Counter-Terrorism and Border Security Bill

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

31: Clause 6, page 5, line 16, leave out subsection (3)

[Baroness Hamwee (LD)]

My Lords, Amendment 31 is grouped with Amendment 33. Both are amendments to Clause 6, which extends the circumstances in which a terrorist offending abroad may be prosecuted in the UK, whether or not the offender is a UK citizen and whether or not the conduct is also an offence in the jurisdiction in which it took place. The overall effect of the amended provisions of the Terrorism Act is that an individual committing one of the offences within the relevant section would be liable under UK law in the same way as if he or she committed the offence in the UK. In practical terms, that person would be prosecuted only if he or she was present in the UK, though that presence could, of course, be achieved through extradition.

The offences which this Bill adds are: the dissemination of terrorist material; the wearing of clothing or displaying an item in public so as to arouse reasonable suspicion the person is a member or supporter of—in view of our debate on Monday, I have written down a query about whether that should be “supportive of”—a proscribed organisation; and making or possessing explosives under suspicious circumstances. Under these provisions, it would also no longer be a requirement that the offence be listed in the Council of Europe Convention on the Prevention of Terrorism.

I very much enjoyed the tutorials, from which we all benefited, from the very senior lawyers who took part on the debate in Monday. I am tempted to let them go first but the amendment is in my name, so that would not be entirely the thing to do. I move these amendments, as I did on Monday, on behalf of the Joint Committee on Human Rights. Our report of 4 July commented on some of the evidence we had received, including that from the Independent Reviewer of Terrorism Legislation Max Hill QC. He said:

“placing an individual … on trial in this jurisdiction in front of judge and jury means that you need to prove a level of awareness as to the offence at the time the person committed it. If there is no equivalent offence abroad it is difficult, at the point of proof, to demonstrate that the offence has been committed”.

We also reported on the evidence of Professor Clive Walker, who talked about creating,

“a potential clash between UK law and the law of the country where the activity occurred”.

He went on to say that,

“foreign law which has chosen not to incriminate or prosecute the display of support suggests that UK law should not intervene”.

Similar points were made about the removal of the requirement for equivalence with the convention.

The committee’s report expressed our concern:

“The extension of extraterritorial jurisdiction to certain offences such as support for a proscribed organisation may be problematic in situations where there is not an equivalent offence in the country concerned”.


We took the view that this would,

“offend the principles of natural justice and sufficient foreseeability of the effect of one’s actions. It would mean a foreign national, with few links to the UK, could be prosecuted in the UK if he/she attended a protest or waved a flag overseas, in support of an organisation that is lawful within that overseas jurisdiction … We recommend that further consideration is given as to whether it is justified to bring domestic prosecutions against those who have no (or very few) links to the UK at the relevant time for conduct overseas that was perfectly lawful in the jurisdiction where it occurred”.

The Government have argued that the oversight of the Director of Public Prosecutions or, in certain cases, the Attorney-General, is a safeguard and that prosecutions would have to be proportionate. We did not regard this as a sufficient answer, nor did we regard as sufficient the Government’s comment that we need to deal with conduct in failed states which do not have the rule of law. All this raises, among other things, the issue of how evidence is found in such a place for use in a prosecution here.

Amendment 31 would delete the extension to the Section 13 offence in respect of uniforms and flags. Amendment 33 would limit the extension to where the relevant conduct is criminal in the country concerned, or where the individual is a British national or has been present in the UK for six months or more over a period of 10 years. That was a way of expressing that the individual has significant links with the UK. I beg to move.

[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.

--- Later in debate ---

Finally, the operation of Section 17 falls within the statutory remit of the Independent Reviewer of Terrorism Legislation. I am confident that his robust and independent oversight will help to ensure that the amended power is used in an appropriate way, and will provide a powerful means—in addition to the normal duty of every judge to ensure a fair trial—of identifying any concerns. On that basis, I respectfully invite the noble Baroness to withdraw her amendments.

