Misuse of Drugs Act 1971 (Amendment) Order 2018

Lord Paddick Excerpts

Wednesday 21st November 2018 Grand Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I am grateful to the Advisory Council on the Misuse of Drugs for its advice, which has helped to inform the draft order before us. The order was first laid before Parliament on 17 October and will control pregabalin and gabapentin as class C drugs under the Misuse of Drugs Act 1971. Should the order be made, pregabalin and gabapentin will be subject to permanent control under Schedule 2 to the Misuse of Drugs Act 1971 through an amendment to Part 3, which specifies the drugs that are subject to control under the 1971 Act as class C drugs.

The order follows the recommendation from the ACMD to control the two drugs under class C of the 1971 Act, as their harms are comparable with those of other substances controlled as class C drugs. To help those with a legitimate medical need access these drugs, and subject to Parliament’s approval of the order before the Committee now, we will schedule both drugs under Schedule 3 to the Misuse of Drugs Regulations 2001 through regulations.

Pregabalin and gabapentin are prescription medicines which are used to manage a number of disabling long-term conditions, including epilepsy. They are also licensed for the treatment of general anxiety disorders. In its advice, the ACMD identified a number of harms—in particular, it drew attention to the dangers that can arise when the drugs are used in combination with other central nervous system depressants. In these circumstances, they can cause drowsiness, sedation, respiratory failure and death.

The ACMD also highlighted the risk of addiction that pregabalin and gabapentin presented, as well as the potential for illegal diversion and medicinal misuse. Its advice also drew attention to the concerns of health staff in prisons who reported a high number of prisoners being prescribed the drugs without a thorough assessment of their needs.

Across the United Kingdom, there have been significant increases in the prescription of both drugs: pregabalin prescriptions have increased from 2.7 million in 2012 to 6.25 million in 2017, while gabapentin prescriptions have risen from 3.5 million in 2012 to over 7 million in 2017. In tandem, there has been an increase in the number of deaths related to pregabalin and gabapentin since 2009. In the last five years there have been 408 deaths where pregabalin was mentioned on the death certificate, and 203 in the case of gabapentin. This compares with four and one for pregabalin and gabapentin respectively in 2009.

By controlling the two drugs, we will restrict the potential for misuse by making diversion and their illicit supply more difficult but without compromising access for those who have a legitimate need to access the drugs for healthcare purposes. Parliament’s approval of this order will enable UK law enforcement to take action against those who illegally supply these drugs and against those who illegally possess them. Possession of a class C drug is an offence resulting in up to two years in prison or an unlimited fine, and the supply or production of a class C drug is an offence resulting in up to 14 years in prison or an unlimited fine.

If approved, the order will send a clear message to the public that the drugs should only be in the possession of those who have been legitimately prescribed them. We hope that the significant supply offences for class C drugs will make people think twice before they consider diverting pregabalin and gabapentin into the illegal market.

The measure to control these drugs is scheduled to come into force in April 2019. Given the widespread use of the two medicines, this will help to provide the healthcare sector with sufficient time to implement the new requirements. I can assure Members that all relevant information will be communicated to other stakeholders and the wider public. The Home Office will issue a circular with legislative guidance for the police and the courts. Guidance will also be published following engagement with interested parties about the effect of the legislation in preparation for it coming into force in April. In addition, the Government will continue to update its messaging on the harms of these substances.

I hope I have made the case to control these harmful drugs and I commend the order to the Committee.

[Lord Paddick (LD)]

My Lords, I am very grateful to the Minister for explaining the order to us. As she has said, this puts two substances into class C of the Misuse of Drugs Act 1971, on the recommendation of the Advisory Council on the Misuse of Drugs.

We support any evidence-based scientific approach to reducing the harm caused by drugs, legal or illegal. My question is very simple. The noble Baroness talked about a very clear message being sent to the public, but why do the Government not always act on the scientific, evidence-based assessment of the ACMD?

The problem with drugs classification under the Misuse of Drugs Act is threefold. First, based on independent scientific assessment, drugs are not classified according to the potential harm that they cause. For example, GHB—gamma-hydroxybutyrate—is believed to cause a significant number of deaths—perhaps as many as several a week in the UK alone. Yet it is classified as a class C drug. Cannabis which, to my knowledge has not been the direct cause of any drug-related death, is a class B drug. Because of this, and several other misclassifications of which I could give examples, the classification of drugs under the Misuse of Drugs Act has fallen into disrepute among those who might arguably be helped most if they knew that the classification of drugs was based on how dangerous they were.

At this stage, I should point out an interest to the Committee. A former partner, who then became my best friend and who was very experienced in the use of recreational drugs, died from an accidental overdose of GHB.

Secondly, because the classification system does not reflect potential harm, only potential sentence, it has become irrelevant to most drug users. They quite simply work on the basis that the penalty is irrelevant to them as they have no intention of getting caught.

Thirdly, any drug classified under the Misuse of Drugs Act carries a heavier penalty than a new psychoactive substance covered by the Psychoactive Substances Act 2016 in that possession of a new psychoactive substance is not an offence, whereas possession of any drug classified under the Misuse of Drugs Act is an offence. This is even though some of the new psychoactive substances are more harmful than drugs classified under the Misuse of Drugs Act.

Our drugs laws are a mess, the Government’s drugs strategy is ineffective and, if we are to stop our young people dying, we need a fundamental rethink. We called for a scientific, evidence-based review of our drugs laws when we debated the Psychoactive Substances Bill—a proposition both the Conservative and Labour Benches refused to support. Therefore, I note with interest the comments of the Parliamentary Under-Secretary of State at the Home Office, Victoria Atkins, in the other place, when this order was discussed by the Tenth Delegated Legislation Committee on 12 November this year, at 6.05 pm, where she said that the Government have announced,

“an independent review of the misuse of drugs in the 21st century”. —[Official Report, Commons, Tenth Delegated Legislation Committee, 12/11/18; col. 4.]

Can the Minister provide the Committee with further details of who will be conducting this review, what their terms of reference are, and any other details that may be of interest?

[Lord Rosser (Lab)]

My Lords, I thank the Minister for explaining the purpose of the order and its provisions. We support it but I have some points that I would like to raise. As has been said, the order controls pregabalin and gabapentin as class C drugs under the Misuse of Drugs Act 1971. Currently these two substances are subject to the Psychoactive Substances Act 2016.

The two substances are used, as the Minister has said, to manage a number of disabling long-term conditions including epilepsy and general anxiety disorders. Although they have legitimate medicinal uses for which they can continue to be used, the two substances in question, when taken with other central nervous system depressants, can be the cause of serious harm including respiratory failure and, at worst, death. The Advisory Council on the Misuse of Drugs has said the two substances in question can be addictive, with the potential for illegal diversion and supply and medicinal misuse. Prescription rates have soared—the Minister gave the figures—while the number of deaths related to the two substances have also increased: just over 400 from pregabalin over the last five years and just over 200 from gabapentin.

Concerns were raised in 2014 by the Health and Social Care Board about the potential misuse of pregabalin. Apparently, in February 2015 Her Majesty’s Inspectorate of Prisons reported concerns of health staff in prisons that a high number of prisoners were being prescribed the drugs without a thorough assessment of their needs, and in a way that did not meet best-practice guidelines. Does that mean prisoners in prison being prescribed the drugs without a thorough assessment of their needs or prisoners prior to their coming into prisons being prescribed the drugs in the wrong way? Either way, the question must be how that has been allowed to happen. What will the planned guidance and communication say to address the issue of drugs of this kind being prescribed without a thorough assessment of the patient’s needs?

For how many years have these two substances been available? What is it that starts the procedure for the control of such substances as class C drugs as per this order? With concerns being raised in 2014, it does not seem to be a particularly quick process. Who or what organisation makes the initial move, and what is then the procedure for getting the matter before the Advisory Council on the Misuse of Drugs? Or is it the advisory council that has to take the initiative in the first instance?

Paragraph 12.2 of the Explanatory Memorandum states:

“Enforcement of offences in relation to drugs controlled by the Order will be subsumed into the overall enforcement response to controlled drugs”.


That statement is in marked contrast to the impact of the order on pharmacies, GPs and the NHS as a whole, for which precise figures have been given in the Explanatory Memorandum with regard to the additional cost. So what will the additional cost be of implementing this order to the police, the court system and the Prison and Probation Service of enforcing these new offences? What is the estimated number of new offences that will be committed each year as a result of controlling these two substances as class C drugs? Is the reality for our overstretched police that either they will not arrest many people for offences related to those two substances or, if they do, it will be at the expense of investigating, enforcing and arresting people for other offences? Is that what,

“subsumed into the overall enforcement response to controlled drugs”,

really means? If not, what does that phrase mean?

Crime (Overseas Production Orders) Bill [HL]

Lord Paddick Excerpts

3rd reading (Hansard): House of Lords
Tuesday 20th November 2018 Lords Chamber

[Lord Rosser (Lab)]

I too take this opportunity to add to what the Minister has said. Despite the reality that the Bill has not exactly held this House in rapt attention, judging by the number of people who decided to participate in our debates, I thank the Minister, the noble Baroness, Lady Manzoor, and the Bill team for their help and their willingness to meet to discuss the important issues that have been raised during the passage of the Bill. I also thank the members of our team who have provided such invaluable and vital support to me and to my noble friend Lord Kennedy of Southwark.

[Lord Paddick (LD)]

My Lords, I too thank the Minister. I do not know whether I am speaking out of turn in saying that I think at times she has shared some of our concerns over the implications of the Bill, if not over the Bill itself. I thank the Bill team for engaging with us so that we got a better understanding of the formulation of the treaty, the process of negotiating the treaty and what the possible implications of that might be. Clearly we are now alerted to the fact that both Houses need to be very concerned in scrutinising any treaty that is developed that this Bill relies on. I also thank my noble friend Lady Hamwee, without whom I would be lost.

Policing: Priorities

Lord Paddick Excerpts

Thursday 15th November 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I think that I have stood at this Dispatch Box before and said that it is up to local police forces to set priorities for their local areas, because they will differ from area to area. It is important to note—I have said this before as well—that both the Home Secretary and the Policing Minister recognise the increasing calls on police time and the different demands facing them, particularly in light of events in the past year. There is an additional point about how the police operate. It will not be any surprise to the noble Lord that some police forces are far more effective than others, and it is important to think of ways in which they could collaborate, make better use of technology and be more efficient as time goes on.

