Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

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

[The Lord Speaker (Lord Fowler)]

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

[Lord Rosser (Lab)]

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.

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[Lord Anderson of Ipswich (CB)]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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 terrorism 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) v 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]

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]

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]

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 so 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.