Counter-Terrorism and Border Security Bill

Baroness Hamwee Excerpts

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

[Baroness Hamwee (LD)]

My Lords, I have various amendments in this group, but I start with a general point: all the amendments in the Marshalled List where mine is the first name were proposed by the Joint Committee on Human Rights, of which I am a member, and I have been tasked by the committee to raise them with your Lordships. I take this opportunity to thank not only the committee but its officials, who have done a huge amount of work on the Bill, particularly Samantha Godec. Having said that, I have no doubt that my noble friends will agree with much that I have to say, but I leave that to them. I suspect that I will not be able to refrain from commenting on some other amendments.

The committee has put forward amendments that seek to ensure that the Bill restricts rights only to the extent necessary and proportionate—terms with which noble Lords will be very familiar. I make it clear, though I hope it does not need saying, that this is by no means wholesale opposition to the Bill. We recognise that the Government need powers to defend national security, but when powers engage human rights or interfere with them, they must be clearly prescribed, necessary in pursuit of a legitimate aim and proportionate to that aim. The committee was concerned that the Bill legislates close to the line and sometimes crosses it, taking the criminal law further into private spaces. It looked, as noble Lords would expect, for the right balance between liberty and security.

Among the evidence that we received was a long paper from Professor Clive Walker, adviser to successive Independent Reviewers of Terrorism Legislation, who commented:

“It can readily be demonstrated that the United Kingdom already has the most extensive counter terrorism code in Europe if not the world”.


That was a point made by Max Hill before he became the independent reviewer; he has said several times that we have sufficient offences, we do not need any more. The obligation on us is obviously to identify whether there are gaps that need to be filled, and whether we agree with the Government about that. Professor Walker also made the point, which I think is worth repeating at this point—I am not seeking to make a Second Reading speech—that,

“criticism should be made of the failure on the part of Home Office to issue any consultation paper prior to the CT&BS Bill”.

He wrote about the value of a pre-legislation phase, allowing not only for public scrutiny but for other independent proposals, and said how well that worked in the case of the Sanctions and Anti-Money Laundering Act.

My name is attached to Amendments 3 and 5 in this group and I have also given notice that I oppose Clause 1 standing part of the Bill.

[Lord Faulks (Con)]

The noble Baroness has indicated to the House that she speaks, in effect, on behalf of the Joint Committee on Human Rights, and we are all grateful for its report. Can she help the House in that context with one thing? The Joint Committee on Human Rights, of course, has particular reference to the provisions of the Human Rights Act and the articles of the European Convention on Human Rights. Does she and her committee consider it important also to consider the rights of citizens affected by, or potentially affected by, acts of terrorism or encouragement to terrorism, whether it be their rights under Article 2 or Article 8 of the convention? These are, of course, also human rights.

[Baroness Hamwee]

Indeed they are, my Lords, and that was why I very deliberately mentioned security as well as liberty in my opening words. It would be wrong to give the noble Lord an assurance that we specifically discussed those rights in the same way or at the same length as other rights, but I have been in enough meetings of the committee to know that that is a backdrop to the other rights we address. I hope that reassures him. It may not, but I did say that we were not opposing this Bill in any wholesale way.

Amendment 3 would leave out paragraph (b) and instead insert a reference to intention,

“to encourage support for a proscribed organisation”.

Other noble Lords have referred to that at some length. I agree with the point about context made by the noble Baroness, Lady D’Souza—whether this is the point at which to agree with her or not, I do not know. But I do think context assists one to understand what is in the mind of a person making a statement or undertaking an act.

Regarding Amendment 5, I am grateful for the support of the noble Lord, Lord Carlile. His point about open discussion is an important one. I know that he balances the importance of transparency and free debate on these matters. I agree with the noble Baroness, Lady Jones, about “support” and “supportive”. In debate and correspondence, the Government have relied on Section 4 of the 2000 Act as providing a route to apply to the Home Secretary for de-proscription. I do not challenge that, but do not think it is by any means a complete answer to this. The defence in the 2000 Act only protects statements of support related to a de-proscription application. It is not a defence for those taking part in debate outside those proceedings.

The clause creates a new offence, and the Minister in the Public Bill Committee in the Commons said:

“Dealing effectively with the power of inspiration or incitement is not new”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 28/6/18; col. 71.]