[Lord Paddick (LD)]

My Lords, in the current scenario in which there is significant rationing of policing services because of central government cuts to police budgets, it is no longer acceptable for the Government, and the Home Office in particular, to wash their hands of the consequences. When will the Home Office provide the leadership needed and tell the police service what it should stop doing, because it cannot do everything that the public want with the resources it has been given?

[Baroness Williams of Trafford]

The Home Office has no intention of telling the police what they should stop doing because, as I said to the noble Lord, Lord Hunt, there will be different priorities in different areas. It is up to local police forces to decide what those are. As for the other acknowledgement by the Home Office, which is that the police are facing new demands and have faced increasing calls upon their time over the last year or so, both the Policing Minister and the Home Secretary fully recognise this and are working with the Treasury to get a better settlement.

Police: Serious and Violent Crime

Lord Paddick Excerpts

Thursday 15th November 2018 Lords Chamber

[Baroness Williams of Trafford]

The Government’s assessment at this point in time—I refer again to my right honourable friend the Home Secretary and my honourable friend the Policing Minister—is that the police have had huge increases in demand. The pattern of crime is changing, as the noble Lord pointed out. Knife crime is a particular issue in London and county lines are spreading the problem across forces. I know that the Home Secretary and the Policing Minister recognise this and are looking to work on the funding picture.

[Lord Paddick (LD)]

My Lords, public health approaches such as those mentioned earlier can take a decade to produce significant results and meanwhile, young people are dying. Effective, targeted stop and search based on community intelligence requires a significant investment in community policing to build trust and confidence in the police and restore the flow of information about who the knife carriers are, so that the knives can be taken off the streets. When will the Government make such an investment? This is a clear example of where more resources could save lives.

[Baroness Williams of Trafford]

I acknowledge that a public health approach is not a quick fix, but in Scotland, where there has been a public health approach for some time, it has been incredibly effective. I know that officials have been talking with the Scottish violence reduction unit and sharing its experience and insight into just how effective a public health approach can be.

Counter-Terrorism and Border Security Bill

Lord Paddick Excerpts

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

[Lord Paddick (LD)]

My Lords, I support the noble Baroness, Lady Jones of Moulsecoomb, in opposing the additional powers conferred by Schedule 3, for some of the reasons she has just mentioned. We have already debated whether the powers in Schedule 7 of the Terrorism Act are used appropriately in every case. From complaints made to me, I believe that there is increasing concern that Schedule 7 powers may be being used arbitrarily—particularly against black and other ethnic minority passengers—resulting in missed flights with no compensation.

As the briefing provided by Liberty suggests, Schedule 3 covers a potentially vast and uncertain range of behaviours. Paragraph 1(1) refers to,

“a person who is, or has been, engaged in hostile activity”.

As the noble Baroness said, the Bill defines hostile activity as any act which threatens national security, the economic well-being of the UK or which constitutes a serious crime, where the act is,

“carried out for, or on behalf of, a State other than the United Kingdom or … otherwise in the interests of a State other than the United Kingdom.

However, the person need not be aware that they are engaged in hostile activity, and the state for which the hostile act is being carried out need not even be aware that the hostile act is being carried out. As the Bill is worded, someone from Paris or Frankfurt travelling to the UK to encourage UK businesses to relocate to their city in the face of Brexit will be caught by these provisions, because his mission would threaten the economic well-being of the UK and would be in the interests of another state—France or Germany. In a later group, the noble Lord, Lord Anderson of Ipswich, has an amendment in relation to what the definition of hostile act should be, and we will return to this subject then.

This schedule and the powers it contains, according to the Home Office briefing we were provided with, is supposed to be a response to the attempted assassination of Sergei and Yulia Skripal, yet almost all commentators agree that this was an act of terrorism already adequately covered by Schedule 7 of the Terrorism Act. Perhaps the Minister can give an example of a hostile act that has been committed against the UK that was not an act of terrorism.

The fact sheet provided by the Home Office suggests that these provisions are needed because:

“The UK faces a sustained threat from hostile actors seeking to undermine our national security in a wide variety of ways”.


Can the Minister explain how every and all acts that threaten the economic well-being of the UK are a threat to national security, and why the wording used in the Investigatory Powers Act 2016 is not used here—for example, with regard to the issuing of bulk interception warrants under Section 138(2) of the 2016 Act, where the issue of a warrant has to be,

“in the interests of the economic well-being of the United Kingdom”,

but only so far as those interests are relevant also to the interests of national security?

[Baroness Williams of Trafford]

My Lords, we have already debated a number of points related to the new ports powers under Schedule 3 to the Bill. Groups of amendments to come will address other aspects of these provisions. That being the case, I will limit my remarks in responding to this stand part debate to explaining the overarching case for these new powers to combat hostile state activity. Schedule 3 will serve to address a current gap in our ability to tackle the threat from hostile state actors by introducing provisions to allow an examining officer to stop, question, search and detain persons at a UK port or the border area in Northern Ireland to determine whether they are or have been engaged in hostile activity.

For the purposes of this legislation, a person is or has been engaged in hostile activity if they are or have been concerned in the commission, preparation or instigation of a “hostile act” that is or may be carried out for or on behalf of a state other than the United Kingdom, or otherwise in the interests of a state other than the United Kingdom. An act is a hostile act if it threatens national security, threatens the economic well-being of the United Kingdom, or is an act of serious crime. The noble Baroness, Lady Jones, asked about the types of activity that would threaten the economic well-being of the UK. Acts of that kind include those which damage the country’s critical infrastructure or disrupt energy supplies. The power absolutely will not be used to target the legitimate activity of foreign businesses, an example of which was given by the noble Lord, Lord Paddick. The noble Baroness also asked whether the power will be used in a discriminatory fashion. The response is an emphatic no, it will not. That is because selection based solely on ethnicity, religion or other protected characteristics is quite clearly unlawful. Selection for examination will be informed by a number of considerations, including available intelligence about hostile activity, as listed in the criteria set out in the draft code.

The events in Salisbury were a stark reminder of the impact that hostile activity can have on the safety and security of our communities. The use of a military grade nerve agent on UK soil demonstrated very clearly the lengths to which hostile actors such as the Russian state will go in order to achieve their illegitimate ends. We should not underestimate this threat. The Director General of MI5, Andrew Parker, set out the position in stark terms in a speech delivered in Berlin in May:

“We are living in a period where Europe faces sustained hostile activity from certain states. Let me be clear, by this I … mean deliberate and targeted malign activity intended to undermine our free, open and democratic societies; to destabilise the international rules-based system that underpins our stability, security and prosperity … Chief protagonist among these hostile actors is the Russian Government”.


It is not often that the general public are so exposed to the work of hostile actors. These actions highlight a contempt for public safety, the rule of law and international norms. However, they are consistent with the activities of the Russian state and others which our operational partners work tirelessly to counter.

In introducing these new powers, the Government are seeking to provide the additional capability needed better to detect, disrupt and deter the threats from these hostile actors. As the noble Lord, Lord Anderson, put it in his evidence to the Home Affairs Select Committee in January, if it is accepted that we need powers to stop and examine people at ports to combat terrorism, should not the police have similar powers to stop people on a similar basis who pose an equal but different threat to national security? In the Government’s view, the answer to the question must be an unequivocal “yes”.

It is worth reiterating that the provisions of Schedule 3 are not entirely novel. They will in many respects mirror existing powers to stop and question persons at the border to determine whether they are terrorists, but will instead be used to determine whether a person is or has been engaged in hostile state activity.

The Government are not saying that, simply because we have these powers for counterterrorism purposes, it justifies expanding them to hostile activity. Rather, we are saying that we have experience in exercising these powers; we already know the vital role that they play in countering the activities of terrorists, and we have taken into account the views of the Independent Reviewer of Terrorism Legislation on the exercise of the powers to ensure that the subject of an examination is appropriately safeguarded.

The noble Lord, Lord Paddick, asked for examples of hostile activity that would not be considered a serious crime or even be captured under current UK law or constitute terrorism. Examples might include unauthorised disclosure under the Official Secrets Act 1989; foreign intelligence officers building relationships with government officials with a view to influencing decision-making or recruiting them as an agent, or foreign intelligence officers receiving protectively marked information or stealing research plans for the UK’s next aircraft carrier. Section 1 of the Theft Act 1968 is applicable to tangible and in-action property, but does not cover information. It may be possible to prosecute a person for theft of the medium on which sensitive information is recorded, but the offence would carry limited sentencing.

The threat to this country from hostile state activity is greater now than it has ever been. It is therefore vital that the police are equipped to disrupt and deter such activity.

--- Later in debate ---

[Baroness Williams of Trafford]

The noble Lord provides a very good example. It might not amount to reasonable suspicion, but there would certainly be a pattern of activity or information which allowed that officer to stop the individual.

[Lord Paddick]

Will the Minister answer my question about why the wording from the Investigatory Powers Act 2016 is not used? It attaches to the consideration of the economic well-being of the United Kingdom the further consideration of the interests of national security to differentiate between acts such as I described, of envoys from Paris and Frankfurt trying to steal UK business, and the example given by the Minister of somebody looking to target the electricity infrastructure.

The Minister said that the powers could not be used to target people on the basis of race and religion because it would be illegal. In which case, can she explain why, in one police force area, you are 25 times more likely to be stopped and searched if you are from a black or minority ethnic background than if you are white? Why is that happening when it is illegal?

[Baroness Williams of Trafford]

Police stop and search is very often intelligence based. There may be areas where there is a higher than average proportion of black people. Quite often, some of the gang activity is black on black, but you cannot be stopped because you are black.

[Lord Paddick]

The force I am quoting from is Dorset, if that helps the Minister.

[Baroness Williams of Trafford]

That does help me, and of course it is where the noble Baroness, Lady Jones, lives. The noble Lord makes a very good point in that instance. As for envoys trying to steal business, there is nothing wrong with healthy business competition, but undermining the economy, through critical infrastructure, is entirely different. He also asked about the IP Act and I will write to him on that. The answer just handed to me contains a quotation from the noble Lord, Lord Anderson, who wrote:

“If Schedule 7 is being skilfully used, therefore, one would expect its exercise to be ethnically ‘proportionate’ not to the UK population, nor even to the airport-using population, but rather to the terrorist population that travels through UK ports”.