[Baroness Hamwee]

My Lords, first, I regret the personal attack on my noble friend.

The debate has assumed that the amendment has a wider impact than it does. The two amendments deal with subsection 3, which is about uniform, flags and so on. I accept that displaying a flag may be suggestive of more extreme behaviour, but I still wonder whether someone from a failed state, or a state with a different approach, who displays a flag in that country—where it is not an offence—should, if he comes to this country, be subject to prosecution. The noble Earl referred to the provision about permission from the Attorney-General. I think he said that a test would be whether or not the Attorney-General believes that the behaviour in question affects the affairs of this country. The Minister is nodding at that. I find it quite difficult to make the leap to concluding—without further evidence—that a person behaving in that way would automatically be a risk to this country.

I take the point about losing touch with the public view seriously but my experience on the Joint Committee on Human Rights is that the public really understand the importance of applying the lens of human rights to the legislation that we create. I managed to do a law degree without any module on jurisprudence. The course at Cambridge has improved considerably since then but I wonder whether there is something a bit arrogant in assuming jurisdiction when it involves other countries. I feel uneasy at that notion but, having got that off my chest, I have to beg leave to withdraw the amendment.

Amendment 31 withdrawn.

--- Later in debate ---

[Earl Howe]

My Lords, Clause 6 will add a number of further terrorism offences to the list at Section 17 of the Terrorism Act 2006, as I have already explained, to which extraterritorial jurisdiction—or ETJ—applies. This means that individuals can be prosecuted in the UK courts for conduct that took place outside the UK which would have been unlawful under an offence listed at Section 17 had it taken place here.

Following further consideration, we have identified two additional offences where it would be right to extend ETJ to ensure that the full range of relevant terrorism offences is covered. These are, first, the offence of inviting support for a proscribed organisation at Section 12(1) of the Terrorism Act 2000 and, secondly, the offence of expressing an opinion or belief in support of a proscribed organisation, reckless as to whether another person will be encouraged to support the organisation, which Clause 1 will insert into the 2000 Act as new Section 12(1A). Extending ETJ to these offences will help to tackle radicalisation, particularly by people who have travelled from the UK to join a terrorist organisation and reach back to the UK to spread its propaganda and promote its aims. This will allow prosecution in a case where, for example, someone overseas is in contact with a person in the UK, who may be a vulnerable person such as a child, and is either deliberately or recklessly encouraging them to support a particular proscribed organisation, such as Daesh.

Clause 6 received broad support in the House of Commons and, with the exception of the extension of ETJ to the Section 13 offence which we have just debated, has also been supported in this House. None the less, I hope that your Lordships will be persuaded that it is the right approach to ensure that we have as comprehensive coverage as possible of terrorist offences that might be committed overseas, subject to the normal safeguards, so that we can protect the public in this country. I commend this amendment to the Committee on that basis.

[Baroness Hamwee]

My Lords, since the Joint Committee on Human Rights is meeting at this moment it has not been possible to take its view on this amendment but I think it must follow from my comments on Clause 1 that it would not be enthusiastic, as these provisions obviously have to be read together. I was amused that the Minister said, as did the noble Baroness’s letter to noble Lords of 24 October, that the Government have identified further offences. They are not quite offences yet, are they? It would perhaps be fairer to say that the amendment is consequential on Clause, but that is a minor point.

[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.

--- Later in debate ---

Moved by

[Baroness Hamwee]

35: Clause 7, page 5, line 31, leave out subsection (3)

[Baroness Hamwee]

My Lords, Amendment 35 takes us to the sentencing provisions in the Bill. My noble friends will raise points about sentence inflation, as my noble friend Lord Marks described it at Second Reading. This is for both general and specific offences, including referring to the current sentencing guidelines, which I believe were issued after the terrorist attacks and the consultation on them.