I do not read this clause as being about incitement or inspiration. Recklessness is lesser than that.

I have a specific question for the Minister about new subsection 1A(b), which refers to a person to whom a statement, or whatever, is directed. I would like to understand the term “directed”. Are you directing something if it is not addressed to a named person or an identifiable/identified group? If you tweet or post something on Facebook, accessible to the world, are you directing that? The Minister in the Commons made a point similar to the one made by the noble Lord, Lord Carlile. He gave the example of walking down a high street swinging a baseball bat. Are the people who might see a tweet equivalent to the pedestrians in the high street?

[Viscount Hailsham]

Surely “directed at” is really equivalent to “published”, and the world at large is published, too.

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[Baroness Hamwee]

My Lords, I asked what it means. The noble Lord, Lord Faulks, has given his view. If it means “published” perhaps it should say “published”, which is well understood, not only by lawyers but by ordinary people—I was going to say “normal people” but I should not say that. I hope none of us is abnormal. If that is the answer, it would be very helpful to know. I am grateful to the noble Viscount for adding to the debate.

To finish the point on direction, there was also a comment about intent meaning to invite support, as in the existing Section 12(1). Does the Minister have any comments on that term and its relationship to this new provision?

Finally, the committee was concerned about a lack of clarity in this provision on the boundaries of a debate. We agree with the Minister that it is hard to define valid debate, but we believe that the lack of clarity and the low threshold of recklessness risk a chilling effect on free speech and a disproportionate interference with the right to free speech.

[Earl Attlee (Con)]

My Lords, my Amendment 6 is in this group. I am grateful for the support from the Opposition Front Bench. I am confident that the Government will have thought very carefully about the need for Clauses 1 to 6, so I support them and share the view of the noble Lord, Lord Carlile. I will leave it to other noble Lords to scrutinise the principles, but I understand the concerns that have been—and will be—raised by other noble Lords when speaking to their amendments.

I have put my name to Amendment 5 and I agree with all that the noble Lord, Lord Rosser, has said. The decision to proscribe a group is not taken lightly. Nevertheless, in a free and democratic society, it is a major step to take and it should be possible to question it. One might want to suggest that proscription is acting as a recruiting sergeant for the group concerned. Under Clause 1, there would be a danger of that suggestion being regarded as a,

“belief that is supportive of a proscribed organisation”,

because it supports the de-proscription. There is also a very fine dividing line between stating that HMG’s policy is flawed and supporting a proscribed organisation.

Earlier this year, I tabled amendments to the Data Protection Bill dealing with press regulation. Some thought that I and other noble Lords were somehow anti-press and against freedom of speech. Nothing could be further from the truth, as we shall see. My Amendment 6 inserts an exemption for opinions or beliefs that are,

“published or broadcast for the purposes of journalism”.

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The noble Baroness, Lady Hamwee, asked for a definition of “directed” in the context of the person to whom the defendant “expresses an opinion or belief”. “Directed” means conveyed to or aimed at that person or persons, who may not need to be known to the defendant. If such an expression of a belief is tweeted or otherwise uploaded on to a social media platform, it is directed to those who would see such an expression—that is, those following the defendant’s twitter feed.

[Baroness Hamwee]

The noble Baroness used the word “aimed”. I thought that “directed” may have meant “targeted” as distinct from “published”, which is a wider concept. Saying that it is “aimed” takes me, at any rate—and maybe other noble Lords—back to my same question. Of course, after today’s debate, I shall read what the noble Baroness has said. It is a difficult issue.

[Baroness Williams of Trafford]

My Lords, we are dealing with many difficult issues here. I thank the noble Baroness. We will, of course, have further discussions.

Amendment 1 would raise the threshold for commission of the offence from a single instance of the prohibited behaviour to a pattern of behaviour. Given the seriousness of this type of behaviour and the potential harm that can be caused, I cannot agree that the amendment is appropriate. I point out that there is no requirement for there to be a pattern of behaviour in the existing Section 12(1) offence. I therefore do not see a case for adopting a different approach for the new Section 12(1)(a) offence.

