Lord Rosser contributions to the Counter-Terrorism and Border Security Act 2019


Mon 3rd December 2018 Counter-Terrorism and Border Security Bill (Lords Chamber)
Report: 1st sitting: House of Lords
19 interactions (2,245 words)
Mon 3rd December 2018 Counter-Terrorism and Border Security Bill (Lords Chamber)
Report stage (Hansard - continued): House of Lords
10 interactions (415 words)
Wed 14th November 2018 Counter-Terrorism and Border Security Bill (Lords Chamber)
Committee: 4th sitting (Hansard): House of Lords
38 interactions (2,362 words)
Mon 12th November 2018 Counter-Terrorism and Border Security Bill (Lords Chamber)
Committee: 3rd sitting (Hansard): House of Lords
29 interactions (1,801 words)
Wed 31st October 2018 Counter-Terrorism and Border Security Bill (Lords Chamber)
Committee: 2nd sitting (Hansard): House of Lords
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Mon 29th October 2018 Counter-Terrorism and Border Security Bill (Lords Chamber)
Committee: 1st sitting (Hansard): House of Lords
29 interactions (2,287 words)
Mon 29th October 2018 Counter-Terrorism and Border Security Bill (Lords Chamber)
Committee: 1st sitting (Hansard - continued): House of Lords
7 interactions (551 words)
Tue 9th October 2018 Counter-Terrorism and Border Security Bill (Lords Chamber)
2nd reading (Hansard): House of Lords
3 interactions (2,239 words)

Counter-Terrorism and Border Security Bill Debate

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Department: Leader of the House

Counter-Terrorism and Border Security Bill

(Report: 1st sitting: House of Lords)
Lord Rosser Excerpts
Monday 3rd December 2018

(1 year, 10 months ago)

Lords Chamber
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Leader of the House
Lord Paddick Portrait Lord Paddick - Hansard

Sadly, I do not have the legislation in front of me, so I cannot comment. No, I will not accept the noble Lord’s offer of taking his iPad to look at the legislation. I do not think that that is reasonable in all the circumstances.

If we accept that this is a reasonable way to approach the issue—that someone does not commit an offence if they have a reasonable excuse—what, then, is the difference between that and a journalist or academic being able to access material on the internet? They would be safe in the knowledge that, provided the purpose for visiting a website containing information that might be of use to a terrorist was reasonable and legitimate, they would not commit an offence.

I argue that the only difference is that here someone is entering into or remaining on a designated website rather than a designated area. Websites that contain information that might be of use to a terrorist are, if you will, designated areas of the internet, so that entering or remaining on that website is an offence. Our Amendment 4 would ensure that it would be an offence only if a person collected, made a record of, possessed a document relating to, viewed or otherwise accessed by means of the internet information of use to a terrorist and they did not have a reasonable excuse for having or accessing that information.

Amendment 5 is consequential in that it would remove the “defence if charged” provision, which would be redundant were Amendment 4 accepted.

Turning to Amendment 3, similar arguments apply to the innocent or inadvertent publication of an image of a uniform or a flag. The ISIS flag on a friend’s bedroom wall that goes unnoticed when a selfie is posted on Facebook, which may well arouse reasonable suspicion that those in the picture support a proscribed organisation, could very well be an innocent or stupid mistake. Should the young person responsible be able to provide a simple and compelling excuse for his actions to the police officer on the doorstep rather than in an interview under caution, would that not be a better outcome?

There is nothing to be lost in having offences that are only offences if there is no reasonable excuse for the suspect’s actions. Police officers who fail to be convinced that the excuse is reasonable at the time they decide to make the arrest or who feel that the excuse might sound reasonable but needs to be verified would still have reasonable cause to suspect that the person might have committed an offence and arrest the person if it is necessary and proportionate to do so. However, it also provides the person accused of committing the offence with a legal remedy, and the police with a good reason to act reasonably, if there is clearly a reasonable excuse that is blatantly obvious and easily verifiable at the time of the arrest, yet the person is still deprived of their liberty.

I admit that the designated area offence and the obtaining or viewing of material offences have a more compelling claim for a “reasonable excuse means no offence” modification but there are circumstances where there might be a reasonable excuse for publishing an image in such a way or in such circumstances as to arouse suspicion that the person is a member or supporter of a proscribed organisation when they are neither of those things, and this will be immediately apparent to the officer sent to investigate. In my view, it is too late in the chain of events that could ensue for the reasonable excuse to be available only as a defence once charged.

No doubt the Government will say that the police can be trusted not to arrest in circumstances where a reasonable excuse is immediately apparent. With over 30 years of police experience and having witnessed at first hand the devastating consequences of innocent people being arrested and detained on the flimsiest of evidence, I am very concerned about the potential for abuse that this legislation as currently drafted provides.

Unless the Government can provide compelling reasons as to why the reasonable excuse defence should not engage at the beginning of the investigative process rather than at the end, I suggest that they might want to consider these arguments and undertake to discuss them further with interested Peers before Third Reading. If, however, when we come to debate his amendment in the fifth group, the noble Lord, Lord Rosser, decides that in the case of designated areas the arguments are compelling and the Minister’s response is inadequate, we will support him if he decides to divide the House on that issue. I beg to move.

Lord Rosser Portrait Lord Rosser (Lab) - Hansard

We support the concerns that have been expressed by the noble Lord, Lord Paddick, that, under the wording of this Bill, a person could potentially be deemed to have committed an offence even though they were pursuing a legitimate business or activity, or, in the case of a designated area, simply by entering the area itself. That specific issue is addressed in Amendment 15, to which the noble Lord, Lord Paddick, referred. As I say, we support the concerns expressed about the extent to which people with legitimate business or activity could potentially find that they have committed an offence under the provisions of this Bill.

Lord Judd Portrait Lord Judd (Lab) - Hansard

My Lords, I declare an interest because of my professional and voluntary past, as recorded in the register. We are touching on immensely significant issues. I have great respect for those responsible for the grouping of amendments, and have seen its effectiveness over many years, but there are occasions when the overlap between two different groups becomes particularly significant.

I note that the amendment from the noble Lord, Lord Paddick, which deals with the matter that I am about to raise in specific terms, is equally significant and perhaps more controversial in this area. I am talking about the invaluable and courageous contribution made by dedicated people to the long-term task of peacebuilding. They go into an area for a long period of time and become what might be referred to in other spheres as embedded—they become part of the local population by the very nature of their work. They are trying to build the reconciliation and understanding which is necessary for a long-term solution.

Unfortunately, we are limited by the grouping of the amendments. I have had a certain amount of discussion with those responsible and very much value, as I always do, their advice. However, it is fair to say that I am uneasy. It seems to me that by the very nature of the work of peacebuilding—sometimes having to get close to people who are not necessarily very attractive or who are controversial—people could give a police officer grounds for arrest on the basis that we have heard explained.

It is therefore absolutely essential that at every moment in our relevant discussion of this part of the Bill, the Minister is at pains to spell out that bona fide peacebuilders are exempt and protected. Otherwise, this could have terrible dumbing-down effects on those who would be anxious to do such work. It would put great strain on them in terms of what could happen to them and would therefore hamper their work considerably. If that were to happen, it would be a great loss. No matter how important the humanitarian dimensions—humanitarian aid and the rest, to which I will take second place to nobody in terms of my support—it is very often in this area of peacebuilding that the really significant work for the future is undertaken. I therefore hope that the Minister will take this point seriously and perhaps take the opportunity to pay tribute to those who sometimes undertake this work, and that we can be sure that exemptions in any other sphere, in all aspects of the operation of the Bill, apply in this case.

Break in Debate

10: Clause 4, page 3, line 13, at end insert—

“( ) If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.”

Lord Rosser Portrait Lord Rosser - Hansard

Clause 4 inserts, in new Section 58B of the Terrorism Act 2000:

“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.

We have been told by the Government that the wording in this new section does not mean exactly what it says and that the burden of proof that they had a reasonable excuse will not rest with the person entering or remaining in the designated area. However, the Government have so far resisted the idea that, if that is the case, it would be better that this new section actually said what it apparently means—which, I understand from the Government, is that the person concerned would have to provide only some evidence that they had a legitimate reason for being in the designated area and it would then be for the prosecution to prove beyond reasonable doubt that that was not the case for the defence to fail.

Our amendment intends to set that out as the position and puts in the Bill wording used in the Terrorism Act 2000, which the Government say is what would apply, rather than the wording on its own in new Section 58B, which I quoted earlier. The amendment would add to new Section 58B the following words:

“If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.

The wording in our amendment clarifies what the proposed wording currently in the Bill actually means when it refers to the person charged having to prove that they had a reasonable excuse for entering or remaining in the designated area. I hope that the Government will feel able to accept the amendment—or, if they cannot, will agree to bring forward their own wording at Third Reading. Surely it is in everyone’s interests to make legislation as clear as possible to all in its meaning. I beg to move.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB) - Hansard

My Lords, the burden of proof should be on the prosecution and should be seen to be on the prosecution. Lawyers who know where to find Section 118 of the Terrorism Act 2000 may be untroubled by the point made by the noble Lord, Lord Rosser. However, the existence of that section is not widely known. Indeed, only last week I found myself in that great deliberative assembly, Twitter, correcting the damaging and widespread misapprehension, advanced in good faith, that the Terrorism Acts reverse the burden of proof. I support the idea behind the amendment, although—as I am sure the noble Lord, Lord Rosser, would accept—if it is to produce clarity, it would have to be applied a little more widely to a variety of existing offences under the Terrorism Act, including Sections 57 and 58.

Break in Debate

I am grateful to the noble Lord for his suggestion, and I appreciate the spirit in which it is intended. However, on the basis of my assurance that it is not needed to achieve its intended effect and of the concerns that I have raised that it could reduce rather than increase the clarity and certainty of this aspect of Clause 4, I hope that he will be content to withdraw it.

Lord Rosser Portrait Lord Rosser - Hansard

I am obviously disappointed by the Government’s response, although it would be wrong of me to suggest that I am entirely surprised by it, since they have defended the position stoutly ever since we started discussing it. I probably do the noble Earl a disservice, but it seems to me that the Government’s argument is that we have made this error eight times and now we are going to make it a ninth, because apparently it is too big a problem to rectify the previous eight.

I do not intend to push this to a vote, but I will conclude by saying once again that surely we need legislation to be clear not just to lawyers but to all. I think somebody who reads this will not put the interpretation on it that they have to turn to another piece of legislation to find out that what new Section 58B says is not meant but that there was another intention and that the burden of proof in reality rests with the prosecution. I shall not pursue the matter any further. I am just sorry that the Government have not been prepared to take the bull by the horns and rectify it on this occasion—even if it means rectifying it in relation to the other eight instances at the same time. I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Break in Debate

Lord Judge Portrait Lord Judge - Hansard

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

Lord Rosser Portrait Lord Rosser - Hansard

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

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

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

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

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

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

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

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

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

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

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

Lord Paddick Portrait Lord Paddick - Hansard

My Lords, very briefly, I completely agree with my noble friend Lady Hamwee, who has addressed all the amendments in this group other than Amendment 15. I have added my name to Amendment 15 and made clear my reasons for supporting it during our debate on the second group of amendments. I do not wish to add further to my comments.

Break in Debate

15: Clause 4, page 3, line 19, at end insert—

“(3A) A person does not commit an offence under this section of entering, or remaining in, a designated area where—(a) the person enters, or remains in, a designated area involuntarily, or(b) the person enters, or remains in, a designated area for or in connection with one or more of the purposes mentioned in subsection (3B).(3B) The purposes are—(a) providing aid of a humanitarian nature;(b) satisfying an obligation to appear before a court or other body exercising judicial power;(c) carrying out work for the government of a country other than the United Kingdom (including service in or with the country’s armed forces);(d) carrying out work for the United Nations or an agency of the United Nations;(e) carrying out work as a journalist;(f) attending the funeral of a relative or visiting a relative who is terminally ill;(g) providing care for a relative who is unable to care for themselves without such assistance.(3C) But a person does not commit an offence of entering or remaining in a designated area by virtue of subsection (3A)(b) only if—(a) the person enters or remains in the area exclusively for or in connection with one or more of the purposes mentioned in subsection (3B), or(b) in a case where the person enters or remains in the area for or in connection with any other purpose or purposes (in addition to one or more of the purposes mentioned in subsection (3B)), the other purpose or purposes provide a reasonable excuse for doing so under subsection (2).(3D) The Secretary of State may by regulations add a purpose to or remove a purpose from subsection (3B).(3E) Regulations under subsection (3D) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(3F) For the purposes of subsection (3B)—(a) the reference to the provision of aid of a humanitarian nature does not include the provision of aid in contravention of internationally recognised principles and standards applicable to the provision of humanitarian aid;(b) references to the carrying out of work do not include the carrying out of any act which constitutes an offence in a part of the United Kingdom or would do so if the act occurred in a part of the United Kingdom.”

Lord Rosser Portrait Lord Rosser - Hansard

I thank the Minister for his response, but obviously there is a difference of opinion. We feel that there should be certain situations in which an individual who goes to an area designated by the Secretary of State should not by that very act of going there commit an offence. They would commit an offence for which they would have to provide evidence of a reasonable excuse if charged on their return to this country. I think I heard him say that one of the Government’s arguments for their stance with their indicative list was that it fits better with the grain of the Terrorism Act 2000. Perhaps if I was a lawyer I would be moved by that argument, but I am not.

I think that this was a comment made earlier by the noble Lord, Lord Anderson of Ipswich, but if I am misrepresenting him I hope that he will correct me. He said basically that we should have reasons for travelling to designated areas which mean that you do not commit an offence, rather than excuses—that is what we have, reasonable excuses—under the Government’s proposal. I therefore wish to test the opinion of the House.

Amendment 16

Counter-Terrorism and Border Security Bill Debate

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Department: Home Office

Counter-Terrorism and Border Security Bill

(Report stage (Hansard - continued): House of Lords)
Lord Rosser Excerpts
Monday 3rd December 2018

(1 year, 10 months ago)

Lords Chamber
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Home Office
Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

My Lords, the government amendments in this group make a number of changes in response to the debates in both Houses regarding the ports powers under Schedule 3 to the Bill and Schedule 7 to the Terrorism Act 2000. They also respond to the reports of the Joint Committee on Human Rights, the Constitution Committee and the Delegated Powers Committee, and to representations from the Law Society and others.

During the course of the previous debates, there has been much focus on the important topic of a detainee’s right to consult a solicitor in private, and on the exceptional power that would allow an officer to overhear that consultation to mitigate concerns that the detainee might pass on a message to a third party. While this power was not without safeguards—for example, it could only be authorised by an assistant chief constable where the officer had reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences—the Government have heard the concerns raised and are prepared to take a different approach.

Amendments 37 to 39, 41 and 42, would replace that power and instead allow an officer, in the situation that I have just described, to require the detainee to choose a different solicitor. The detainee will then be reminded of the right to free legal counsel from an approved duty solicitor who has met the standards and competence of the Law Society’s criminal litigation accreditation scheme. This approach, which will apply to both Schedule 7 and Schedule 3 ports powers, will mitigate the concerns regarding the detainee’s first-choice solicitor but will still allow the detainee to receive private legal counsel—in all likelihood, with a trusted solicitor from the duty solicitor scheme. It mirrors the provisions in PACE Code H with regard to the detention of terrorist suspects as proposed by the Law Society in its evidence to the Public Bill Committee in the House of Commons, and aligns with the proposals of the shadow Security Minister and noble Lords in this House.

The new power will also be subject to important safeguards. For example, it can only be directed by a superintendent and only where the officer has reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences: for example, interference with evidence or gathering of information; injury to another person; alerting others that they are suspected of an indictable offence; or hindering the recovery of a property obtained by an indictable offence.

Amendments 35, 36 and 40 concern the points raised in Committee by the noble Baroness, Lady Hamwee, regarding the information provided to a detainee about their right to access a solicitor. During that debate, I drew the House’s attention to the draft Schedule 3 code of practice which, like its equivalent for Schedule 7, is clear that a person who has been detained under either power must be provided with a “notice of detention” that clarifies their rights and obligations. The examining officer must also explain these rights and obligations to the detainee before continuing with the examination. Furthermore, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.

While the Government are satisfied that all the safeguards that the noble Baroness asked for are already in place through the codes of practice, Amendments 35, 36 and 40 will make it explicit in the primary legislation that a detainee has to be made aware of his or her right to access a lawyer at the moment of detention. We are in complete agreement that any person who is detained under these ports powers should be informed of their rights before any further questioning takes place.

