Counter-Terrorism and Border Security Bill

Debate between Lord Carlile of Berriew and Baroness Jones of Moulsecoomb

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Baroness Jones of Moulsecoomb]

My Lords, I have attached my name to this amendment because it is an issue that goes to the heart of civil liberties in this country. The Prevent strategy is of great concern to me and to tens of thousands of others, particularly campaigners and those from ethnic minorities. As a Member of the London Assembly and the Metropolitan Police Authority, I visited Prevent projects and heard from local people and the practitioners themselves. I can assure noble Lords that there is mistrust, and even distrust, of Prevent in many places. One project I saw appeared to work well, but many did not.

A person is referred for political re-education through the Prevent strategy for opposition to so-called “fundamental British values”. I think it is the Government who are undermining fundamental British values and I should be referring them to Prevent. The Government are challenging informed debate and transparent government. They cannot continue to justify Prevent with their internal Home Office reviews; it is time to shine the light of public scrutiny on the whole process.

I must ask: why would the Government say no to this amendment? If the Prevent strategy is a success, if it does not discriminate against Muslims, ethnic minorities and campaigners of all sorts, and if it does not infringe too far our rights and freedoms, what is the problem with holding a proper review and what is there to hide? An independent review would surely prove the Government’s case and force all doubters, like me, to back down. The Government would be celebrating Prevent in all its glory, not trying to cover up the facts.

In the absence of reliable assessments of the Prevent strategy, we are forced to conclude the exact opposite. The fears expressed by the Muslim Council of Britain—that Muslims are being disproportionately targeted and are increasingly fearful of unjustified state intrusion in their lives—must therefore be accurate. The concerns of social workers, teachers and academics that they have been conscripted as oppressive counterterrorism officers must be taken seriously, and the idea that the Government are wasting money and scarce police resources on chasing people who pose absolutely no threat of harm must be assumed to be true.

The Prevent definition of “extremism” is,

“vocal or active opposition to fundamental British values”.

Such a broad and meaningless definition means that too many people are getting caught in a trap. I urge the Minister to adopt this amendment and prove to us sceptics that Prevent is operating lawfully and effectively. As is often said in support of the Government whenever they want to curtail our rights, “You have nothing to fear unless you have something to hide”. I therefore have to ask: what are the Government hiding?

[Lord Carlile of Berriew]

My Lords, with great respect to the noble Baroness who has just spoken, we should put the record straight about what happened in the London Assembly. Its report, Preventing Extremism in London, published in December 2015, at which time I was chairman of the London Policing Ethics Panel, was broadly very supportive of Prevent. I gave evidence to the panel, including to the noble Baroness, who was its deputy chairman at the time. I gave my opinions and the panel took evidence from various sources. The noble Baroness produced a dissenting report, which is to be found on page 38 of the document. It excoriated Prevent, but she was in a minority of one. Since then the new Mayor of London—new since 2015—has produced statements broadly very supportive of Prevent, albeit of course seeking to secure improvements.

My second point concerns something I raised when I interrupted the noble Baroness, Lady Hamwee. I have been involved in many debates in which it has been said as a general proposition that Prevent is dangerous, that it is alienating communities and so on. If you say it often enough, people will start to believe it. But every single time I have challenged in such a setting, as I have this evening—I say this with great respect to the noble Baroness, Lady Hamwee—with the argument that Prevent programmes should be named so as to provide evidence for such criticism, evidence there is none.

I heard the reference to the Muslim Council of Britain; I respect it greatly, although not on this subject, I am afraid, where it generalises as badly as anyone else. If individual programmes in Prevent cause real concern, I urge those who have identified them to take their evidence to the Prevent group at the Home Office, which will deal with their concerns. The Home Office does not want to waste its precious money on Prevent programmes that prove not only unproductive but counterproductive. It is an absurdity to suggest that the Government, or anyone involved in this complicated field, wish to see money wasted in that way.

As somebody who has followed Prevent since it started—as was said, I wrote the review of the coalition Government’s policy on Prevent in 2010-11—I have been approached by people from government sources all over the world saying, “How do you do this? We wish to adopt this kind of policy”. Indeed, at one stage the United States placed in its embassy in London a very distinguished legal academic, Quintan Wiktorowicz, who worked with Waltham Forest London Borough Council in particular on its Prevent strategy. On a couple of occasions, I was present at discussions in Waltham Forest founded on the work done by Professor Wiktorowicz, who was placed in the London embassy to try to create a Prevent policy for the United States of America; he was sent there by the Obama Government. The reason he failed—if he will forgive my using that word—when he went back to America had nothing to do with what he found out in the UK; it was because of the extremely devolved nature of US government, which made it impossible to produce the sort of Prevent policy that exists in Great Britain.

I am not saying that Prevent is perfect, of course. Constructive criticism is always welcome. Those of us who spent our time buried in Prevent and going to see Prevent programmes all over the country—some of which were unbelievably successful—are always prepared to listen to criticism and lobby the Government to change some of the Prevent strategy. However, in this debate, as in many others, I have heard no evidence for that so far. We need to ensure that there is a proper review of Prevent. In my view, the Independent Reviewer of Terrorism Legislation is perfectly capable of spending a few extra days, for which he or she will be paid, carrying out such a review. That would make it part of a holistic review process, which would certainly meet the concerns of the noble Baroness, Lady Hamwee, and most other noble Lords who have put their names to these amendments.

Counter-Terrorism and Border Security Bill

Debate between Lord Carlile of Berriew and Baroness Jones of Moulsecoomb

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

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I start by making it clear that I am completely opposed to people encouraging the membership and support of terrorist organisations. I did not need to say that but I felt that I should.

