Counter-Terrorism and Border Security Bill

Debate between Lord Judge and Lord Rosser

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

[Lord Judge]

My Lords, I support Amendment 19. I cannot think of anything I can say that would improve on what the noble Lord, Lord Anderson, has said, so I shall not say it. However, when the Government look at their own amendment and the very helpful way in which they have reconsidered this rather urgently introduced provision in the House of Commons, they should consider whether new subsections (1), (2) and (3) run in the right order. New Section 58B(1) sets out the offence; new subsection (3), or proposed new subsections (3A), (3B), (3C) and (3D) are not offences; and new subsection (2) sets out the defence. Logically, it might be better and easier—and it might deal with the sui generis point raised by the noble Baroness, Lady Hamwee—if the order ran new subsection (1), the current new subsection (3) and then new subsection (2).

[Lord Rosser]

I have two amendments in this group. One is Amendment 15 and I have added my name to Amendment 19 in the name of the noble Lord, Lord Anderson. As I am sure the noble Earl will remind me, if it is he who is to respond, in Committee we moved an amendment based on the Australian model that provided for a sunset clause after three years, so it would be wrong of me not to thank the Government for having taken heed of what we said.

If the Minister is wondering why I attached my name to the amendment of the noble Lord, Lord Anderson, reducing the three-year sunset period to two years, it was because we thought that his case for doing it every year, which he proposed in Committee, was quite powerful in relation to the quite exceptional powers that the Bill provides over travel for UK residents and citizens to designated countries. That power would rest with the Secretary of State. The noble Lord, Lord Anderson, has not come back with an amendment proposing a sunset period of one year but he has come back with a proposal to change the sunset provision to two years, and we have a lot of sympathy with that in the light of the arguments that he advanced in Committee in favour of one year.

I think that the noble Lord, Lord Anderson, ended up by saying that he hoped that the Government might reflect on his amendment if they did not feel able to agree to it, as well as reflecting on the frequency and reality of which Parliament should be required to give its approval if the Government wished to continue to exercise this power over the movement of UK citizens. I too hope that that is something that the Minister might feel able to reflect on further.

With regard to Amendment 15, to which a number of noble Lords have already made reference, the amended reasonable excuse defence, with its indicative list tabled by the Government, still does not really provide adequate protection either to those with a legitimate reason for being in a designated area or indeed, in some aspects, to some organisations that employ them. For example, an aid worker or news reporter can invoke the reasonable excuse defence only once they have been accused of or charged with an offence. The onus is then on the individual and organisation to provide evidence or proof to the authorities that they were in a designated area for a legitimate reason. Prior to being charged—if that is what happened—the individual could have been questioned by the police on their return from the designated area and they might conceivably have been placed under arrest. For a law-abiding citizen, that would potentially be an unnerving experience, and likewise for their employer or organisation, which could face a degree of reputational damage as a result.

It is correct that anyone returning from a country—for example, Syria—can already be questioned or investigated by police and asked for justification for their travel. However, at the moment, that person will not have committed an offence simply by having entered an area or country such as Syria. If the provisions of this Bill become law, the risk of investigation, and the perception of that risk faced by individuals and their employer, will be much higher. It is not clear either what will count as proof of a legitimate reason for being in a designated area. Would it be a letter on headed paper from an employer or more substantive evidence? Carrying such evidence in and out of a war zone could pose security risks for the individual and those in the conflict area. If the risks of going to a particular area are increased for UK nationals or residents, then their organisation, national or international, is less likely to want to send them. After all, those organisations have a duty of care towards their staff. Creating further potential threats and obstacles for UK nationals and residents to travel would put a greater onus on local staff or staff of other nationalities, and would add an extra provision to life-saving humanitarian support for those in a designated area and for work to address the root causes and drivers of conflict.

Further difficulties may arise as well. The legal position around entering designated areas, created by the new offence of simply being in such an area, may, as has already been said, further reduce the willingness of banks to provide financial services for activity, including humanitarian activity, in high-risk areas. That is a potential consequence that could also extend to the services provided by travel and insurance companies. If an organisation—one is talking here about primarily, but not solely, a humanitarian organisation—cannot get travel insurance for its employees or transfer funds into a designated area, it will be less able to deliver support in a safe and effective manner, even if it is prepared to take the risk of sending a UK national or resident to the designated area concerned, in the knowledge that just being in that area is an offence for which that UK national or resident could be charged.