That is a far more eloquent description of the proportionality. I will write to the noble Lord about the IP Act.

--- Later in debate ---

[Baroness Jones of Moulsecoomb]

Can I just say to the noble Lord, Lord Kennedy, that I was not trying to corner the market in protest? I was thinking that perhaps a lot of Members would not have the time to do that sort of thing.

[Lord Paddick]

I was not going to speak, and perhaps I should declare an interest, in that I have probably been to more protests than any other Member of this House, but mainly in uniform rather than to protest myself.

I am struggling to understand which part of the Bill the noble Baroness is concerned about that would directly impact on peaceful protest. That is why I hesitated to make a contribution.

[Baroness Jones of Moulsecoomb]

My concern is that this is repressive legislation, and we are already finding that peaceful protest is heavily affected by other parts of terrorism legislation. I therefore think that this would have an impact as well.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, my noble friend Lord Anderson tempts me to say a few words on this matter. He is absolutely right that the number of Schedule 7 stops declined dramatically over the years, and there was a very good reason for it. When I became Independent Reviewer of Terrorism Legislation, a phrase commonly used with me was “copper’s nose”. I was extremely concerned, because—if the noble Lord, Lord Paddick, will forgive me—coppers do not always have the same-sized noses nor the same air throughput into them. Some officers started to develop them for themselves. The noble Lord, Lord Hogan-Howe, is no longer here, but some officers in Scotland Yard with what is now called SO16 demonstrated to me how they had refined copper’s nose into a series of behavioural analyses that led them to decide whether and how to ask screening questions. A whole behavioural science has built up around this; it is called behavioural analysis. It emanated from America, but it has been well used by police officers here—I have been to a number of lectures about it.

I regret that the formalisation of screening questions, as suggested in the amendment, is completely impractical. My noble friend Lord Anderson referred to a coachload of passengers. One place that I used to visit quite regularly was Dover port, where buses come through at speed. Officers go on to them and ask questions such as, “Where are you going?” or “When did you come to this country?”, usually based on a reason that they have derived from the methodology they use for the people they are questioning. Formalising this process would make it very slow and more oppressive in the minds of those asked simple screening questions. They do not mind being asked a simple question or two, but they would mind if it were done in a way that suggested that it was part of a formal police process.

The police generally do this very well. They should be left to do it as they do it. We should not over-formalise something which has evolved to a point where the people who are stopped, asked a series of questions and detained for a time, and whose attention is demanded for a time, are usually those of whom there are good reasons to ask more detailed questions.

[Lord Paddick]

My Lords, I accept what the noble Lord has just said, but in my reading of the amendment, which uses the phrase,

“may include, but is not limited to”,

it would not limit the sorts of questions that could be asked, but it would differentiate formally between a Schedule 7 situation and asking the simple questions as indicated in it.

[Lord Carlile of Berriew]

Does the noble Lord really think that an examining officer getting on to a bus at Dover should walk up to a passenger and say, “I am notifying you that an examination under Schedule 7 to the Terrorism Act has been commenced. You’re not obliged to answer any questions or engage with me during this screening process. It is not an offence to refuse to engage with me in any way during this screening process. Where are you going?”? It sounds an absurdity, and it would be obstructive to the normal work of police officers under Schedule 7. Does the noble Lord not agree that, although the number of Schedule 7 stops has been reduced dramatically, there remains effectiveness in Schedule 7, which was never shown, for example, in Section 44 stop and search, which he will remember well?

[Lord Paddick]

My reading of the amendment is that it would differentiate between a Schedule 7 encounter, where the person is not entitled to silence and has to answer questions because they commit an offence if they do not, and the informal process that leads up to a Schedule 7 encounter.

[Baroness Williams of Trafford]

I thank noble Lords for their points on this amendment. I start by saying to the noble Lord, Lord Anderson, that the IPC has been consulted throughout the drafting of the code.

The interactions between noble Lords probably go to the root of the amendment proposed by the noble Lord, Lord Rosser. The section on screening outlined in the Schedule 3 code, which mirrors the existing guidance for the equivalent CT powers, is there to provide ports officers with clarity on the distinction between questions that can be asked by police officers in the ordinary course of their duties with a view to deciding whether to examine someone and questions that are permissible only once a Schedule 3 examination has commenced; that is, those questions designed to elicit information to enable an officer to determine whether the person is or has been concerned in hostile activity.

We have all come across police officers as we go about our daily lives and are used to seeing them on local streets and in tourist hotspots or protecting our national infrastructure. Wherever officers are on the ground, it is reasonable to expect them to interact with the public. It is not only a reasonable expectation but a vital aspect of front-line policing.

Such interactions will vary and depend on the specific purposes. They may range from polite conversation between an officer and a member of the public to a situation where an officer wants to query why a person is acting in a certain way or why they are present in a certain place. In such circumstances, police officers do not rely on specific powers of questioning; rather, they are simply engaging members of the public during their ordinary duties, as the noble Lord, Lord Carlile, pointed out. It is no different when officers are stationed at UK ports.

It would be unusual if officers did not interact with the public in this way. It would be even more unusual if front-line officers were not able to use those interactions to determine whether any further action was needed. It is unfortunate that, in trying to clarify this distinction between what would constitute questioning or interaction during ordinary police duties and questioning that can take place only once a Schedule 3 examination has commenced, the language and intention of the code have somehow been misunderstood.

Let me be clear: what is referred to as “screening” in the draft code is not a prescribed process or procedure that ports officers must adopt before selecting a person for examination. It is a clarification of what questions can be asked, if appropriate, prior to selection for examination, as against the questions that can be asked only during an examination.

It is quite possible that a ports officer will speak to members of the public at a UK port in the course of their duties with no intention of selecting them for an examination of any kind. Of course, the person’s behaviour might lead the officer to consider use of a police power, but Amendment 63A could have the unfortunate implication that, in other contexts and absent specific statutory powers, officers are unable to talk to the public or request to see their documents in the ordinary course of their duties to determine whether they need to take the further step of invoking their legal powers. It would define such questioning as being part of the Schedule 3 examination itself, rather than something that takes place before an examination. All that said, even though I do not agree with the amendment, we will consider whether further clarity is needed in the code before formally laying it before Parliament for a debate and approval by both Houses. I hope that, with that assurance, the noble Lord will be content to withdraw his amendment.

--- Later in debate ---

[Lord Pannick]

I share the concern about the breadth of the definition of “hostile act” as covering acts which threaten “national security” or,

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

These concepts are vague to the point of absurdity. No doubt some people would say that the Prime Minister’s Brexit deal threatens the economic well-being of the United Kingdom. I would not share that view, but some people might. Because of the vagueness of these concepts, they would inevitably confer extensive discretionary powers, which are inimical to the rule of law. Because they are so vague, they would inevitably also inhibit perfectly lawful activities.

[Lord Paddick]

My Lords, I do not want to add to the comments that I made in the debate on whether Clause 21 and Schedule 3 should stand part of the Bill, which echoed the comments of other noble, and noble and learned, Lords.

As the noble Lord, Lord Anderson of Ipswich, has said, regulations that we recently considered that were made under the Investigatory Powers Act radically redefined “serious crime” to mean offences which carry a minimum sentence of 12 months’ imprisonment but also all offences involving communication or the invasion of privacy. The Government are quite capable of redefining—and in fact have redefined—serious crime to fit more precisely the powers referred to in different pieces of legislation, even regulations made under a piece of legislation in which the definition of serious crime is different. So I do not agree with the noble Baroness, Lady Manningham-Buller, who mentioned earlier that it would not capture Official Secrets Act offences, because the Government, as has been suggested, can change, have changed and could change the definition of serious crime in relation to Schedule 3 powers.

[Lord Rosser]

I will be very brief indeed. We will listen with interest to what the Government have to say in response to the amendment moved by the noble Lord, Lord Anderson of Ipswich, but—obviously, subject to what the Government say—it seems to us to have considerable merit.

--- Later in debate ---

[Earl Howe]

I am grateful to my noble friend. Possibly the answer is for me to write to him after this Committee sitting. My feeling would be that to require someone who was not detained to supply a DNA sample would cross a civil liberties line that many would find uncomfortable. In my judgment, it should therefore be only for those detained—obviously you are detained only for a good reason—to be required to supply such a sample.

[Lord Paddick]

I agree with the Minister on the civil liberties issue. The other problem is that taking a DNA sample would assist in identifying who the individual was only if that person’s DNA had already been taken and was on the database. I do not think we have many Russian spies’ DNA that we would then be able to use to identify that they were hostile actors by taking a DNA sample from them. It is only a small proportion of the UK population who have been arrested and convicted and whose DNA would therefore appear on the database. So, in addition to the infringement of civil liberties of completely innocent people having to provide DNA samples, the proposed measure would be of limited benefit because of the limited nature of the existing DNA database against which the DNA sample could be compared.

[Baroness Jones of Moulsecoomb]

I support the Minister and the noble Lord, Lord Paddick. It is quite rare for me to agree with the noble Earl so I thought I would take this opportunity to do so. More importantly, there would be widespread condemnation of this particular move; it would be deeply unpopular. It would be hard enough getting ID card legislation through without a lot of resistance, and this idea would be even tougher.

--- Later in debate ---

It would be helpful if the Government could clarify that point. I think I know the answer already; nevertheless, it would be helpful if the Government could clarify it. Also, could they clarify that what they are proposing meets the requirements of the Miranda judgment?

[Lord Paddick]

My Lords, briefly, I agree in principle with the intention behind the amendments, at least on confidential journalistic material and material that is subject to legal privilege. However, I recognise the dilemma of how you determine whether it is confidential information unless you just take the person’s word for it. Clearly, if you just accepted the person’s word that the matter was confidential, anybody could get away with not handing over documents. I do not think that Amendment 69A could work in practice in real time, but there is a real problem here that needs an explanation and some reassurance.

[Baroness Williams of Trafford]

My Lords, I hope that I can reassure noble Lords with my explanation, but I thank those who have raised their concerns about the use of Schedule 3 powers to compel a journalist to reveal their material, including confidential material.

In drafting the Bill, we have been alive to such concerns and at pains to ensure that adequate safeguards, which I think noble Lords are talking about, are in place to protect confidential material, including confidential journalistic material. As the noble Lord, Lord Rosser, pointed out, the new retention powers in respect of confidential information require the authorisation of the Investigatory Powers Commissioner, who has to be satisfied that certain conditions are met before granting that authorisation.