I also fear that the amendment would run into similar issues with definition and certainty to those which were raised in the House of Commons in relation to the three clicks element of Clause 3, and which ultimately led to the Government’s removing that provision. For example, how many instances constitute a pattern of behaviour and how far apart can they be?

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Moved by

[Baroness Hamwee]

7: Clause 2, page 1, line 15, leave out subsections (2) and (3)

[Baroness Hamwee]

My Lords, I shall also speak to Amendment 8 in this group. Clause 2 amends Section 13 of the 2000 Act to criminalise the online publication of an image depicting clothing or other articles which,

“arouse reasonable suspicion that the person is a member or supporter of”—

maybe even supportive of—“a proscribed organisation”. At least we are not taxed with whether that is directed at anyone.

In their response to the Joint Committee’s report the Government told us that they do not believe that legitimate publications will be caught, as the offence bites only where the publication arouses reasonable suspicion of membership or support. However, in our view the arousal of reasonable suspicion is a low threshold to make out an offence. We are concerned that the clause risks catching a lot of conduct that, in common-sense terms, should not be caught. The amendments are, of course, alternatives: they would either leave out subsections (2) and (3) or, in Amendment 8, amend subsection (3) rather than omitting it, to provide that there is no offence,

“if there is a reasonable excuse for the publication of that image, such as”—

whether this is the best way to give examples or not I do not know—

“historical research, academic research or family photographs”.

In other words, those are not exclusive. Amendment 8 also specifies that there be no intention,

“to support or further the activities of a proscribed organisation”.

In other words, it would create a defence of reasonable excuse.

The Minister in the Public Bill Committee relied on the “reasonable suspicion” provision. I do not think that is the whole point. He also relied on there having been no prosecutions of journalists or researchers under the existing provisions which use similar wording. Of course that is of some comfort but, as I said at Second Reading, I do not think we should rely on the public interest test for prosecutions: I hope that the collective brainpower of this House can get us to a point where the wording is correct without our having to look at the public interest test. I beg to move.

[Lord Carlile of Berriew]

My Lords, in my view it is very important that photographs which may have a dramatic effect on the opinion of those who view them should be dealt with in the way described in this clause. They may, for example, include photographs derived from execution scenes which are both disturbing and, unfortunately, very influential.

In general terms I support this clause. I have a reservation about the Northern Ireland situation, and ask the Minister to reflect on this before Report and possibly consult more widely. I have travelled extensively in Northern Ireland, both when I was Independent Reviewer of Terrorism Legislation and subsequently. I have been taken to scenes where there is imagery which is now internationally regarded as works of art. I have been taken to scenes where there is imagery which may on the face of it be very distasteful, but plays an extremely important part in the history of the community concerned and in the extraordinary settlement that has taken place in Northern Ireland as a result of the Good Friday agreement, and I would not wish anything to be done that might disrupt that. It seems that the Secretary of State for Northern Ireland and the Police Service of Northern Ireland should be consulted to determine the issues raised in those amendments, before we become too dogmatic about them.

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[Baroness Williams of Trafford]

As the noble Lord has just explained, it is about the whole context in which this happens. In any case, it will of course be the police and the Crown Prosecution Service that will determine those normal tests for prosecution, and of course ultimately the courts.

The noble Lord, Lord Marks, made the point about the viewer and the publisher. I had hoped that my words would explain that but they do not. I will take back what he says, and I am sure he will challenge me on it on Report. However, I hope the approach provides no less certainty to such individuals that they will not be caught by the new offence than would the proposed reasonable excuse defence, and it offers the advantage that the same formulation has been in force since 2000 in relation to the existing Section 13 offence, which would already be likely to cover many of the circumstances where the item depicted in the image is situated in a public place. As I have said, it is when the item is not located in a public place that the gap begins.

After 18 years that formulation is well understood by the police and the courts. Proof of its effectiveness lies in the simple fact that during that period we have not seen prosecutions of any journalists or academics who have published reports or books containing such images. That should give us some comfort. Nor have we seen any complaints that such people have been inhibited or discouraged from pursuing their legitimate professional activities by the existence of the Section 13 offence. I have sympathy for the objective behind the amendment but I hope that, for the reasons given, noble Lords will agree that it is not necessary. I hope that having heard the arguments for the Section 12(1A) offence and my assurances about the scope of the offence and the effectiveness of its existing safeguards, the noble Baroness will be content to withdraw the amendment.

