Extradition (Provisional Arrest) Bill [HL]

Lord Judge Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 4th February 2020 Lords Chamber

[Lord Judge (CB)]

My Lords, there was a beguiling opening to the debate from the Minister. “Really, this is no more than a new extradition-based arrest power.” And so it is. Of course, we all want criminals, whether they are British criminals or foreign visitors, to be arrested to face justice. The process envisaged in the Bill for this purpose is on the basis of a warrant issued in a foreign country, and then a certificate issued here by an authority designated by the Secretary of State. You may be arrested by a police constable or others—I need not go through them—without any pre-reference to any domestic judicial authority.

The reference to the domestic judicial authority occurs after you have been arrested. So the entire fairness of the process—its “trustworthiness”, to use a word that has been used in the papers—is dependent on the quality of the judicial processes available in the foreign country.

The six countries identified range from tiny Liechtenstein to probably the most powerful nation on earth, the United States of America. Speaking personally, I have no problem with them.

However, the Bill gives the Secretary of State wide powers. When did a modern Bill not give the Secretary of State wide powers? To the six territories currently listed there may be added 16 or 60, or every single country in the world, by the Secretary of State in making his or her decision. While I certainly excuse our present Minister from this, in the real world we are surely not going to be so naive as to believe that all sorts of motives—a possible trade deal, a plea just to be good friends with us, political beliefs, sympathy with a tyrannical regime—may not lead a Minister, at some time in the future, since elections bring different parties to power, to be subordinated to the single imperative that the only question which needs to be answered is that the country to be added to the list should have a credible, independent judicial system, so that when the request is received, it is based on an entirely—to use the word again—trustworthy system of administering justice. This is a huge power being given to the Minister.

Being modern legislation, that is not the end of it, of course. We have that monstrous ogre Henry VIII in full operation, tucked away in paragraph 29(2), by which regulations can be made which would

“amend, repeal or revoke any provision made by primary legislation”.

Then, we have the great advantage of the Bill going on to tell us what primary legislation is. I am sure we all know, but it tells us: every Act of this Parliament, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. All this is to be done by secondary legislation. We have to be tough about extradition, as I said, and the Minister is entitled to point out, as no doubt she will, that all this will be based on affirmative resolution.

I should like to focus attention on paragraph 29(6), which contains a power to annul regulations. That is a welcome addition to any Bill. This Bill would be so much more impressive and hold the balance so much better if all regulation-making powers, including the use of Henry VIII regulation-making powers, were made subject to annulment on the basis of a resolution of either House of Parliament. That, I respectfully suggest, would be proper and sensible parliamentary control over the processes. It would also provide us, the nation and its citizens with a serious safeguard against an overambitious Executive or, as the years unfold, what may become an unduly craven one bowing to a foreign power. Will the Minister consider at least reflecting on the constraints currently imposed on the annulment process? Will she also assure us that in whichever form the annulment process is finally left, the use of it by this House will not be treated as a constitutional outrage?

Offensive Weapons Bill

Lord Judge Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 30th January 2019 Grand Committee

[Lord Paddick (LD)]

In moving Amendment 40A in my name and that of my noble friend Lady Hamwee, I shall also speak to the other amendments in the group.

Amendment 40A is simply about the wording of the legislation, somewhat contrary to the Member’s explanatory statement. The other amendments are similar to those in our debate on Monday. Amendment 40A questions the way in which proposed new subsection (3) of new Section 141B is worded. It currently states:

“The seller is not to be regarded as having proved that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence unless, as a minimum, they prove that the following conditions are met”.


Surely it would be better to say that the seller is to be regarded as having taken all reasonable precautions and exercised all due diligence to avoid the commission of an offence if, as a minimum, they prove that the following conditions are met. That is effectively putting it positively rather than negatively.

Amendments 42A, 43F, 57B and 57C again turn the offences of delivering a bladed article to residential premises and delivery of bladed articles to persons under 18 from those for which there is an offence if charged into offences where, if the accused has taken all reasonable precautions and exercised all due diligence to avoid committing the offence, they do not commit an offence. We debated this way of legislating at our last sitting. In criminal law, there are two elements—actus reus and mens rea: the guilty act and the guilty mind. The offences in this Bill are completely without any examination of the mens rea until after someone has been arrested, detained and potentially charged. As this legislation is drafted, only after arrest and charge is it necessary to consider the mens rea; it is a defence for a person charged with an offence to prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of an offence. As the noble and learned Lord, Lord Judge, said on Monday,

“we should stick to the normal principles that have worked well for us: you are not guilty of anything and have not committed an offence unless your mental state was simultaneously as criminal as the actions you committed … This way of legislating for criminal justice is inappropriate and we should avoid it. We should certainly be very careful not to allow it to happen without us spotting it and stopping it”.—[Official Report, 28/1/19; GC 153.]

My Lords, we spotted it and we are trying to stop it. I beg to move.

[Lord Judge (CB)]

My Lords, I agree—particularly with the last observation made by the noble Lord, Lord Paddick.

[Baroness Williams of Trafford]

My Lords, as the noble Lord, Lord Paddick, says, these amendments return us to the debate we had on Monday about the proper construction of the offences in the Bill. We had a good discussion on Monday, and I will not cover the ground in the same detail as I did then.

Amendment 40A would alter the defence provided in relation to the sale of bladed articles. Section 141A of the Criminal Justice Act 1988 provides that it is an offence to sell, with some exceptions, articles with a blade or point to persons under the age of 18. It is a defence for a person charged with an offence to prove that he or she took all reasonable precautions and exercised all due diligence to avoid committing the offence. Clause 14 modifies the operation of the defence in relation to remote sales to include a number of conditions that must be met as a minimum. Amendment 40A removes the post-charge element of the defence and instead requires the enforcing agency to make a judgment whether the seller took all reasonable precautions before a charge is made.

I understand the noble Lord’s intention, but the defence provided in the Criminal Justice Act 1988 has been in place for quite some time. I am not aware of any problems or concerns with how the police, prosecutors and the courts apply the legislation. It has been in place for over 30 years, so it cannot be said that we are introducing a new construct into the criminal law.

Amendments 42A and 43F provide that failure to take all reasonable precaution in relation to the offence of delivering a bladed product to a residential address would be criteria to be taken into account before a person is charged. This is in contrast to the defence provided under Clause 18, which can be invoked when a person is charged with the offence.

Amendments 57B and 57C apply the same principles to Clause 20, which is concerned with the delivery of bladed articles sold by sellers based outside the UK. Clause 20 applies to delivery companies that have entered into an arrangement with a seller based abroad and provides that it is a criminal offence for a delivery company to deliver a bladed article into the hands of a person under 18. It is a defence for a person charged with an offence under Clause 20 to prove that he or she took all reasonable precautions and exercised due diligence to avoid committing the offence.

In practice, the enforcing agency—the police, the CPS or local authorities—will always consider whether the seller or the person who delivers the article has taken reasonable steps and exercised due diligence before bringing a charge. It would not be in the public interest to bring a prosecution if the enforcing agency considers that it is very likely the court will find that the seller had taken all reasonable precautions to avoid committing the offence. As I said before, this type of defence has been in place for some considerable time in relation to the sale of articles with a blade or point, and we are not aware of any issues in its operation.

In short, the approach taken in the Bill both in relation to knives and corrosives is well precedented. The existing law has operated for 30 years without difficulties, and it would further complicate the law and lead to confusion if we now adopted a different approach in the Bill. I suspect—as in the discussion on Monday—noble Lords will want to return to this issue, but for now I ask the noble Lord to withdraw his amendment.

Offensive Weapons Bill

Lord Judge Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 28th January 2019 Grand Committee

[Lord Paddick]

My Lords, when the police are told that the offence is not committed if somebody has a reasonable excuse, the clear message sent to them is that they need to investigate the matter there and then to establish whether that reasonable excuse exists. If a Bill, as in this case, says that somebody who carries a corrosive substance in a public place commits an offence, it sends a message to the police that investigation of any reasonable excuse that the person may have can wait until later because, according to the legislation, the defence is available only once the person has been charged.

[Lord Judge (CB)]

My Lords, I support the Bill. The issue of the misuse of corrosive substances and all other kinds of offensive weapons is too obviously something that has to be addressed. However, I want to raise an issue which is troublesome in the context of the amendment.

Unless an offence is absolute—and we take a strong stand against absolute offences—it is a long-standing principle of criminal justice that you are liable to conviction and sentence, or to go back earlier, to be arrested and charged if you have done something or acted in a way prohibited by the law. Fine—but the proviso to that is, “Provided that simultaneously your state of mind was itself similarly criminal”. You may have done it intentionally or recklessly. There are all sorts of ways in which your state of mind can be identified as criminal but it is of the essence that these two concepts stand or fall together.