Amendments 43 and 44 will address concerns raised by the Delegated Powers and Regulatory Reform Committee with respect to the scope of the regulation-making power in what is now paragraph 60 of Schedule 3. This power would allow the Secretary of State to specify additional persons who may be supplied with information acquired by an examining officer. The power mirrors an equivalent in Schedule 14 to the Terrorism Act 2000 relating to information acquired through a Schedule 7 examination. These regulation-making powers are an important means of future-proofing the mechanisms to share information with government bodies and operational partners. Currently this information can be shared, if needed, with the Secretary of State, HMRC, a constable or the National Crime Agency.

We recognise the concerns raised by the Delegated Powers and Regulatory Reform Committee that the powers as drafted could allow sensitive information to be passed to any organisations, including those in the private sector. That is not our intention. The Government are clear that such information should be held and managed responsibly and should not be made available to any person or organisation. Amendments 43 and 44 would ensure that the Secretary of State, in relation to either power, could specify a person to be supplied with this information only if the person exercised a public function, whether or not in the United Kingdom.

I hope that noble Lords are reassured that the Government have listened to a number of concerns raised during the debates and have acted to improve this legislation. I beg to move.

Lord Rosser Portrait Lord Rosser (Lab) - Hansard

The shadow Security Minister in the Commons, it has been said, proposed that a list should be drawn up of lawyers properly regulated through the Law Society and the Solicitors Regulation Authority, who would be available to give legal advice and thus overcome the Government’s concern that a person detained under the hostile activity ports powers might seek the service of a rogue solicitor to give legal advice but, in reality, use that person to pass on information to a third party with potentially damaging consequences.

The Government in the Commons said they would consider this proposition and, as the Minister has just said, they have now tabled an amendment that takes out the reference in the Bill to consulting a solicitor,

“in the sight and hearing of a qualified officer”,

and instead provides for a senior officer to be able to require a detainee to consult a different solicitor of the detainee’s choosing. In her letter of 27 November setting out the Government’s amendment, the Minister has said that in practice a different solicitor of the detainee’s choosing is likely to be the duty solicitor. Can she say what will happen if the further different solicitor of the detainee’s choosing is also deemed unacceptable? Will, in effect, the detainee be told either that they choose the duty solicitor or they will not have a solicitor to consult? It would be helpful if this point could be clarified in respect of persons detained under the port and border control powers.

We support the amendments and recognise that the Government have endeavoured to address the concerns expressed in the Commons by the shadow Minister, as well as the similar concerns expressed by noble Lords in this House.

Baroness Hamwee Portrait Baroness Hamwee - Hansard

My Lords, we too support these amendments and recognise the steps that the Government have taken. Perhaps I may put on the record a couple of comments made by the Law Society on this general area. Unfortunately, its briefing arrived too late for us to build on it by way of amendment, but it comments on legally privileged material being retained for use as evidence or for deportation proceedings. It gives the view that:

“Legally privileged material should not be retained for any purpose other than a potentially urgent need to prevent death, injury or a hostile act”.

It also comments on:

“The process by which material can be identified as constituting legally privileged material”,

and asks who is responsible for making the determination, as that is not,

“explicitly clear in the Bill as drafted”.

It continues:

“It is important that this determination is made by a legally qualified person who is capable of accurately assessing whether a given article is subject to legal professional privilege”.

As I said, I thought that it was worth putting those comments on the record.

My noble friend Lord Marks is sorry not to be able to be here this evening and asks that his thanks to the Minister for building on the indication given at the last stage is recorded. He too asks about what he calls an “unacceptable dodgy solicitor”. I think that any dodgy solicitor is unacceptable—you do not have to fill two criteria. If an unacceptable dodgy solicitor is selected for a second time, he and I assume that the senior officer might give a further objection. My noble friend also asks whether the Government intend to issue a further draft code of practice relating to the considerations that senior officers should take into account when considering making these directions.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I thank the noble Baroness for those questions. The noble Lord, Lord Rosser, asked what happens if the detainee chooses another solicitor, who is then of concern. I am trying to read the writing here. If concerns still exist, the superintendent is within his or her right to direct that the detainee should choose a different solicitor, and that applies not just to the first-choice solicitor. The point about confidential material—

Lord Rosser Portrait Lord Rosser - Hansard

I appreciate the difficulty with reading writing. I cannot read my own, let alone somebody else’s. Does it mean that if the detainee chooses an unacceptable second solicitor, they will then be told, “It’s the duty solicitor or you don’t have a solicitor at all”?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

From what I understand, a panel of approved solicitors is available to detainees—I am sure that the Box will fly over with a piece of paper if I am wrong about that. However, if, for whatever reason, the first solicitor from the panel is given to the detainee—

Break in Debate

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I do agree with the noble Lord; that is absolutely brilliant. But I have just received another piece of information: if the detainee is still not satisfied, they can consult a solicitor by phone, so that is a third arm of the options for detainees. Between us, we have got there.

As for who approves the access to confidential material, it would be the Investigatory Powers Commissioner.

Lord Rosser Portrait Lord Rosser - Hansard

The reason for my asking the question is that, as I understand it, sub-paragraph (2)(b) of Amendment 41 states that the right of the detainee,

“may instead be exercised by consulting a different solicitor of the detainee’s choosing”.

I have nothing at all against duty solicitors and hold them in high regard. However, if the detainee then chooses another solicitor who is unacceptable—presumably not one of the duty solicitors—we are fairly clear that the detainee will then be told to use the duty solicitor or have no solicitor at all.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

He or she will be perfectly entitled to consult a solicitor by phone.

Counter-Terrorism and Border Security Bill Debate

Full Debate: Read Full Debate
Department: Home Office

Counter-Terrorism and Border Security Bill

(Committee: 4th sitting (Hansard): House of Lords)
Lord Rosser Excerpts
Wednesday 14th November 2018

(1 year, 10 months ago)

Lords Chamber
Read Full debate Read Hansard Text
Home Office
Baroness Hamwee Portrait Baroness Hamwee (LD) - Hansard

My Lords, I have some small questions for the Minister, and I hope she has been given notice of them in her brief—I contacted the Bill team yesterday. I think she has largely answered one of them, but I will ask it anyway. In her Amendment 73 and elsewhere, there is provision for a cut-off to the period for representations. I understand the need for that. Is there a timetable for the rest of the process? This is likely to be significant to the passenger, the affected party.

Secondly, in Amendment 76 and other amendments—the Minister has just mentioned this—what is an example of what is not “reasonably practicable”? She mentioned the possible difficulty of getting in touch with the individual. Again, I understand that. Does the term “reasonably practicable” go to that sort of thing? In other words, is it on the part of the person trying to get in touch, or is it looked at from the point of view of the passenger? Destruction of an article or conditions as to the use of the article are likely to be significant in this situation.

Thirdly, I have a similar question about the urgency condition in Amendment 77. Who assesses what is urgent? Is it the Home Office or the commissioner, and is it urgency in the eyes of the passenger? If the Minister can help to flesh out some of those queries, I will be grateful.

Lord Rosser Portrait Lord Rosser (Lab) - Hansard

Perhaps I may add one further question to those raised by the noble Baroness, Lady Hamwee. It relates to the urgency procedure. The noble Baroness has already asked who makes the decision on what is or is not urgent, but can we also have some feel, presumably based on the experience of the agencies concerned, of how frequently they expect to use this procedure?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

My Lords, the kind of situation in which we can expect the urgency provisions to be used possibly goes to the question asked by the noble Lord, Lord Rosser, about how frequently they are used. It is difficult for me to talk about the average frequency in any week, year or other given timescale, but clearly there is a spike nature to some of these events. Therefore, I hope that the noble Lord will accept that I cannot give a definitive answer to his question. However, basically the provisions will be used to disrupt a live threat—for example, where a hostile agent tries to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In the aftermath of something like the Salisbury event, Schedule 3 powers would provide the police with additional tools to stop and question persons with potential links to a hostile state or its actors who might have knowledge of or involvement in the attack. In such a scenario, it would be critical to analyse their devices and material at speed in order to understand the extent to which they were engaged in hostile activity.

The noble Baroness, Lady Hamwee, talked about the timeframe. Obviously, the urgency procedures would be used only where there was an immediate risk of death or significant injury or of a hostile act being carried out. In such a case, the police must be able to act with immediate effect. However, on the question of whether we could have done it the other way round, with a prior authorisation procedure being put in place, the answer is that that would still take some days. I hope that that answers the question.

The point was made that the timeframe for the urgency process—that is, within 24 hours—makes it very difficult to make representations to the commissioner. I was asked whether that is enough time or whether it should be longer. The timescales for the urgency process aim to strike a balance between giving the property owner enough time to make representations and ensure that the police are not able to use the property without judicial authorisation with the decision having to be taken by the commissioner within three days, and, by the same token, conceding that it is likely the property owner will want a decision to be taken as quickly as possible to prevent the police using their property without a decision by the commissioner. The draft Schedule 3 code of practice, which is available online, makes it clear that the examining officer must provide a notice that will explain to the property owner that they are invited to make representations to the commissioner, including contact details and the associated timescales.

Did the noble Baroness ask me what happens if the property owner cannot be contacted?

Break in Debate

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

She did, and I have the answer here—as if by magic. Paragraph 63 of the draft Schedule 3 code of practice is clear that, where the examining officer retains a person’s property beyond the period of examination, the officer should ask the person how they would prefer to be contacted regarding the status or return of their property. The officer will typically seek to acquire the phone number, email address or postal address of the examinee. However, under the urgency process, the examining officer would attempt to use the details provided by the examinee to make contact and to provide the information. This would typically include attempting to call the person a number of times, as well as sending them information by recorded post and email. If the person is at the known UK address then the officer from the local force could be tasked to attend the address to deliver the relevant information in person. Obviously, however, it would not be reasonably practicable for the police to take this approach on every occasion or where the person is abroad. It would not be reasonably practicable for the examining officer to make contact with the person where they have provided false contact details. I hope that satisfies the noble Baroness.

Lord Rosser Portrait Lord Rosser - Hansard

I appreciate that the Government cannot stand at the Dispatch Box and announce that this will be used X number of times a week, a month or a year—of course I understand that. But is the provision there because of previous experience that there is a gap in the arrangements, for which we have had to pay a price because we have not been able to enact the procedure, or is it there because there is a feeling that there might arise a need for such a procedure in the future?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

There are several answers to that. Obviously, the Terrorism Act 2000 needs updating. The Salisbury attack showed us the need to update our laws in this regard, and clearly the way that technology and other things have moved on creates a gap in our abilities because they have not been provided for in previous legislation.

Break in Debate

Lord Pannick (CB) - Hansard

My Lords, I too am concerned about the subject, and I agree with the comments that have been made. The right to confidential legal advice is fundamental to the rule of law. The right to consult a solicitor is simply pointless if it is not to take place in private—a client will not speak freely in those circumstances. Therefore, any restrictions must be necessary and proportionate. I agree with the noble Lord, Lord Marks, that it is vital to look for more proportionate means of addressing the Government’s legitimate concerns. I also agree with him that a way forward is to adopt the approach that the client ought to be able to speak freely to any solicitor unless there are reasonable grounds to believe that that solicitor will not act in accordance with his or her professional obligations. Regrettably, there have been cases of such solicitors, although they have been very few, and it seems to me entirely disproportionate to prevent access to confidential legal advice because of the misbehaviour of a few rogue solicitors. We can deal with rogue solicitors in other ways.

Lord Rosser Portrait Lord Rosser - Hansard

We too are obviously concerned about the right to access a solicitor. My name, and that of my noble friend Lord Kennedy, is attached to all the amendments in this group, but the one I wish to speak to in particular is Amendment 86. As the others do, this amendment refers to legal professional privilege and to a person’s ability to consult a lawyer in private in relation to stops at the border. As has been said, there is a power in the Bill for an officer not only to watch someone receiving legal advice but to hear that legal advice being given.

Concerns were raised by the Government when the matter was discussed in the Commons. The first argument advanced by the Government was that, rather than contacting a lawyer, a person might contact someone they wanted to notify of the fact that they had been stopped. The Government further argued that that person might notify a lawyer who would not adhere to the professional standards that we would expect and who might pass some information on. The third argument advanced was that of a lawyer inadvertently passing on a piece of information. That appears to be the guts of the Government’s argument in favour of what is in the Bill at present.

As the Minister will know, the shadow Minister for Security in the Commons put forward a proposition that there should be a panel of lawyers, properly regulated, he said, by the Solicitors Regulation Authority and the Law Society. I have subsequently found out that not necessarily all lawyers hold those organisations in complete awe, but the principle was one of having a panel of lawyers that was properly regulated. In his response in the Commons, the Minister for Security said he thought that the suggestion was a good one and promised to take it away and look at it.

I hope that, in the light of that, we will be able to make some progress on this issue and that the Minister, on behalf of the Government, will be able to indicate movement—a great deal of movement, I hope—on the Government’s part towards the objective of ensuring a right to legal advice, to access a solicitor and to do so in private.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB) - Hansard

My Lords, the provisions relating to access to a lawyer, so far as they replicate those in Schedule 7, which I understand they are intended to do, should be seen against the background of three matters.

First, the maximum period under both schedules is six hours’ detention, which was reduced from nine hours a few years ago and from much longer periods during the Troubles, when, as now, these controls could be applied to travellers between Northern Ireland and Great Britain—a long-standing example of a border down the Irish Sea. Secondly, some of these seaports and airports are remote, and stops, let alone detentions, are so unusual that it would be quite impracticable always to have a panel of lawyers on tap. Thirdly, a fact long considered obvious by the courts, and now enshrined in Clause 16, is that answers given under these compulsory powers may not be used in subsequent criminal proceedings save in the special circumstances outlined for Schedule 7 by the Supreme Court in Beghal and echoed in the Bill.

The last of those factors caused Mr Justice Collins, in the case of CC, in 2012, to doubt whether there was any value at all in the presence of a lawyer during Schedule 7 questioning, since no responsible lawyer could advise their client to break the law by remaining silent. That view was rejected by the Divisional Court in the case of Elosta, which held that:

“The solicitor does have a useful, if limited, role to play”.

The fact remains that there are differences between an examination under Schedule 3 or Schedule 7, on the one hand, and a classic police interview under caution, on the other. It is perhaps also relevant to have in mind that, unless I am mistaken—I am sure I will be corrected if I am—these equivalent powers appear not only under Schedule 7 to the Terrorism Act but under Schedule 8, where detention for much longer periods, of up to 14 days, is contemplated.

Before the Minister thinks I have become too tame, let me please make this point. The operation of any powers to delay or impose limitations on access to legal advice, if they are to continue and to be extended, must be subject to effective independent review. This will only be possible if the reasons are recorded, as is correctly provided for in Schedule 3, and if the number of occasions on which they have been used is published, so that concerned citizens are aware and the independent reviewer can investigate individual cases or draw attention to and explore the reasons for any increasing trend in the use of the powers.

The number of occasions on which access to a solicitor has been delayed for those detained under Schedule 8 is logged meticulously in Northern Ireland and published by the NIO in its annual statistics on terrorism legislation. The latest figures tell us that between 2001 and March 2018, only five persons in Northern Ireland were refused immediate access to a solicitor. However, effective review requires the equivalent figures to be available for the whole country.

I was given to understand four years ago by the Home Office—not for the first time—that this was work in progress, at least where Schedule 8 was concerned. Will the Minister undertake that the statistics relating to delayed and conditional access to a solicitor on the part of those detained under the Terrorism Act and the new hostile state activity powers will be published across the country; and will she tell us whether there is anything she can do to speed things up a bit?

Break in Debate

63A: Schedule 3, page 38, line 35, at end insert—

“(3A) In order to inform a decision on whether to select a person for questioning under this paragraph an officer may approach a person and ask questions for screening purposes. (3B) Screening under sub-paragraph (3A) may include, but is not limited to—(a) asking questions to establish the identity, provenance and destination of a person;(b) asking questions to establish the method of travel and purpose of travel of a person;(c) scrutiny of a person’s travel document;(d) a comparison of the holder against the image contained in the document;(e) requesting additional documents from the person relevant to screening;(f) checking personal information against records where there is no significant additional delay.(3C) It is not an offence for a person to refuse to answer questions asked for screening purposes or to refuse to otherwise engage with officers in the screening process. (3D) An officer must inform any person they approach for screening purposes that they are not obliged to answer questions or engage with the officer on the screening process.(3E) An examining officer must not exercise powers under this Schedule, with the exception of the power to approach a person for screening purposes under sub-paragraph (3A), in respect of any person unless that person has been notified that an examination under this Schedule has commenced.”

Lord Rosser Portrait Lord Rosser - Hansard

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

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

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

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

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

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich - Hansard

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

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

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

Break in Debate

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

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.