In earlier debates on the powers under Schedule 3, I explained that a number of foreign powers and hostile actors are becoming even more bold and inventive in their methods. For example, as I outlined earlier, intelligence officers and their agents actively use the cover of certain professions, including journalism, the law and others. To ensure that our police officers are equipped to detect, disrupt and deter such activity, it is critical that they are able to retain, copy and examine documents or other articles that may include confidential journalistic or legally privileged material. That is why Schedule 3 introduces new powers and mechanisms to allow for such action to be taken where the article, which may include confidential material, could be used in connection with a hostile act or to prevent death or significant injury.

I recognise that the protection of journalistic material held by any individual examined under ports powers is a sensitive matter and one where we clearly need to get the safeguards in the Bill right. I want to be clear that the powers in Schedule 3 are not intended to disrupt or impede the vital work of journalists in any way. Journalistic freedoms of speech and expression are the absolute cornerstone of our democracy, which should be protected in the exercise of any police powers. The provisions in the Bill, however, are aimed at those who seek to abuse our legal frameworks to put our national security at risk and who are often trained to do so.

Amendment 68 would allow a person to refuse a request for documents or information where the information or documents in question consist of journalistic material, as defined by the Police and Criminal Evidence Act and the Investigatory Powers Act, or are subject to legal privilege. In practice, this would prohibit the examining officer from verifying that the material in question was confidential and would require the officer to take the examinee at their word. Amendment 69A is similar and, while it does not quite go as far as allowing a person to refuse to provide requested documents or information, it would prohibit an examining officer from verifying that that material was confidential. Instead, it would be for the IPC to determine the question.

Restricting powers in this way would be problematic, particularly where the examinee is a trained hostile actor. Amendment 68 would provide a ground for a person to refuse to hand over documents or information simply by claiming that the material is journalistic or legally privileged. Furthermore, it would mean that the examining officer could not seek to examine such material, where there was a need, by retaining the material and applying for IPC authorisation. Amendment 69A is also concerning, as it would impose a restriction on the examining officer such that they were unable to establish their own reasonable belief that the article consisted of confidential material. The police have a duty to protect our citizens and prevent crime. They cannot be expected to take at face value the word of someone they are examining who, in some cases, will be motivated to lie.

It is important to note that there are additional safeguards to govern the retention of property under Schedule 3 that consists of, or includes, confidential material. The IPC will authorise the retention and use of the material only if satisfied that arrangements are in place that are sufficient for ensuring that the material is retained securely, and that it will be used only so far as is necessary and proportionate for a relevant purpose—that is, in the interests of national security or the economic well-being of the United Kingdom; for the purposes of preventing or detecting serious crime; or for the purposes of preventing death or significant injury.

The Government are of the view that it is reasonable to expect that an examining officer will need to review material, to conclude one way or the other that specific items are, or include, confidential journalistic or legally privileged material. That being said, the draft Schedule 3 code of practice is clear:

“If during the process of examining an article it becomes apparent to the examining officer that there are reasonable grounds for believing that the article consists of or includes items that are confidential material, the examining officer must cease examining and not copy these items unless he or she believes there are grounds to retain it under either paragraph 11(2)(d) or (e)”.


The provisions in paragraph 11 of Schedule 3 contain the retention powers involving oversight by the IPC and the safeguards that I described earlier. I acknowledge that handling confidential material requires vigilance and discretion to safeguard it against unnecessary examination or retention, which is why the mechanisms under paragraphs 12, 13 and 15 of Schedule 3 in relation to these retention powers require prior authorisation of the IPC to be sought, save in exceptional circumstances, before an examining officer is able to examine such material.

We are therefore confident that the safeguards provided for in Schedule 3 and the associated draft code of practice are sufficient to protect the work and privacy of legitimate journalists and lawyers, and are consistent with the Court of Appeal’s judgment in the Schedule 7 case of Miranda that,

“independent and impartial oversight … is the natural and obvious adequate safeguard”,

in examining cases involving journalistic material.

Amendment 69 would extend this bar to information and documents where the material falls under the definition of journalistic material, as defined by the PACE and IP Acts. Such a position would go much further than safeguarding the examinee against self-incrimination. By extending the statutory bar to cover information or documents that are considered journalistic material, Amendment 69 could prevent evidence of a hostile act being used in criminal proceedings where it had been acquired through the legitimate examination of confidential material on the authorisation of the IPC. This would significantly undermine the ability of the police and the CPS to prosecute hostile actors who have used journalistic cover to disguise their criminal activities and been uncovered through the Schedule 3 examination powers.

In answer to the noble Lord, Lord Rosser, an officer can proceed to verify that material is confidential, subject to IPC authorisation, and look at confidential material, even if satisfied of the credentials of the journalist who might nevertheless be a hostile state actor.

Amendment 71 concerns the definition of “confidential material” in paragraph 12(10) of Schedule 3 and the associated protections. For the purposes of Schedule 3, confidential material adopts the definition of the IP Act. This definition covers, for example, journalistic material and communication that the sender intends the recipient to hold in confidence. As I explained, this material would fall under the definition of confidential material. It cannot be used or retained by an examining officer unless authorised by the IPC.

With those explanations—I am sorry they were so lengthy—I hope that the noble Baroness will feel happy to withdraw her amendment.

Counter-Terrorism and Border Security Bill

Lord Paddick Excerpts

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

Moved by

[Lord Paddick]

42: Clause 16, page 20, line 2, after “controls)” insert —
“(a) in paragraph 2(4) leave out “whether or not” and insert “if”,(b) in paragraph 3 at end insert “if he has reasonable grounds for suspecting that the person falls within section 40(1)(b),(c) ”

[Lord Paddick (LD)]

My Lords, Amendment 42 is in my name and that of my noble friend Lord Marks of Henley-on-Thames. I shall also speak to Amendments 46, 64 and 65 in this group. Clause 16 seeks to amend Schedule 7 to the Terrorism Act 2000 on port and border controls, as does our Amendment 42.

Schedule 7 allows a constable, immigration officer or designated customs officer to question anyone entering or leaving the UK at a port in the border area between Northern Ireland and the Republic of Ireland for the purpose of,

“determining whether he appears to be a person falling within section 40(1)(b)”,

that is, a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The person questioned must give the examining officer any information the officer requests, must prove his identity, declare whether he has any documents of any kind specified by the officer and hand them over on request. The officer can stop anyone, remove them from, and search any ship, aircraft or vehicle they are in, detain them for up to six hours, search them and anything that belongs to them, including a strip search if necessary, seize any property for up to seven days, just to examine it, and make a copy of anything, including the contents of mobile phone and computers. In addition:

“An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b)”.


Representations have been made to me that completely innocent people are being detained for hours and missing flights because of powers exercised under Schedule 7, with no compensation payable. Bearing in mind the extent of the powers Schedule 7 confers, our amendment deletes “whether or not” and inserts “if”, so that Schedule 7(2)(4) of the 2000 Act would read: “An examining officer may exercise his powers under this paragraph if he has grounds for suspecting that a person falls with section 40(1)(b)”—that is, that the person is a terrorist.

The amendment similarly amends the schedule by adding to the power of an examining officer to question a person in the border area for the purpose of determining whether his presence in the area is connected with entering or leaving Northern Ireland,

“if he has reasonable grounds for believing the person falls within section 40(1)(b)”—

again, if there are reasonable grounds for believing that the person is a terrorist. Other random stop-and-search powers under counterterrorism legislation which are far less intrusive have been repealed—namely, Section 44 of the Terrorism Act 2000—leaving Section 43 of that Act, which requires reasonable suspicion before an intervention can take place. This amendment brings Schedule 7 into line with the other powers under the Terrorism Act.

Amendment 46 similarly introduces a reasonable suspicion requirement to the powers to stop and search a person or vehicle and detain a person under Schedule 7 of the 2000 Act. We support Amendments 64 and 65, in the name of my noble friend Lady Hamwee. These amend Schedule 3 to the Bill, which reflects Schedule 7 to the 2000 Act but relates to “hostile activity” as distinct from terrorism, again introducing a requirement that there must be reasonable grounds for suspecting that a person is or has been engaged in hostile activity, and where, in Amendment 65, it is necessary and proportionate to do so, although I am not sure whether the “necessary and proportionate” amendment is strictly necessary. I beg to move.

--- Later in debate ---

[Baroness Williams of Trafford]

Because they are implicit in the Bill and, I guess, Schedule 7.

[Lord Paddick]

My Lords, I am grateful to all noble Lords who have contributed to this short debate. Perhaps reasonable suspicion of a particular individual is going too far, but I suggest to the Minister that the nationality of those suspected of coming to the UK to do harm to the UK, their arrival time and where they have come from might be the sort of intelligence that Assistant Commissioner Basu was talking about as fragmented and incomplete, not information about a particular individual. Whether that amounts to reasonable suspicion is arguable.

To give a personal example, every time I tried to go to the United States, I was taken to one side and all my personal property was gone through. This addresses the point about alerting people to the fact that they may be under suspicion. If it happens once, you think it might be random; when it happens every time, you begin to think that there might be some suspicion. There is a redress system where you write to the Department of Homeland Security. It writes back to you some months later saying, “We can’t say whether you were under suspicion or not, whether you are on the list or not, or whether you have been taken off the list or not”. This is not giving away the methodology, or giving some intelligence to terrorists, but insisting that there is something more than simply an arbitrary approach to the situation.

I am getting increasing reports from individuals suggesting that examination might be being used arbitrarily or without due care, which is the other expression used by the noble Baroness. The noble Lord, Lord Rosser, makes a very powerful point. If the guidance says that stop and searches should not be arbitrary, why not have that in the Bill? I understand what the noble Baroness says, but how many people have the time, inclination or means to take civil action against the Border Force in circumstances where they feel that they are being improperly targeted? Surely it would be much better to have it in the Bill.

In summary, I will carefully reflect on what the noble Baroness and other noble Lords have said, and at this point I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

Moved by

[Lord Paddick]

43: Clause 16, page 20, line 9, at end insert “committed on the occasion on which the person was questioned”

[Lord Paddick]

My Lords, in moving Amendment 43 I shall speak also to Amendments 44 and 45 in my name and that of my noble friend Lord Marks of Henley-on-Thames.