This statute asserts that, where certain facts are proved, you have committed an offence—full stop. Without reference to your state of mind or any other circumstance, the offence is established and you are therefore liable to be arrested. It then says, “We shall graciously allow that, in certain circumstances, you may have a defence”, and if you prove them you would have a defence. Perhaps the most gracious of all the circumstances is to be found in Clause 2(6) to (9), where a whole series of them have to be established. You then have a defence, but you have been arrested and may have been charged. Nobody has to examine these two concepts together and say, “The evidence shows that he had a guilty mind”, or “He was reckless”, or whatever it might be.

What I really want to raise in Committee is that we should stick to the normal principles that have worked well for us: you are not guilty of anything and have not committed an offence unless your mental state was simultaneously as criminal as the actions you committed. That is what we believe. I do not want to be overportentous; I cannot see the Minister making any concessions about this. However, I would like to put down a marker. This way of legislating for criminal justice is inappropriate and we should avoid it. We should certainly be very careful not to allow it to happen without us spotting it and stopping it.

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[Baroness Hamwee]

The noble Lord has made a very interesting point about the phrase “all reasonable precautions” and “all due diligence”. I do not know whether the noble and learned Lord can help the Committee, but that looks like a normal phrase. I did not read it in quite the same way as having to take every possible step that might be a reasonable precaution. I wonder whether the officials might help us as to the provenance of the phrase before Report.

[Lord Judge]

If I might say so, “all” means “every”. Without “all”, you have just to take reasonable precautions and show due diligence. Once you put “all” in, you fall foul of any particular point you could have but did not look at and did not do.

[Lord Kennedy of Southwark]

This is something we talked about earlier. If we are to put “all” in, it is not unreasonable to have some sort of guidance in the Bill to protect people, otherwise people are just left hanging.

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[Lord Paddick]

If I could assist the Committee at this stage, these amendments relate to the offences of selling and delivering to young people, not to the possession of corrosive substances by young people. We are talking about sending the owner of the corner shop or the Amazon delivery man to prison for delivering these substances into the hands of people who are under 18. I want to ensure that noble Lords are aware that that is what we are talking about in this group of amendments.

[Lord Judge]

My Lords, I am grateful to the noble Lord, Lord Paddick. Views have been expressed here which I respect but do not share. The seller will be, or is likely to be, an adult, and certainly will not be a vulnerable child. The purchaser, or the person to whom the product is sold, may be a very young child. It may be a 17 year-old who lives in an area where there is an awful lot of violence and who has a bad record which is known to the seller. We have to be careful. I am implacably opposed to minimum terms—we may come to that at some stage—because minimum terms do not do justice. However, a person who sells to a vulnerable child, or to somebody who leads a gang or who has been given a community sentence first time round, with a condition that he is prohibited from selling corrosive products but continues to do so, merits a prison sentence as punishment. Prison is not just about rehabilitation. Short sentences do not do much good; indeed, the evidence suggests that some of them do a lot of harm. However, some short sentences do some good because they punish the offender. Therefore, I cannot support these amendments.

[Lord Kennedy of Southwark]

My Lords, as you heard, Amendments 4, 5, 20 and 21 in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, seek to replace the punishment that a person is liable to get on conviction, as set out in the Bill, with a community sentence. Amendments 6 and 7 allow conditions to be added to prohibit offenders from selling corrosive substances.

I am very sympathetic to these amendments. We have heard about the debate that is going on in Government at the moment between the justice department and the Home Office on sentencing policy. Generally, as we have heard, short-term sentences are not the right thing to do; they can be expensive and counterproductive, and they are not long enough to deal with a person’s issues. They can actually do more harm than good: the person can lose their job, home and family and then of course they have to go back out into the community. These amendments concern the delivery driver and the owner of the corner shop—the person who sold the products—not the young person who may want to commit other offences.

I agree with the noble and learned Lord, Lord Judge. Magistrates have the ability to look at the case in detail and decide on the best punishment. It could be that, for a second or third offence, prison might be the right place to put this person, because they will not listen. Equally, I want to make sure that the magistrates deciding these cases have that ability because they will know whether the offence merits a community sentence. I want to hear that a suite of punishments is available to the court and not have it driven down that they must impose a mandatory sentence. On that basis, although I have some sympathy with the amendments as they are, I want a much broader suite that enables the court to look at the evidence before it and make a sentence that it believes is appropriate.

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[Lord Deben (Con)]

I hope my noble friend will listen carefully to what has been said, because there is an increase in the anger constantly found around the country. I do not want to get down to some of the reasons for that, but there is certainly an increase in anger. The sort of people who will be prevented from buying those products are, of course, those who are most likely to give way to anger. I have recently come from a meeting today in which a senior representative of one of our largest supermarkets said how much more there is now a problem with people who will not take the advice of the shop worker that this is not possible.

I really think the Government have to come to terms with the fact that we are a much less willing society. We are not a society that is prepared to go along with these things, as once was true. So although USDAW has had this campaign for a long time, it is more necessary now than it might have been 10, five or even two years ago. The circumstances we are facing at the moment are likely to make more people more angry, and therefore it will become more acceptable. Anger, and showing anger, on the roads or in shops is more accepted by society than it ever has been before—certainly in modern times.

I say to my noble friend that it may well be sensible to make the point specifically that we are asking, indeed insisting, that shop workers—I will not argue whether they are acting as law enforcement people or not—take a stand against people who, by their nature, are likely to be angry, to demand that the shop worker give way to them and to use intimidation for that purpose. I cannot think of a reason why you should not repeat it. I know what the Government often says—all Governments do—because I was a Minister for a very long time and I know I used to say it. I would say: “There is no need for this. We’ve got this and we’ve got that and we’ve got the other”. If it is not actually harmful, perhaps it is a good thing to put it in. I am not sure it is enough that other things cover it. If this reminds people that there is a specific protection for shop workers in this situation, where we asking them to take a stand, that is a valuable thing. I hope my noble friend will take it seriously.

[Lord Judge]

We are devising a system which will impose considerable burdens on sellers. The arguments in favour of this amendment are absolutely obvious. May I make a completely separate point, though? The amendment is brilliant legislation too, unlike the rest of the Bill. Here we have a clear statement of what act you have committed—obstructing the seller—and simultaneously the state of mind you are in: you are acting intentionally. Intention to obstruct is a perfectly clear, simple piece of legislation that anybody could understand. There is an argument that there are various ways those who work in shops can be protected, against violence and so on, but this is very limited in what it is seeking to address: obstructing somebody. In these circumstances, when the burden is so heavy on the seller, they ought to be protected.

[Lord Paddick]

My Lord, if I may have a second go, until very recently I did not support particular protections for shop workers. Being from a policing background, I know we have taken the steps in the law to protect law enforcers, and recently there has been a Bill to protect all emergency workers in this way. But here we are talking about people who are intent on violence; they are looking to get their hands on knives or corrosive substances to commit violence. That is the sort of person that these shop workers are likely to confront, and that is why I am now convinced that this is the right thing to do.

Financial Services (Implementation of Legislation) Bill [HL]

Lord Judge Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 8th January 2019 Lords Chamber

[Lord Judge (CB)]

I am not proposing an amendment to an amendment, but I wonder whether it would help clarity of thinking for all of us and for the Minister, when he is reflecting on the various arguments that have been put forward in the debate, if we took out “(i)” and “(ii)”, put “(b)” before “any provision”, and took out “but” and that “(b)”, so that the provision read:

“corresponding, or similar, to the provisions, or any of the provisions, of any specified EU financial services legislation, or

(b) any provision that might”.

We could then limit the adjustments point to the second part.

[Lord Bates]

Her Majesty’s Government are, of course, very frugal and are always willing to take free legal advice, particularly when it comes from such a distinguished source. I shall add that suggestion to the others that I will take away. We appreciate it. Oh, something has miraculously appeared. It cannot be in response to the last suggestion—that would be far too quick—but is in response to the point made by the noble Baroness, Lady Kramer. “Adjustments” applies to both provisions, but the limitations come from “corresponding, or similar” and the limitation implied by the word “adjustments” itself in the glossary. Just for clarification at this stage, let me add the definition that we are working to so that people can see it. “Adjustments” means that it will be possible to exercise the power to achieve the aim of the original EU legislation only with an option to make adjustments to account for the specificities of UK markets, rightly reflecting the fact that we will no longer be a member of the EU. It will not therefore allow for wholesale changes to the character and intent of the original legislation. “Adjustments” is an inherently limiting word. With that, and with the commitments that I have given to reflect on the comments made by noble Lords and the legal advice that has been given, I invite the noble Baroness to withdraw the amendment—

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Frankly, we have managed this painful transition pretty well, especially given what a hopeless task it is, as was brought out by my noble friend Lord Adonis. Every speech starts by citing the relevant paragraphs of the Explanatory Memorandum. Precisely the same thing is reproduced in every one; namely, “This is only for no deal and there is going to be a deal”. Fearing as we do a no-deal situation, we will tighten these things up and government should meet us and provide an appropriate forum for getting the right balance. That may involve a little flexibility, as is suggested in Amendment 6.