Lord Rosser Portrait Lord Rosser - Hansard

I thank the Minister for that response and all other noble Lords who have participated in this brief debate. I am grateful to the Minister for saying, if I understood her correctly, that there will be further reflection on this issue. I accept that she has not, on behalf of the Government, accepted the amendment. I do not know whether it is the listing of potential questions that is the cause of the difficulty. If it is, one solution might simply be to make reference to the fact that there may be a screening process, without laying down specifically what the questions are that may or may not be asked as part of it, since most of the debate seems to have centred on listing the specific questions. These, of course, were lifted straight from the code of practice.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I think that the noble Lord, Lord Carlile, put it correctly. Rather than prescribe a list of questions, I am seeking to get clarity within the code in due course.

Lord Rosser Portrait Lord Rosser - Hansard

I take it from that that the Minister will be coming back to let us know the outcome. On that basis, I thank the Minister for her response and I beg leave to withdraw the amendment.

Amendment 63A withdrawn.

Break in Debate

Lord Paddick Portrait Lord Paddick - Hansard

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 Portrait Lord Rosser - Hansard

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.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

My Lords, I echo the words of the noble and learned Lord, Lord Judge: the noble Lord, Lord Anderson, is indeed wise and elegant in his words. As the noble Lord has explained, this group of amendments deals with the definition of “hostile act” in Schedule 3.

It is important to emphasise that the design of any new power should be specific to the threat it is seeking to mitigate. The scope of this power has been designed to do just that; namely, to mitigate the known threats from hostile state activity. The danger of these amendments, therefore, is that they will limit the scope of the power, thereby limiting the range of threats that it has been designed to combat.

For the benefit of the Committee, the ports powers under Schedule 3 will be used by examining officers at UK ports or the border area,

“for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.

A person is engaged in hostile activity if they are,

“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”.

Under this schedule, a hostile act is defined as an act that,

“threatens national security … threatens the economic well-being of the United Kingdom, or … is an act of serious crime”.

By replacing “hostile act” with “serious crime”, these amendments would significantly narrow the range of hostile activity that these powers are designed to counter. It would undoubtedly limit the ability of our ports officers to detect, disrupt and deter hostile actors. Serious crime is defined in the Bill as being an offence which could reasonably be expected to result in,

“imprisonment for a term of 3 years or more, or … the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”.

Some of the activities which I believe noble Lords would expect to be captured through these new powers would not fall within the scope of the truncated definition of hostile activity. As the noble Baroness, Lady Manningham-Buller, explained earlier, some offences under the Official Secrets Act 1989 attract a maximum penalty of only two years’ imprisonment and may not involve the use of violence, result in financial gain or involve a large number of people acting in pursuit of a common purpose. Consequently, an examining officer would not be able to exercise Schedule 3 powers for the purpose of detecting, disrupting or deterring this type of hostile activity even if the activity threatens national security or could be prosecuted for offences under the Official Secrets Act. This is simply not acceptable.

There may even be occasions when we have intelligence to suggest that a person linked to hostile state activity is travelling to the UK for a hostile purpose but the intelligence we have is incomplete and the nature of the hostile purpose cannot be determined; therefore, we cannot assess whether the purpose is linked to a serious crime. In this circumstance, it would be very important to have a power to stop and examine them at the port to establish the nature of the hostile act.

As noble Lords will know, following the appalling acts in Salisbury, the Government are undertaking a review of legislation to combat hostile state activity. Hostile activity, by its very nature, is often covert and undertaken by foreign intelligence officers or their agents seeking to acquire sensitive information to gain an advantage over the United Kingdom and undermine our national security. On occasions this activity may not be considered criminal under the law as it stands; for example, if a foreign intelligence officer intended to travel to the UK to maintain or build a relationship with employees contracted to work on UK defence projects with the aim of acquiring sensitive information, this may not be a crime but it would be imperative to detect and disrupt this activity at the earliest opportunity, before irreversible damage to our national security occurred.

It is entirely plausible that a hostile actor should want to visit the UK in order to collect classified documents from an agent who had committed acts of espionage on their behalf. It is not a crime for the hostile actor to receive these documents and leave the country but, although the individual has not committed a crime, a Schedule 3 examination would enable an examining officer to make a determination as to whether they have been engaged in a hostile act. An examination would also allow the examining officer to remove the classified documents from the hostile actor, preventing the disclosure of potentially damaging information.

Even though the purpose of a Schedule 3 examination is to make a determination as to whether the actor has been engaged in a hostile act, exercise of the power may provide a number of secondary benefits. In instances such as the example I have just talked about, it would provide the first leads into an investigation to detect who the agent is—if we did not already know—and prevent the documents from ever being disclosed. These investigations may or may not lead to future prosecutions. It is therefore right to give the police the power to investigate hostile state activity, even at a preliminary stage before we have reasonable suspicion that a foreign intelligence officer has committed an offence. I know that noble Lords do not really think that the police should not have the power to stop someone who is from, or acting on behalf of, a foreign intelligence service as they enter or leave the United Kingdom.

If we were to accept these amendments, traditional behaviours undertaken by hostile states which have the potential to have such a detrimental effect would fall out of scope of the power and we would not be able to detect, disrupt or deter them. I put it to noble Lords that such activity should not go unchallenged. The definition of “hostile act” is necessarily broad to ensure that the powers capture the full range of activities which hostile actors engage in. We recognise the concerns that have been raised and I reassure the Committee that these were considered in the drafting of Schedule 3. This is why we have explicitly restricted the definition to an act that is carried out for, or on behalf of, or otherwise in the interests of a state other than the United Kingdom.

I also recognise the concerns about the term,

“economic well-being of the United Kingdom”.

As has been pointed out, there may be instances where an act undertaken by a hostile state actor threatens that economic well-being yet does not threaten our national security; it is also true for acts of serious crime. Economic well-being, like national security, is a term already used in UK legislation. The intention of this limb of the definition is to ensure that these powers can be used to mitigate hostile acts which could damage the country’s critical infrastructure or disrupt energy supplies to the UK. For example, if an employee in the banking sector of the City of London discovered a serious vulnerability in computer networks and shared this information with a hostile state, it would drastically undermine confidence in the City of London and cost the UK economy millions, if not billions.

I hope that with these explanations, the noble Lord will feel content to withdraw his amendment.

Break in Debate

67ZA: Schedule 3, page 39, line 7, at end insert—

“( ) The Investigatory Powers Commissioner (“the Commissioner”) must be informed when a person is stopped under the provisions of this paragraph.( ) The Commissioner must make an annual report on the use of powers under this paragraph in the border area.”

Lord Rosser Portrait Lord Rosser - Hansard

As has been said on more than one occasion, Schedule 3 deals with border security and the power to stop, question and detain and states:

“An examining officer may question a person for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.

It goes on to say:

“An examining officer may exercise the powers … whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.

There does not need to be reasonable suspicion. That is a very considerable power and safeguards are needed to ensure that it is used in a necessary and proportionate manner. Amendment 67ZA seeks to have such a safeguard in relation to this power by providing that the Investigatory Powers Commissioner,

“must be informed when a person is stopped”,

and,

“make an annual report on the use of”,

this power.

In the schedule, there is provision for the Investigatory Powers Commissioner to keep under review the operation of the many provisions in the schedule and make an annual report to the Secretary of State about the outcome of the review. In the Commons, the Government were asked whether in carrying out the review process and producing the report—under Part 6 of Schedule 3 —the commissioner would be aware of every stop that had taken place. Our amendment provides that the commissioner must be informed of such stops. The initial reply from the Minister in the Commons was “Yes”, but he then went on to say:

“Although the commissioner will not be informed every time someone is stopped, the numbers will all be recorded, and he will have the power … to investigate those stops while doing the review”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 5/7/18; col. 190.]

That appears to be a qualification of the initial answer of yes. The information that the commissioner will get is the numbers—perhaps total numbers—but that may apparently be some time after individuals have been stopped.

This amendment provides that the commissioner must be informed when a person is stopped. Will the Investigatory Powers Commissioner be informed when people are stopped, questioned and detained or only given numbers at a frequency that is unstated? Will the commissioner be told why people have been stopped, questioned and detained, or will he or she have to inquire about that when given overall numbers at some later stage?

As I understand it, the Government’s argument appears to have been that the Terrorism Act 2000 powers on counterterrorism have been used to stop, question and detain people where there is an issue of potential hostile activity, and that the Bill simply regularises what is already happening. If I have understood the Government’s argument, does that mean that they expect no increase in the number of people being stopped, questioned and detained at our borders, particularly at the sensitive border in Ireland between north and south? One could put that interpretation on it, if it is correct that the Government are saying that the Bill simply regularises something that has been happening under the powers in the Terrorism Act 2000. But if not, and the Government expect an increase in the numbers of people being stopped as a result of this provision, on what scale is that increase expected to be? I beg to move.

Baroness Hamwee Portrait Baroness Hamwee - Hansard

My Lords, I was not clear whether the noble Lord, Lord Rosser, was using this amendment to seek more information, but we wonder about the operational practicality of its first paragraph. It suggests that if the commissioner is informed of a particular stop, they would have some power or role to respond. More important are the points implicit in what the noble Lord said about keeping records or data. In another context, the noble Lord, Lord Anderson, used the term “meticulous” about keeping records in Northern Ireland, and reference was made to using them as the basis for review of practice. That is very important and although we have hesitations about the amendment’s first paragraph, what has prompted it is important.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

As the noble Lord, Lord Rosser, pointed out, Amendment 67ZA would require an examining officer to notify the IPC each time a person is examined under Schedule 3 and require the commissioner to publish an annual report on the use of the powers in the Northern Ireland border area. In relation to the second part of the amendment, as the noble Lord stated, Part 6 of Schedule 3 already requires the commissioner to review the use of the powers and make an annual report.

The police will make a record of every examination conducted under Schedule 3, as they already do with Schedule 7. I reassure noble Lords that the commissioner will be afforded full access to these records on request, and to information on how the powers have been exercised. It would place an unnecessary burden on the examining officer to have to notify the commissioner each and every time a person has been examined.

Regarding concerns about how these powers will be exercised at the border in Northern Ireland, media and political commentary over the summer sought, wrongly, to conflate the introduction of this legislation with the discussions on the Irish border in the context of Brexit and concerns over the possibility of more stringent measures. The Security Minister wrote to the shadow Secretary of State for Northern Ireland on 4 October to address these concerns. I circulated a copy of that letter after Second Reading, so I will not repeat his response in full here. However, I want to reiterate that it is simply not the case that these powers will be used as an immigration control or to interfere with the right to travel within the CTA. Their application to the border area mirrors that of the analogous counterterrorism powers in Schedule 7 to the 2000 Act, which have been in operation for 18 years. In that time, we have not seen a blanket or large-scale use of these powers in the border area. In fact, the number of examinations in Northern Ireland as a whole during 2017-18 amounted to 6% of the UK total.

The Schedule 3 powers must be used only to determine a person’s involvement in hostile activity. The location and extent of their use will be informed by the threat from hostile activity and any decision to use them will be on a case-by-case basis. While the commissioner’s annual report will not provide a location breakdown of where the powers are exercised, for clear national security reasons, he will review police exercise of the powers, including their use in Northern Ireland.

The noble Lord, Lord Rosser, asked whether the Bill regularises stops that are already taking place under Schedule 7. The answer is no. Schedule 3 powers will be used only to determine whether a person is engaged in hostile activity. We have already discussed the definition of hostile activity. Its broad scope is to mitigate a range of threats. Schedule 7 is about persons engaging in terrorism.

I hope that I have been able to reassure the noble Lord, Lord Rosser, and that he will be content to withdraw his amendment.

Lord Rosser Portrait Lord Rosser - Hansard

I thank the Minister for that response and the noble Baroness, Lady Hamwee, for her contribution to this brief debate. The point I was seeking to clarify is that, as I understand it, the Government have maintained that sometimes the powers under Schedule 7 to the Terrorism Act 2000 were being used to stop people who, it might be argued, are involved in hostile activity. The point that I was trying to confirm is whether the Government feel that they are simply regularising what happened under another Act, or whether we are talking about a new group of people who may be stopped and detained. I gather from what the Minister said that we are, and that we are not talking about people who, rightly or wrongly, may have been stopped and detained under the Terrorism Act on the basis that it was counterterrorism.

I assume that the Minister is once again going to say that she is unable to respond, but are we expecting any significant increase in the number of people being stopped and detained? She said that they will be people who are not being stopped and detained at present under other powers when perhaps those powers should not have been used, and that these will be new people. Is that the situation? Is it likely to be an extensive number? She said that it would be very difficult for the commissioner to be advised every time somebody was stopped, which suggests that there will be significant numbers of people.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

Mercifully for the UK public, the number of people involved in hostile state activity is low. The commissioner will have access to all the reports. We are expecting far fewer stops than under Schedule 7. I think I expressed that, but in a different way. We do not expect a plethora of new cases. The IPC can have access to all the records, but he does not have to be informed every time. He will have all the information he needs.

Lord Rosser Portrait Lord Rosser - Hansard

I thank the Minister for that response. I want to reflect on what has been said. In the meantime, I beg leave to withdraw the amendment.

Amendment 67ZA withdrawn.

Break in Debate

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb - Hansard

My Lords, I spoke earlier in Committee about my opposition to the whole of Schedule 3. I shall now speak to my Amendments 68 and 69. I declare an interest: I have a journalist daughter and know many of her friends, and they could be very adversely affected by this part of the Bill because it is about the protection of journalistic material.

Because Schedule 3 of the Bill allows border officials to question, search and detain anyone at the border without any suspicion whatever, people carrying journalistic or legally privileged material might want to refuse to hand over that material without committing a criminal offence. Without Amendment 68, journalists and lawyers could be forced to hand over sensitive and confidential material at the border. This surely cannot be the Government’s intention in drafting the Bill, and it surely will not be Parliament’s will to allow such a scheme to become law.

Without Amendment 69, journalistic material confiscated at the border, including information about confidential sources, could be exposed in open court as evidence. This would be an enormous erosion of press freedom and the sacrosanct duty of journalists to protect their sources. It would have a chilling effect on individuals coming forward with information which is in the public interest. I have myself been approached by whistleblowers who are well aware of the severe consequences that await them. We must not add to the burden that deters people from coming forward with information about corrupt practices or wrongdoing.

As drafted, Schedule 3 would put sources in danger of losing their job, their liberty or even their life. The Government would never allow their confidential intelligence sources to be exposed in this way, and I ask the Minister to explain why journalists’ sources should be treated any differently.

Previously in Committee, the Minister declined to put specific protections in law for journalists on the basis that it was too broad a term. This is why my amendments and Amendment 71 in the name of the noble Earl, Lord Attlee, use the existing definitions in the Police and Criminal Evidence Act and the Investigatory Powers Act. I hope that this approach is more palatable to the Minister and could be adopted at Report.

I omitted to mention that the noble Earl, Lord Attlee, is unable to be here today. I said that I would say a few words on his behalf, and he said that he was sure that I could find the right ones—so let us hope that I have.

My amendments are essential to protect press freedom and the confidentiality of sources. I hope that the Minister will listen to the concerns and bring forward amendments to fix the problems highlighted. I beg to move.

Lord Rosser Portrait Lord Rosser - Hansard

We have Amendment 69A in this group. The purpose of our amendment is to provide that, where an examining officer wishes to retain an article which the owner alleges contains confidential material, the examining officer may not examine the article and must immediately send the article to the Investigatory Powers Commissioner. The commissioner must then determine whether the article contains confidential material and may then authorise the examination and retention of the article under the provisions of the Bill or return it to the examining officer if it is not confidential. This would provide for the independent oversight of confidential material, as required by the Miranda judgment.

I appreciate that what the Government propose is not in line with our amendment. However, we now have the code of practice, which states:

“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”,

the item. It also states:

“An examining officer should take reasonable steps to review the credentials of an examinee to verify any such claim when considering whether there are reasonable grounds to believe that a specific item is confidential material”.

It would be helpful if the Minister could respond to my points, as the purpose of my amendment is primarily to find out how it is intended that the process will operate—although we would obviously be extremely grateful if the Government decided to accept the amendment. If an examining officer who reviews the credentials of an examinee feels that the credentials stand up, will they still be able to examine material which they think may be confidential? If the examinee has said that there is confidential material and the examining officer is satisfied with their credentials, is that enough to prevent the item being examined, or would the officer still be expected or able to examine an item to ascertain for themselves that it contains what appears to be confidential material?

In other words, on checking or reviewing the credentials of the examinee, if the examining officer is satisfied, does that mean that there is no question of the examining officer looking at any material that the examinee maintains is confidential, but instead they have immediately to send it to the commissioner to decide whether it should be retained?

Despite what I have just said, we are not unappreciative of the Government’s argument that an officer may not always be able to accept a claim at face value that something contains confidential material. But do the Government believe that the system now set out in the Bill and the code of practice, which still involves the examining officer having sight of an article before it is passed to the commissioner, fully realises the protections that the Miranda judgment recommended? I ask that particularly as the Government have now introduced an emergency procedure so that urgent cases will not be slowed down by any system of independent oversight. We must ensure that we get these protections right and that they conform with the Miranda judgment.