Clause 16 arises out of a recommendation from the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson of Ipswich, that,

“there should be a statutory bar to the introduction of Schedule 7 admissions in a subsequent criminal trial”.

I am looking to the noble Lord for assistance because I find this piece of the legislation somewhat impenetrable—but I will give it a go.

The amendments in this group seek to probe whether the clause does what the noble Lord, Lord Anderson, intended. Amendment 43 would ensure that a Schedule 7 admission can be used in subsequent proceedings for an offence under paragraph 18 only if the admission relates to an offence committed on the occasion to which that questioning relates. For example, if a person wilfully obstructs a Schedule 7 search and makes an admission relevant to that search, the admission will be admissible. If the admission related to a previous Schedule 7 search at a different time or at a different port, it would not be admissible.

Amendments 44 and 45 would ensure that paragraph 5A of Schedule 7 to the Terrorism Act 2000 at sub-paragraph (2)(c) does not thwart the former independent reviewer’s intention. Sub-paragraph (2)(c) seeks to make an exception of admissions made during a Schedule 7 encounter if, on a prosecution for some other offence that is not a paragraph 18 offence, the person makes a statement that is inconsistent with what he said during a Schedule 7 encounter. This, on the face of it, seems to me to counter what the independent reviewer intended.

However—here we are into the realms of the BBC Radio 4 “Today” programme’s puzzle for the day, at least for someone like me who is not legally qualified—sub-paragraph (3) appears to suggest that the admissions under sub-paragraph (2)(c) are admissible only if the defence introduces a Schedule 7 admission or asks a question in relation to a Schedule 7 admission during proceedings arising out of the prosecution. Can the Minister confirm that I am correct, or explain what Schedule 16 actually means? I beg to move.

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

My Lords, Amendment 43, in the names of the noble Lords, Lord Paddick and Lord Marks of Henley-on-Thames, seeks to add a clarification at the end of the sub-paragraph that would make it clear that when someone is charged with the offence of refusing to co-operate, this must have happened at the same time as when the oral answers were given for it to be admissible. That seems to me to be a fairly sensible clarification. I agree with the noble Lord, Lord Paddick, that for someone who is not legally qualified, the legislation is very detailed and difficult to understand. The amendments are very good in probing the points that the Bill is getting at, so I look forward to the Minister’s response.

--- Later in debate ---

[Baroness Williams of Trafford]

Then I shall just agree.

[Lord Paddick]

My Lords, I am grateful for the explanation that the noble Baroness has given. Obviously, Schedule 7 does not allow a suspect the right to silence that is normally afforded to somebody who is suspected. Safeguards therefore need to be put in place. My query is on new subsection (3), at line 14 on page 20 of the Bill; what does this mean? It says:

“An answer or information may not be used by virtue of sub-paragraph (2)(c) unless … evidence relating to it is adduced, or … a question relating to it is asked, by or on behalf of the person in the proceedings arising out of the prosecution”.


I accept that the Minister read that out very slowly and carefully, but it reminds me of my mother, who, when speaking to somebody who does not speak English, speaks loudly and clearly in English again to try to get them to understand, but unfortunately it does not really help. Perhaps the noble Baroness, together with officials, can see whether there is some way in which that can be deciphered for me.

[Baroness Williams of Trafford]

I certainly will, although I resent being compared to the noble Lord’s mother.

[A noble Lord]

She is a lovely lady.

[Lord Paddick]

It has nothing to do with age at all. At this point, I beg leave to withdraw the amendment.

Amendment 43 withdrawn.

--- Later in debate ---

[Baroness Hamwee]

My Lords, Clause 18, which has just been agreed, and Schedule 2 amend existing powers to retain fingerprints and DNA samples for counterterrorism purposes, and the JCHR has proposed a number of amendments.

As regards Amendment 47, currently under the Police and Criminal Evidence Act a person who is arrested but not charged or convicted of a terrorist offence may have his data retained for three years for security purposes with the consent of the Biometrics Commissioner. The Bill removes the requirement for that consent. In the view of the JCHR, the oversight of the commissioner is a matter that gives confidence to the public that the powers are used only where “necessary and proportionate”, and we are not aware that this oversight impedes the ability of the police to undertake counterterrorism work.

The Government responded to our first report, stating that they did not agree that,

“it would be appropriate or responsible to reduce the powers available to the police”,

but we did not propose the removal of those powers. We recognise the logic in harmonising the retention periods for biometric data so that cases are treated in the same way, whether an individual is arrested under PACE or under the Terrorism Act, but we were concerned about removing the requirement for the consent of the Biometrics Commissioner, and I have not seen a response from the Government to that point.

Therefore, the obvious question is: what is the justification for the biometric data of a person unlawfully or mistakenly arrested being exceptionally stored rather than destroyed? If the aim is to align the procedures, why not add to the protection by the commissioner having oversight of both categories of DNA retention under both powers? The JCHR made the comment, and did not make it lightly, that it was concerned about a race to the bottom of human rights protections. I beg to move.

[Lord Paddick]

My Lords, I support what my noble friend Lady Hamwee has said. The report of the Joint Committee on Human Rights talks about the oversight of the Biometrics Commissioner giving the public greater comfort that such powers are used only where necessary and proportionate, and it would seem that no valid reason has yet been presented by the Government for removing that oversight.

--- Later in debate ---

[Baroness Hamwee]

My Lords, Amendments 48 to 53 would remove the proposed extension of national security determinations, which the Minister has explained, for the retention of biometric material to five years in six existing provisions. The Minister has also explained the role of the chief police officer and the rolling determinations, if necessary, but a review every two years for a fresh determination is required. The Bill will change that to five years. We are not questioning the retention as a legitimate aim, rather we are questioning the period of time and whether five years is proportionate for retaining the biometric data of people who have never been convicted of a crime, particularly in the absence of the possibility of a review. The Government have told us that operational experience has shown that in many cases the two-year period is too short and that cases of national security concern will often pose a more enduring threat. That does not entirely go to answer the point of the initial period.

The retention of biometric data is a significant intrusion on an individual’s right to privacy. It is lawful as long as it is not blanket and indiscriminate, but is it proportionate without the possibility of a review? We think not. I beg to move.

[Lord Paddick]

My Lords, I rise briefly to support these amendments. Other than for the convenience of senior police officers in having to review these cases every five years as opposed to every three, I do not understand what is to be achieved operationally by extending the period from three years to five when the period of retention can be extended every three years.

--- Later in debate ---

[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.

[Lord Paddick]

My Lords, briefly, I support the amendment. If, as other noble Lords have suggested, organisations are proscribed for other than legal reasons but to do with foreign policy, the Government should at least be honest enough to say that that is why organisations that meet the legal criteria are still being proscribed.

[Lord Carlile of Berriew]

My Lords, I too support the amendment moved by my noble friend Lord Anderson. There is no known system at the moment for reviewing the proscription list. The Peasants’ Revolt would still be proscribed under the current absence of a system, and that is just unacceptable. I could live with it if the Minister were to make a commitment from the Dispatch Box to introduce a system of review of the proscription list. Let us not forget that if a deproscription is found to be mistaken, there can be a reproscription of that organisation in any event, so almost nothing is lost by what is proposed.

--- Later in debate ---

The Government themselves have admitted that existing extradition arrangements between the EU and third countries, which is what we shall be on departure from the EU, do not provide the same level of capability as the European arrest warrant. This amendment does not bind the hand of those doing the negotiating since it simply says in clear terms that continued participation in the EAW is a negotiating objective. That is important, not least in the light of the reality that the current Brexit Secretary had a record of voting against home affairs and justice co-operation before taking up his current post. Continued participation in the EAW is vital for the security of this country. This Bill is about security: the EAW and the tools it gives us should not be excluded when considering security issues. The amendment is relevant and should be in the Bill at this time. I beg to move.

[Lord Paddick]

My Lords, although I agree with the amendment in principle, I have a couple of issues with it. First, no country that is not a full member of the European Union participates in the European arrest warrant. It is, therefore, unlikely that the UK would be made an exception. Iceland and Norway, which are both members of the European Economic Area and the Schengen area, applied for membership of the warrant over a decade ago and have still not been granted participation. I understand that there are legal obstacles to a non-EU country’s participation in the European arrest warrant—for example, changes required to the German constitution.

As the noble Lord, Lord Rosser, said, the European arrest warrant clearly has benefits for bringing criminals to justice, in terms of the speed and cost effectiveness with which this can be done. However, on the positive side, the exchange of counterterrorism intelligence tends to be done on a bilateral basis between the UK and one other country, rather than between the UK and the European Union. Our leaving the European Union will, we hope, not impact on the vital exchange of intelligence data in relation to persons suspected of specified offences, which is separate from the European arrest warrant.

Stop and Search Powers

Lord Paddick Excerpts

Monday 12th November 2018 Lords Chamber

[Baroness Williams of Trafford]

Regarding conversations, the British Transport Police hosted a police and public consultation forum on 2 November. It was a policing seminar on stop and search where debates were had on the effectiveness of stop and search on emerging knife crime and violence. As part of the seminar, the possibility of removing the requirement for reasonable grounds was debated within the group, but it was not put forward by senior officers and was only part of an informal discussion with stakeholders. The Home Office was not in attendance, and the NPCC issued a corrective statement to editors.

[Lord Paddick (LD)]

My Lords, I also thank the Minister for repeating the Statement. She talked about government reform of stop and search, and the noble Lord, Lord Rosser, referred to action taken by the former Home Secretary, now the Prime Minister. Is the Minister aware that there has been a 75% reduction in stop and search since 2010-11, but no reduction in the number of black people stopped and searched, so that black people are now nine times more likely to be stopped and searched for certain offences than white people?

The argument is put forward that stop and search tends to be in high crime areas with socioeconomic deprivation, which have a higher percentage of minority groups. Is the Minister aware that the top-ranked forces for black/white disproportionality are Dorset and Suffolk? We are facing a knife-crime crisis in this country. In 2010-11, half of stop and search was for drugs. In 2016-17, almost two-thirds of stop and search carried out by police was for drugs, not for weapons, and the rate at which drugs were actually found was lower for black people being stopped and searched than for white people.

The Statement that the Minister has just repeated said that stop and search is a valuable tool provided that it is used properly. Does the Minister agree that these statistics tend to suggest that stop and search is not being used properly to deal with the epidemic of knife crime? If so, what do the Government intend to do to address the problem?