[Lord Judge]

I apologise for not leaping to my feet before the noble Lord, Lord Tunnicliffe; I was looking at something else—I am very sorry. Perhaps I may be allowed to say just a few words in support of the general idea behind Amendment 6.

We are going to embark on a huge body of secondary legislation. I have spoken in this House on a number of occasions about secondary legislation and I think that my views on its dangers are quite well known to a number of Members. One problem with secondary legislation, if we are honest, is that we have no idea what we are looking at. When secondary legislation comes through, I doubt whether more than 1% of the Members of this House actually look at it; I doubt whether more than 5% of the Members of the other place look at it, and it goes through.

We are here dealing with very complex legislation and doing it as best we can in a hurry, in the demanding situation that we are in. Would it not be helpful for an explanation to be given about any individual piece of secondary legislation, identifying, for example, the legislation in the EU with which it corresponds or to which it is similar? We could then look at it and say, “Yes, that’s fine. No need to argue about it”. Otherwise, we tend to leave it so that we examine it blind. There is something to be said for us knowing what is going on.

[Lord Bates]

My Lords, I thank noble Lords on all sides for their constructive suggestions during this short debate. I am grateful for these contributions. The noble Lord, Lord Tunnicliffe, made a fair point about the approach we have taken on considering secondary legislation in Committee. We have brought through 16 statutory instruments so far—we have the joy of another four awaiting us in Grand Committee tomorrow afternoon—out of a total package of some 60, 47 of which will use the affirmative procedure. So there is an element of scrutiny. The noble Lord rightly focused on the provisions of the EU withdrawal Act, which is the substance of Amendment 7, but then we were dealing with known entities and rules.

In introducing this amendment, the noble Baroness, Lady Bowles, made a very fair point and the noble Baroness, Lady Kramer, added to it. If I am paraphrasing her correctly, she recognises that, had she not been there, the legislation coming across to us might not have been dealt with in the interests of the United Kingdom financial services industry. I agree with that, from what I know of her role on that committee in that Parliament. Her input—and that of other members—at that stage was vital in shaping the legislation which subsequently came across. We thank her for that service. She is no longer there and, in the scenario for the future files that we are dealing with, neither will her successors be. Therefore, there needs to be a difference in the way these are treated—between the narrow definition in the EU withdrawal Act, when we knew what we were dealing with, and directives and regulations into which we may have had no input and no responsibility for shaping. These could, potentially, be damaging to the UK financial services industry. There is a long way to go with this debate, but that is the crux of it.

I turn to Amendments 2, 4 and 6, the aim of which is to require the publication of a report three months prior to the exercise of the powers under the Bill. This report would need to explain any policy adjustment or decision to omit aspects of the originating file. The noble and learned Lord, Lord Judge, also referred to this. I reassure noble Lords that the Government’s clear intention would be to set out this information in the reports currently required by the Bill.

Further to that, as is standard practice, the Government would of course seek to engage with interested parliamentarians and the industry on the legislation before taking any statutory instruments forward. Where the secondary legislation omits aspects of any EU files, it would certainly be in the public interest to be open about the choices the Government have made in not implementing them.

Regarding the requirement to publish the reports three months ahead of each exercise of the power, the Bill currently sets the requirement that any implementing legislation be subject to the affirmative procedure. This would require laying the relevant statutory instrument before Parliament, and an accompanying Explanatory Memorandum setting out the policy intent, before the debate on the SI itself and well ahead of implementation. This is the established process for scrutinising such statutory instruments and for this reason it is the model we have chosen to follow.

I am also mindful of the fast-moving nature of financial services. In particular, there may be a need to respond quickly to market developments, and it may be important to avoid imbalances with the EU for even a short period—for example, where the files may be of a deregulatory nature. With respect, I suggest that a three-month gap between a report and laying is too long to respond to market developments. Such a three-month requirement would place at risk the basic aim of the legislation, which is to safeguard the reputation, competitiveness and efficiency of UK financial markets. However, having listened to the points that the noble Baroness, Lady Bowles, made in moving her amendment and to the subsequent points of the noble Baroness, Lady Kramer, the noble Lord, Lord Tunnicliffe, and the noble and learned Lord, Lord Judge, I am willing to consider, ahead of Report, exactly how a process might run in the future to keep noble Lords better informed. Just to manage expectations, we will probably regard three months as too long for what might need to be very fast changes to ensure that UK financial services are not disadvantaged, but I signal my willingness to discuss the issue with the noble Baroness and see whether we can find an acceptable way forward.

Counter-Terrorism and Border Security Bill

Lord Judge Excerpts

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

[Baroness Hamwee]

My Lords, my noble friend’s curtain-raiser has covered a great deal of the ground. I will speak to Amendments 83, 84, 85, 87 and 88, which come from the Joint Committee on Human Rights and seek to ensure that, under Schedule 3 to the Bill, detainees are informed of their rights and provided with timely and confidential legal advice in all four jurisdictions. It is because there is more than one jurisdiction that there are a number of amendments.

We are concerned that the safeguard of access to a lawyer is not adequately protected under this Bill. In particular, it is not clear that an individual will even be informed of his right to request access—apparently, this is available only on request. Access to a lawyer may not be available when a person is questioned initially; it may be delayed. In our view, it is not sufficient to rely on a code of practice in this area. The legislation should be adequate in itself and, as regards access, unqualified or very close to unqualified. I will come to that in a moment.

The Government told the committee that a code of practice would make clear that permission to seek legal advice should be permitted when “reasonably practicable” and that the,

“restrictions are to mitigate against the possibility of an examination being obstructed or frustrated as a result of a detainee using his right to a solicitor”.

Leaving aside whether we should accept the second point—and I do not think I do—it is my view that the two statements are barely consistent or compatible.

My noble friend quoted the Government’s response that legal privilege might be used to pass on instructions to a third party through intimidation or a coded message. These powers, or restrictions, unjustifiably interfere with the right to timely and confidential advice and therefore, ultimately, with the right to a fair trial if there is a prosecution. I make that point because the Joint Committee approaches everything from the point of view of human rights, the right to a fair trial being one. There is not in the Bill a sufficient safeguard against the arbitrary exercise of the powers.

The last time I recall there being a question on legal privilege being regarded as a problem by the Government, I sat and listened in a Minister’s office to something like a seminar with the Minister and two very senior lawyers—both Members of this House and both of whom are here this afternoon—who articulated very effectively and authoritatively what I would describe as my own queasiness about the suggestion that access to a solicitor should be restricted. They dealt very effectively with the safeguards that exist against dodgy lawyers, if I may put it like that. After all, this issue is not peculiar to this situation. As my noble friend said, there have been suggestions such as the pre-approval of vetted panels of lawyers.

I am not quite convinced—we will hear from the noble Lord, Lord Rosser—that Amendment 86, tabled by the Labour Benches, meets the Government’s points or deals with the principle, but we urge the Government to consider how a client’s fundamental human rights in this area should be protected, because there are other ways of dealing with this.

[Lord Judge (CB)]

My Lords, I invite the Government to think rather carefully about this. This provision enables an individual to be stopped, detained and searched—it is true that it is not an intimate search, but it is a strip search—and his or her property to be detained. It really should be elementary that he or she should be able to speak to a lawyer of some kind within the ambit of the amendment of the noble Lord, Lord Marks, if only to be told, “Yes, they do have these powers. It would be rather a good idea for you to comply”.

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[Lord Anderson of Ipswich]

My Lords, this amendment goes to the purposes for which the Schedule 3 power can be used. It raises what I believe is an important point of principle, to which there may, however, be a pragmatic solution. Schedule 3, like Schedule 7, contains perhaps the most extensive police powers anywhere in the statute book, extending to questioning, with no right to silence, detention, the taking of fingerprints and DNA samples, and the downloading of mobile devices and the long-term retention of their content, all without the need for any objective or even subjective suspicion of wrongdoing. Those powers are already used under Schedule 7 by police of all ranks, at very short notice, in seaports and airports both large and small, and anywhere within a mile of the Northern Irish border. Their extraordinary strength makes it all the more important that the purpose for which the powers can be used is clearly defined and understood.