However, Clause 1 casts the net far too wide and risks criminalising perfectly innocent behaviour. There is widespread concern in this House about the fact that it is far too wide. Therefore, my Amendments 2 and 4, alongside the other amendments in the group, seek to make this new offence a reasonable one. Without making significant changes to the clause it will be in clear breach of the European Convention on Human Rights. As currently drafted, the offence is too vague to be “in accordance with the law” and too broad to be a proportionate way of achieving a legitimate aim.

From the Government’s Explanatory Notes to the Bill it is clear that this clause is a response to the case of the Crown against Choudary, as we have heard, in which the Court of Appeal considered the existing Section 12 offences. The Explanatory Notes state:

“The Court of Appeal was clear that a central ingredient of the”,


existing,

“offence was inviting support from third parties for a proscribed organisation and that the offence ‘does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs’ ... This clause therefore provides for a new offence which criminalises the expression of an opinion or belief that is supportive of a proscribed organisation”.

It is therefore necessary for this House to consider Clause 1 in light of the Court of Appeal’s judgment in Choudary.

The focus in that case was on the meaning of “inviting support” in the existing Section 12(1) offence. There were additional questions of whether that offence was a breach of the European Convention on Human Rights. The answer to the first question meant that there was no breach, but using the court’s analysis is illuminating.

Without wanting to get into a legal wrangle, as we have done so often in the past, such as on the different between “agreement” and “consensus”, I have to explain the definition “inviting support”. The court used dictionary definitions. Inviting was taken to mean making a request; support was taken to include the provision of assistance, encouragement, advocacy and endorsement—a mix of practical, tangible and intangible support. On that basis, the court held that there was not a breach of human rights. Although the right to freedom of expression was engaged, it was a legitimate aim to restrict that right when it comes to inviting support for proscribed organisations.

Next, in accordance with jurisprudence from the European Court of Human Rights, the court asked whether the Section 12(1) offence was a proportionate response to the legitimate aim. If it was, it was lawful; if not, it would be an unlawful breach of human rights. In paragraph 70 of its judgment, the court determined the following:

“When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation. To the extent that section 12(1)(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified”.


This is where it becomes obvious to me that Clause 1 would be an unlawful interference in human rights. In fact, it is so obvious that I am surprised the Government could bring a clause of this sort before the House. Making a statement in the Bill that it is compatible with the European Convention on Human Rights is plain wrong.

Clause 1 seeks to create a much broader offence than the existing statutory one but in doing so, it crosses all the red lines that were identified as making the existing offence lawful. The existing offence does not criminalise the expression of views and opinions—free speech—whereas Clause 1 does. The existing offence is limited to “support”, whereas Clause 1 uses the broader term “supportive”, and the existing offence applies only to people with the requisite intent—a guilty mind—whereas Clause 1 extends to anyone who is “reckless” whether they meant to support a terrorist group or not.

The Bill casts the net far too wide. It risks criminalising all sorts of opinions that are supportive of a proscribed organisation. The Oxford English Dictionary definition of “supportive” is something that,

“provides strength by assistance, belief, or tolerance; providing sustenance or resources; sustaining; that provides evidence or authority; confirmatory, corroborative”.

Even expressing an opinion of tolerance would fall foul of this new offence. I believe that the Government have deliberately used the broader wording, so my Amendment 2 seeks to retain the existing word “support”. I would welcome the Minister explaining the Government’s reasoning and what effect they intend by using “supportive” in its place.

My Amendment 4 aims to do the same as Amendment 3, tabled by the noble Baroness, Lady Hamwee, which I support and am supportive of. Casting the broad net of guilty intent in this offence over people who did not intend to encourage support will catch so many innocent people; it is just plain wrong. It would include any expression of tolerance where a person, perfectly innocently and sensibly, advocates a ceasefire and peace talks with a proscribed organisation, if that person identified the risk that someone might feel encouraged to support the organisation as a result. Put simply, Clause 1 criminalises the search for peace, makes innocent people guilty and is an unforgivable breach of our human rights. I will vote against its inclusion in the Bill.

[Lord Carlile of Berriew (CB)]

My Lords, with great respect to the noble Baroness, I think that we have just heard a gross exaggeration not only about the effect of this clause but also its intention. Judgments as to whether organisations should be proscribed are of course expressions of an opinion by a Minister. They are not perfect judgments, and to that extent I support Amendment 5 tabled by the noble Baroness, Lady Hamwee, and others. The Independent Reviewer of Terrorism Legislation—I think that there are two former independent reviewers in the Chamber today—might well suggest in reports that a proscribed organisation should be deproscribed on the basis, for example, that it is better to deal with the organisation openly in debate than by proscription. I recall during my now somewhat historic time as the independent reviewer that there were strong debates about whether certain organisations should be proscribed or not.

With that reservation, it seems that this clause would achieve the following. First, it recognises that even in this relatively gun-free country, if someone expresses support in a certain way for a proscribed organisation, it may put some of our fellow citizens in mortal danger of their lives. There are plenty of examples of that having happened, and indeed there are examples of the person who has already been mentioned, Mr Choudary, himself a former lawyer, of having possibly achieved exactly that. It does not criminalise the expression of support, rather it forbids and criminalises the expression of support on certain terms as set out in proposed new Section 1A(b), and that is the test of recklessness. Recklessness requires awareness of the risk that is being taken by the speaker. I can see absolutely no reason to allow people to take a risk of which they are aware that potentially will put other people in mortal danger.