “voluntary interviews”, which are not enshrined in the Police and Criminal Evidence Act 1984, no doubt because of the moral and social duty, as it has been described by the courts, that every citizen has to give voluntary assistance to the police. I approach this issue with an open mind and look forward to hearing what the Minister has to say. In particular, can she tell us whether she has consulted the Investigatory Powers Commissioner, who is to have oversight of Schedule 3 and, if so, what he had to say, because I suspect that his view may help to inform mine?

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Rosser

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

[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?

--- Later in debate ---

[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.