Counter-Terrorism and Border Security Bill Debate

Full Debate: Read Full Debate
Department: Home Office

Counter-Terrorism and Border Security Bill

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

(1 year, 10 months ago)

Lords Chamber
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Home Office
Baroness Hamwee Portrait Baroness Hamwee (LD) - Hansard

My Lords, again on behalf of the Joint Committee on Human Rights, I have Amendments 64 and 65 in this group, as my noble friend Lord Paddick has trailed. The Bill gives powers, as does the Terrorism Act 2000, whether or not there is a suspicion. The JCHR’s amendment would insert a test of reasonableness—that is, a threshold of reasonable suspicion—to stop, search and detain for the purpose of determining whether an individual is involved in the commission of a hostile act, and would allow the exercise of these powers only when it is,

“necessary and proportionate to do so”.

My noble friend said that he was not sure whether the second of those words was necessary, or possibly even proportionate. I find it quite difficult to know when one should articulate those criteria. We are told that they must always apply but sometimes it seems necessary to have the debate.

The committee identified five potential interferences with Article 8 rights in the case of a person subject to the power: he must provide any information or document requested—failure to do so is punishable by a substantial fine and imprisonment; he can be stopped and searched; his personal belongings may be copied and retained; he may have biometric data taken; and he may be detained for questioning. These are of course existing provisions but there are distinctions from the 2000 Act. Under this legislation the purpose of the Schedule 3 power is broader and, we think, more ambiguous than the Schedule 7 power in the 2000 Act, giving a greater risk of arbitrary use of the power.

Professor Clive Walker, whom I have quoted before, has suggested that if the real mischief behind these powers is the Salisbury attack, the purpose should be confined to powers to stop, question and detain without reasonable suspicion on the basis that the person has information or is carrying materials which might relate to crimes under the Official Secrets Act or chemical, biological, radiological, nuclear and explosive crimes. Under the schedule to this Bill, there are also broader powers to retain articles and make copies of materials, including “confidential material”, compared to Schedule 7. Under that schedule to the 2000 Act, material cannot be reviewed or copied unless officers have reasonable grounds to believe that it is confidential.

Under Schedule 3, there will be the oversight of the Investigatory Powers Commissioner, which is of course welcome. The Government also point to the fact that the decisions of the commissioner are subject to judicial review as a safeguard but, as the European court has commented, where statutory powers are wide, applicants can face formidable obstacles in proving that decisions are ultra vires. For that reason, among others, we think it is necessary that the statutory powers are clearly defined and sufficiently circumscribed.

Lord Rosser Portrait Lord Rosser (Lab) - Hansard

We have Amendment 65A in this group. I shall speak to it briefly. Paragraph 1(4) of Schedule 3 states:

“An examining officer may exercise the powers under this paragraph whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.

As has already been said, under Schedule 7 to the Terrorism Act 2000, an officer can stop a person without having grounds for suspicion that the individual is involved in terrorist activity. However, the draft guidance published by the Government states that stops under Schedule 3 cannot be arbitrary and must be informed by the threat of hostile activity to the UK. The purpose of Amendment 65A is simply to enshrine the wording in the draft guidance in the Bill. The precise wording in the draft guidance is:

“the decision to select a person for examination must not be arbitrary. An examining officer’s decision to select a person for examination must be informed by the threat from hostile activity to the United Kingdom and its interests posed by foreign States and hostile actors acting for, on behalf of, or otherwise in the interests of, those States, whether active in or outside the United Kingdom”.

The objective of this amendment is simply to put that wording in the draft guidance, which provides some sort of safeguard, into the Bill rather than leaving the Bill with, as it appears to be at the moment, effectively a random stop-and-search power.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB) - Hansard

I support the Government’s position on Amendments 42 and 46. In a report of July 2013, The Terrorism Acts in 2012, I recorded the result of an extensive inquiry conducted with MI5 and counterterrorism police into the value of no-suspicion stops under Schedule 7 to the Terrorism Act. I started from a position of, I hope, healthy scepticism, but noted three useful functions of the no-suspicion stop: deterring and detecting the use of “clean skins” to transport terrorist material; avoiding alerting travellers that they were the object of surveillance; and enabling the travelling companion of a person suspected of involvement in terrorism to be stopped and questioned. I followed this up with several real-life examples, which I had verified, of no-suspicion stops that had brought significant benefits in terms of disrupting potential terrorists. More to the point, perhaps, in the case of Beghal in 2015 a majority of the Supreme Court held that having regard to the many safeguards on its exercise, the absence of a suspicion requirement was not such as to render the basic Schedule 7 power inconsistent with the principle of legality. That judgment contained a lengthy comparison of Schedule 7 with the former Section 44, to which the noble Lord, Lord Paddick, addressed some remarks.

These few words should not be understood as a rejection of some enhanced threshold for the use of more specialised powers under Schedule 7 to the 2000 Act, or Schedule 3 to this Bill, such as downloading a phone or, indeed, taking a person into detention. Still less should it be understood as support for no-suspicion powers of stop and search in more orthodox areas of policing where threats to national security are not in issue. I hope, however, that it explains why I do not support these amendments.

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I have an answer to the noble Baroness, Lady Hamwee, but I cannot read it and therefore do not know what the question was. Whatever the question was, I shall write to her about it.

Lord Rosser Portrait Lord Rosser - Hansard

On Amendment 65A, as I understand it, the Government are not arguing that the amendment in any way compromises the position of the security agencies, but would make clear in the Bill that such considerations need to be taken into account. They have been written into the draft guidance. What is the objection to putting them into the Bill in place of the current wording, which looks a bit like a random stop and search?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

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

Break in Debate

53A: Schedule 2, page 38, line 17, at end insert—

“_(1) A person whose biometric data is retained under the provisions of this Schedule may appeal to the Commissioner for the Retention and Use of Biometric Material (“the Commissioner”) for the destruction of that data when the conditions in sub-paragraph (2) are met.(2) The conditions referred to in sub-paragraph (1) are—(a) that the retention of the biometric data has not been previously authorised by the Commissioner or a court of law; and(b) that the biometric data was taken from the person—(i) in circumstances where the arrest or charging of the person was substantially due to a mistake, whether of identity, place or other material fact; or(ii) the person was arrested but never charged for the relevant offence.(3) On receiving an appeal under sub-paragraph (1), the Commissioner must seek representations from the chief officer of police in the area in which the biometric data was taken as to whether the data should be destroyed or not.(4) The Commissioner must determine an appeal under sub-paragraph (1) within three months of receiving the appeal.”

Lord Rosser Portrait Lord Rosser - Hansard

Much of this Bill is about the appropriate balance between liberty and security in the present climate, where acts of terrorism are a reality rather than a distant or remote possibility. The differences of view over some parts of this Bill are in effect over where that appropriate balance between liberty and security should lie, since I presume that we are all in agreement with the principle that there has to be such a balance. Amendment 53A is also about where that balance should lie.

Clause 18 and Schedule 2 amend existing powers to retain fingerprints and DNA samples for counterterrorism purposes. The amendment would enable a person whose fingerprints and DNA profiles are retained under a power amended by Schedule 2 to apply to the Biometrics Commissioner for the data to be deleted.

The amendment highlights and addresses two scenarios. The first is where there has been a mistake, such as over identity, place or any material fact or in the intelligence. The second scenario is where a person has been arrested but not charged for the offence. Under the terms of the amendment, an application can be made to the commissioner for the destruction of data where one of those two scenarios has been met as well as the requirement that the retention of the data has not been previously authorised by the commissioner or a court of law.

On receiving an appeal from the person whose biometric data has been retained, the commissioner would then be required to seek representations from the relevant chief officer of police as to whether the data should be destroyed, with the commissioner having to determine the appeal within three months.

If people’s data are retained in circumstances where a mistake might have been made or where they have not ultimately been charged with an offence, they should be able to appeal to have it destroyed. That right of appeal is surely quite important. At present, the Police and Criminal Evidence Act states that biometric data must be deleted by the police if it was taken where,

“the arrest was unlawful or based on mistaken identity”.

As far as I can see, the Police and Criminal Evidence Act does not provide for a personal right to appeal, which is what this amendment would give. This is surely an important principle. This amendment does not overturn the principle that there should be a period of automatic retention following a lawful and correct arrest on suspicion of terrorism. Indeed, it does not remove anything from Schedule 2.

Under Schedule 2, the time period for national security determination is amended. An NSD allows a chief police officer to determine that it is necessary and proportionate to extend the retention period for biometric data for the purposes of national security for an extra two years to five years, where it would otherwise be destroyed. An increased period of five years is a long time to retain the data of persons who have never been charged with a crime, particularly in the absence of a right of appeal. The amendment seeks to provide such an appeal through the Biometric Commissioner, who would make a decision on retention of data or otherwise based on whether it was necessary and proportionate to do so.

I hope that the Government will feel able to accept that, in the changed circumstances provided for in the Bill, the right of appeal being sought in this amendment should be taken up. I beg to move.

Earl Howe Portrait Earl Howe - Hansard

My Lords, as the noble Lord, Lord Rosser, has explained, this amendment would provide for a person whose fingerprints and DNA profile are retained under a power amended by Schedule 2 to apply to the Biometrics Commissioner for the data to be deleted if the commissioner or a court have not previously authorised its retention.

One of the circumstances in which this new process would apply is where an individual had been arrested or charged as a result of a mistake, such as mistaken identity. I am pleased to be able to tell the noble Lord that existing legislation already addresses such cases of mistaken identity, providing a stronger safeguard, in fact, than the one he is proposing. Section 63D(2) of the Police and Criminal Evidence Act 1984, or PACE, provides that biometric data must be deleted by the police, without the individual needing to appeal, if it was taken as a result of an unlawful arrest, or an arrest based on mistaken identity. Given this existing provision, I believe that this aspect of the amendment is not necessary.

The second limb of the amendment covers cases where a person has been arrested but not charged with an offence. Of course, we touched on this ground in debating Amendment 47, tabled by the noble Baroness, Lady Hamwee. As I indicated in response to that earlier debate, the Government’s view is that where someone has been lawfully arrested for a terrorism offence but not charged with that offence, it is none the less appropriate, necessary and proportionate that their fingerprints and DNA profile are retained by the police for three years. That approach has been firmly established for some years, through the Terrorism Act 2000, and we are now extending it to cover persons arrested for exactly the same terrorism offences under PACE. Consequently, I am not persuaded that we should now introduce a right of appeal to the Biometric Commissioner in such cases.

I stress that the Bill does not depart from the principle established by the Protection of Freedoms Act 2012 that the biometric data of a person who is arrested but not charged should not normally be retained indefinitely, as had previously been the case. In passing this legislation in 2012, Parliament recognised, rightly in my view, that in certain circumstances it is appropriate and in the public interest for biometric data to be retained for limited periods in the absence of a conviction. This includes when an individual is arrested under the Terrorism Act 2000 on suspicion of being a terrorist but is not subsequently charged. The law provides for a three-year automatic retention period in this situation. However, the retention of biometric data for any longer than this would require a national security determination to be made by a chief officer of police and approved by the independent Biometrics Commissioner.

As we have already debated, Schedule 2 makes an equivalent provision for a case where the same person may be arrested on suspicion of the same terrorist activity but under the general power of arrest in PACE. The flexibility to arrest an individual under the Terrorism Act or PACE is a decision to be taken by the police, one which will be based on operational considerations. It is a gap in legislation that the same biometric retention rules do not follow the two powers of arrest in terrorism cases, despite the fact that there may otherwise be no material difference between two such cases. Schedule 2 closes that gap. While I support the principle that biometrics taken following a mistaken or unlawful arrest should be deleted—that is the position at law already—I am afraid I cannot agree that we should remove the equally well-established principle that there should be a limited period of automatic retention following a lawful and correct arrest on suspicion of terrorism.

Break in Debate

For all those reasons, I hope that I have been able to persuade the noble Lord, Lord Rosser, that the existing framework, as modified by Schedule 2, offers sufficient safeguards to address the points he has raised, and consequently that he will be content to withdraw his amendment.

Lord Rosser Portrait Lord Rosser - Hansard

I thank the Minister for that reply. Reference was made to the arrangements under PACE and the fact that biometric data must be deleted by the police if it was taken where the arrest was unlawful or based on mistaken identity, but what happens if it is not deleted in such circumstances?

As I understand it, there is no right of appeal for the individual under PACE, and I am not quite sure whether that is what the Minister was telling does exist as opposed to a duty on the policy to delete it where the arrest was unlawful or based on mistaken identity. There is a distinction between the police having a duty to do it if the arrest was unlawful or based on mistaken identity and the individual having a right to appeal on those grounds because it may be that that individual has information which for some reason or other the police did not have which might change their view on the matter. I am not clear whether the Minister was telling me that under PACE the individual has a right of appeal or whether it is just something that the police should do. I think there is a big difference between something the police should do and an individual having the right to challenge, which is what my amendment provides for, so I do not think that on that issue the Government have provided much of an assurance.

Reference was made to the basis on which the Biometrics Commissioner would consider the matter. I appreciate it is not in the amendment, but I said in my contribution that the decision on the retention or otherwise of data would presumably be on the basis of whether it was necessary and proportionate which, as the Minister said, is the basis on which the security issue and the extension of data would be based in the first place.

On the last point that the Minister made on behalf of the Government about the security issue of not being able to tell an individual the reasons for declining an appeal, which is presumably what we are taking about, in my amendment I am not suggesting that very sensitive and crucial information should be disclosed in announcing a decision. If the Government’s only real objection to the amendment is that if the reasons for the decision have to be declared in full it would cause difficulty, which I can understand, surely the matter could be looked at on the basis that the reasons given for the decision would be such as not to disclose sensitive information related to counterterrorism. I beg leave to withdraw the amendment.

Amendment 53A withdrawn.

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Lord Brown of Eaton-under-Heywood Portrait Lord Brown of Eaton-under-Heywood (CB) - Hansard

My Lords, I, too, support the amendment—looking around, it would be almost eccentric not to. The reasons already given are, I suggest, compelling, but in addition we had a debate in Committee on Clause 1, which is intimately linked with this issue, as the noble Lord, Lord Anderson, made plain at the time. Floating around at the time was Amendment 7 to Clause 1 which provided that it would not be an offence to support the deproscription of an organisation—on the face of it an altogether more compelling argument if the present amendment of the noble Lord, Lord Anderson, is accepted. If one has a defence to Clause 1 supporting deproscription, think what damage—some of us made this point in Committee—that does to the basic objective, which is that you should not be expressing an opinion supporting such an organisation, something which would inevitably be linked with any attempt to have it deproscribed. This is very important also for Clause 1 purposes.

Lord Rosser Portrait Lord Rosser - Hansard

I will listen to what the Minister says in response to the amendment, but from what I have heard so far, the case for it appears somewhat compelling.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

My Lords, it is never nice to stand up and feel defeated on a matter. I shall outline the various points on proscription. As noble Lords will know, the effect of proscription is that the organisation is added to Schedule 2 to the 2000 Act, and that a number of offences bite in relation to membership and support for it. In practice, the Home Secretary is responsible for proscriptions relating to international and domestic terrorist groups, and the Northern Ireland Secretary for Northern Ireland-related terrorist groups.

Under Section 4 of the 2000 Act, either a proscribed organisation itself, or a person affected by its proscription, may apply to the Secretary of State for it to be deproscribed. Section 5 establishes the Proscribed Organisations Appeal Commission to consider appeals against refusal of an application under Section 4, and there is a route of appeal on a point of law from the commission to the Court of Appeal.

Amendment 59 would place a duty on the Secretary of State to review every proscribed organisation on an annual basis, to determine whether it continues to meet the legal test for proscription. The Secretary of State would, further, be required to decide whether each organisation should remain proscribed or should be deproscribed, and to publish that decision. As the noble Lord, Lord Anderson, has explained, his amendment reflects recommendations he made in his former role as Independent Reviewer of Terrorism Legislation—a role which he performed with great eminence and authority, and in which he made a great contribution. I do not think that he will agree with me just because I have said that.

The noble Lord will, of course, be familiar with the Government’s long-standing policy on removing terrorist organisations from Schedule 2 to the 2000 Act, from the responses of successive Home Secretaries to his reports as independent reviewer. However, for the wider benefit of your Lordships, I will, if I may, spend a short while setting this out. The Government continue to exercise the proscription power in a proportionate manner, in accordance with the law. We recognise that proscription interferes with individuals’ rights—in particular the rights protected by Articles 10 and 11 of the European Convention on Human Rights: freedom of expression and freedom of association. That is why the power is exercised only where necessary.