[Baroness Williams of Trafford]

As the noble Lord, Lord Rosser, rightly pointed out, the move to a much more intelligence-led stop and search has been more effective. But on the point about the number of black people being stopped and searched, we are quite clear that nobody should be stopped on the basis of their race or ethnicity. Forces must make sure that officers use those really quite intrusive powers in ways that are fair, lawful and effective.

The figures cited by the noble Lord, Lord Paddick, were highlighted by the Race Disparity Audit. I am sure he knows that. They make clear the importance of the transparency introduced by the reforms to stop and search which enable forces to monitor and explain the use of the power. He has just outlined a couple of forces in which there is a huge increase in the proportion of black people stopped and searched compared with the rest of the population. It is absolutely right that the police must explain the use of the power and make efforts to improve it.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, the notion of searching everybody who goes through an Underground station would, I am afraid, be unfeasible. In addition to knives, there are other metal things that people might carry in their pockets. I can foresee that system as being entirely unworkable. I go back to the point made by the noble Lord, Lord Rosser: intelligence-led stop and search is the most effective way to deal with some of the problems we are seeing.

[Lord Paddick]

As nobody else appears to be burning to ask a question perhaps I may ask the noble Baroness to comment on the fact that the percentage of stop and search that is done to look for weapons is abysmally small and that drugs are the reason given for 75% of stop and search, notwithstanding the link between the two?

[Baroness Williams of Trafford]

I agree that the percentage for weapons is not high, but the percentage is an awful lot higher in terms of the number of arrests made. It is becoming a more effective system. I agree with the noble Lord that the number of arrests made as a consequence of stop and search could be higher.

Knife Crime

Lord Paddick Excerpts

Monday 5th November 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I think that the noble Lord would agree that my right honourable friend the Home Secretary and the policing Minister have acknowledged the increasing calls on police time and resources, particularly over the past two years, but our analysis points to a range of factors driving serious violence, most notably in the drugs market. The Government, therefore, understand that police demand is changing and becoming much more complex. Noble Lords will know—I have said it before—that the Minister for Policing and the Fire Service has visited police forces across England and Wales and that was why the funding settlement of more than £460 million in 2018-19 was arrived at. Early intervention is, however, crucial in this area, particularly for young people.

[Lord Paddick (LD)]

My Lords, these deaths are a tragedy, and our thoughts are with all those affected. Clearly there are long-term issues, which the noble Baroness has referred to, but if we are to get knives off the street we need the police and communities to work together so that stop and search can be accurately targeted at those actually carrying the knives. How can this be done when community policing has been devastated by the Government’s cuts to police budgets? There is nothing in the Government’s anti-violence strategy about increasing police resources.

[Baroness Williams of Trafford]

My Lords, the noble Lord points to something important about stop and search—it has to be intelligence-led and there have to be sufficient police officers to deal with it. In terms of the community, the noble Lord points to something very important. Community projects to tackle knife crime may be one of the most effective ways of dealing with this scourge that has blighted communities for the past few years.

Brexit: Border Control

Lord Paddick Excerpts

Monday 29th October 2018 Lords Chamber

[Lord Davies of Stamford]

My Lords—

[Lord Paddick (LD)]

My Lords—

[Noble Lords]

Order.

[Baroness Evans of Bowes Park]

My Lords, this is really not appropriate during Questions. We will hear quickly from the Liberal Democrat Benches.

[Lord Paddick]

My Lords, the Minister talked about an additional 600 staff being recruited in 2018-19. Does she not agree that there were in fact 450 fewer full-time equivalents in Border Force in 2017-18 than there were five years ago, despite a significant increase in the number of people coming across the border?

[Baroness Williams of Trafford]

I did not actually talk about 600 staff; I talked about 900 in three lots of 300. In fact, the number permanently employed in Border Force at the end of 2017-18 was 7,700, and the forecast for 2019 is 8,600.

Counter-Terrorism and Border Security Bill

Lord Paddick Excerpts

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

[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 ---

[Lord Paddick]

My Lords, I support all the amendments in this group. Amendment 7, in the name of my noble friend Lady Hamwee, to which I have added my name, removes the publication of images from this section and the new offence of publishing an image.

The existing offence under Section 13 of the Terrorism Act 2000 already outlaws the wearing of an item of clothing and the wearing, carrying or displaying of an article,

“in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”.

As I understand it, the Government want this new offence to cover photographs taken in a private place. As Liberty has pointed out in its briefing, this increases the risk that in so doing law enforcement may,

“mistake reference for endorsement, irony for sincerity, and childish misdirection for genuine threat”.

I gave the example at Second Reading of an innocent Facebook post of a selfie in a friend’s bedroom, with the subject not realising that there was an ISIS flag on the wall behind them.

Both the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights have expressed their unease with the new offence, which, like Clause 1, risks disproportionate interference with Article 10 of the European Convention on Human Rights. There is a general point here that covers both Clause 1 and Clause 2. I accept what the Minister has said—that these offences are designed to address a gap in the ability of the authorities to prosecute some people—but this runs the risk of creating a chasm into which innocent people are going to fall. Regrettably, we have seen time and again—I speak as a former police officer with more than 30 years’ experience—legislation that is too loosely drawn being abused by the police to arrest and detain people who should not be arrested or detained.

Amendment 8, in the name of my noble friend Lady Hamwee and the noble Baroness, Lady Lawrence of Clarendon, to which I have added my name, seeks to exclude those circumstances identified by the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights of,

“historical research, academic research or family photographs”,

and any publication that,

“was not intended to support or further the activities of a proscribed organisation”.

I appreciate that I have not heard from the Labour Front Bench in support of Amendment 9, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark—that has a similar intention to Amendment 8 but specifically includes journalism.

Taken together with the requirement that the publication was not intended to support, encourage support for or further the activities of a proscribed organisation, my concerns about universally exempting journalism, as in Amendment 6, do not apply to this amendment and therefore I support it.

This extension of the law risks criminalising those who have no intention of carrying out acts of terrorism or encouraging others to do so. As such, I agree with my noble friends Lord Marks of Henley-on-Thames and Lord Thomas of Gresford that Clause 2 should not stand part of the Bill.

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

My Lords, the amendments in this group seek to provide clarity on the issues in question before the Committee on this clause. They seek to put into the Bill the recommendations of the Joint Committee on Human Rights, which has looked at the Bill in detail. The committee has set out the position clearly. This clause is intended to criminalise the online publication of an image depicting clothing or other articles which arouse reasonable suspicion that a person is a member or supporter of a proscribed organisation. The committee has taken the view that the arousal of reasonable suspicion of support for a proscribed organisation is a low threshold under which to make an offence. I agree very much with the committee in that respect, as I do with the noble Baroness, Lady Hamwee—it may be too low a threshold.

The noble Baroness and the noble Lord, Lord Paddick, have put forward Amendments 7 and 8 in this group, as the Joint Committee suggested. Amendment 9, as proposed by myself and my noble friend Lord Rosser, is similar in effect to Amendment 8 but, as we heard from the noble Lord, Lord Paddick, we also make reference to journalism and academic research. All the amendments in this group are reasonable and proportionate. The new offence of publication of an image would be retained but through them we have created a proper defence of reasonable excuse in the Bill, which is important. The noble Lord, Lord Marks of Henley-on-Thames, has opposed Clause 2 standing part of the Bill. That gives the Minister the opportunity to justify this afternoon what is proposed in the clause.

The noble Lord, Lord Carlile, made an extremely important point in respect of images in Northern Ireland. Like the noble Lord, I have travelled extensively in the Province, where you can now visit areas with murals all over the place. Some of them can still look quite aggressive but they are also very much part of the tourist trail in certain parts of Belfast. We need to look at this issue and be careful about whether what we do here has unintended consequences. If the Minister does not accept the amendments before the Committee, can she set out how we can be satisfied that there is adequate protection in place within the clause as drafted?

[Baroness Williams of Trafford]

My Lords, under Clause 2 it will be an offence to publish an image of an item of clothing or other article associated with a proscribed organisation,

“in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of”,

the organisation, as noble Lords have pointed out. This provision updates for the digital age the existing offence at Section 13 of the Terrorism Act 2000, which criminalises the display in a public place of such an item in such circumstances. That existing offence applies only partially in cases where a person publishes an image online. While it would be likely to catch a person who publishes an image of, for example, a Daesh flag displayed on the streets, it could be argued not to apply to publication of an image of the same flag displayed within a private home, even if both images are made available to the general public by publishing them online in the exact same way.

The purpose of Clause 2 is to put beyond doubt the application of Section 13 to any case where a person publishes an image of something which it would be unlawful to display in person. It does this by inserting a new offence into Section 13 as its new subsection (1A). This is important to ensure that the law applies properly to contemporary online activity. In the 18 years since the Section 13 offence was enacted, we have of course seen an exponential growth in the importance of the internet in day-to-day life, and sadly its role in radicalisation and the spreading of terrorist propaganda is no different. This includes publishing images of flags and logos associated with proscribed terrorist organisations. We therefore need to update our legislation to reflect these developments and to ensure that all public spaces, including those online, are properly covered by laws which prohibit the publication of such material. Amendment 7 would simply remove this provision in its entirety, rather than seeking to amend or improve it, leaving the gap I have just described and leaving our terrorism legislation out of date and incomplete.

Amendments 8 and 9 would add a reasonable excuse defence to the new Subsection (1A) offence I have outlined. Both specify certain examples of reasonable excuse. Amendment 6 includes instances where publication of the image was not intended to be in support of a proscribed organisation, whereas Amendment 7 makes this category an absolute exemption.

Noble Lords have indicated that their intention is to ensure that the offence does not catch those with a legitimate reason to publish images of items associated with proscribed terrorist organisations, in particular in the context of historical or academic research or family photographs, or who otherwise publish such images without nefarious intent. I am very happy to support both the sentiment and the intention behind these amendments. The Government have no desire to criminalise people for simply going about their legitimate professional activities or their normal family life, but these amendments are not needed to secure that outcome. In fact, the same outcome is already secured by Clause 2.

