Counter-Terrorism and Border Security Bill

Baroness D'Souza Excerpts

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

I do not intend to say a great deal about Amendment 6 in this group, to which my name and that of my noble friend Lord Kennedy of Southwark are attached, as I am sure that the noble Earl, Lord Attlee, whose name heads the amendment, will wish to speak to it. Suffice it to say that it specifically provides in the Bill that the purposes of journalism cannot result in an offence under Clause 1 and is in line with the objective of Amendment 1 of removing legitimate journalism from the new offence under Clause 1.

[Baroness D'Souza (CB)]

My Lords. Clause 1 makes a neat distinction between free speech and incitement. New subsection (1A)(a) states:

“expresses an opinion or belief that is supportive of a proscribed organisation”.

That surely is free speech, depending on the context in which it occurs. New paragraph (b), which states,

“in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation”,

is incitement and infringes Article 19 of the Universal Declaration of Human Rights. However, the first paragraph does not because free speech must be maintained and protected, depending on the context. This of course goes back to the old adage that falsely crying “fire” in a crowded theatre is incitement, whereas to shout “fire”, falsely or otherwise, on a crowded corner is clearly not incitement because people are not in danger of violent disruption. It is important that that distinction is made in the Bill.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I start by making it clear that I am completely opposed to people encouraging the membership and support of terrorist organisations. I did not need to say that but I felt that I should.

However, Clause 1 casts the net far too wide and risks criminalising perfectly innocent behaviour. There is widespread concern in this House about the fact that it is far too wide. Therefore, my Amendments 2 and 4, alongside the other amendments in the group, seek to make this new offence a reasonable one. Without making significant changes to the clause it will be in clear breach of the European Convention on Human Rights. As currently drafted, the offence is too vague to be “in accordance with the law” and too broad to be a proportionate way of achieving a legitimate aim.

From the Government’s Explanatory Notes to the Bill it is clear that this clause is a response to the case of the Crown against Choudary, as we have heard, in which the Court of Appeal considered the existing Section 12 offences. The Explanatory Notes state:

“The Court of Appeal was clear that a central ingredient of the”,


existing,

“offence was inviting support from third parties for a proscribed organisation and that the offence ‘does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs’ ... This clause therefore provides for a new offence which criminalises the expression of an opinion or belief that is supportive of a proscribed organisation”.

It is therefore necessary for this House to consider Clause 1 in light of the Court of Appeal’s judgment in Choudary.

The focus in that case was on the meaning of “inviting support” in the existing Section 12(1) offence. There were additional questions of whether that offence was a breach of the European Convention on Human Rights. The answer to the first question meant that there was no breach, but using the court’s analysis is illuminating.

Without wanting to get into a legal wrangle, as we have done so often in the past, such as on the different between “agreement” and “consensus”, I have to explain the definition “inviting support”. The court used dictionary definitions. Inviting was taken to mean making a request; support was taken to include the provision of assistance, encouragement, advocacy and endorsement—a mix of practical, tangible and intangible support. On that basis, the court held that there was not a breach of human rights. Although the right to freedom of expression was engaged, it was a legitimate aim to restrict that right when it comes to inviting support for proscribed organisations.

Next, in accordance with jurisprudence from the European Court of Human Rights, the court asked whether the Section 12(1) offence was a proportionate response to the legitimate aim. If it was, it was lawful; if not, it would be an unlawful breach of human rights. In paragraph 70 of its judgment, the court determined the following:

“When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation. To the extent that section 12(1)(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified”.


This is where it becomes obvious to me that Clause 1 would be an unlawful interference in human rights. In fact, it is so obvious that I am surprised the Government could bring a clause of this sort before the House. Making a statement in the Bill that it is compatible with the European Convention on Human Rights is plain wrong.

Clause 1 seeks to create a much broader offence than the existing statutory one but in doing so, it crosses all the red lines that were identified as making the existing offence lawful. The existing offence does not criminalise the expression of views and opinions—free speech—whereas Clause 1 does. The existing offence is limited to “support”, whereas Clause 1 uses the broader term “supportive”, and the existing offence applies only to people with the requisite intent—a guilty mind—whereas Clause 1 extends to anyone who is “reckless” whether they meant to support a terrorist group or not.

The Bill casts the net far too wide. It risks criminalising all sorts of opinions that are supportive of a proscribed organisation. The Oxford English Dictionary definition of “supportive” is something that,

“provides strength by assistance, belief, or tolerance; providing sustenance or resources; sustaining; that provides evidence or authority; confirmatory, corroborative”.

Even expressing an opinion of tolerance would fall foul of this new offence. I believe that the Government have deliberately used the broader wording, so my Amendment 2 seeks to retain the existing word “support”. I would welcome the Minister explaining the Government’s reasoning and what effect they intend by using “supportive” in its place.

My Amendment 4 aims to do the same as Amendment 3, tabled by the noble Baroness, Lady Hamwee, which I support and am supportive of. Casting the broad net of guilty intent in this offence over people who did not intend to encourage support will catch so many innocent people; it is just plain wrong. It would include any expression of tolerance where a person, perfectly innocently and sensibly, advocates a ceasefire and peace talks with a proscribed organisation, if that person identified the risk that someone might feel encouraged to support the organisation as a result. Put simply, Clause 1 criminalises the search for peace, makes innocent people guilty and is an unforgivable breach of our human rights. I will vote against its inclusion in the Bill.

--- Later in debate ---

[Lord Carlile of Berriew]

When I referred to the noble Lord as an expert on recklessness I was not making a personal slight. I believe that he appeared in the case of Caldwell, which for some years has been overruled, so he knows the law on this. But in my view, a person who makes a statement of that kind, knowing of the risk of it being taken up by a radicalised Islamist or right-wing extremist, should expect the force of the criminal law to fall upon them. That is all the Government are seeking to do. On this clause at least, in my view, the Government are meeting the legitimate expectation of citizens subject only to my reservation about Amendment 5, which I would suggest the Government should consider carefully.

[Baroness D'Souza]

Does the noble Lord agree that context is still a very important matter? If someone is preaching a sermon and is therefore in a position of authority, it is likely that they will actually persuade another person to commit a particular criminal act in a place and over time. However, expressing that view in a different context would not necessarily cause there to be violent action within the particular space and time. One therefore has to define the context.

[Lord Carlile of Berriew]

There may be a philosophical difference between my noble friend and myself: I take what those who remember him call the Selbornian view that, of course, we have our freedom to speak, but with that freedom of speech we owe certain responsibilities to our fellow citizens. In my judgment, for what it is worth, this clause actually creates that social contract on these issues.