[Baroness Hamwee]

My Lords, I thank the Minister for her response. This is not intended as a criticism, but in introducing her response the numbering of the amendments went a little awry. I suspect that her briefing was written before the Marshalled List was put together. I say that only for people who may be reading Hansard after today.

The noble Lord, Lord Carlile, made the point about consultation that I made in rather a broader way at the beginning of this afternoon’s proceedings: people who have knowledge of particular circumstances have things to contribute to the legislation that we end up with. I agree with his point about consultation. The Minister says she will deal with Northern Ireland under the next grouping. I hope that consultation, as it is considered under the grouping, can go wider than the PSNI and the prosecution service, which were specifically mentioned, because more people will have things to contribute than just those two organisations. The noble Lord makes an important point.

He used the example of scenes of execution. That is not what the amendments here are aimed at but it makes me wonder whether there is something about intention in all this that we might explore afterwards. A scene of execution is a very extreme example—much more so, I think, than a freedom fighter flag.

The Minister used the term “updating”. I wonder whether what we are talking about here is more about prompting an investigation than creating an offence in itself. I can see that one might want to pursue the sort of situations that she has referred to but, like my noble friend Lord Paddick, I think the words “in such a way” and “circumstances” are very wide.

Pretty much the Minister’s final point was that it would be for the police and the CPS to determine. When I moved my amendment, I said that I really do not want to find us continually relying on the public interest test; we ought to be able to do better than that. My noble friend Lord Campbell, who came into this debate and heard the Minister’s comment, did not hear my introduction but I absolutely agree with him that it is for the courts to determine. One should not be looking at the public interest test as a way of getting out of a difficult situation.

Of course, at this point I shall withdraw the amendment, but I am sure we will look again at the detail of this situation. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

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The noble Baroness, Lady Hamwee, asked whether we had consulted any other organisations, and I was not quite sure which she might have had in mind.

[Baroness Hamwee]

I was not so much asking as supporting the noble Lord, Lord Carlile, in his earlier suggestion that there should be consultation regarding works of art and works of historic value in Northern Ireland. I simply referred to the amendment suggesting that those organisations may not be the totality of those who would have views on the points he made.

[Baroness Williams of Trafford]

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

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

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

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

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

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

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[Lord Rosser]

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]

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

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

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

“to commit or encourage acts of terrorism”.

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

Amendment 13 adds the phrase,

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

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

[Lord Paddick]

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

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

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

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

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

“in disgust, shock and disapproval”.

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

“part of a pattern of behaviour”.

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

“to commit or encourage acts of terrorism”,

and the latter includes the following phrase:

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

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[Baroness Hamwee]

My Lords, as the noble Lord, Lord Kennedy, has said, Amendments 15 and 16 are the same. What constitutes a reasonable excuse will obviously be a matter for the jury. I accept that one cannot identify reasonable excuses in the abstract without knowing exactly in what circumstances a person undertook a particular action, but citizens should know when it is likely that they will be committing a crime. I think that that is accepted in the ECHR memorandum on this clause, where the Government say:

“There should be some degree of latitude for a person legitimately to explore political, religious or ideological matters, and the criminal law should acknowledge that, without the person actively seeking it, this may lead him to online material that crosses the line into that which is likely to be useful to a terrorist”.


Having some guidance would give a framework for the citizen to assess the matter.

At this stage, I shall not oppose Clause 3 standing part of the Bill—the intention to do so appears in a separate group—because we have covered more ground than I had anticipated. However, I will say now that it occurred to me that there might be a point of comparison between Clause 3 and legislation on child sexual exploitation. The Criminal Justice Act 1988 creates an offence of a person having an indecent photograph or pseudo-photograph of a child in his possession, and possession includes a physical and a mental element. I understand that the CPS guidance states that a person who views an image on a device which is then automatically cached on to the device’s memory would not be in possession of that image unless it could be proved that he or she knew of it. At first blush at any rate, it looks as though Clause 3 goes further than that provision, which requires possession, control or custody of images as opposed to viewing them.

Coming back to Amendment 15, I hope that the Government can give serious consideration to some way of assisting members of the public on this whole matter. Guidance will not override the provisions of the legislation but it can be what it is intended to be—that is, helpful.