To explain why that is so, it is important to note that the mere publication of an image associated with a proscribed organisation is not enough on its own to constitute an offence under the existing Section 13 offence or the new offence that will be added to it by Clause 2. The offence will be made out only if the image is published in such circumstances as to arouse reasonable suspicion that the individual is a member or supporter of the proscribed organisation. This provides a clear and effective safeguard. For example, in a case where a journalist features an image of a Daesh flag in a news report on the activities of the group or an academic publishes such an image in a book or research paper, it would be clear from the circumstances that they are not a member or supporter of Daesh. Similarly, where a person publishes, say, an old family photo of an ancestor standing next to an IRA flag, the offence would not bite unless all the circumstances of the publication suggest that that person is a member or supporter of the IRA.

On the point made by the noble Lord, Lord Carlile, about the sensitivity of symbolism, pictures et cetera and Northern Ireland, if he will indulge me, I will move on to the specific Northern Ireland point on the next amendment.

This approach provides no less certainty to such individuals that they will not be caught by the new offence than would the proposed reasonable excuse defence, and it offers the advantage that the same formulation—

[Lord Paddick]

Will the Minister address the example I gave at Second Reading and again today of somebody who does not realise when taking a selfie that there is an ISIS flag behind them on their friend’s wall? In what way would it be clear that those circumstances are not intended to lead to a reasonable suspicion that the people in the photograph are supporters of ISIS?

[Baroness Williams of Trafford]

I was going to explain it in my own words, but I think the notes agree with me. On the innocent selfie with the ISIS flag in the background, the offence is clear: it is committed only where all the circumstances in which an image is published give rise to reasonable suspicion that the person is a member or a supporter of a terrorist organisation. The picture in and of itself is not the offence. I hope I have explained that clearly to the noble Lord.

--- Later in debate ---

[Lord Rosser]

Clause 2(4) confers on the police power to seize clothing or any other article, including flags, associated with a proscribed organisation. The Bill would enable the officer in the circumstances to seize items such as flags, provided that the officer was satisfied that it was necessary to seize such an item to prevent the evidence being concealed, lost, altered or destroyed—evidence that could well be crucial in pursuing an investigation and bringing a successful prosecution.

When this matter was discussed during the passage of the Bill through the Commons, the Government were asked what engagement there had been with the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland about the terms of Clause 2 and the difficulties in pursuing such prosecutions. In response, the Government accepted that taking away a flag in certain parts of Northern Ireland had on occasions acted as something of a lightning rod for a riot or a breakdown in civil order, and that in Northern Ireland a flag does not necessarily, in the context of the provisions of this Bill, have pure terrorist content. The Commons Minister said he did not want to see,

“flag protests becoming more and more polarised than they were in the past”.—[Official Report, Commons, 11/9/18; col. 661.]

In view of the potentially sensitive nature of this issue in Northern Ireland, the amendment would ensure that Clause 2(4) on seizures could not come into force until the Secretary of State had consulted the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland on the introduction of the new provisions in the Bill in relation to the power to seize.

It would be helpful if the Minister could say how the Government envisage the power to seize working across the UK generally. Presumably, there will still be the same potential confrontation over seizing an item, whether on arrest or subsequently reporting the person for summons, with an indication of that course of action being given to the individual concerned at the time. On the basis of what evidence do the Government believe that the likelihood of confrontation will be reduced? Presumably, those on marches or demonstrations will soon know that court proceedings are still likely or possible under reporting a person for summons. Or is the purpose of this option of seizure—of, for example, a flag—in reality a reason to do it this way and then not pursue the matter any further through the courts?

Presumably, there will still be a need to obtain an individual’s name and address on the street at the march or demonstration before or after the seizure of the flag or other item in question, and that information may or may not be given. Both issues—namely, trying to seek such details and the seizure of the flag before or afterwards—might still provoke confrontation. It would be helpful if the Minister could address that point in her response, as well as the more specific issue of the application of the clause in Northern Ireland. I beg to move.

[Lord Paddick]

My Lords, briefly, I support the amendment. Judging from the Minister’s non-verbal reaction to it, the consultation proposed seems extremely sensible given the history in Northern Ireland. On whether or not the police will use these powers in a public order situation, the police are very experienced—I declare an interest as a former advanced public order trained police officer who dealt with such situations—and, clearly, a decision has to be made on the basis of the circumstances at the time whether items can be safely seized without escalating the situation. The police service is very well equipped in deploying professional photographers and others gathering video evidence which can be used instead of, or in addition to, seizing those items. So although I agree with the sentiment behind the amendment concerning Northern Ireland, I do not share the concerns of the noble Lord, Lord Rosser, about the seizure of items potentially escalating a situation.

[Baroness Williams of Trafford]

My Lords, as the noble Lord, Lord Rosser, has explained, the amendments relate to the new power to seize flags and other articles provided for in Clause 2(4). Under Section 13(1) of the 2000 Act, it is an offence to wear or display in a public place an item of clothing or other article in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. The seizure power in Clause 2 is intended to ensure that the police and the CPS have the best evidence to pursue a prosecution for a Section 13(1) offence.

Of course, the police already have powers to seize evidence following an arrest, but in some circumstances, particularly in the context of policing a march or demonstration, arresting an individual may not always be an option if the legal tests in the Police and Criminal Evidence Act 1984 for making an arrest are not satisfied; or arrest may not be the appropriate policing response at that time if, as the noble Lord, Lord Paddick, pointed out, it is judged that it would provoke further disorder. In such a case, if the police wish to take action against a person displaying an item such as a flag or banner, instead of arresting the individual, the officer may choose to report them for summons on suspicion of committing an offence under Section 13(1) of the 2000 Act.

The new power introduced by Clause 2(4) would enable the officer, in these circumstances, to seize an item such as a flag which they reasonably believe to be evidence of the Section 13(1) offence in the absence of an arrest. The officer must be satisfied that seizure is necessary to prevent the evidence being concealed, lost, altered or destroyed. By preventing the loss or destruction of such items, this power will better support investigations and will provide and better preserve more evidence to help take forward prosecutions.

--- Later in debate ---

[Baroness Williams of Trafford]

After the debate, I shall go back and check, but those are the ones we have consulted on this aspect.

Of course, this will be a discretionary police power like any other, and its application in Northern Ireland will be an operational matter for the PSNI, but we will consult and update those partners further, as necessary, prior to the provision coming into force.

The change that Clause 2(4) makes to Section 13 of the 2000 Act is to confer a power on the police to seize flags or other articles associated with a proscribed terrorist organisation as evidence of an offence under Section 13(1). This is intended to ensure that the police and CPS have the best evidence to pursue a prosecution.

Of course, the police already have powers to seize evidence following an arrest, but in the context of policing a march or demonstration, it might not always be an option if the legal tests in the PACE Act 1984 for making an arrest are not satisfied, or arrest may not be the appropriate policing response at that time.

In such a case, if the police wish to take action against a person displaying such a flag, instead of arresting the individual, the officer may choose to report them for summons on suspicion of committing an offence under Section 13(1) of the 2000 Act.

I think I may have been given papers which are forcing me to repeat what I just said.

[Lord Paddick]

They are.

[Baroness Williams of Trafford]

Ignoring what I just said—I am not sure how that happened—I hope that, with the explanation I have given, the noble Lord will feel happy to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I have Amendments 12 and 13 in this group. The JCHR accepts that technology has moved on since 2000 but has expressed concern that viewing material online without any associated harm was an unjustified interference with the right to receive information. It was concerned too that the defence of reasonable excuse does not provide an explicit safeguard for legitimate activity. The noble Lord has rehearsed the history of this clause, and the Government’s current position, having excluded the three clicks provision, provides that a reasonable excuse includes but is not limited to situations where,

“the person did not know, and had no reason to believe”,

and so on. We are not reassured that there will be adequate protection for legitimate conduct, so we have proposed Amendment 12, on intention,

“to commit or encourage acts of terrorism”.

At the end of Committee, we will have to collate all the references to intention and recklessness to see whether each of us has been consistent in our arguments, which we may not have been. We want to insert a mens rea of intent.

Amendment 13 adds the phrase,

“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.

If that wording sounds familiar, we have just been through it in Clause 2, so I refer the Minister to my argument then in defence of adding these words.

[Lord Paddick]

My Lords, I rise to support the amendments in this group. Section 58 of the Terrorism Act 2000 already makes it an offence if a person collects or makes a record of information of the kind likely to be useful to someone committing or preparing an act of terrorism, or possesses a document or record containing such information. Some examples will be of obvious use to terrorist activity—instructions on how to make a bomb, say—but others are not so obvious.

I walk every morning from St James’s to the House around the time of the changing of the guard. It would be useful for me to know which days the ceremony is being mounted so that I could avoid the crowds, but it would also be useful to a person preparing a terrorist attack on the soldiers taking part in the ceremony. The difference between my actions and the terrorist’s actions are simply the purpose to which that information is being put.

Subsection (4) inserts a proposed new subsection (3A) after Clause 58(3) describing a reasonable excuse defence that at the time of the person’s actions, they did not know, or had no reason to believe, that the document or record in question contained or was likely to contain information of a kind likely to be useful to a person committing or preparing an act of terrorism.

I know that the days on which the changing of the guard takes place is information likely to be useful to a person planning a terrorist attack on soldiers taking part in the ceremony, and I know that when I look at it. A reasonable excuse defence would not necessarily stop police being able to arrest and detain me for looking up when the changing of the guard takes place, even if the CPS decided that it was not in the public interest to charge me.

It may be considered to be a trivial excuse but it shows the breadth of this original offence. Indeed, the Independent Reviewer of Terrorism Legislation warned against Clause 3, saying that it risked criminalising those who view material such as bomb-making instructions,

“in disgust, shock and disapproval”.

Amendment 11, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, seeks to ensure that the one click offence is mitigated by providing that it must be,

“part of a pattern of behaviour”.

While I support that amendment, for the reasons I have already given, it does not go far enough. I have therefore added my name to Amendments 12 and 13, in the name of my noble friend Lady Hamwee. The former refers to an intention,

“to commit or encourage acts of terrorism”,

and the latter includes the following phrase:

“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.

--- Later in debate ---

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, these amendments seek, in various ways, to raise the threshold for the offence of viewing material over the internet provided for in new Section 58(1)(c) of the Terrorism Act 2000. Amendment 11, in the name of the noble Lord, Lord Rosser, seeks to restore the concept of a pattern of behaviour which was, as he pointed out, inherent in the so-called three clicks version of the offence as originally introduced in the House of Commons. Amendments 12 and 13, in the name of the noble Baroness, Lady Hamwee, would introduce a requirement to prove not just that the material being accessed is likely to be useful to a terrorist but that it was accessed by the individual with the intention of using it for terrorist purposes.