The Joint Committee on Human Rights commented on Clause 7 and proposed an amendment to leave out subsection (3), which increases the penalty for the collection of information offence from 10 years to 15 years. I regard that to an extent as standing proxy for the other sentence increases, but that is a personal view. The committee reported the Home Office’s comment, saying:

“Increased maximum penalties better reflect the increased risk and the seriousness of these offences”,


in question. The maximum sentences for the offences, which I have mentioned, would increase to 15 years. We were not aware of evidence to suggest that the courts are sentencing to the upper limits of their powers in respect of these offences. Indeed, we took evidence to the contrary. We heard that, recently, the worst Section 58 offenders have received sentences significantly below the 10-year maximum. The Sentencing Council, I understand, reported that between 2011 and 2016, the mean average custodial sentence length, after any reduction for a guilty plea, was three years and four months.

On Monday, we discussed what we regarded as a lack of clarity regarding the defence of reasonable excuse. That, combined with the increased penalty, may have a particularly chilling effect. We recommended that,

“the Home Office provide further evidence as to why they consider the current maximum sentences to be insufficient and how this increase is necessary and proportionate”.

The Government responded that they,

“have seen an increase in low-sophistication terrorist plots which are inspired rather than directed, and in attack operatives who are self-radicalised and self-trained without necessarily having had significant direct contact with terrorist organisations. The division between preliminary terrorist activity and attack planning is increasingly blurred”.

We did not regard this as an explanation for why existing sentencing powers are inadequate.

At Second Reading, I mentioned the risk of creating martyrs and those who project themselves as martyrs. Do the Government have any evidence of the deterrent effect of an increase in these particular sentences? In this context, clearly there is not because the increase has not happened yet. What evidence do they have that increasing a sentence from 10 years to 15 years has a deterrent impact? I beg to move.

--- Later in debate ---

[Earl Howe]

I am happy to take that request away with me and investigate whether it is possible.

[Baroness Hamwee]

My Lords, I too had written down not just “timelines” but “evidence to the review”. I do not think one can disregard that. The Minister also referred to lower-level offences, which were commented on by the Sentencing Council, but we seem to have slid away from that.

The Minister put great emphasis on the need to—I hope I am quoting him correctly—strengthen the ability of the police and the agencies in the criminal justice system to intervene. I do not think anyone has queried the seriousness of the offences that we are discussing, nor have we queried the powers. That has not been the thrust of the argument.

The Minister has not disputed the mean average of three years and four months. Of course, I appreciate that any average is an average, so there are much higher periods and much lower ones, but 10 years seems to send a pretty clear message, which was the term that he used, and it leaves a lot of headroom above the average. Three years and four months is quite a shortfall from 10 years. Unless there is a big increase in that, there will be an even greater shortfall from 15 years. I would have thought that that sent a rather dangerous message. The message that I take is the one from the very recent sentencing guidelines, whose consideration, as a matter of common sense, must have been taken into account in preparing the Bill—or should have been.

I think we have more discussion to come on this issue. For the moment, I beg leave to withdraw the amendment.

Amendment 35 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

37: Clause 12, page 14, line 36, at end insert—
“( ) After section 53 (period for which notification requirements apply) insert—“53A Review of the necessity and proportionality of notification(1) A person to whom the notification requirements apply may apply to the chief officer of police for the area in which that person resides for a determination that the person should no longer be subject to the notification requirements (“an application for review”).(2) An application for review may be made after a person has been subject to notification requirements for a period of 5 years and every 5 years thereafter, following a determination of the review. (3) The chief officer of police to whom an application for review is made shall review the necessity and proportionality of the notification requirements and shall make a decision as to whether that person should continue to be subject to the notification requirements.(4) Where a determination has been made under subsection (3) that the person should no longer be subject to the notification requirements, then that person is no longer subject to the notification requirements.(5) Where a determination has been made under subsection (3) that the person should continue to be subject to the notification requirements, the applicant has a full right of appeal to the Special Immigration Appeals Commission within 21 days of the date of decision.””