[Lord Judge]

My Lords, I respectfully introduce a note of caution about Amendments 15 and 16. We are dealing with the creation or amplification of criminal offences. The issuing of guidance by the Secretary of State in legislation of this kind would be very unusual and it would not, in the end, add certainty to the situation. Guidance has no statutory force, and someone looking at guidance might nevertheless find himself being prosecuted. Alternatively, someone who could not bring themselves within guidance might be prosecuted.

The real point is this: guidance may be helpful but if it is not statutory, it has no legal effect. If we wish to introduce issues here, we should do as my noble friend Lord Anderson does in the next clause, where he seeks to define, in primary legislation, a number of situations in which an offence is not committed.

My final point—I find this extremely alarming—is the idea that a Secretary of State, using executive powers, should issue guidance about how the law should be implemented. Either the law is clear or it is not, and guidance does not make it any clearer. Such a measure would—I think probably for the first time in criminal justice legislation—give an enormous power to the Secretary of State to say, without any parliamentary control, “This may not come within the ambit of the offence but that may”, and so on. That should not happen.

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[Baroness Hamwee]

My Lords, before the noble Lord responds, I was wondering, as the Minister was speaking, why the Government decided to include new subsection (3A). It applies only to the subsection (3) but, if it is required for that subsection, was there something in the operation of the earlier provisions of Section 58 that has prompted this? New subsection (3A) provides that:

“The cases in which a person has a reasonable excuse ... include (but are not limited to) those in which … the person did not know, and had no reason to believe, that the document or record in question contained … information … likely to be useful to a person committing or preparing an act of terrorism.”


The Minister may not be able to respond to that now, but it goes to the heart of the debate.

[Earl Howe]

My Lords, I recognise the noble Baroness’s point. I understand that that provision went into the Bill when the three clicks provision came out. It was intended to provide a measure of reassurance in substitution for the three clicks idea that someone who acted in complete ignorance would not be caught. Frankly, one can argue it both ways—to leave it in the Bill or to take it out—but, on balance, we felt that it was right to put it in the Bill for that added measure of reassurance.

[Baroness Hamwee]

That is an interesting response and I will have to think about it. I share the concern of the noble and learned Lord, Lord Judge, not to involve the Executive where it should not tread. There could be parliamentary scrutiny. We have become possibly too reliant on codes of this and that to flesh out what lies underneath legislation—it is not something I much like, and I have obviously been sucked into it. So we could have parliamentary scrutiny if we had a statutory instrument, but we could also list in the Bill the sorts of examples we have talked about, in the way that the amendment from the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, seeks to do in Clause 4. I think that that is a particularly good way of going about it.

I do not suppose the Minister can answer this, but his reference to the Independent Reviewer of Terrorism Legislation prompts me to ask about progress in appointing the new reviewer. He is indicating that he cannot answer, and I did not expect him to, but it is a point that was worth making at some stage in this debate.

[Lord Kennedy of Southwark]

My Lords, I thank all noble Lords for their contributions to this debate and the noble Earl, Lord Howe, for outlining the position of the Government on this group of amendments. I appreciate his detailed response, which is beneficial to the Committee.

I will reflect on all the responses and comments—particularly the wise comments from the noble and learned Lord, Lord Judge. Those comments could be interesting for guidance on other legislation before the House on which the Government take a contrary view. However, we shall discuss that in a few weeks’ time. At this stage I beg leave to withdraw the amendment.

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[Lord Faulks]

My Lords, I accept entirely that it is better, if at all possible, to clarify what constitutes not so much a defence but in which circumstances there will not be an offence, which I think is the way Amendment 17 is framed. If I understand it correctly, the answer to most of the objections lies in the word “solely” because, of course, if there is evidence of mixed reasons for someone being in an area, these provisions would not have a proper ambit at all. However, I share the reservations of my noble and learned friend Lord Garnier about visiting a dependent family member.