We should recall that organisations are proscribed for a reason—because they are concerned in terrorism. Our first priority is to protect the public and support our international partners in the fight against terrorism, and the power to disrupt a proscribed organisation by preventing it from operating or gaining support in the UK is an important one in this struggle. Where the Home Secretary has decided on advice, including from operational partners, that this test is met, with the serious consequences that flow from that, we consider it appropriate to continue to take a cautious approach when considering removing terrorist groups from the list.

While we take extremely seriously our responsibility to protect the public and to prevent terrorist groups from operating in the UK, it is not the Government’s position that once a group has been proscribed that should simply be indefinite, without the prospect of ever being removed from the list. To this end, Parliament provided a clear route for any proscribed organisation, or any person affected by an organisation’s proscription, to submit an application to the Home Secretary for the organisation to be deproscribed. Indeed, three groups have been deproscribed following such applications.

This, I believe, is the most appropriate and balanced way to deal with the question of deproscription. It ensures that any person who believes that any proscription is inappropriate has a clear route to challenge that proscription, so that groups which are not concerned in terrorism and no longer pose a risk to the public can be deproscribed. But it also avoids placing the public at risk, or causing alarm, through precipitate decisions to lift restrictions on organisations with a significant terrorist pedigree but which may have, for example, become less visibly active in recent times. It is an enduring feature of the terrorist threat that both individuals and organisations with a terrorist mindset can disengage and then re-engage in terrorist activity, potentially without warning. Such individuals and groups will continue to pose a threat, and to be properly characterised as terrorist, during both their fallow and active periods, and it would not be responsible for the Government to remove the prohibitions and stigma that apply to proscribed organisations unless we are truly certain that they have changed and no longer pose a threat.

The Government are committed to ensuring that the right groups are proscribed and that the public are protected. But we are not persuaded that introducing regular formal reviews of past proscription decisions would in practice prevent any injustice, particularly given the existence of a review system on application, whereas such a system of formal reviews could lead to perverse outcomes and would have a significant operational impact in terms of diverting investigative and intelligence resource from current threats to public safety in order to carry out the reviews.

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59A: After Clause 20, insert the following new Clause—

“Continued participation in the European Arrest Warrant

(1) It is an objective of Her Majesty’s Government, in negotiating the withdrawal of the United Kingdom from the European Union, to seek continued United Kingdom participation in the European Arrest Warrant in relation to persons suspected of specified terrorism offences.(2) In this section, “specified terrorism offences” has the same meaning as in Schedule 15 to the Criminal Justice Act 2003.”

Lord Rosser Portrait Lord Rosser - Hansard

My Lords, the effect of this amendment is to insert a new clause into the Bill which would make it an objective in the Brexit negotiations to continue participation in the European arrest warrant. European arrest warrants are valid in all member states of the European Union and can be used to ask a state to arrest and transfer a criminal suspect to be put on trial, or to ask for someone who is sentenced to custody to be transferred to the UK to complete their sentence. In the calendar years from 2010 to 2016, the United Kingdom issued 1,773 requests. Of these, 11 related purely to terrorism and a significant further number to organised crime including human trafficking, child sex offences and drugs trafficking.

Extradition outside the European arrest warrant can cost four times as much and take three times as long. It would also mean an end to the significant exchange of data and engagement through Europol. In counterterrorism investigations, speed is of the essence and it is thus vital that we have the objective of continuing to play a key role on the European security scene. Recently the European arrest warrant has been obtained in respect of the two suspects in the Salisbury attacks, which means that if they set foot in the European Union they will be remanded to the UK to face justice.

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.

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Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

My Lords, I thank all three noble Lords for their points on the European arrest warrant and our future law enforcement, internal security and criminal justice relationship with the European Union following our exit from it. The Prime Minister has repeatedly made clear that the UK is unconditionally committed to maintaining Europe’s security now and after our withdrawal from the EU. We are proposing a comprehensive security relationship which preserves that mutually important operational capability that enables UK and EU operational partners to work together to combat fast-evolving security threats, including in respect of terrorism and hostile state activity.

In July, the Government published a White Paper on our future relationship with the EU. It sets out how we are seeking a relationship that provides for mechanisms for rapid and secure data exchange, practical measures to support cross-border operational co-operation, and continued UK co-operation with EU law enforcement and criminal justice agencies. We continue to value our co-operation and information sharing on issues such as extradition, and believe that a pragmatic solution is in the interests of EU member states and the UK. Our primary objective is to keep our citizens safe.

While I welcome this opportunity to reiterate the Government’s commitment to maintaining a strong security partnership with the EU after exit, the nature of the future relationship is a matter for negotiations. As such, it would not be appropriate or necessary to include in primary legislation any measure that pre-emptively binds the Government’s hands by setting our negotiating objectives. That point was accepted when this matter was voted on in the House of Commons in September, and was accepted by both Houses when the European Union (Withdrawal) Bill was enacted.

We are clear that we want a security partnership that maintains co-operation in these areas but negotiating objectives are just that, and not a matter for this or any other Bill. Parliament will agree the final form of the withdrawal agreement when legislation to give effect to it is brought forward in due course. Therefore, at this stage, I ask the noble Lord to withdraw his amendment.

Lord Rosser Portrait Lord Rosser - Hansard

I thank the Minister for her reply and other noble Lords for their participation in this brief debate. From what has been said in response, I am not entirely clear whether that meant that it was part of our negotiating position that we would continue to participate in the European arrest warrant, or whether the Government are accepting that, under whatever deal is done, it will not be possible to continue to participate, for some of the reasons that have already been voiced in this evening’s debate. I do not know whether the Minister is able to help me on that and say whether it is our negotiating position to try to remain within the European arrest warrant system or whether the Government accept that we cannot, and the hope is that something comparable can be the subject of negotiation.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I said to the Committee that that aspect of security co-operation was absolutely vital, and therefore some sort of security agreement was being worked on at the time. I cannot pre-empt what that will look like, but all the co-operation we enjoy now should continue, although, as the noble Lord, Lord Paddick, said, it may not be in the form of a European arrest warrant, given that no other non-EU states have been able to avail themselves of it. But it should certainly align closely with what we have now.

Lord Rosser Portrait Lord Rosser - Hansard

I thank the Minister for that clarification. This short debate has been useful; one thing it has shown—by the way, I do not suggest that it has only just come to light—is that the future of the European arrest warrant is in doubt at present, which is potentially quite serious from our nation’s point of view. Let us hope that that does not come to pass. I beg leave to withdraw the amendment.

Amendment 59A withdrawn.

Counter-Terrorism and Border Security Bill Debate

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Department: Leader of the House

Counter-Terrorism and Border Security Bill

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

(1 year, 11 months ago)

Lords Chamber
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Leader of the House
Lord Fowler Portrait The Lord Speaker (Lord Fowler) - Hansard

I should notify the Committee that, if Amendment 31 is agreed to, I cannot call Amendment 32 by reason of pre-emption.

Lord Rosser Portrait Lord Rosser (Lab) - Hansard

My Lords, as the noble Baroness, Lady Hamwee, said, Amendment 33, to which both my noble friend Lord Kennedy of Southwark and I have added our names, reflects a recommendation of the Joint Committee on Human Rights—a committee whose recommendations are not always music to the ears of this Government, and indeed have not been to previous Governments. I imagine that the committee would take the view that that is just about the highest compliment any Government could pay it.

The Government have also expressed a fairly trenchant view on the extent to which the JCHR, in connection with the Bill, should have taken evidence from the police, intelligence agencies and victims. The noble Baroness, Lady Hamwee, has previously responded to the Government’s comments, but, whatever the Government’s view on that specific point, the committee’s recommendations should be considered and responded to purely on their merits, rather than on the basis of whose evidence has or has not been given.

As the noble Baroness, Lady Hamwee, and the JCHR have said, Clause 6 extends extraterritorial jurisdiction to Section 13 of the Terrorism Act 2000. Section 13 criminalises wearing an item of clothing or wearing, carrying or displaying an article in a public place so as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. The JCHR has expressed concerns over the extension of extraterritorial jurisdiction to certain offences where there is no equivalent offence in the country concerned, which could certainly apply in respect of the offences covered by Section 13 of the Terrorism Act. In such a situation, we could end up in a position under the Bill as it stands where a foreign national with no or very limited links to the UK is prosecuted for conduct that, both in fact and as far as they were concerned, was lawful at the time and in the place it occurred. That surely would not be British justice in action.

The views of the Joint Committee on Human Rights on this issue are shared by the Constitution Committee—whether, in the latter case, that was with or without having heard evidence from the police and intelligence agencies I do not know. The Constitution Committee states that the extraterritorial extension of the offences concerned,

“breaches the requirement, deriving from the principle of legal certainty, that people should have a fair opportunity to know the laws (particularly criminal laws which on conviction carry criminal penalties) which apply to them. We agree with the JCHR’s proposed amendment that extra-territorial jurisdiction should apply only where the relevant conduct is criminal in the country concerned or where the individual has sufficient links to the UK”.

Amendment 33 is designed to address the issue to which both the JCHR and the Constitution Committee have drawn attention by providing that an offence is committed under Section 13 only if the relevant acts were an offence in the country where the acts took place, or the individual was a British national or had been present in the United Kingdom for a continuous period of at least six months in the last 10 years.

Lord Carlile of Berriew Portrait Lord Carlile of Berriew (CB) - Hansard

My Lords, I am somewhat shocked by the implication that there is anything illiberal about the proposed extension of the law in this clause. In November 2017, the Secretary-General of the United Nations, speaking in London at the School of Oriental and African Studies, included in his speech the following sentence:

“While terrorism often starts in conflict zones, it reaches far beyond them, organizing and inspiring attacks and radicalizing people across borders and continents”.

The clause recognises exactly what the Secretary-General described. Those who have been interested in terrorism law for as long as the period since 9/11 will recall that the then Secretary-General of the United Nations, in a speech in Barcelona shortly after 9/11, made the point that the United Nations agrees in principle that terrorism should be prosecuted wherever the defendant is irrespective of where the terrorist act was committed.

If this Bill, as we are told by the Government, is intended at least in major part to modernise the law so that it faces up to the changes that have occurred at an exponential rate in electronic communications since 2001, this is exactly one of those measures that achieves just that. Let us imagine that somebody was in this country with impunity having committed an act somewhere else that is a terrorism offence in this country. We prosecute those who committed the act in this country, but not those who committed exactly the same act, which appeared on exactly the same postings on the internet and in exactly the same YouTube videos, in another country. That makes absolutely no sense.

I say to the noble Baroness—whom I much admire—who proposed the amendments that there is a danger of us losing touch also with the public view on these matters. A set of opinion polls appeared two days ago in which it was revealed that changes in the law of this kind are broadly supported by more than 80% the public. While I do not believe in legislating on the grounds of public opinion, in this instance I regard the public as being right and I urge your Lordships to reject the amendments and not to reject the principle in the clause.

Break in Debate

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB) - Hansard

My Lords, I oppose this amendment and, in doing so, I will seek to explain why the issues are rather different from those considered under the previous group. If Amendment 32 is passed then Section 12 of the Terrorism Act 2000, as supercharged by Clause 1, will apply to any person anywhere in the world who expresses an opinion or belief that is supportive of an organisation proscribed in the UK and who is reckless as to the consequences. The deficiencies of our deproscription regime, with which I have already wearied your Lordships, are multiplied when coupled with the indiscriminate grant of extraterritorial jurisdiction in this context.

To illustrate the point, I invite your Lordships to look to the Republic of Ireland, whose citizens would be criminalised by a law of this Parliament for expressing supportive opinions about organisations now committed to peace but in which their grandfathers or grandmothers once fought for freedom. I shall give one example: Cumann na mBan, the Irish republican women’s organisation. It was once aligned with the IRA and is still proscribed in this country, despite no evidence of which I am aware that it has been concerned in terrorism during this century at least. The commemoration of its centenary in 2014 in Dublin was a significant national event. The speakers included President Higgins of Ireland, who spoke stirringly and approvingly of the vision that animated the women of Cumann na mBan. The Minister will of course assure us that no one is going to seek extradition of Irish citizens who expressed opinions supportive of this proscribed group but, as noble Lords have done in relation to other clauses of the Bill, I must question whether this repeated heavy reliance on the discretion of our authorities is an adequate substitute for crafting a properly defined law.

This amendment comes in very late and, as the noble Baroness, Lady Hamwee, said, without the benefit of JCHR scrutiny. Whatever view noble Lords may take of Amendments 31 and 33, I strongly question the wisdom of extending extraterritorial jurisdiction unqualified by limitations of citizenship or residence to countries where conduct caught by the expanded Section 12 is not a crime. However it is applied in practice, this amendment might be thought to have a regrettably colonial flavour, not just in Ireland but in other parts of the world. I have no doubt that it is unintended, but it is no less unfortunate for that. This amendment seems to have been an afterthought. I suggest that this is one of those occasions where the first thoughts were the best. I invite the Minister to withdraw the amendment or, at the very least, to qualify it in the ways suggested in Amendment 33.

Lord Rosser Portrait Lord Rosser - Hansard

I shall be very brief. I await the Government’s response to the points made by the noble Lord, Lord Anderson of Ipswich, with interest.

I would like to pursue another point he raised in his contribution. Bearing in mind that this amendment, which adds offences, is coming in at a very late stage in proceedings, is this a result of a perceived oversight on the Government’s part or does it represent a significant rethink of policy?

Earl Howe Portrait Earl Howe - Hansard

My Lords, I am grateful to noble Lords who have responded to this proposed amendment. We are very conscious that it is less than ideal to bring in an amendment of this kind at this stage of the Bill’s passage. If we had been able to do so at an earlier stage, it would have been much better.

Having said that, we felt that it was, on balance, right to introduce this change rather than not introduce it. I recognise the reservation expressed by the noble Lord, Lord Anderson, on that score. He also expressed the reservation that we heard on the previous group of amendments about applying extraterritorial jurisdiction to those who are not UK citizens or UK residents. I have already said that as a general rule I respect that point of principle. However, I put it to the noble Lord and the noble Baroness that what we are seeking to do here is not any different in concept from what we sought to do at the beginning of the Bill.

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Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich - Hansard

My Lords, Ministers will know that the equivalent sentences in other European countries for the type of offences that we are talking about tend to be much lower than they are here. Perhaps that is no bad thing.

In light of these issues and the proposed very substantial increases to which the noble Lord has referred, will the Minister say what steps will be taken to address—or at any rate, given the sensitivities, to research—the disparities that have been observed by informed observers between sentencing levels for terrorism offences in England and those in Northern Ireland, where sentences imposed appear to be a great deal lower for conduct that on the face of it looks quite similar?

Lord Rosser Portrait Lord Rosser - Hansard

This amendment, moved by the noble Lady Baroness, Lady Hamwee, and to which my name and that of my noble friend Lord Kennedy of Southwark are also attached, is another which reflects a recommendation from the Joint Committee on Human Rights. One of the key aspects of the Bill is the proposed increase in maximum sentences for a number of terrorist offences. This was one—but only one—of our reasons for raising concerns about the prospect of innocent parties falling foul of some offences.

The JCHR said that the increases in sentences do not appear to be supported by evidence to suggest that they are justified or proportionate. The committee was particularly concerned that a sentence of 15 years could be imposed for an offence of viewing terrorist material online—even more so in the light of amendments on Report in the Commons that might make a single viewing sufficient for such an offence to be deemed to have been committed. As has already been said, the committee asked the Home Office for the evidence on which it based its decision that the current maximum sentences were insufficient and why it considered the proposed higher maximum sentences to be necessary and proportionate.

The reply from the Home Office, as set out in the JCHR report, stated, among other things:

“The division between preliminary terrorist activity and attack planning is increasingly blurred”.

It did not, according to the committee, explain why existing sentencing powers were inadequate. I hope, like others, that the Government will address this point on existing sentencing powers in their response, as well as the specific terms of the amendment, reflecting the view of the JCHR, which deletes the increase in the maximum sentence from 10 years to 15 years for the “collection of information” offence provided for in Section 58 of the Terrorism Act 2000.

Earl Howe Portrait Earl Howe - Hansard

My Lords, Clause 7 increases the maximum sentences for a number of terrorism offences to ensure that the available punishment properly reflects the seriousness of the crime. That is the point that I urge noble Lords to focus on in this debate. A key aspect of the review of our terrorism laws announced by the Prime Minister following last year’s attacks, of which the Bill is the product, was looking again at the courts’ sentencing powers to ensure that they are sufficient to respond to the threat and keep the public safe. The clear conclusion was that sentencing needs to be updated and strengthened, and the Bill contains a package of measures to deliver that, including Clause 7. However, I recognise that the noble Lord, Lord Marks, and the noble Baroness, Lady Hamwee, have queried whether these changes need to be made and have suggested that such changes are unnecessary and disproportionate. However, I sincerely hope that in responding to such concerns I can explain why the Government believe that Clause 7 as drafted is a necessary, proportionate and timely response to the contemporary terrorist threat.