The Government must surely be aware of the impact their intentions would have on travel to a designated area in the absence of clear exemptions from committing an offence simply by being in those areas for those on legitimate, and in some cases life-saving, business or activity. Amendment 15, in my name, minimises these potential difficulties and unintended consequences by stating that individuals undertaking the activities listed in the amendment, which are the same as the Government have set out in their amendment in respect of which a reasonable excuse defence can be argued, would not be committing an offence of being in a designated area without legitimate cause, and would not have to provide a defence after the fact.

As the noble Earl said, the Bill already contains an exemption for those working for or on behalf of the Crown. That would extend to the small number of NGO staff working on UK government contracts, but many more such staff will be working on projects supported by grants from other bilateral, multilateral or private donors, or by funds donated by the British public, who will not be covered by any exemption from the provisions of Clause 4.

As the noble Earl will know, our amendment goes down the road of the Australian model of providing exemptions. However, an alternative method operates in Denmark, providing for prior authorisation to be given for those with legitimate business to be in a designated area. There is obviously a need for a procedure that enables an application for an authorisation to be dealt with quickly under that alternative method, since clearly some of those with legitimate business in a designated area, such as humanitarian aid workers or news reporters, need to get out there at short notice. However, under this Bill, such a procedure would mean that those returning from a designated area without being able to show prior authorisation would potentially face investigation and action for an offence, as would those for whom there was a suspicion that they had not been to the designated area solely for the purpose claimed and for which they had been given prior authorisation.

The Government should surely accept that their proposals as they stand on designated areas, and the new offence of simply being there, risk having significant unintended consequences, which may result in individuals and organisations we would accept as having legitimate business in a designated area not going or being represented at all, to the detriment of potentially life-saving aid activity and of providing transparency over what is happening, as in the case of aid workers and news reporters respectively.

I hope that the Government will be prepared to at least reflect further on this issue prior to Third Reading or the matter being considered further in the Commons, and look at either exemptions from the new offence of being in a designated area as provided for in my amendment, or, if they prefer, at a system of prior authorisation for travelling to such a designated area, or a combination of both.

Counter-Terrorism and Border Security Bill

Debate between Lord Judge and Lord Rosser

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

[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.

Space Industry Bill [HL]

Debate between Lord Judge and Lord Rosser

Committee: 3rd sitting (Hansard): House of Lords
Monday 23rd October 2017 Lords Chamber

[Lord Rosser]

My Lords, my name and that of my noble friend Lord Tunnicliffe are attached to the amendment moved by the noble Baroness, Lady Randerson. The points have already been made in support of the amendment and reference made to the views expressed by the Constitution Committee in its report. One hopes only that the Government are going to take on board what the Constitution Committee had to say.

[Lord Judge]

My Lords, I apologise to the Committee that when I spoke a few minutes ago I did not indicate that I was a member of the Constitution Committee. I indicate it now. I do not want to repeat everything that the Constitution Committee said—but, with respect, although I do not speak for the Constitution Committee, there is an awful lot of constitutional sense in that paper.

--- Later in debate ---

[Lord Rosser]

I will be very brief. Most of the amendments in this group relate, as the noble Lord, Lord Fox, has already said, to views expressed by the Constitution Committee and the Delegated Powers and Regulatory Reform Committee. The reasons for the committees holding the views that they do are set out in their reports before us at the moment. I simply add that our names are attached to Amendments 44 to 50, and once again we hope that the Government will take note of what the Constitution Committee and the Delegated Powers and Regulatory Reform Committee have to say.

[Lord Judge]

My Lords, I rely on the report of the Constitution Committee but I wonder what the point of the clause actually is. We have a proposed Act of Parliament, Clause 1 of which tells us that the Act is going to regulate,

“space activities … sub-orbital activities, and … associated activities, carried out in the United Kingdom”.

Then there are the Henry VIII powers in Clause 66, with the Secretary of State able to dispense with any part of the statute. Now we have a regulation-making power in Clause 67(1) that enables the creation of regulations to carry the Act into effect, presumably because something has gone wrong with the way in which Clause 1 operates. If Clause 1 gives statutory power to regulate space activities and so on, what on earth do we need a further regulation-making power for? This Act is brim-full of regulations. Is this just belt and braces, or is it belt, braces and a rather heavy boot?