[Baroness Hamwee]

My Lords, as we have heard, registered terrorist offenders, after release, have to notify the police of certain details and of changes to those details. The periods for which they are required to notify range from 10 to 30 years, depending on the length of the sentence, and the reporting provisions apply automatically without the possibility of review.

In considering the provisions, the Joint Committee on Human Rights commented that this was an interference with the Article 8 right to privacy, which of course does not mean that it is always objectionable. I understand that the domestic courts heard that the current scheme, when applied to 10-year periods, is in accordance with the law, in pursuit of a legitimate aim and proportionate, and so there is not a violation of Article 8. However, the courts have previously held that indefinite reporting requirements do violate Article 8, and, importantly, the European Court of Human Rights held that notification and registration requirements for up to 30 years in very similar circumstances to the UK system were compliant with Article 8 only because a review was possible. The sex offenders register has a review at the 15-year mark. We thought that that was a comparator worth referring to.

We are concerned that the revisions to the current system are likely to be considered as disproportionate and unjustified interference with the Article 8 rights because of the lack of the possibility of a review. In the light of the increased level of intrusion into private life and the lengthy period of time for which the requirements are imposed in some cases, we think that a review should be added to the provisions—that is, a review of the necessity of the notification and registration requirements—and that each individual subject to the requirements should have the right to make representations at that review.

I understand that the Government do not regard a review as necessary to ensure proportionality because the period is not indefinite. Indeed, the requirements are not indefinite but they might last for 30 years, which, if you are the subject of them, must feel close to indefinite. What harm would be done by providing for a review and right of appeal?

We anticipated that the Government might be concerned about matters being dealt with in open court, so, as well as the review involving the police, we provide in proposed new subsection (5) that the right of appeal can be dealt with by the Special Immigration Appeals Commission.

There are very detailed notification requirements in many sections of the 2008 Act, and non-compliance carries penalties. In the Public Bill Committee in the Commons, the Minister described these as providing,

“the necessary but proportionate means to monitor the whereabouts of convicted terrorists”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 3/7/18; col. 106.]

There are two issues: the means and, separately, the period. These are linked but, in my view, are not exactly the same. The amendment deals with both but was prompted in particular by the length of the period. I beg to move.

[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.

--- Later in debate ---

[Baroness Williams of Trafford]

I have to say that there is always a chance of rehabilitation, given the deradicalisation programmes that go on, but there will always be an element of risk, I would suggest.

[Baroness Hamwee]

My Lords, the element of risk to which I was in fact addressing my remarks was the risk to the Government that the provisions may be challenged. I would have thought that the Government might like to think about my amendment, which has come from the JCHR, in that light. I do not think that the Minister has answered my question as to what harm there would be in a review provision. My proposal would be to include such a provision in order to bolster the application of what the Government are proposing. I think I had better just leave that with the noble Baroness. I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

39: Clause 13, page 15, line 16, leave out from “assessing” to “and” in line 17 and insert “whether the person to whom the warrant relates is in breach of his or her notification requirements;”

[Baroness Hamwee]

My Lords, I will speak also to Amendments 40 and 41. Clause 13 inserts a new power of entry and the power to search the homes of registered terrorist offenders, not to look for something specific but to assess,

“the risks posed by the person to whom the warrant relates”.

This is, in our view, a severe intrusion into the private life of not just the registered terrorist offender but his family. In the days of control orders, I became very aware of the impact of certain restrictions on family members, including spouses, children and extended family. I am not suggesting that these powers are the exact equivalent, but the impact on those family members, as well as that on the object of the order, was something of which I became very aware. Being the subject of a search—with the use of force permitted—is not the same, but I do not think that it is completely unrelated.

In response to the JCHR’s initial report, the Government argued that the power may be exercised only as a last resort. I assume that that is a description of Clause 13(2)(c) and (d) and that it requires a warrant and compliance with the powers of entry code of practice. These are safeguards indeed, but the threshold for exercising the power is low. The government response states that the power is to allow the police,

“to assure themselves that the individual does in fact reside at the address they have notified, and to monitor compliance with other aspects of the notification regime”.