Schedule 7 is limited to the purpose of determining whether someone is a terrorist. Having learned from intelligence reports that it was in practice being extensively used also for the purpose of determining whether people were involved in proliferation or espionage, I suggested some years ago, as independent reviewer, that the reach of the power could usefully be extended to these other purposes. This would have put practice in accordance with the law, and it would have avoided the absurdity of having to pretend that David Miranda, stopped under Schedule 7 when carrying documents through Heathrow Airport stolen by Edward Snowden, might have been a terrorist, when more obvious explanations, falling outside the scope of Schedule 7, suggested themselves.

After the Salisbury incident, this suggestion found favour with the Government. Schedule 3 powers, it is proposed, may be used for counterproliferation and counterespionage, and to determine whether persons crossing the border are involved in other forms of hostile activity, such as assassination, whether or not with biological weapons. For myself, I entirely support that objective. Where I part company with the Bill is in the suggestion that these very extensive powers, memorably described by my noble friend Lord Carlile in his regular talks to the police as a Ming vase—precious and to be treated with very great care—should be used in order to determine whether a traveller has been engaged in activity which is perfectly lawful.

That is the consequence of paragraphs 1(6)(a) and 1(6)(b) of Schedule 3. National security, as is well known, is nowhere defined in legislation, or even in the draft code of practice. The concept of threats to the economic well-being of the United Kingdom is more nebulous still and as the noble Lord, Lord Paddick, said, it is not even linked in Schedule 3, as it is in other contexts, to the concept of national security, let alone to a concept as specific as the critical national infra- structure, to which the Minister referred earlier. Acts falling into these categories need not be crimes. Indeed, they need not even be carried out for or on behalf of a foreign state; it is enough that they are judged by the officer on duty to be in the interests of such a state.

It is quite true that MI5 is tasked by Section 1 of the Security Service Act 1989 with the functions of protecting national security and safeguarding the economic well-being of the United Kingdom from foreign threats. No one would quarrel with that. My unease stems from the proposal that the police be given new and very strong coercive powers, powers that intrude into civil liberties and that are not allowed to our intelligence agencies, for the purpose of determining whether persons may have acted in ways that are not contrary to the law.

I am concerned by that. The police are entrusted with executive powers for the purpose of detecting crime and enforcing the criminal law. We have a wide range of offences relating to CBRN materials, espionage, sabotage and other types of hostile state activity. If that range is insufficient, or if the sentences are too short, as the Minister indicated she thought might have been the case with some of the lesser offences under the Official Secrets Act 1989, it is open to the Government to seek change. They could change the law on official secrets or change their own definition of serious crime for the purposes of the Bill, as they apparently had no difficulty in doing in the Data Retention and Acquisition Regulations. I see the noble Lord, Lord Paddick, nodding ruefully: those regulations were considered only very recently by the House. I think that in that case the definition was reduced to 12 months, so if the issue is the sentences of only two years for lesser offences under the Official Secrets Act 1989, that is worth thinking about.

The Bill as it stands would allow these strong coercive powers to be used by any police officer for the purpose of defining whether people have acted in undefined ways that the Government may not like but have not chosen to make unlawful. I am not sure that I can think of any precedent for this, and I would be grateful if the Minister would tell me if she knows of any. In their human rights memorandum, the Government rely heavily, in relation to Schedule 3, on the majority decision of the Supreme Court in the case of Beghal on Schedule 7, but in Schedule 7 the scope of non-consensual police powers is strictly defined and limited to the detection of serious criminal activity. That is certainly not the case here.

My noble friend Lady Manningham-Buller, who I know cannot be in her place at the moment, thought that the current version of the schedule could perhaps be swallowed as a temporary patch—perhaps pending the amendment of the Official Secrets Act or a change to the definition of serious crime. I am not very reassured by that. Temporary patches sometimes have a way of turning into slippery slopes. I shall listen carefully to the Minister, but I wanted to signal by this amendment that I am troubled.

[Lord Judge]

I support this amendment, as I have supported every one of my noble friend Lord Anderson’s amendments to the Bill. Every time he has spoken during our debates and said things that are agreeable to the Government, he is wise and elegant—I cannot think of all the many complimentary adjectives that have rightly been paid to him. When he raises a point with which the Government do not agree, can they please reflect that he is wise, elegant and so on and so forth, so that his submissions to the Government are taken with the seriousness they merit? I entirely support the noble Lord’s expressions of anxiety about the breadth of this provision. If I may say so, we could make life much easier for everybody who has to administer it, not least the examining officer, if we just reflected on a way of amending it slightly.

I added my name to the noble Lord’s amendment. I support it. But I have listened to the debate this afternoon and I see that there are problems with it, in particular the problem raised by the noble Baroness, Lady Manningham-Buller, who, as has just been said, is not now in her place. But we really could turn sub- paragraphs (6) and (7) into a much simpler piece of legislation by saying that an act is a hostile act if it is an act of serious crime and then at sub-paragraph (7)(d) defining serious crime—I know it is defined differently in different parts of terrorism legislation, but this is a new power, in effect producing a new scheme and a new way of administering it—if on conviction the offender would be liable to a term of imprisonment of two years. That, I think, would cover all the various matters raised earlier by the noble Baroness, Lady Manningham-Buller, and it might make life much easier for everybody.

Counter-Terrorism and Border Security Bill

Lord Judge Excerpts

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

[Lord Anderson of Ipswich]

My Lords, I am sure that all noble Lords will agree that it is unjust to expose a person to prosecution for supporting a proscribed organisation when that organisation does not meet the statutory condition for proscription. That condition is being “concerned in terrorism”, a phrase defined in the Terrorism Act 2000 and elucidated by the Court of Appeal in the PMOI case—the only case on deproscription to have reached a final judgment. The Bill does not seek to amend that condition. Yet precisely such an injustice exists today and will be worsened by the Bill, and in particular by Clauses 1 and 2, which extend the substantive reach of the proscription offences, and by Clause 6, which extends their geographical reach.

No sensible person would deny that the likes of al-Qaeda, Daesh or indeed National Action, three of whose adherents were convicted this morning, are concerned in terrorism. However, our ever-lengthening list of terrorist groups features quite a few that, to put it bluntly, simply should not be there. In June 2013, as independent reviewer, I reported publicly that a preliminary analysis by the Home Office itself had identified 14 groups, some of them already removed from equivalent lists in other countries, that no longer met—or appeared no longer to meet—the statutory test.

Some of them had not done so before the Terrorism Act 2000 came into force. To the 14 should no doubt be added some Northern Irish groups. I cited the example of the women’s group, Cumann na mBan—any involvement in violence far in the past and its centenary celebrations recently attended by the Irish President—in debate on Amendment 32.

Confronted with this evidence and recognising that there was no track record of deproscription by the Home Office, even in those rare cases when someone was brave enough to ask for it, the then Home Secretary, the current Prime Minister, came up with a principled solution: a programme of deproscription to be completed during the first part of 2014 and to be informed by the internal reviews that were, at the time, still conducted every year, and which a High Court judge had described as,

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

But principles were not enough. The solution failed, despite the best efforts of the Home Office, because proscription of international organisations, particularly separatist organisations, is seen in some quarters as a cost-free way to please foreign Governments—although I suggest that it could not be described as cost free for members of the relevant communities in the UK, who are liable to find themselves under enhanced suspicion when an organisation claiming to represent their community is deemed to be a terrorist group. I reported also on that.

Furthermore, in Northern Ireland, where, as far as I know, there has never been a system of annual review, the non-statutory solution was never even attempted. Embarrassed by its failure, the Home Office discontinued even its former practice of annual review, because it was apparent that reviews determining that the statutory condition was not met were simply never acted on.

This sorry state of affairs persists today. I described it in my final report of December 2016—I am sorry if the phrase is strong, but it is the strongest phrase I ever used in six years as independent reviewer—as an,

“affront to the rule of law”.

Fortunately, there is a solution—and by no means a radical one. The amendment would reinstate the internal reviews that the Home Office always used to operate and extend them to Northern Ireland. By placing the Home Secretary and the Northern Ireland Secretary under a statutory duty to publish and act on the conclusions of their reviews, it would allow them to resist those who, for reasons of foreign policy or because the topic is simply too difficult, would frustrate the clear application of the law.