Since the offences in question were first introduced, in some cases 12 years ago and in others 18 years ago, the terrorist threat has evolved significantly. Its source has shifted and diversified, its methods have developed and it has been quick to exploit modern online technology. Both its extent and its severity have maintained an upwards trajectory, and the intelligence services consider that in recent years there has been an enduring shift in the nature of the threat, rather than just a spike. We can be under no illusion: the scale of the threat we face today is unprecedented and, sadly, more attacks are likely.

In particular, we have seen increases in the scale of radicalisation and changes in its methodology and patterns. The growth of the internet has brought new and powerful ways for people to connect with each other, and to share ideas and information, which have brought great benefits to the vast majority of the public. But they have also brought new opportunities to those who would do us harm, increasing the ability of terrorists both to access and to disseminate unlawful terrorist information and training material, propaganda, and incitement to hatred and violence—and to do so, potentially, to a wide audience. Indeed, those who seek to recruit and to inspire or direct individuals to carry out attacks have never found it easier to identify and connect with would-be terrorists, often across international borders, and those who are embarking on the path of radicalisation have never found it easier to access material, to communicate with terrorist individuals and organisations, and to receive encouragement or direction which will move them further and more quickly along that path.

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Earl Howe Portrait Earl Howe - Hansard

My Lords, the Sentencing Council’s new guidelines for terrorism offences came into force, as the noble Lord rightly says, on 27 April. In its consultation on the draft guidelines, the council was able to anticipate the proposed increases. Consequently, we believe it will not be a difficult task for the council to modify the guidelines once the Bill is enacted, and the Government will of course work with the council on those increases. Any changes to sentencing will only be made following parliamentary debate and approval.

Lord Rosser Portrait Lord Rosser - Hansard

Unless I am getting confused, which is quite possible, as I understand it the Security Minister, when the Bill was in the Commons, said,

“we have kept the Sentencing Council apprised of the provisions in the Bill, and the chairman has indicated that the council plans to revisit the guidelines once the Bill has completed its parliamentary passage”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 3/7/18; col. 105.]

Is that still the Government’s position?

Earl Howe Portrait Earl Howe - Hansard

That is exactly the position. I sense no resistance from the Sentencing Council to that approach and I think it is eminently practicable. To answer the question from the noble Lord, Lord Thomas, about the review, it was announced by my right honourable friend the Prime Minister in June 2017. It is an internal government review and as such was not published, but I have informed the Committee today of some of the conclusions that it reached.

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Lord Paddick Portrait Lord Paddick - Hansard

My Lords, as I have added my name to this amendment, I should like to say briefly that we support the principle that there should be the possibility of a review to ensure that these provisions are necessary and proportionate. The appeal process appears to get round any possible issues with matters that cannot be placed in the public domain.

Lord Rosser Portrait Lord Rosser - Hansard

My Lords, I shall be very brief. My name and that of my noble friend Lord Kennedy are also attached to this amendment. As has been said, it reflects a recommendation from the Joint Committee on Human Rights. I simply comment that circumstances can change and therefore ask whether it is unreasonable that an individual covered by the enhanced notification requirements should be able to seek a review of the necessity and proportionality of those requirements, as recommended by the JCHR.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

My Lords, as noble Lords have said, Clause 12 strengthens the notification requirements under the Counter-Terrorism Act 2008 which apply to individuals convicted of terrorism offences, or offences with a terrorist connection, to enable the police to better manage the risk posed by such individuals. It does so by increasing the amount of information that registered terrorist offenders must notify to the police, in many respects bringing the requirements into line with those already in place for registered sex offenders.

The length of time that a terrorist offender is subject to the notification requirements varies depending on the length of sentence they receive, up to a maximum of 30 years for a person sentenced to 10 years’ or more imprisonment. The notification requirements are not onerous and do not place restrictions on an offender’s activities, but they do provide a proportionate means for the police to monitor the ongoing risk posed by a person who has been convicted of a terrorism offence and, where appropriate, to take action to mitigate any increased risk that they might pose.

The noble Baroness, Lady Hamwee, has explained that her amendment is motivated by a concern that it is not appropriate for a convicted terrorist to be subject to the requirements for this length of time without the ongoing necessity and proportionality of this being reviewed. I understand the sentiment behind her amendment but I disagree. As I have said, the notification requirements are not disproportionately onerous, and they flow as a direct consequence of a conviction for a terrorism offence—a category of offence which is of a particular level of seriousness. The notification measures provide a real benefit to the police in providing a quite light-touch but effective means of monitoring the ongoing risk posed by such a person over an extended period of time.

There is benefit in this, as individuals who are of a sufficiently terrorist mindset that they have been convicted of a terrorism offence, particularly one serious enough to merit a lengthy sentence of 10 or more years, can retain that mindset and can disengage and then re-engage over such an extended period of time. As such, the notification requirements in their current duration are, I suggest, clearly both necessary and proportionate.

The noble Baroness has suggested that, to ensure proportionality, we should follow the approach taken for registered sex offenders, which, following the Supreme Court’s judgment in the case of R (F) vs Secretary of State for the Home Department, includes a review scheme along the lines that she has proposed. However, it is crucial to note that the Supreme Court ruled only that a review scheme was necessary in order to comply with Article 8 of the ECHR for registered sex offenders who are subject to the requirements indefinitely.

Of course, the terrorism notification requirements can apply only for a finite period. The Supreme Court did not find that the sex offender notification scheme, as it applied to individuals subject to the requirements for a finite period, was incompatible with Article 8. As a result, for registered sex offenders subject to the notification requirements for a fixed period, there is no review scheme. Furthermore, and in any event, we should also note that the Court of Appeal found in the case of Irfan that terrorism offending is in a different category to sex offending in terms of ongoing risk. Notwithstanding the particularly serious nature of sex offending, terrorism offences have, in the words of the Court of Appeal,

“unique features which compound concern. A single act can cause untold damage, including loss of life, to a large number of people, by someone motivated by extreme political or religious fanaticism”.

A failed or foiled plot can also still serve to inspire many. If anything calls for a precautionary approach, it is terrorism. I hope that, in the light of this explanation, the noble Baroness feels that she can withdraw her amendment.

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Lord Pannick - Hansard

My Lords, perhaps I may add my name to the long list of noble Lords concerned about the width of the provision in the Bill. I too hope that the Minister will say to the Committee that she and the Government will take this matter away, think about it and come back to it on Report.

Lord Rosser Portrait Lord Rosser - Hansard

My name and that of my noble friend Lord Kennedy of Southwark are attached to these three amendments. All that needs to be said has already been said and I just wish to indicate my support for the views that have been expressed. I hope that the Government will either accept these amendments or, alternatively, accept the spirit of what has been said, go away and come back with their own proposals on Report.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I thank all noble Lords who have spoken. On the comments of the noble Lord, Lord Carlile, about reflecting on what the Committee said, I should make the point that the Government do reflect on what is said—that is the importance of the legislative process—and that, as the noble Lord, Lord Judd, said, we always have to balance these matters.

I shall deal with the amendments and explain why, for the moment, the Government do not support them.

Clause 13 confers on the police the power to enter and search the home address of a registered terrorist offender under the authority of a warrant issued by a justice for the purpose of assessing the risk that the offender poses. We have already debated the underlying purpose of the terrorism notification requirements and their importance in helping the police to manage the risk posed by those convicted of serious terrorism offences, so I will not go over that ground again.

However, as the noble Baroness, Lady Hamwee, said, these amendments would have a number of effects. Amendment 39 would narrow the purpose for which the power of entry and search may be operated and confine it to assessing whether the offender is in breach of the notification requirements rather than, as is currently drafted, to assess the risk that they pose.

Amendment 40 would introduce a requirement for the grant of a warrant that the justice must be satisfied that there are reasonable grounds to believe that the registered offender is in breach of his or her notification requirements. Amendment 41 would provide, in addition to the current requirement, that the justice must be satisfied that it is “necessary” for the officer to enter and search the premises for the purpose of assessing the risk posed by the offender. The justice must also be satisfied that entry and search is “proportionate” to that purpose.

It may assist your Lordships if I begin by setting out the purpose of this power and why it is needed in its current form. The purpose of the power is to assess the risk posed by the offender. The police consider that home visits are an important tool in managing and risk-assessing registered terrorist offenders during their time subject to the notification regime. This power allows them to ascertain whether the offender does in fact reside at the address they have notified to the police and to check their compliance with other aspects of the notification regime. This is, of course, the purpose that the noble Baroness, Lady Hamwee, envisages in Amendment 39.

However, home visits are also helpful as they allow a broader assessment of risk to be made beyond monitoring compliance with the notification obligations. They allow the police to identify any other factors that might contribute to the overall risk an offender poses to themselves or their community and their risk of reoffending. This might include their general living conditions, as well as any signs of mental health decline or drug or alcohol misuse. They can also allow the police to identify any potential risk that the offender may cease to comply with the notification requirements and, in particular, that they may abscond from their registered address.

It is not an inappropriate purpose for the police to wish to keep in touch with a registered terrorist offender. That actually strikes me as quite responsible, given that the police are charged with protecting us all from such serious offenders. Amendment 39 would mean that the new power could not be used for that purpose, so the police may become aware of an increase in risk and potentially harmful activity only at a later stage when the opportunity to take mitigated action may have been missed.

Counter-Terrorism and Border Security Bill Debate

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Department: Home Office

Counter-Terrorism and Border Security Bill

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

(1 year, 11 months ago)

Lords Chamber
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Home Office

1: Clause 1, page 1, line 8, after “belief” insert “, as part of a pattern of behaviour,”

Lord Rosser Portrait Lord Rosser (Lab) - Hansard

My Lords, this Bill creates an offence of expressing an opinion or belief that is supportive of a proscribed organisation if the person doing so is reckless as to whether a person to whom the expression is directed would be encouraged to support a proscribed organisation. Currently, encouragement of and invitation to support a terrorist organisation is a criminal offence, so what is proposed in the Bill is, in reality, an extension of this. The Bill requires not an intent to increase the ranks or membership of the proscribed organisation, but rather being reckless as to whether another person would be more likely to support the proscribed organisation as a result of the expression of an opinion or belief that is supportive of a proscribed organisation.

The Joint Committee on Human Rights has pointed out that the wording of the Bill could cover an academic debate if, for example, those taking part were speaking in favour of de-proscription of a currently proscribed organisation. The wording could also cover a similar debate taking place in the pages of national or other newspaper or journal. What also appears clear from the wording is that a person potentially commits the offence if they express their opinion or belief that is supportive of a proscribed organisation just once.

The test of the wording is presumably whether a reasonable person would regard the expression of the opinion or belief as encouragement to support a proscribed organisation rather than whether someone had actually been encouraged to join such an organisation. Perhaps the Minister can pick up or confirm that point in her reply and explain how the Government intend that “reckless” should be interpreted or defined in the context of this Bill.

It seems that one purpose of Clause 1 is to address the situation if Mr Choudary, just released from prison, continues to express his views to others, or someone with a similar outlook does likewise. There were clearly difficulties under the law as it stands in pursuing a successful prosecution against Mr Choudary, bearing in mind the length of time it took for that to happen. However, the snag is that, in seeking to address the situation to which I have just referred, we may end up criminalising, or silencing through fear of being criminalised, those who have no intention or wish to make it more likely that others will support a proscribed organisation but who are expressing an opinion in the legitimate pursuit of their employment or profession—for example, as an academic or a journalist might. We may also end up criminalising those who say something only once, and certainly not with any thought that it might encourage support for a proscribed organisation.

Amendment 1 provides that the expression of an opinion or belief that is supportive of a proscribed organisation has to be,

“as part of a pattern of behaviour”,

with the intention that only those who express such opinions or beliefs as part of a regular pattern of behaviour that is supportive of a proscribed organisation would be deemed to have committed the new offence. That should make it less likely that those involved in legitimate academic work or journalism, for example, could fall foul of Clause 1, as well as an individual expressing and directing their opinion or belief for the first occasion to others, perhaps without realising the significance of what they are doing.

If this amendment does not commend itself to the Government as a means of providing the safeguards I am seeking for innocent parties against falling foul of the new offence under Clause 1, I hope the Government in their response will set out how they intend to ensure that the necessary safeguards are in place.

Break in Debate

I should add that this provision will fall within the statutory remit of the Independent Reviewer of Terrorism Legislation, as does the existing Section 12 offence. This robust and staunchly independent oversight will help us to ensure that the amended offence is used appropriately and will bring to Parliament’s attention any concerns that it is not. I therefore hope that the noble Lord, Lord Rosser, will be content to withdraw his Amendment 1 and that the Committee will support Clause 1 standing part of the Bill.

Lord Rosser Portrait Lord Rosser - Hansard

I thank all noble Lords who spoke on this group of amendments. It has been a very wide-ranging debate with a wide range of views either supportive of or opposed to Clause 1, or to specific amendments we have debated. I certainly do not intend to try to summarise what has been said or to comment on the response we have heard from the Minister. As I said, I thank her very much for her reply, which I am sure has been appreciated because it was comprehensive and addressed a number of the questions raised, albeit people will of course have different views on whether they found that reply acceptable.

As far as my amendment is concerned—it related to pattern of behaviour—I do not want to say anything that commits me one way or another to doing anything on Report, but I will certainly reflect on what the Minister said when arguing against it. One of her points was that it was not in the existing offence, but it could be that the existing offence is rather more clearly definable than the new offence that appears in Clause 1. We had similar difficulties over the three clicks issue. That was slightly more difficult than, frankly, seeking to define what a pattern of behaviour might be.

I conclude by once again thanking noble Lords who have participated in the debate on this group of amendments and genuinely thanking the Minister for her reply: I am sure the House will have appreciated the depth to which she went in explaining the Government’s position. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Break in Debate

10: Clause 2, page 2, line 20, at end insert—

“(5) Before subsection (4) may come into force the Secretary of State must consult the Police Service of Northern Ireland and the Public Prosecution Service of Northern Ireland on the introduction of the power to seize an item of clothing or any other article in Northern Ireland.”

Lord Rosser Portrait Lord Rosser - Hansard

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 Portrait Lord Paddick - Hansard

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.

Break in Debate

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

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.

Lord Rosser Portrait Lord Rosser - Hansard

I thank the Minister for her response and thank other noble Lords who participated in this brief debate. Can she confirm that the reason for changing seizure provisions so that seizure can be dealt with by having a person reporting for summons is not meant to be taken as meaning that, where clothing or flags are seized under these provisions, in reality the matter would not be pursued through the courts?

I probably have not made myself clear. There will now be a procedure where clothing, or a flag in particular, could be seized in circumstances where the person could be reported for summons. I asked whether in reality that procedure meant that, once the flag had been seized, the chances were that the matter would not be pursued any further through the courts or whether it was still likely that matters would be pursued through the courts.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

Generally, the seizure would be with a view to prosecution, yes.

Lord Rosser Portrait Lord Rosser - Hansard

I am grateful to the Minister for that clarification, and in thanking her once again for her response, I beg leave to withdraw my amendment.

Amendment 10 withdrawn.

Break in Debate

11: Clause 3, page 2, line 27, after “accesses,” insert “as part of a pattern of behaviour,”

Lord Rosser Portrait Lord Rosser - Hansard

Clause 3 provides for a new offence of obtaining or viewing information online of a kind that is likely to be useful for committing or preparing an act of terrorism. Section 58 of the Terrorism Act 2000 already criminalises collecting, recording and downloading such material. The new offence broadens the type of activity that is potentially criminalised from actively downloading to simply having sight of information, and attracts a maximum of 15 years in prison.

The difficulty once again is that while those we want to catch may well fall foul of the new offence, it is a distinct possibility that those we do not may also get caught up when pursuing their legitimate business, or will be deterred from undertaking some of their legitimate business at all by the thought of getting caught up. As with the previous debate, this could include journalists, academics and those engaged in other research activity, as well as those looking by mistake at information online of the kind likely to be useful for committing or preparing an act of terrorism, or without any intent to act on the material in a criminal manner.

Originally, the Government proposed in the Bill that the new offence should be committed after material had been viewed three or more times—the so-called three clicks test. That was subsequently changed to provide instead for a reasonable excuse defence, which would include cases where the person did not know and had no reason to believe that the information was of a kind likely to be useful to a person committing or preparing an act of terrorism. However, the change could also be interpreted as meaning that an offence could be committed after one click or viewing, rather than three.

The purpose of Amendment 11, therefore, is to minimise the possibility of people carrying out their legitimate business being caught by the new offence by providing that a person commits an offence only if they view or otherwise access material,

“as part of a pattern of behaviour”,

in relation to the offence of accessing the material in question online.