I want to raise a more general point about what Clause 4 intends to do. It is concerned with the designated area and the Government are not concerned primarily about protecting people visiting the area and ensuring their safety. Of course, journalists and those working for humanitarian purposes risk their own safety very considerably by going into such areas. The Government are concerned—perhaps my noble friend the Minister will confirm this—to prevent the risk of terrorism, as the Bill is headed. When looking at the risk of terrorism, the Explanatory Notes state:

“Such a risk may arise, in particular, if a conflict in a foreign country, potentially involving a proscribed terrorist organisation, acted as a draw to UK nationals or residents to travel to that country to take part in the conflict or otherwise support those engaged in the conflict”.


In other words, we want to stop people fighting against the United Kingdom. That, I suggest, is what this is really about, although my noble friend may disabuse me of that. If so, this is quite a convoluted way of achieving the aim of preventing an individual or individuals assisting or fighting against the United Kingdom. I shall raise this point again on Wednesday under my own amendment concerning the possible introduction of the offence of treason, because that is what it would be. Although this is a useful provision and I can see what it is driving at, I respectfully wonder whether it is really the answer to the evil it is aimed at in this case.

[Baroness Hamwee]

My Lords, I tabled Amendments 21 and 22 in this group. I was not surprised, given the authors, to be more attracted to Amendment 17 than to my own amendment, but I have a couple of questions related to points already raised. I too wonder about the word “solely”. If, for one or more of the reasons listed, someone went for a reason authorised by the legislation or in regulations but did something outside them, might that cause a problem? Perhaps more importantly, I also have a question about the registered charity, regarding the jurisdiction in which it would have to be registered. It is important to address the position of charities, not just for charity workers but because the trustees will have a duty of care towards their staff. They will have an important interest in ensuring that what their staff are doing is appropriate within what the law allows.

I turn to the phrase,

“visiting a dependent family member”.

I wonder about the word “dependent”. A sick mother would be unlikely to be dependent if the son or daughter is not there supporting the family member. Perhaps one might look at extending that. However, I like the approach. I do not think it is an alternative to what is set out in Amendment 22. That would provide for regulations for authorisation—not just the grounds for applying for authorisation but also the “procedure for applying”, the “timescales for determining” it, which might be important in particular circumstances, and “rights of appeal”, which should be dealt with by some means or other. As I say, this is not an alternative; rather, there are procedural points in this that should be addressed.

I am grateful to the organisation Bond for briefing me about the position in Australia and Denmark, to which the noble Lord referred. It has put a note at the end of its briefing to remind me that the proposal for the restrictions was promoted at the exact time that nine people were arrested for travelling to Syria to become foreign fighters—proving that the existing legal provisions are “rather effective”, to use its words.

I am aware that in Australia there is an overarching exemption for the International Committee of the Red Cross, but I understand that it can be extended to other humanitarian organisations. I do not know whether any noble Lord taking part in this Committee knows how far that has been extended. I take the points about monitoring and, while putting forward these provisions, I am aware that we must balance that against the administrative burden, to which I suspect the Minister may refer. There will be an administrative burden but the benefits that could be achieved by amendments such as the ones we have been debating outweigh that. I simply wanted to anticipate that argument.

[Baroness Manningham-Buller (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Anderson. We should be grateful to the Parliaments of Australia and Denmark for the prior work they did, which he has refined.

I have only three small points to make arising out of the debate. The first relates to the point from the noble Baroness, Lady Hamwee, on prior authorisation. In addition to the point made by the noble Lord, Lord Anderson, about the difficulty of monitoring compliance, and the point made by the noble Baroness, Lady Hamwee, which I am sure is relevant, of the administrative overheads of doing that, there is a practical problem of the risk of authorising people who travel to a designated area and have no intention at all of meeting any of the criteria in the noble Lord’s list.

To make a minor point on dependent family members, later on in the Bill we will talk about the Prevent strategy. One of its purposes, whatever people think about it—views are divided—is to prevent young people being drawn to terrorism. I can absolutely imagine circumstances where a parent might wish to go to a designated area to try to retrieve a dependent family member or young person who had been drawn into this and rescue them from involvement.

Finally, the view from the noble Lord, Lord Faulks, that we are doing this only to stop them fighting us is an oversimplification. There is much more going on here. There is a real concern that people will not just come back and conduct terrorism here or elsewhere in the world, or fight us or others there, but learn techniques, radicalise and train new generations of people. It is much broader than simply attacking us. We need to bear that in mind when considering what we are trying to do here.