The amendment will do nothing to endanger us. On the contrary, it will preserve us from the unfortunate tendency, born of misplaced expedience, to use anti-terrorism powers in circumstances where Parliament itself has decided that they should not apply. I beg to move.

[Lord Judge (CB)]

My Lords, it is very simple really, is it not? We spent time in Committee rightly debating the problems of trying to criminalise expressions of opinion or belief and identifying that a proscribed organisation should be one that none of us should support or encourage. Fine. The essence of the problem, however, is this. We should be allowed to express opinions and beliefs about organisations which are not proscribed. That is elementary, and this House will not need a disquisition from me about the importance of being able to do so. The problem is this. We are not in a position to express opinions about organisations which are currently proscribed which should no longer be proscribed or whose proscription should have been removed years ago. That is an affront to the rule of law, and I therefore support the amendment.

[Baroness Manningham-Buller]

I, too, support the amendment. As the noble Lord, Lord Anderson, said, the criteria for proscription are clear. They are concerned with terrorism commission, promotion, participation and engagement. As the noble and learned Lord, Lord Judge, said, much hangs on proscription because of the offences that follow from it, so it is critical that we get it right.

I was not entirely surprised to hear from the noble Lord, Lord Anderson, that the Home Office had agreed that up to 14 international organisations were wrongly proscribed, not including those in Ireland. From my past experience, I remember pressure from the Foreign Office, in particular, to consider as terrorists groups who were just serious irritations to the conduct of foreign policy. Because I have not kept in touch with these things, I did not imagine that that was still a problem, but it clearly is.

It seems to me that the amendment is pretty easy and patient for the Home Office to follow. It is more than just good housekeeping. If we make decisions in the context of the Bill on the basis of wrong information on who is proscribed, the whole system is drawn into disrepute and natural justice is offended. Looking back through the papers, at one stage the Home Office defended itself by saying that there should be a cautious approach to deproscription. That is indefensible if it itself admits that a number of the organisations proscribed should not be.

Counter-Terrorism and Border Security Bill

Lord Judge Excerpts

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

[Earl Attlee]

My Lords, several noble Lords have opposed Amendment 6, in my name, partially on the grounds that it does not define what “journalism” means. That definition is going to be a problem for my noble friend the Minister in due course, because she will tell us that journalists have nothing to fear from the new Act. It would be helpful if, in due course, she writes to noble Lords to tell us what she means by “journalism”.

[Lord Judge (CB)]

I suspect that the discussion about journalism and journalists focuses the Committee’s attention on these provisions. I share the views expressed in the House that there should be no special position for journalists. When they exercise their rights to freedom of expression they are simply exercising our rights to that freedom and to looking at other people’s expression. Does the current provision in the Bill run a serious—or any—risk that a genuine, bona fide journalist, examining the issues without any criminal intent at all, may be caught? If so, the provisions need to be re-examined; if not, not.

[Lord Paddick (LD)]

My Lords, I am reminded of the words of the noble Lord, Lord King of Bridgwater, at Second Reading. He said that the provisions of the Bill must be “necessary” and “proportionate” but that we may not agree on what that means. The debate so far has reflected that.

I support all but one of the amendments in this group. I apologise to the noble Earl, Lord Attlee, for having some reservations about his amendment. Amendment 1 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, highlights the fact that this offence should be part of a pattern of behaviour—and not a single instance that could well be inadvertent, as the noble Lord, Lord Harris of Haringey, has just suggested.

4.30 pm

Amendment 2 in the name of the noble Baroness, Lady Jones of Moulsecoomb, necessarily tightens up the very loose term “is supportive of” by substituting “supports”. I am grateful to Liberty for its briefings on this group of amendments, on which I intend, in part, to rely. As my noble friend Lady Hamwee has explained, and as the Joint Committee on Human Rights concluded in 2006:

“Speech does not naturally reside in the realm of criminality. This is why the element of intention should always be attached to speech offences”.


A reference has already been made—by the noble Baroness, Lady Jones of Moulsecoomb, for example—to the Court of Appeal case R v Choudary and Rahman, which concluded that,

“the criminality … lies in inviting support”.

It continued that,

“the expression of views and opinions, no matter how offensive”,

should not be criminalised,

“but only the knowing invitation of support from others for the proscribed organisation”,

as this would otherwise amount to interference with Article 10 of the European Convention on Human Rights, which provides the right to freedom of expression.

As my noble friend Lady Hamwee has said on Amendment 3, to which I have added my name, this amendment restores what we consider to be the vital element of knowingly encouraging support for a proscribed organisation by inserting an intention to encourage support. Amendment 4, in the name of the noble Baroness, Lady Jones, has a similar effect.

Amendment 5, in the names of my noble friend Lady Hamwee and the noble Earl, Lord Attlee, to which I have added my name, provides an exception where a person is arguing that an organisation should not be proscribed. We have just heard from the noble Lord, Lord Anderson of Ipswich, that there are currently proscribed organisations that should not be proscribed. The noble Lord seeks to bring forward an amendment that he has already referred to, later in the Bill, to ensure that proscription decisions are regularly and proactively reviewed. It cannot be right that the noble Lord—or the noble Lord, Lord Hylton, or anybody else—should be committing an offence if they argue that an organisation is wrongly proscribed.

As I have suggested, I am slightly nervous about Amendment 6 in the name of the noble Earl, Lord Attlee, and the noble Lords, Lord Rosser and Lord Kennedy. I can see their objective, but claiming that an opinion or belief was published or broadcast for the purposes of journalism could allow those deliberately expressing or encouraging support for a proscribed organisation to claim this exemption.

This clause criminalises expression of opinion or belief, contrary to the fundamental human right of free expression, despite what the noble Lord, Lord Carlile of Berriew, has said. The existing offence, under Section 12 of the Terrorism Act, is comprehensive. It covers somebody who invites any kind of support for a proscribed organisation, or arranges, or assists in arranging, a meeting in support of a proscribed organisation, or a meeting addressed by someone who belongs to, or says they belong to, a proscribed organisation.

I appreciate that the Government want to be seen to be taking further action, and I accept what the former independent reviewers of terrorism legislation have said about the gap in the legislation. But I believe that this section strays beyond a necessary and proportionate interference with freedom of speech, even where balancing the public’s right to life. I therefore agree with my noble friend Lady Hamwee that Clause 1 should not stand part of the Bill.

--- Later in debate ---

[Baroness Williams of Trafford]

I look to the cavalry behind me to answer that as I am not an expert in criminal law, but noble and learned Lords might wish to say whether such offences exist.

[Lord Judge]

I do not see myself as a horse and therefore I am not the cavalry, but some hate crimes are rather seriously deficient in relation to these issues.

[Baroness Williams of Trafford]

Yes, the noble and learned Lord is quite right. Many of them would be caught, particularly in an online context, expressing an opinion quite poisonous in nature and intended to cause harm.

As a result of the gap, it has not been possible for the police to act against prolific and high-profile preachers of hate—as the noble and learned Lord has just pointed out—who have made highly inflammatory public speeches that are very clear about the speaker’s support for a terrorist organisation and that are, on any reasonable assessment, likely to cause the audience to be influenced to support the organisation. Prosecution has not been possible in these cases because the statements made cannot be proven to amount to an “invitation”—a deliberate act of encouragement—to support the group. The gap that the law needs to address concerns individuals who are reckless as to whether they will cause harm to arise.

Under Amendments 3 and 4, however, in the names of the noble Baronesses, Lady Hamwee and Lady Jones, this gap would not be addressed. They would remove the recklessness test and replace it with one that effectively repeats the existing position, so it would still be necessary to prove the same deliberate act of encouragement. To be clear, Amendments 3 and 4, both of which would have the same effect, would effectively nullify the utility of this clause and, as such, if they are made we might as well strike the whole clause from the Bill—and I know that some noble Lords want to do that.

Reckless activity such as I have described can have a powerful and harmful effect in initiating or moving along the process of radicalisation. We have seen time and again that engagement with radicalisers, hate preachers and organisations such as that headed by Anjem Choudary has been a prominent feature in the backgrounds of those convicted of planning or carrying out terrorist attacks.

In giving evidence to the Bill Committee in the House of Commons, Assistant Commissioner Neil Basu provided two powerful examples—Mohammed Shamsudin and Omar Brooks—to illustrate the type of case where this gap arises. I urge noble Lords to consider carefully that evidence. Both examples are senior figures within al-Muhajiroun, both have an extensive history of involvement in radicalisation and the spreading of extremist propaganda, and one has previous terrorism convictions. Both individuals gave public speeches that were clear about the speakers’ own support for Daesh, its ideology and its actions—including, for example, throwing gay people off buildings—and both voiced their approval of past terrorist attacks, including the murder of Lee Rigby and the 2015 Sousse attack in which 30 Britons and eight others were killed.