As I said in an earlier debate in which the amendment in question added the words,

“as part of a pattern of behaviour”,

if this amendment does not find favour with the Government, I hope the Minister will say what steps they intend to take to ensure that those with legitimate business in relation to material covered by the clause do not find themselves in difficulty under the terms of the new offence. I beg to move.

Baroness Hamwee Portrait Baroness Hamwee - Hansard

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.

Break in Debate

Earl Howe Portrait Earl Howe - Hansard

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.

Lord Rosser Portrait Lord Rosser - Hansard

I once again thank all noble Lords who have participated in this debate and I thank the Minister for his response. I will be brief. The purpose of the amendment, as I hinted at the end of my contribution, was that, if the Government did not find favour with it, they would say what steps they intended to take to ensure that those with legitimate business in relation to material covered by the clause did not find themselves in difficulty under the terms of the new offence. I accept that the Minister has sought to address that point. The issue between us, if it turns out that there is an issue, will be whether the procedures outlined by the Minister will be sufficient to prevent anybody who is not acting with malice—not engaged in terrorist activity—being caught by this offence. With that, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Break in Debate

Lord Judge Portrait Lord Judge - Hansard

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

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

Lord Rosser Portrait Lord Rosser - Hansard

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

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

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

The Bill will provide for a reasonable excuse defence. The difference, however, between exemptions in the Bill and a reasonable excuse would appear to be that a reasonable excuse can normally be provided only after a person has been apprehended or challenged by the authorities, with the uncertainty and stress that that can involve, whereas an exemption should ensure that matters do not progress as far as that, provided the purpose of being or remaining in a designated area is a genuine one covered by the exemptions.

Counter-Terrorism and Border Security Bill Debate

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Counter-Terrorism and Border Security Bill

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

(1 year, 11 months ago)

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Leader of the House

18: Clause 4, page 3, line 10, leave out “prove” and insert “state”

Lord Rosser Portrait Lord Rosser (Lab) - Hansard

In Clause 4, new Section 58B, entitled “Entering or remaining in a designated area”, states that:

“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.

Under Clause 4, the burden of proof would appear to be clearly on the person charged with the offence, not on the prosecution to prove the guilt of the individual charged. The Government have said that that is not the case and that once the reasonable excuse defence has been raised, the burden of proof is on the prosecution, as laid down in existing legislation—Section 118 of the Terrorism Act 2000, which would still apply.

Even with that being the case, it nevertheless appears odd that a new section should say something incorrect: that the person charged with the offence of entering or remaining in a designated area has to prove that they had a reasonable excuse for being there, rather than the prosecution having to prove that they did not have a reasonable excuse. Our amendment would rectify this apparent anomaly by removing the Bill’s requirement for the person charged to prove they had a reasonable excuse as their defence, and instead make it a defence for the person charged simply to state that they had a reasonable excuse for entering, or remaining in, the designated area.

If the wording of the amendment does not find favour with the Government, I hope that its intention does and that the Government will agree to come back with an amendment of their own to new Section 58B at Report. We surely cannot agree to a clause which says the opposite of what is intended and is in apparent conflict with the terms of the legislation. I beg to move.

Baroness Hamwee Portrait Baroness Hamwee (LD) - Hansard

Perhaps I can ask both the noble Lord and the Minister a question: first, one to the Minister. Is the requirement for proof found in any other provision for reasonable excuse? I have been looking during the past few minutes; I could not find an example, but I did not get my iPad out to start reading through the whole of the Terrorism Act.

Secondly, I see the attraction of the term “state”. On who has to show what and in what order, we have been referred to Section 118 of the Terrorism Act. The terminology of that is “adducing evidence”. I am not sure whether the term “state” used by the noble Lord, Lord Rosser, is intended to be the equivalent of “adduce evidence”.

Break in Debate

Earl Howe Portrait Earl Howe - Hansard

My Lords, if I misspoke or misread, I apologise. I was seeking to say that, as long as a defendant puts forward sufficient evidence to reasonably support whatever suggestion he is making—that he has a reasonable excuse—then the burden of proof shifts to the prosecution to disprove that to the criminal standard.

Lord Rosser Portrait Lord Rosser - Hansard

I thank the Minister for his response, other noble Lords who have participated in this debate and, not least, the noble and learned Lord, Lord Judge, for his intervention. There is an inconsistency and I think the Minister knows that in his heart of hearts. The defence for continuing with it seems to be that it appears in other places and in other parts of the 2000 Act, which seems a pretty lousy way of trying to defend an inconsistency. It is surely time to seek to put it right. My amendment takes out the reference to “prove” and puts in the word “state”. However, I would have no objection to the Government taking this away and agreeing to come back on Report with an amendment of their own which reflects the intention of this amendment. If the wording was at least the same as in Section 118, with its reference to,

“adduces evidence which is sufficient to raise an issue”,

there would then be a degree of consistency—as has already been said—between what is in the Bill and what is in Section 118 of the Terrorism Act 2000.

The Minister has kindly agreed to reflect further on this matter. I accept this, without commitment, and will await the outcome of that reflection. I hope he accepts that it is not really a defence of a clear anomaly to say that we are going to continue with it because it is repeated on occasion elsewhere. I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Counter-Terrorism and Border Security Bill Debate

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Counter-Terrorism and Border Security Bill

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Tuesday 9th October 2018

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Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con) - Hansard

My Lords, no Government take any pleasure in having to put before your Lordships’ House another counterterrorism Bill. Like its predecessors, this Bill is borne out of necessity. Regrettably, the threat to this country from terrorism is ever present. Indeed, the threat level has been at severe or higher for over four years, meaning that a terrorist attack is highly likely. The police and security services now assess that over the last two years we have seen an enduring shift in the threat, rather than simply a spike.

It is easy to reel off statistics. Seventeen Islamist or far-right terrorist plots have been thwarted since March 2017; as of June, there were some 3,000 subjects of interest known to the police and intelligence agencies, and 412 arrests for terrorism-related offences in 2017. But dry statistics can never bring home the pain and sorrow suffered by individual victims of terrorism. Over recent weeks, we have heard the harrowing testimony at the inquest into the deaths of the five victims of last year’s terrorist attack on Westminster Bridge and at the gates of this very building. In this and the four subsequent attacks in 2017, in Manchester, London Bridge, Finsbury Park and Parsons Green, a further 31 innocent victims lost their lives, and in total over 200 others were injured. The family and friends of those who lost their lives will have to live with this painful loss for the rest of their lives, while the victims who survive have to deal with the ongoing mental anguish and, in some cases, life-changing physical injuries.

As a Government, we must do all we can to prevent such tragedies happening again, although regrettably there can be no guarantee that every plot will be foiled. One way we can do this is to make sure that our counterterrorism legislation remains fit for purpose. Much of the current legislation dates back to Acts passed in 2000 or 2006. In the intervening years, the nature of the threat has evolved. We have seen new patterns of radicalisation, the widespread use of social media to spread hateful ideology, and the draw of the so-called caliphate in Syria. We have also seen more rapidly evolving plots using everyday items such as vehicles and knives as weapons, which although still deadly are less sophisticated and complex than the plots of previous years. This has led to a lowering of the barriers to entry and a decrease in the time taken to plan and prepare by those with murderous intent.

Against this evolving threat, it is only right that we should bring our counterterrorism legislation up to date so that our law enforcement and intelligence agencies have the necessary, but proportionate, powers to help counter the threat as it manifests itself today, and not the one they had to contend with nearly 20 years ago. The provisions in Part 1 are directed to this end. In reviewing existing legislation, we have listened carefully to our operational partners: the police, prosecutors and the intelligence services, but also the current and former Independent Reviewers of Terrorism Legislation—I am pleased to see the noble Lord, Lord Anderson of Ipswich, in his place. We have also listened and responded to the debates on these provisions during the passage of the Bill in the House of Commons.

The Bill closes a number of gaps in existing terrorism offences. Under Section 12 of the Terrorism Act 2000 it is already an offence deliberately to invite support for a proscribed terrorist organisation, whether expressly or by implication. However, there are demagogues who, without intending to encourage others to support such groups, or at least without the prosecution being able to prove such an intention, nevertheless recklessly choose to voice their own support, knowing full well that the effect of their words will be to do just that. It is right that the criminal law should bite in such cases.

The Bill also updates Section 13 of the 2000 Act which criminalises the display, in public places, of a flag or other emblem of a proscribed organisation in such a way, or in such circumstances, as to arouse a reasonable suspicion that the person is a member or supporter of a proscribed organisation. The provision in Clause 2 makes it clear that the publication of an image of such a flag or emblem online, in circumstances which arouse that reasonable suspicion, comes within the ambit of Section 13. So, for example, a person would commit the offence if he or she posted on social media a picture of themselves taken in their bedroom and displaying a Daesh flag in the background, thereby making the image available to the public, and, if taking all the surrounding circumstances into account, such a display aroused a reasonable suspicion that he or she was a member or supporter of Daesh.

We are also strengthening the existing offence, in Section 58 of the 2000 Act, of collecting or possessing information likely to be of use to a terrorist. Here again, we need to ensure that the criminal law reflects how people now make use of the internet. If someone were to download a document containing information likely to be useful to a terrorist, it would be in their possession and they would therefore be committing the Section 58 offence. If, instead of downloading the document, they were to view it online or to stream a video or audio recording containing the information, without any record being made on their device, the offence would not apply. This cannot be right. This loophole is a clear illustration of how criminal law has not kept pace with the digital age. Clause 3 therefore provides that a person who views or otherwise accesses terrorist material online is within the ambit of the Section 58 offence. But it is not the intention here to criminalise a person who unintentionally views such material, so the clause provides that it is a defence for a person to show that they did not know, or had no reason to believe, that the material is likely to be useful to a person preparing or committing an act of terrorism.

This part of the Bill also helps us to respond more effectively to the threat posed by foreign terrorist fighters—an issue which I know is of great interest to my noble friend Lord Marlesford. We already have a number of powers to disrupt travel to conflict zones overseas but here, as elsewhere, we need to ensure that the coverage is as comprehensive as it should be. Accordingly, the Bill provides for a new offence of entering or remaining in a designated area overseas. The Home Secretary may make such a designation where he or she is satisfied that it is necessary to restrict UK nationals and residents from travelling to, or remaining in, the area for the purpose of protecting the public from risk of terrorism. Any regulations designating an area will be subject to the affirmative procedure; consequently, after they have been made and come into force, they will need to be debated and approved by both Houses if the designation is to remain in effect.

The designated area offence will be subject to a reasonable excuse defence. We are clear, for example, that the defence would apply to a person travelling to a designated area for the purpose of providing humanitarian aid or to carry out work as a journalist. This defence will operate in the same way as the existing reasonable excuse defences in the Terrorism Act 2000. Accordingly, once a defendant has raised the defence, the onus will be on the prosecution to disprove the defence to the criminal standard.

The Bill also seeks to tackle the phenomenon of foreign terrorist fighters by extending the reach of the UK courts. It is not for the law enforcement agencies in this country to police the world but, when someone has travelled from the UK and committed a terrorist offence abroad, it is right that they should be brought to justice if they return here. Many terrorist offences are already subject to extraterritorial jurisdiction. We are now extending the jurisdiction of the UK courts to cover further terrorism offences committed abroad, including activity that we have seen conducted by those who have joined Daesh, such as the dissemination of terrorist publications to individuals back in the UK and the possession of explosives for the purposes of an act of terrorism.

It is not enough that we prosecute and convict those who commit terrorist offences; we also need to ensure that the punishment properly reflects the seriousness of the crime and that our communities are protected by the courts having the scope to hand down appropriately lengthy sentences. New sentencing guidelines which came into force in April will go some way in this direction, but the Sentencing Council and the courts necessarily have to operate within the current maximum penalties set out by Parliament.

Having reviewed the maximum penalties for some terrorism offences, we are satisfied that they no longer adequately reflect the seriousness of the offending behaviour and the high level of harm that can be caused. Accordingly, the Bill increases to 15 years’ imprisonment the maximum penalty for four offences, namely: collecting terrorist information; eliciting, communicating or publishing information likely to be useful to a terrorist about a member of the Armed Forces; encouragement of terrorism; and dissemination of terrorist publications. In response to representations from Max Hill QC, the outgoing Independent Reviewer of Terrorism Legislation, we are also increasing to 10 years’ imprisonment the maximum penalty for the offence of failure to disclose information about acts of terrorism. As now, it will be for the courts to determine the appropriate sentence in each individual case.

In addition, we are bringing preparatory terrorism offences within the scope of the extended sentence regimes in England and Wales, Scotland and Northern Ireland. Where an extended sentence is imposed by the court, the offender is not released automatically at the halfway point of the custodial term, and is instead only released ahead of the end of the custodial term when the independent Parole Board considers it safe to do so. They are then subject to an extended period on licence.

These changes to the sentencing regime will be further reinforced by a strengthening of the notification requirements, which can apply for up to 30 years following conviction. Registered terrorist offenders will be required to notify the police of a wider range of information, including banking and passport details and details of any vehicle they have use of, to enable the police to better manage the risk of reoffending.

As I said, the Government greatly value the work of the Independent Reviewer of Terrorism Legislation, and we are fortunate to have in this House two former occupants of that office. I look forward to hearing the speech of the noble Lord, Lord Anderson, and I hope that we will also be able to hear from the noble Lord, Lord Carlile, during the course of the Bill.

I am pleased that this part of the Bill gives effect to two recommendations made by the noble Lord, Lord Anderson, when he was the independent reviewer. First, it introduces a statutory bar on the admissibility in criminal trials of verbal admissions made during an examination at a port under Schedule 7 to the Terrorism Act 2000. Secondly, it provides for the “detention clock” to be paused where a person arrested or detained under the Terrorism Act 2000 is taken to hospital for treatment. This brings the 2000 Act into line with the long-standing provisions in the Police and Criminal Evidence Act. It is right that the police should have the full time allowed under the law to question a suspect before they are released or charged.

Clause 19 is further evidence that this Government are receptive to reasoned arguments for changes to counterterrorism legislation. Noble Lords will recall that what is now the Counter-Terrorism and Security Act 2015 put the Prevent duty and Channel panels on to a statutory footing. I have no doubt that we will hear more about the Prevent programme during the debate today and subsequently, but for now I just pay tribute to the prescience of the noble Baroness, Lady Hamwee, who argued back in 2015 that local authorities, as well as the police, should be able to refer to a Channel panel a person at risk of being drawn into terrorism. It might have taken us three years to take on board that suggestion but I hope that she can take some satisfaction from the fact that her proposal is now being given effect.

Finally on this Part of the Bill, I want to mention the amendment to the Reinsurance (Acts of Terrorism) Act 1993 made by Clause 20. That Act enables the Government to extend an unlimited guarantee to the terrorism reinsurer, Pool Re. This in turn enables the insurance market to provide insurance to businesses for loss caused by damage to commercial property from terrorist attacks. The Bill will amend the 1993 Act to enable Pool Re to extend its business interruption cover to include losses from terrorist attacks that are not contingent on damage to commercial property.

The threats to our national security are not confined to terrorism; they also come from hostile state activity, and we have seen recent devastating evidence of this threat in our communities. In March, we saw the poisoning in Salisbury of Sergei and Yulia Skripal and Detective Sergeant Nick Bailey using a military-grade nerve agent. The Crown Prosecution Service has now charged two men for this attack, and the Government have concluded that they are officers in the Russian military intelligence service, the GRU. This was not a rogue operation. It was almost certainly approved outside the GRU at a senior level in the Russian state. The same two men are now the prime suspects in the case of Dawn Sturgess and Charlie Rowley.

The events in Salisbury are part of a pattern of behaviour by the Russian Government, and they are not alone in engaging in hostile activity that threatens the United Kingdom. Given this, the time has come to harden our defences against hostile state activity. As a first step, Part 2 of the Bill provides for a new power to stop, question, search and detain persons at ports, airports and the Northern Ireland border area to determine whether they are, or have been, engaged in hostile activity by or on behalf of a foreign state.

These provisions will serve to address a current gap in our ability to tackle the threat posed by hostile state actors and will mirror in many respects the existing powers to stop and question persons at the border for counterterrorism purposes. Indeed, this is another area where the Bill reflects a proposal made by the noble Lord, Lord Anderson, in his previous role as independent reviewer. In his report on the terrorism Acts in 2015 and subsequently in evidence to the Home Affairs Select Committee, he argued for a power to determine whether a port user is engaged in national security threats such as espionage or proliferation.

No one wants their travel plans disrupted, or to be subjected to intrusive questioning as they enter or leave the country. As with existing border powers in the Terrorism Act, those afforded by Schedule 3 to the Bill will be subject to a number of checks and balances to ensure that they are not used in an arbitrary fashion, but are subject to rigorous independent oversight—in this case by the Investigatory Powers Commissioner. The important safeguards on the face of the Bill will be augmented in a statutory code of practice, and I can give an undertaking to the House today to publish a draft of the Schedule 3 code of practice before we reach Part 2 of the Bill in Committee.