In responding to Amendment 11, it may assist the Committee if I explain that the intention behind the original three clicks provision was to ensure proportionality, and to provide a safeguard for those who might inadvertently access terrorist material by ensuring that there was a pattern of behaviour in accessing such material. However, we recognised the difficulties underlying that approach, and the uncertainty around how it would be implemented. Having reflected on the concerns that were raised about the three clicks provision, we believe that the reasonable excuse defence is the better way of proceeding. Introducing a pattern of behaviour test would recreate many of the same issues we faced with the three clicks provision. I agree with what the noble Lord, Lord Carlile, has just said on that issue. For example, it would beg questions such as how many viewings were required to constitute a pattern of behaviour and over what period such viewings would need to take place. Indeed, a pattern of behaviour test arguably introduces a greater degree of legal uncertainty than the three clicks test and, for that reason, I respectfully suggest that it is best avoided.

Amendments 12 and 13 would very significantly raise the threshold for the offence, and would alter its fundamental purpose. Section 58 of the Terrorism Act 2000, which Clause 3 amends, is a preparatory offence, rather than one aimed at the actual planning or commission of terrorist acts. It has a lower maximum sentence than other offences covering more developed terrorist activity, which can attract up to life imprisonment. I suggest to the noble Baroness that, in that sense, it is not comparable to the offence in Clause 2. The Section 58 offence, as amended by the Bill, is formulated so as to catch people who make a record of, or who view online, information likely to be useful to a terrorist, without requiring them to have actually used that information for a terrorist purpose or to intend to do so. This is in itself harmful behaviour, and such people can pose a very real threat to public safety. I do not agree with the example given by the noble Lord, Lord Paddick, of the changing of the guard. The noble Lord, Lord Carlile, hit the nail on the head again when he spoke about what is reasonable for the authorities to suppose in all the circumstances.

If there is evidence that the individual is preparing or committing an act of terrorism, or is assisting another person to do so, then they would be likely to meet the threshold for a more serious offence, such as Section 5 of the Terrorism Act 2006, which covers the preparation of terrorist acts, and for which the maximum sentence is life imprisonment. As such, a requirement to prove terrorist intent would effectively render unusable the new limb of the Section 58 offence that Clause 3 will insert. This is because the offence would be moved into territory that is already well covered by existing offences and could not be used for its intended purpose so that the police and courts would remain powerless to act against individuals accessing very serious terrorist material online.

The noble Baroness, Lady Hamwee, has suggested that her amendments are intended in part to address her concern that the offence will inappropriately criminalise those who seek out terrorist information through foolishness, inquisitiveness or curiosity, without intending to do harm. I have sympathy for that concern. The Government have been clear that this offence is aimed at those of a terrorist mindset and we do not wish to cast its net unnecessarily widely. However, I cannot agree with the noble Baroness’s suggestion that this is the best way to address the concern.

For the reasons that I have set out, these amendments would fundamentally undermine the purpose of the offence, and would go much further than I believe is intended in narrowing its application. We consider that the existing “reasonable excuse” approach is a better and more appropriate means of doing so, together with the normal CPS tests of whether there is evidence that would provide a reasonable prospect of conviction, and whether prosecution would be in the public interest, as the noble Lord, Lord Carlile, said. This is particularly so, because the question of whether it is legitimate for someone to intentionally seek out serious and potentially very harmful terrorist material, through foolishness or inquisitiveness, will be very fact-specific and particularly prone to grey areas. It needs to be considered on the basis of all the circumstances and all the evidence in any particular case.

While clearly there will be cases of this type, where prosecution will not be appropriate, it will certainly not be responsible to provide a blanket exemption for any person to access any quantity of terrorist information and be able to rely on such an exemption, whatever the potential harm associated with their activities. I hope, having heard my explanation, the noble Lord, Lord Rosser, will be content to withdraw his amendment, and that the noble Baroness, when it comes to her turn, will be content not to press hers.

[Lord Paddick]

I would like to explain my concerns to the Minister. In order for a police officer to make an arrest, all the police officer will need is a reasonable cause to suspect that the person is committing the offence. Therefore, the “reasonable excuse” defence provided in the Bill does not come into play. I accept that no Crown prosecutor would prosecute something that is clearly an innocent mistake, for example by someone clicking on to information. But my concern is that there is nothing to stop a police officer arresting a person, and the person being detained, until there is detailed consideration about whether this is a grey area, or whether it is reasonable or not.

Can the Minister give me any reassurance, other than what the noble Lord, Lord Carlile, has said about most police officers being reasonable? The particular offence that I am thinking of, which is no longer on the statute book—Section 4 of the Vagrancy Act 1824 —of being a suspected person,

“loitering with intent to commit an indictable offence”,

was routinely abused by the police in order to arrest people who were innocently going about their business. I am concerned that offences like this, which are very widely drawn and rely on a “reasonable excuse” defence, do not protect the innocent person from arrest and detention by the police.

[Earl Howe]

My Lords, I bring the noble Lord back to the issue that I flagged—that a judgment needs to be made in all the circumstances of the particular case. I turn the question back to the noble Lord. We are dealing with the viewing of material that must have a clear link to terrorism, and must be objectively capable of being useful to a person committing or preparing an act of terrorism.

One has also to bear in mind what the existing offence consists of. How does the noble Lord think the proposed new offence differs in its substance or its degree of seriousness from the offence already established in Section 58 of the Terrorism Act 2000? How does accessing this kind of harmful material by way of a streamed video differ from accessing it by way of a download or a book? Have we seen examples over the last 18 years of people being wrongfully hauled to the police station as a result of innocent activity? I am not aware that we have.

--- Later in debate ---

[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.

[Earl Howe]

My Lords, there have been calls both in your Lordships’ House and in the House of Commons to place on the face of the Bill a definition of legitimate activity that would not be caught by the Section 58 offence as amended or to specify categories of reasonable excuse. The Government’s position on this issue is well rehearsed, including in our response to the Joint Committee on Human Rights. Noble Lords opposite have clearly been following this debate closely, because Amendment 15 proposes a slightly different approach, and Amendment 16, in the name of the noble Lord, Lord Rosser, follows a similar path.

Rather than seek to write exemptions or examples of reasonable excuses into the Bill, as Amendment 14 seeks to do, Amendments 15 and 16 instead seek to place a requirement on the Government to publish guidance on the same matters. I commend noble Lords for their constructive approach in seeking alternative solutions, and I hope that they will find my response to their suggestions similarly constructive, even if I am not able to support these amendments.

The Government’s starting point on this issue is that Section 58 of the Terrorism Act 2000 already contains a well-established safeguard, in the form of a reasonable excuse defence, for those with a legitimate reason to access terrorist material. As a result of Section 118 of the 2000 Act, if a person raises this defence, the court must assume that it is satisfied unless the prosecution can disprove it beyond reasonable doubt. We will debate the operation of Section 118 when we come to Amendment 18 in a later group.

Where a person has a reasonable excuse, a prosecution should not in fact commence, because the case would not pass the Crown Prosecution Service threshold tests of being in the public interest and of there being a realistic prospect of conviction. This safeguard has operated successfully in relation to Section 58 since that offence was first created in 2000, and it reflects the approach taken across the criminal law, where many other offences with a similar defence also do not list specific categories of reasonable excuse. As such, it is well understood by the police, the CPS and the courts. It will continue to apply equally to the offence as amended by Clause 3, and it will not be narrowed or reduced in any way.

This is an important safeguard, and I understand the intention of the noble Lord and the noble Baroness in seeking to put its effect even further beyond doubt, whether through the amendment of Clause 3 or through guidance to be published under it. However, it is my view that, whichever route is taken, it is simply not necessary. Furthermore, such an approach could in fact have the unintended and unhelpful consequence of unsettling the current position, and of reducing rather than increasing clarity. I hope the Committee will indulge me while I explain why this could be the case.

--- Later in debate ---

I hope that the Government will indicate support at least for the thrust of Amendment 17, and hopefully even for our Amendment 23, even if they want to consider further the exact wording they would consider appropriate.

[Lord Paddick]

My Lords, clearly all the amendments in this group have their merits, but we seem to be rallying to the flag of the noble Lord, Lord Anderson of Ipswich, for very good reason. As the noble and learned Lord, Lord Judge, explained, this appears to be, at least in essence, the way forward. As the noble Lord, Lord Anderson, said, it is based on a tried-and-tested system that operates under Australian law and gives a degree of certainty that the reasonable excuse defence does not give. It covers journalism as well, which could arguably make Amendment 20 unnecessary. On the definition of what journalism means, the noble Lord’s expression,

“working in a professional capacity as a journalist”,

might be an indication of the way forward as far as that definition is concerned. I have added my name to Amendments 21 and 22 in my noble friend Lady Hamwee’s name, but, as I said, perhaps Amendment 17 is a better way forward.

The noble Lord, Lord Faulks, is obviously trailing his amendment on treason, but in addition to what the noble Baroness, Lady Manningham-Buller, said, it is more than just fighting UK forces. It could be that people are going to engage in terrorist activity against allies of the UK, not necessarily against the UK itself. We would want to deter our nationals from travelling to areas for that purpose. People might travel to those areas for a legitimate purpose and then engage in terrorist activity, but there is no way that we could legislate for that. Clearly, they would then commit a substantive offence under different legislation.

[Lord Faulks]

Can the noble Lord help the Committee by saying what legislation they would be committing an offence under?

[Lord Paddick]

My understanding is that it is an offence to travel to an area to engage as a foreign fighter. I cannot remember what exactly the legislation is, but reference has been made to it by other noble Lords this evening.

[Lord Elystan-Morgan (CB)]

Is not the Foreign Enlistment Act 1870 still extant? I think it is.

[Lord Faulks]

I am not sure about that, and I am grateful to the noble Lord for assisting. There is, of course, a Treason Act of 1351, but that is not often relied on—or not at all relied upon. The noble Lord may be right, but I was genuinely inquiring what legislation the noble Lord was referring to.

[Lord Paddick]

I am very grateful to noble Lords for their interventions. At the end of the day, the principle that the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, have put forward in this amendment needs to be very seriously considered—and potentially not just for this offence, but perhaps for the other new offences in the Bill that we have already debated.