I do not need to explain to noble Lords how such speeches can cause great harm, spreading hatred and poison and radicalising vulnerable individuals, potentially to the point of carrying out attacks. But Assistant Commissioner Basu reported that, despite this, it was not possible to prosecute either individual in relation to the public speeches he had described. This is because, on the specific facts, neither could be proved to have invited their listeners to support the proscribed organisation they were speaking so vehemently in support of. This surely is not the right answer.

It cannot be right that we do not give the police and the courts the power to take action in the face of such poisonous rhetoric and such unmasked and virulent support for terrorism, in circumstances where there is, on any objective assessment, a real risk that individuals to whom it is directed will be influenced by it. Clause 1 does just that and would close this gap. Specifically, it amends Section 12 of the Terrorism Act 2000 so that it will be an offence for an individual to express support for a proscribed terrorist organisation when that individual is reckless as to whether another person will be encouraged to support the organisation. The crux of the amended offence will be the introduction of the recklessness test, which Amendments 3 and 4 would remove.

--- Later in debate ---

[Baroness Hamwee]

My Lords, as the noble Lord, Lord Kennedy, has said, Amendments 15 and 16 are the same. What constitutes a reasonable excuse will obviously be a matter for the jury. I accept that one cannot identify reasonable excuses in the abstract without knowing exactly in what circumstances a person undertook a particular action, but citizens should know when it is likely that they will be committing a crime. I think that that is accepted in the ECHR memorandum on this clause, where the Government say:

“There should be some degree of latitude for a person legitimately to explore political, religious or ideological matters, and the criminal law should acknowledge that, without the person actively seeking it, this may lead him to online material that crosses the line into that which is likely to be useful to a terrorist”.


Having some guidance would give a framework for the citizen to assess the matter.

At this stage, I shall not oppose Clause 3 standing part of the Bill—the intention to do so appears in a separate group—because we have covered more ground than I had anticipated. However, I will say now that it occurred to me that there might be a point of comparison between Clause 3 and legislation on child sexual exploitation. The Criminal Justice Act 1988 creates an offence of a person having an indecent photograph or pseudo-photograph of a child in his possession, and possession includes a physical and a mental element. I understand that the CPS guidance states that a person who views an image on a device which is then automatically cached on to the device’s memory would not be in possession of that image unless it could be proved that he or she knew of it. At first blush at any rate, it looks as though Clause 3 goes further than that provision, which requires possession, control or custody of images as opposed to viewing them.

Coming back to Amendment 15, I hope that the Government can give serious consideration to some way of assisting members of the public on this whole matter. Guidance will not override the provisions of the legislation but it can be what it is intended to be—that is, helpful.

[Lord Judge]

My Lords, I respectfully introduce a note of caution about Amendments 15 and 16. We are dealing with the creation or amplification of criminal offences. The issuing of guidance by the Secretary of State in legislation of this kind would be very unusual and it would not, in the end, add certainty to the situation. Guidance has no statutory force, and someone looking at guidance might nevertheless find himself being prosecuted. Alternatively, someone who could not bring themselves within guidance might be prosecuted.

The real point is this: guidance may be helpful but if it is not statutory, it has no legal effect. If we wish to introduce issues here, we should do as my noble friend Lord Anderson does in the next clause, where he seeks to define, in primary legislation, a number of situations in which an offence is not committed.

My final point—I find this extremely alarming—is the idea that a Secretary of State, using executive powers, should issue guidance about how the law should be implemented. Either the law is clear or it is not, and guidance does not make it any clearer. Such a measure would—I think probably for the first time in criminal justice legislation—give an enormous power to the Secretary of State to say, without any parliamentary control, “This may not come within the ambit of the offence but that may”, and so on. That should not happen.

[Lord Paddick]

My Lords, I support the amendments in this group, although I have some reservations about all of them now that the noble and learned Lord, Lord Judge, has spoken. However, I have concerns about Amendment 14, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, for the reasons I have expressed in previous groups about having a blanket exemption for journalism and academic research. A terrorist could access information with the intention of committing a terrorist act but could claim that it was for the purposes of journalism or academic research. Surely the acid test should be the intention of that person, not the content of the material.

I have added my name to Amendment 15, in the names of my noble friend Lady Hamwee and the noble Baroness, Lady Lawrence of Clarendon, although I accept what was said by the noble and learned Lord, Lord Judge, with his wisdom and legal background. Obviously the intention of the amendments is to suggest that the law is not clear here about what would amount to a reasonable excuse. Perhaps the mechanism suggested in the amendments is not the right one, and, as the noble and learned Lord, Lord Judge, has alluded to, maybe the approach outlined in amendments that we will consider shortly is the right one. However, there is concern about what would amount to a reasonable excuse under this clause.

--- Later in debate ---

[Baroness Manningham-Buller (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Anderson. We should be grateful to the Parliaments of Australia and Denmark for the prior work they did, which he has refined.

I have only three small points to make arising out of the debate. The first relates to the point from the noble Baroness, Lady Hamwee, on prior authorisation. In addition to the point made by the noble Lord, Lord Anderson, about the difficulty of monitoring compliance, and the point made by the noble Baroness, Lady Hamwee, which I am sure is relevant, of the administrative overheads of doing that, there is a practical problem of the risk of authorising people who travel to a designated area and have no intention at all of meeting any of the criteria in the noble Lord’s list.

To make a minor point on dependent family members, later on in the Bill we will talk about the Prevent strategy. One of its purposes, whatever people think about it—views are divided—is to prevent young people being drawn to terrorism. I can absolutely imagine circumstances where a parent might wish to go to a designated area to try to retrieve a dependent family member or young person who had been drawn into this and rescue them from involvement.

Finally, the view from the noble Lord, Lord Faulks, that we are doing this only to stop them fighting us is an oversimplification. There is much more going on here. There is a real concern that people will not just come back and conduct terrorism here or elsewhere in the world, or fight us or others there, but learn techniques, radicalise and train new generations of people. It is much broader than simply attacking us. We need to bear that in mind when considering what we are trying to do here.

[Lord Judge]

My Lords, it is lovely to be following somebody who has been described as almost infallible, so I cannot resist the temptation—

[Baroness Manningham-Buller]

That was the noble Lord, Lord Anderson.

[Lord Judge]

I am sorry. I shall not go through the various arguments. I put my name to this amendment. It is a closed list. Different aspects of it need to be considered and various points have been raised around the Committee. The principle needs be accepted by the Government that we are dealing with the designated areas legislation. The designated areas cannot be considered in relation to just new Section 58B, but to new Section 58C, which will enable the Secretary of State to decide where an area should be designated for the purposes of new Section 58B. Therefore, the imperative is not just to have a vague reasonable excuse defence, but to say that there are certain situations in which, if an individual goes to an area that has been designated by regulation by the Secretary of State, no offence would be committed. That is the end of it. It is not a question of him or her advancing a defence and saying, “This is my reasonable excuse”.

I implore the Government not be put off by the fact that this will take some sorting out. We need to sort it out. An offence will not be committed if you go on, for example, humanitarian grounds. There are plenty of different reasons, but if you are not committing an offence then that is the end of it. Given the nature of the offence that is being created related to designated areas, that is what needs to be achieved.

[Lord Rosser]

We have Amendment 23 in this group, which is very similar, certainly in intent, to that moved by the noble Lord, Lord Anderson of Ipswich. For that reason, I do not intend to speak at any great length since I support what he said.

We are aware of the reasons why the Government want to create a new offence of entering or remaining in a designated area in connection with the work of containing and combating the threat of terrorism and terrorist-related activity. However, this is once again about ensuring that those who are in a designated area on legitimate—indeed, quite possibly vital and crucial—business do not find themselves committing an offence of being or remaining in that area.

Our amendment, like that moved by the noble Lord, Lord Anderson of Ipswich, specifically provides that an offence of being or remaining in a designated area is not committed under the Bill’s terms by those carrying out specific named activities—in our amendment, journalism, humanitarian work and family visits, for example, and any other activities provided for in the subsequent regulations. Our amendment is also based on the Australian model of including exemptions in the Bill. It also provides that a person might be required to provide evidence as to their purpose in line with what we understand to be in the Australian legislation.

Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018

Lord Judge Excerpts

Tuesday 16th October 2018 Lords Chamber

My noble friend was right to bring this matter to the House and I support the Motion.