It is incumbent on the Government of the day to keep the people of this country safe and secure from the threats posed by terrorism and hostile state activity. As part of this, it is inevitable that from time to time we need to refresh our laws to ensure they remain up to date for present-day threats. Faced with the horrors of the five terrorist attacks last year, it is inevitable that such events can act as a catalyst for change. It is right, however, that your Lordships’ House should consider the provisions in this Bill dispassionately. Such individual tragedies should not cloud our judgment, but we must remain alive to the fact that the decisions we make as legislators have real world consequences. This Bill will help reduce the risk of tragedies similar to the ones we saw in London, Manchester, Salisbury and Amesbury from happening again, and on that basis, I commend this Bill to the House.

Lord Rosser Portrait Lord Rosser (Lab) - Hansard

My Lords, I thank the Minister for her explanation of the content and purpose of the Bill, and of the thinking behind the Government’s proposals. We too would like to take this opportunity to express our thanks to our security agencies and the police for the work undertaken to protect us from acts of terrorism. We are aware of the significant number of major acts of terrorism—potential and intended—that have been prevented. We also express our thanks to the staff of the emergency services, including hospital staff, who are called into action when incidents—perhaps one should say atrocities—occur. Our thoughts remain with the victims of those atrocities and their families. We accept the need for the Government to update counterterrorism legislation to reflect changing situations and circumstances as well as technological changes and developments.

We expressed our broad support for the Bill in the House of Commons, did not divide on it at Second Reading and supported it at Third Reading. We did, however, table substantial amendments, some of which led to alterations in the Government’s position and government amendments to the Bill, to address concerns we had raised, including those in respect of human rights, which cannot simply be brushed aside.

One feature of the passage of the Bill to date has been the Government laying down amendments of some import just prior to Report stage and Third Reading in the House of Commons. That did not suggest that counterterrorism and security legislation is always being considered and evaluated by the Government in quite the calm and measured way they would like us to believe, but in some areas is being rushed to meet deadlines—even though the events that have weighed most heavily on the Government’s mind in formulating the Bill have not all occurred within the last few weeks or months.

We have no objection to late amendments when the case for their wording and intent is clear. However, it is hardly satisfactory if such amendments are to a Bill that has been through the Commons without there having been time for proper consideration and debate in the other place about the necessity and—equally significantly—appropriateness of the wording of those late amendments. That is the situation we are in with the Bill. A new clause was laid by the Government, with a number of consequential amendments, just prior to Report. It provides for an offence under the Terrorism Act 2000 of entering or remaining in an area outside the United Kingdom that has been designated in regulations made by the Secretary of State. There was an exchange of views in the Commons about where the burden of proof lay in the light of the wording of that new clause, which states:

“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.

The Minister for Security and Economic Crime stated in the debate, on behalf of the Government, that,

“we have provided for a reasonable excuse defence. Once such a defence has been raised, the burden of proof, to the criminal standard, will rest with the prosecution to disprove the defence”.—[Official Report, Commons, 11/9/18; col. 656.]

The Minister has, in effect, repeated that statement in her opening speech today. However, the wording of the Bill and the Minister’s statement appear to be in conflict. I say that not as a legal authority but as someone whose legal career began and ended with the apparently now steadily diminishing lay magistracy.

Will the Minister indicate why the Bill does not appear to say the same on burden of proof as was said by the Commons Minister when moving the new clause on Report in the Commons and again by the Minister here today? Will she also tell us, assuming that the Commons Minister’s statement is correct on burden of proof under the new clause, whether it will be sufficient for the prosecution to prove that the individual was not in reality engaged in a claimed valid activity for a reasonable excuse defence or whether the prosecution will also have to prove that the individual was also involved in a terrorist or terrorist-related activity, which I thought was something that the prosecution could already seek to prove under the existing law to secure a conviction?

I raise this point in the context of a further statement made on Report by the Minister for Security in the Commons that,

“breaching a travel ban and triggering the offence will provide the police and the Crown Prosecution Service with a further tool to investigate and prosecute those who return to the United Kingdom from designated areas, thereby protecting the public from wider harm”.—[Official Report, Commons, 11/9/18; col. 656.]

Can the police and the Crown Prosecution Service not already investigate an individual returning to the UK from a potential future designated area if they have reasonable doubts as to the true reasons for their being in those areas or countries, or will it, under this Bill, be sufficient for imposing up to 10 years’ imprisonment to show that the individual concerned was not there for a claimed reasonable excuse defence activity or purpose?

The Government appear to have some reservations of their own about this late new clause, which they expect will lead to only a “few people” being prosecuted. In the Commons on Report, the Minister for Security said that,

“I recognise that we have introduced this measure into the Bill late, and I apologise for that. However, we are in the Commons, and the Bill will no doubt go to the other place, and I am happy to discuss further how we can clarify it and safeguard it and make sure that it is not abused as a system, and that the reasonable excuse issue is further explored. I think that is appropriate”.—[Official Report, Commons, 11/9/18; col. 658.]

We will indeed need to look at the process, procedures and criteria against which the Government seek, by affirmative statutory instrument, to designate these areas, and consider the adequacy or otherwise of the safeguards for those with legitimate business in these designated areas, such as aid workers and journalists or those who went there without appreciating what they were getting involved in and came back disillusioned.

In the Commons, the Government were asked by John Woodcock MP if they had,

“an estimate of how many of those 800 Brits who we know went over to Raqqa during the recent conflict could have been prosecuted under this legislation, had it been on the statute book at the time”.—[Official Report, Commons, 11/9/18; col. 658.]

The Minister for Security said that he would write to the Member with a specific number—will the Minister tell us what that figure is? I assume that the figure will also, by definition, be for those who could not be prosecuted under existing legislation. Will the Government also indicate how many designated areas or countries they anticipate there will be under the new clause? It looks as though there will be quite a few, since the Commons Minister, during his opening speech on Report, referred to Turkey, Syria, Iraq, “parts of Africa”, “parts of the Philippines” and,

“areas of conflict where there is a risk of terrorism”.—[Official Report, Commons, 11/9/18; col. 656.]

A further government amendment on Report relates to the seizure of flags or other activities associated with a proscribed organisation, and would give the police the option of seizing such items on suspicion of an offence being committed under the Terrorism Act 2000 without having to make an arrest, subject to that course of action being needed to prevent the evidence for a potential subsequent prosecution being concealed, lost, altered or destroyed. Such a course of action could still have the effect of raising the temperature at a march or demonstration, even though that is what the provision is designed to avoid, and not least in Northern Ireland. We will need to consider how the proposed course of action might work out in practice.

Further government amendments on Report changed the Bill’s original provisions on the viewing of terrorist material online so that the provision applies to information that is accessed online rather than covering only information that is downloaded first. We will need to consider that issue further since the Bill now provides, instead of the much-criticised three clicks test, for a reasonable excuse defence if the person does not know and has no reason to believe that the information they are accessing is likely to be useful in connection with terrorism or terrorist-related activities. We will need to probe the position of those who might look at such material for legitimate and non-terrorist or terrorist-related intent, such as journalists or academics, or those who look at it inadvertently. The issue of proportionality has to be considered.

A further government amendment on Report increased from five to 10 years, as the Minister said, the maximum penalty for failing to disclose information about acts of terrorism. It would be helpful if the Minister could expand on the reasons that led the Government to believe that the original maximum penalty of five years should be increased to 10 years, apart from it being also the view of Max Hill QC.

Apart from legislation, a further aspect of the Government’s approach to addressing the threat of terrorism is the Prevent programme. It has been in operation for some time now and has been the subject of both positive and negative comments. On the latter point, there is some doubt about whether all sections of the community have confidence in the programme and whether its aims and objectives, which include diverting people from involvement in terrorism and terrorist activity and strengthening community cohesion are always being achieved. Some appear to regard Prevent as primarily an intelligence-gathering exercise.

There is also an issue about the impact on the Prevent programme and its ability to deliver its stated aims and objectives of the cuts in local government services, including those for younger people. As part of the counterterrorism strategy, there should be provision in the Bill for an independent statutory review of the Prevent programme to look at and evaluate the extent to which it is or is not achieving its objectives and the support that it has or does not have across the community, with a view to making changes and improvements to the programme where deemed necessary to enhance our ability to counter the threat and reality of terrorism. Counterterrorism, after all, is not just about creating new offences and fixing maximum penalties.

We will wish to pursue other matters during the passage of the Bill. The European arrest warrant is an important weapon in countering terrorism. Following the attacks in Salisbury and the identification of the two suspects, we have recently obtained a European arrest warrant and either already have or are about to issue an Interpol red notice. Yet the Government opposed an amendment on Report in the Commons that simply required them to adopt the continued participation of the UK in the European arrest warrant in relation to people suspected of terrorist offences as a negotiating objective in the withdrawal negotiations with the European Union.

On Report in the Commons, the Government, in response to the shadow Minister’s concerns in relation to border stops where there is no reasonable suspicion in relation to an individual said that they would look the situation in Northern Ireland and accountability for the number of stops. That border represents 3% of the passenger numbers for the whole of the UK, but 18% of the stops. There has to be transparency in how the stop power is used—a power to stop, question and detain without reasonable suspicion exercised by officials. We do not want to create a situation that looks like something akin to a hard border on this aspect between the north and south. When do the Government intend to come back with the results of their further consideration on this point? Perhaps the Minister will say.

A further issue raised on Report by the shadow Minister concerned legal professional privacy and the provision in the Bill for an officer not only to watch someone receiving legal advice, which is not new, but to hear that legal advice being given. The shadow Minister suggested that to overcome the government concerns that have led to this provision, there should be a panel of lawyers regulated by the Solicitors Regulation Authority and the Law Society. The Minister for Security said that he would look at the proposal before the Bill’s introduction into this House. It would be helpful if the Minister could say what the Government’s position now is on this issue.

While we supported the Bill at Third Reading in the Commons, there are a number of outstanding issues that we flagged up on Report, many of which I have referred to, including the need to look in more detail in this House at the significant late amendments tabled by the Government just prior to Report, which could not receive the consideration they should have done in the Commons. We will wish to pursue these points during the passage of the Bill through this House; nevertheless, it would be helpful if the Minister could respond to the specific points and questions I have raised. Surely we all have an interest in ensuring that the Bill is balanced and proportionate, that its provisions are all necessary, and that it strengthens our hand in countering terrorism and terrorist activity while safeguarding human rights.

Lord Marks of Henley-on-Thames (LD) - Hansard

My Lords, I am grateful to the Minister for the clear and helpful way in which she opened the debate on this very difficult subject—and indeed I agree with much of what the noble Lord, Lord Rosser, said, and I join with him and the noble Baroness in paying tribute to the work of the police and security services in combating terrorism. I also look forward to the maiden speeches of my long-standing friend the noble and learned Lord, Lord Garnier, and of the noble Lord, Lord Tyrie.

On these Benches we agree with the Government in acknowledging the need for strong legislation to counter terrorism and to protect the public, so we accept the principles underlying many of the measures in the Bill. However, the approach we take to this legislation, as to all counterterrorist legislation, is that we must balance the security imperatives to protect the public and to combat terrorism against the liberal imperative to safeguard our freedoms as citizens in a democratic society. We assess each of the measures proposed with the following questions in mind. First, what is the purpose of the measure and what is the mischief it seeks to address? Secondly, is the measure necessary to achieve that purpose? Thirdly, is the measure a proportionate response to the mischief, having regard to the restrictions on liberty that it entails, and in particular would a more limited response achieve the purpose in a more proportionate way? Fourthly, will the measure be effective in achieving its purpose?

I also suggest that we should approach these new powers having in mind that we may in the future have not a Government with genuine respect for liberty and democratic values but a Government who are prepared to ride roughshod over our freedoms as citizens. If the tests I set out are not met in the context of such a Government, the powers proposed should be opposed or limited by Parliament. In a number of areas we believe that these tests are not met in this Bill. Some measures may be capable of amendment while others, we believe, are irredeemably bad.

Clause 1, creating a broad offence of expressing support for terrorist organisations, is drawn in very wide terms. We share the concerns of the Joint Committee on Human Rights that the offence must be restricted so as not to criminalise legitimate freedom of expression. As presently drafted the clause is demonstrably not proportionate or sufficiently limited. I would add at this stage that Parliament has every reason to be extremely grateful to the Joint Committee on Human Rights for its careful work on this Bill. Its existence and thoroughness help us to ensure that human rights are respected when we consider legislation and its reports deserve our closest attention.

Clause 2 would criminalise the publication of images of clothing or articles arousing reasonable suspicion of membership of a proscribed organisation. Again, this is insufficiently restricted and disproportionate. It could catch honest and fair reporting, cultural work and international and political study, and stifle genuine discussion. Clause 3, relating to use of the internet, is targeted at the legitimate objective of preventing the internet being used for terrorist purposes. But again, it is insufficiently limited. In spite of the reasonable excuse defence, there is a risk that the clause will operate to restrict innocent and harmless research and journalism.

As was pointed out by the noble Lord, Lord Rosser, Clause 4 was added late by an amendment in the House of Commons. It gives the Government power to designate areas outside the UK and prohibit travel to such areas by UK citizens—a radical restriction of individual liberty. Outside wartime, such a curtailment of citizens’ rights is very difficult to justify. I do not believe that the availability of a reasonable excuse defence adequately mitigates the violence that the creation of this offence would do to our liberties.

The provisions in Clause 6 on extraterritorial jurisdiction seem to risk injustice to both UK citizens returning to this country and foreign nationals travelling here. Much more thought needs to be given to the proper limits on the ability to prosecute here for offences committed abroad.

I turn next to the sentencing provisions, starting with Clause 7. I and many others in this House, in the senior judiciary and throughout the criminal justice system have pointed out many times the dangers of sentence inflation, yet elements of the populist press still urge their readers and politicians to push for longer sentences. No one would argue that prison is not the proper punishment for terrorist offences, but longer and longer sentences are not the answer. Our prisons are overcrowded, understaffed and violent. They do not function as places of reform and rehabilitation. Educational facilities are limited or non-existent. It is a fact that our prisons tend to radicalise their inmates. Sending those guilty of terrorist offences there for ever-longer terms is more likely to encourage others to commit such offences than to reduce the threat to the public. The Government will need to produce a stronger case before I will be prepared to support these provisions. We will look at the numerous other powers and requirements proposed in the Bill in the same spirit, seeking to ensure that any new powers meet the tests I outlined earlier. Where they do not, we will oppose or seek to amend them.

Finally, it is one of the ultimate contradictions of this extremely difficult period that while our Government struggle to improve domestic counterterrorist legislation, they nevertheless risk through Brexit abandoning most of the UK’s international work in this area over decades. With our active participation, the EU has painstakingly constructed the most comprehensive and effective international network ever devised, certainly in a democratic context, to combat terrorism and safeguard public security. It has achieved this with great sensitivity to protecting democratic freedoms, supported by the requirements that EU legislation have regard to the Charter of Fundamental Rights and that its implementation be monitored by the Court of Justice of the European Union.

The Government prepared Part 2 of the Bill in response to the poisoning of Sergei and Yulia Skripal, as the Minister pointed out. We should remember the co-operation of our friends and neighbours across Europe in resisting Russian aggression in the wake of the Salisbury poisoning. Is it not ironic that on 5 September the Prime Minister pointed out in the House of Commons that although Russia resisted any extradition, we obtained a European arrest warrant to ensure that, if the two suspects ever travelled to Europe, we would be able to secure their arrest and bring them swiftly to justice in the United Kingdom?

We hope that the Government will get a deal to retain the European arrest warrant system, but they are also planning for no deal. In those circumstances, it is not just the European arrest warrant system that is at risk. Access to the Prüm database, which was secured in 2016 just before the referendum, would also be at risk. An Interpol DNA search takes 143 days on average. Through Prüm, it takes 15 minutes, a fingerprint match comes back within 24 hours and car registration numbers are searched in just 10 seconds.

Europol, the European law enforcement agency, which was led until May by an energetic and effective British director, Rob Wainwright, and into which we opted back in December 2016, is also at risk. So is Eurojust, the network for co-operation between judges and prosecutors across the EU to combat serious cross-border crime. Then there is the Schengen Information System, which enables enforcement agencies to exchange information about risks presented by serious criminals and suspected terrorists. Although the UK is not part of the Schengen agreement, under the treaty of Amsterdam it has access to the Schengen Information System for law enforcement purposes.

By this Bill the Government seek to introduce new measures to protect the security of the UK public. Yet by risking our co-operation with the EU on terrorism and cross-border security through the imposition of arbitrary and indefensible red lines—for example, on the role of the European Court of Justice—the Government threaten to undermine the very security they seek to protect.