Why does the Bill not reflect this, rather than containing the vague requirement of assessing risks?

We on the Committee considered that there should be a clearer requirement that the power is used when it is necessary and proportionate, and when there are grounds for suspicion that the notification requirements have been breached. That has led to the three amendments in this group, which would narrow the power by requiring a reasonable belief that the registered person had breached the notification requirements and ensure, as I have said, that the exercise of the power is both necessary and proportionate. I beg to move.

[Lord Anderson of Ipswich]

My Lords, Clause 13 provides for a search power that Professor Clive Walker—who is, without much doubt, our foremost expert on counterterrorism law and not a man given to either naivety or overstatement—described in written evidence to the Joint Committee on Human Rights as “outrageously wide”. As he pointed out, the clause is to be contrasted with paragraph 6(3) of Schedule 5 to the Terrorism Prevention and Investigation Measures Act 2011—the TPIM Act—which confines the purpose of the equivalent search power to that of determining whether there has been any contravention of the measures specified in the TPIM notice. That is essentially the approach that Amendment 39, which I support, adopts.

I echo the noble Baroness’s point that there is a human element to this. The families of convicted terrorists, through their support and influence, are often important factors in turning offenders away from violence. The extreme anxiety experienced by the wife of a control order subject whose house was subject to frequent unannounced searches, and the upset and trauma caused to her young children, were movingly conveyed in an article from which I quoted in my final report on control orders in 2012. I felt justified in doing so, not to give publicity to an unreliable witness—something which, like my predecessor as independent reviewer, the noble Lord, Lord Carlile, I was always astute not to do—but because the woman in question had recently been described in a High Court judgment by the highly experienced Mr Justice Mitting as an impressive witness and a person whose evidence he accepted without reservation.

The risk of upsetting or alienating such people is surely evident. I have never heard it suggested in several years of, I hope, careful oversight that the powers to enter and search premises occupied by potentially extremely dangerous TPIM subjects are insufficient, so I am puzzled as to what prompted this further turn of the ratchet—at least on paper, even if reassuring words are spoken about how it may be used in practice.

It is important that the power of entry and search should not be used as an instrument of harassment and destabilisation. This reasonable amendment would help to ensure that.

--- Later in debate ---

As public authorities, the courts are subject to the Human Rights Act 1998 and must perform their functions in compliance with that Act, which enshrines various provisions of the European Convention on Human Rights in our domestic law. It is via the incorporation of those rights in our domestic law that the concept of proportionality has become a key feature of our jurisprudence. No express wording is needed in this new power to bring about the outcome that the justice will only ever be prepared to issue a warrant if he or she is satisfied not only that it is necessary for the officer to enter and search the property for the statutory purpose, but also that the search and entry is a proportionate means of securing the objective. In the light of my explanation and assurances, I hope the noble Baroness will withdraw her amendment.

[Baroness Hamwee]

My Lords, the Government were asked to reflect. I will reflect but I suspect that when I read the debate I will become more, not less, concerned. I am overwhelmed by noble Lords’ support. I have to ask something, although perhaps it is rhetorical: are the notification requirements in themselves insufficient?

I referred to control orders not because it was a matter discussed by the JCHR but because I remembered, although I may be corrected, that on one occasion a wife attempted suicide during the course of the application of the control order. That was in my mind but the noble Lord, Lord Anderson, and the noble Baroness, Lady Kennedy, were absolutely correct—I am sorry for sounding so patronising; I hope that they understand where I am coming from—to refer to the impact on families and communities, which itself has an impact on society’s security.

On the police, the phrase “keeping in touch” does not feel like that in the way in which it has been described. The copper’s nose applied to this is getting too long. The measure is far too nosey and risks leading to more hostility, not solving a problem. We will certainly have to come back to this issue. Of course, I will read what the Minister has said. At this stage, I beg leave to withdraw the amendment.

Amendment 39 withdrawn.