[Lord Judge (CB)]

My Lords, until about a year ago I was the Chief Surveillance Commissioner. I shall make a few observations in this debate, largely repeating what I said way back in July.

There are occasions when youngsters can sensibly and safely be used as CHISs. There are occasions when they help in the investigation of crime, and they sometimes work so that crime is prevented. That said, we need to recognise that a number of safeguards are in place—but the question is whether the safeguards are as complete as they should be. They include that an authorising officer in the context that we are considering is always, in every police force, at least at the level of assistant chief constable. This is not a responsibility discharged by relatively junior—or indeed even quite senior—officers. It is a situation in which the inspectors, as they used to be in the surveillance commission, always look at every case involving a juvenile CHIS with particular attention, for all the obvious reasons. However, it is problematic.

The question I have asked, and shall continue to ask, is why on earth we do not have a double-lock system to address all anxieties about whether even assistant chief constables may be as objective as they should be—bearing in mind their responsibilities for the investigation and prevention of crime—in balancing the safety, the welfare and the long-term safety and welfare of the juvenile CHIS. One way is to deal with this process in a way that is perfectly well understood—it certainly was in the surveillance commission and is obviously still understood to this day under the new arrangement. The judicial involvement in this process should not be after the inspection has taken place and the inspectors have reported to the Chief Surveillance Commissioner so that he can make a judgment. Instead, after the senior officer has decided that this is an appropriate situation in which to use a juvenile CHIS, the decision should then be considered by one of the judicial commissioners, who undoubtedly—this is not an implied criticism of assistant chief constables—will be focused more significantly on the protection and the needs of the young CHIS than perhaps a police officer might be.

It is a question of balance. It is a safeguard which could be introduced—unless things have changed dramatically—with little difficulty. Judges are used to giving authorisations for all kinds of elements involved in, if you like, the secret world, and this would be one more. Very few juveniles are used for this purpose and therefore it should not be a burden. I would love to hear the Minister’s answer as to why this should not happen.

The regret Motion, of course, is focused on a different point. I say to the noble Lord, Lord Paddick—to whom I forgot to apologise for not being here when he opened the debate: I ask him to forgive me—that there is a failure to keep us informed on this issue, and that is what I regret.

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

My Lords, I thank the noble Lord, Lord Paddick, for moving his regret Motion. I pay tribute to my noble friend Lord Haskel, who first alerted your Lordships to this issue. The House is also grateful, not only on this issue but generally, for the work of the Secondary Legislation Scrutiny Committee, which scrutinises every instrument that comes before Parliament. It is able to get into what a particular instrument does and then, by engaging with a Minister and through its reports, bring matters of concern to the attention of the House.

Covert surveillance is an important tool that is used to provide the evidence needed to prevent and detect crime. It is necessary, as there may be no other way to get the intelligence needed. Having said that, we have to have proper codes of practice in place and, where that involves young people under the age of 18—who are still legally children—it is of particular concern and importance. We have to ensure that children’s rights are protected and that there are adequate protections in place to take care of their physical and mental well-being and that proper risk assessment is undertaken.

The regret Motion before us rightly expresses regret that organisations concerned with human rights and the welfare of children were not consulted about the decision to extend the maximum length of juvenile covert human intelligence sources authorisations from one month to four months. The Home Office certainly got its presentation of this change wrong. It used terms such as “administrative convenience”, which does nothing to reassure Members that the Government have got the balance right here. What should be of paramount importance is the welfare of the child being used as a covert intelligence source.

As we have heard, this issue was debated in the Moses Room in July—a debate led by my noble friend Lord Haskel—and during that debate I posed a number of questions to the noble Baroness, Lady Williams of Trafford, and I shall pose some more today. I hope she is able to give more reassurance to the House when she responds to the debate shortly.

Can the Minister explain carefully why the decision was taken to extend the term from one month to four months? Can she tell the House how the Government have satisfied themselves that these proposals satisfy Section 1 of the Protection of Children Act 1999 and the Convention on the Rights of the Child, which the United Kingdom ratified in 1991? Can she say how she has satisfied herself that the safeguarding and protection of the children concerned while they work as covert human intelligence sources is delivered? I am sure that she would not have brought this here if she were not personally satisfied.

Moving on to risk assessments, can the Minister tell the House how the rights of the child are protected? Can she outline what specific training or expertise a police officer or other security professional would have in respect of understanding the needs and rights of the child? In what circumstances would it be acceptable for someone who could represent the interests of the young person to not be present during meetings with the handler?

Can the Minister also deal with the issue of consent? How do we make sure that the consent is appropriately understood and given, both where the child’s parents or guardians are informed and in those instances where the parents are not informed or aware of what is happening? Indeed, they could be the people the child is seeking to monitor. The noble and learned Lord, Lord Judge, also raised important points that need answering by the Minister when she responds.

In conclusion, this is a very sensitive and important area of policy affecting vulnerable young people in some very difficult circumstances. It is right that the House uses every device available to it to assure itself that the Government have put the correct and adequate protections in place. Again, I thank both my noble friend Lord Haskel for raising this issue in the first place and the noble Lord, Lord Paddick, for tabling the regret Motion that has enabled us to debate it.

Children: Covert Human Intelligence Sources

Lord Judge Excerpts

Thursday 13th September 2018 Lords Chamber

[Baroness Williams of Trafford]

As I am sure my noble friend will know, where there are safeguarding issues around children, information is shared, and certainly if the child moves from one local authority area to another. As the IPC has pointed out, the duty of care in the case of these children is absolutely paramount.

[Lord Judge (CB)]

Would the Minister reflect that one possible way of alleviating understandable concerns about the use of young people in the way that is currently under discussion would be to extend the oversight and authorisation responsibilities of the judicial commissioners of the IPC?

[Baroness Williams of Trafford]

I thank the noble and learned Lord for our conversation on this matter. Of course, that would require a change in the legislation, but we consider that this enhanced authorisation, which has been in place for 18 years and approved under the leadership of successive Governments, is robust. It is subject to enhanced safeguards and strong and effective oversight. It should command confidence.

Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018

Lord Judge Excerpts

Wednesday 18th July 2018 Grand Committee

[Lord Trefgarne (Con)]

My Lords, I want to intervene briefly. I thank the noble Lord, Lord Haskel, for bringing this important issue of the use of juveniles for covert intelligence gathering to your Lordships’ attention. I have the honour of being the chairman of the Secondary Legislation Scrutiny Committee, as the noble Lord, Lord Haskel, was kind enough to point out. He is an experienced and distinguished member of the committee and I am grateful for his contribution to our work.

Earlier this month, the committee considered this order, along with the associated code of practice, and we decided to report the instruments not only on the grounds of policy interest but because we were disappointed by the quality of the explanatory material laid in support. The effect of the order is to increase the period for which a juvenile can be authorised for covert intelligence purposes from one month to four months. What was of particular concern was that the original Explanatory Memorandum accompanying the order appeared to justify the increase on the grounds of administrative convenience, rather than focusing on the welfare of the young person concerned.

As chairman, I therefore wrote to the Minister, Mr Wallace, to express what I described in my letter as the committee’s “considerable anxiety” about using young people in this way. The Minister told us that juveniles, in acting as covert intelligence sources, would be able to assist in both preventing and prosecuting offences such as,

“terrorism, gang violence, county lines drugs offences and child sexual exploitation”.

That may be so, but these are all very serious offences. The use of juveniles—young people under the age of 18—in such a dangerous environment is, therefore, a profoundly serious matter.

In these circumstances, the Committee will, I think, wish to hear in detail what assurances my noble friend the Minister can offer about how the welfare of the juveniles involved in covert intelligence is protected, both while it is happening and in the longer term.

[Lord Judge (CB)]

My Lords, until last August, I was for two years the Chief Surveillance Commissioner—an office that no longer exists under the current legislation. I will echo one or two, but not all, of the points that have been made so far. If I may say so, I thought that the Explanatory Memorandum for this proposal in relation to juveniles was thoroughly inadequate and, if it had been adequate, would have said a good deal to allay the concerns that have been expressed today. I did not think that the letter from the Minister allayed those concerns—it did not address them, it seemed to me.

There is in fact an extremely careful system for supervising, organising and taking responsibility for all CHIS. There are very few juvenile CHIS, for all the reasons that have been given; I do not think the figures have been kept, but I can say this. What may not be apparent to many people in the Committee today is that each police force is examined and inspected by independent inspectors, answerable to a judicial figure, and the inspections cover every form of intrusive investigation that has gone on and all issues relating to the use of covert human intelligence. I can say from my own experience—it is not a state secret—that in relation to any CHIS activity involving juveniles, the inspectors pay particular attention to see that the issues of welfare and so on have been properly addressed. All this could have been explained and made available to the Secondary Legislation Scrutiny Committee, which would then have formed whatever view it thought appropriate.

There is, however—I could go on for some time about this—one point that needs consideration if the Government, decide to follow the suggestion made by the noble Lord, Lord Haskel. Within the surveillance process, in relation to authorisation for intrusive surveillance, such an order, however made—even by the chief constable himself or herself—does not take effect until it has been approved by a judicial commissioner and when the notice of that decision has been given to the person who granted the authorisation. It might just be worth giving some thought to using that particular additional safeguard when we are considering the rare occasions when a juvenile CHIS is being used.

[Lord Paddick (LD)]

My Lords, I thank the Minister for explaining these orders, and other noble Lords for their contributions. There are some issues around the Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018 that I would like clarification on before we get on to the major issue of the use of juvenile covert human intelligence sources. I therefore ask the Committee for a few moments to deal with those other issues.

I understand that this instrument brings into force the three revised codes of practice regarding the functions carried out under RIPA 2000, and that these need to be updated, not least because of the Investigatory Powers Act 2016 and the additional safeguards it introduced. One of the phrases in the Explanatory Memorandum—changes to “cover current practice”—is a little worrying, as it stands. I hope the Minister can reassure the Committee that the codes of practice have not been altered simply because law enforcement and intelligence agencies have changed how they do things. Surely the codes of practice are there to ensure compliance with government-defined best practice, not the other way around.

--- Later in debate ---

[Lord Kennedy of Southwark]

This goes to the point about administrative convenience that was made at the start. It may make it more convenient for the officer concerned, but how does it benefit the child?

[Lord Judge]

If you have to have a review every month, why do you not conduct a renewal? What is the difference between the review and the renewal in those circumstances? That is the heart of it.

[Lord Paddick]

Perhaps I can assist. The handler decides that the CHIS needs to be in a gang for three months. The handler will know that, under the current system, at the end of each month, for three months, they will have to go back to the commander or assistant chief constable to renew the authorisation. What is the problem with that system that is overcome by the changes being suggested?

--- Later in debate ---

[Baroness Williams of Trafford]

As I understand it, while we do not distinguish between different age groups, we know from discussions with public authorities that the number of juvenile CHISs is low as young people would not normally be deployed in this role, unless there is absolutely no other way to achieve the same result. That is how we know that the numbers are low.

Consideration will always be given to whether the same result could be achieved by other means, and only if it cannot is it necessary to authorise a CHIS. The police and other public authorities must conduct a risk assessment before a juvenile is deployed as a CHIS. That assessment must take into account the risks to their physical and psychological health, as the noble Lord, Lord Paddick, said. The codes of practice make it clear that the welfare responsibilities continue after the deployment ends.

The noble Lord, Lord Paddick, asked about amending the combined warrant provisions. We are making this amendment because one effect of the IP Act is that certain combined warrants that include an authorisation for intrusive surveillance that has been signed by a senior official rather than the Secretary of State would last for only two days. The shorter duration is appropriate under pre-existing legislation, RIPA, where the signature and issue of such an authorisation personally by the Secretary of State is a key safeguard. When that does not happen, the warrant has a shorter duration unless renewed by the Secretary of State personally. However, in the context of such an authorisation being included as part of a combined warrant under the IP Act, which is subject to the additional safeguard of judicial commissioner approval, it is not necessary or appropriate to limit the duration of the warrant to two days.

On consultation with organisations involved in safeguarding, there is no requirement to consult publicly on changes to the 2000 order. We did consult broadly with the operational community and the Investigatory Powers Commissioner’s office, which was involved in these discussions. All those who use juvenile CHISs have a duty of care to the CHIS and duties to safeguard children and young people. This was taken into account as part of the consultation with intelligence and law enforcement agencies. We consulted on the changes to the code of practice in late 2017 and, while that version of the code did not reflect the changes we have since made in respect of juvenile CHISs, no respondents to the consultation commented or raised any concerns about the use of juvenile CHISs more generally.

I think that I might finally be able to answer the question of the noble Lord, Lord Paddick, about who can be a responsible adult for a juvenile under the age of 18. The existing 2000 order puts in place a requirement that all discussion with a juvenile CHIS under the age of 16 must take place in the presence of an appropriate adult, who must be a parent or guardian of, or person with responsibility for, the young person, or any other adult. The order strengthens the safeguard by amending the definition of “appropriate adult” to prevent a person with no links to the young or any appropriate qualification from acting as an appropriate adult. In future, an appropriate adult would have to be a parent, guardian or person, such a youth social worker, who is otherwise qualified to represent the young person’s interests. The appropriate adult is an important safeguard to ensure that the young person is comfortable with what they are agreeing to. I have talked about the distinction between 16 year-olds and 18 year-olds and those aged under 16. Although there is no statutory requirement for those aged over 16 to be accompanied to meetings, the decision on whether to inform a parent or guardian of a source aged over 16 is taken on a case-by-case basis.

All noble Lords have referred to human rights. All public authorities must act in compliance with the ECHR as a result of the Human Rights Act 1998. The human rights obligation has been in force since 2000. As a result, the human rights of the CHIS must be complied with.

The noble and learned Lord, Lord Judge, asked about the double lock of a judicial commissioner’s approval. The Investigatory Powers Act 2016 followed three reviews into powers relating to obtaining communications. The Act, and therefore the safeguard of judicial commissioner approval, relates to those powers and does not extend to the powers being debated today.

[Lord Judge]

I thought that these draft regulations were meant to make things better. If it was thought to be a good idea, surely it would not be beyond the bounds of regulation-writing to write the regulation accordingly. I am on my feet, which I know I should not be. It will not be beyond the bounds of difficulty or take very long for a record to be made of every CHIS aged under 18—although not to find out how many CHISs have been aged under 18 in the past, because no records have been kept. Then we will know the facts. Next year, we should know and be able to come back and say, “Good heavens, there are far too many”, or, “Okay, there were only two, and they have been looked into”. I should have limited myself to my first point.

[Baroness Williams of Trafford]

I take the noble and learned Lord’s point.

The noble Baroness, Lady Jones, asked about undercover police work. The CHIS code confirms that police officers deployed as undercover officers in England and Wales must comply with and uphold the principles and standards of professional behaviour as set out in the College of Policing code of ethics introduced in 2014. The code specifies that officers must,

“not engage in sexual conduct or other inappropriate behaviour when on duty”,

and,

“not establish or pursue an improper sexual or emotional relationship with a person with whom you come into contact in the course of your work who may be vulnerable to an abuse of trust or power”.

Of course, this instruction applies as much to undercover officers as to any law enforcement officer.

The noble Lords, Lord Paddick and Lord Kennedy, asked about the best interests of the child. The code of practice requires that any public authority deploying a CHIS takes into account the safety and welfare of that CHIS and that a risk assessment is completed by the authorising officer before any tasking takes place. The order retains the requirement of the 2000 order that these risk assessments for juvenile CHISs are enhanced risk assessments. Furthermore, the code requires that the ongoing welfare and the security of the CHIS after cancellation of the authorisation be considered and reviewed throughout the duration of the deployment and beyond. These authorisations must be reviewed at least monthly and records maintained for at least five years.

The noble Lord, Lord Paddick, asked whether we are changing this because of law enforcement agencies. This is not about seeking to legitimise practice that was non-compliant with previous codes of practice; it is about reflecting the fact that new investigative techniques are being used by the police. He asked about the code changes. The overall impact of the changes to the codes will be to strengthen the safeguards provided in the codes and improve the guidance for practitioners. The changes reflect current practice and aim to improve operational practice, including expanded guidance to assist investigators in their use of these powers in an online context. It is important that investigators are able to make full use of the internet to assist their work, and equally important to take into account the privacy of people using the internet.

The noble Lord, Lord Kennedy, asked a very pertinent question about why parents might not be involved. It is true to say that in some circumstances it may not be appropriate that parents of a young person deployed as a CHIS are informed: for instance, where they support the ideology or, indeed, the criminal intent of those against whom the juvenile might be employed. He asked whether it is just for serious offences. There is no specific limitation on seriousness, but the strict tests of necessity and proportionality apply—the point about shoplifting should be seen in that context. He asked about the differentiation between “should” and “must”. The 2000 order requires that an appropriate adult “must” be present, and we have not changed that requirement.

I apologise once again for the less than satisfactory quality of the Explanatory Memorandum and for my inability to answer certain questions, but at this point I beg to move.