Counter-Terrorism and Border Security Bill

Baroness Hamwee Excerpts

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

[Baroness Hamwee (LD)]

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

“necessary and proportionate to do so”.

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

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

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

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

[Lord Rosser (Lab)]

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

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


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

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

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

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[Lord Anderson of Ipswich (CB)]

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

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

[Baroness Hamwee]

The noble Lord reminds us about the draft code of conduct. It spells out considerations that relate to the threat of hostile activity and lists a number of factors, one of which, in the context of the stop not being arbitrary, is to have consideration of “possible current, emerging … hostile activity”, which is understandable, and “future hostile activity”. Can the Minister explain the distinction between emerging and future hostile activity?

[Lord Blair of Boughton (CB)]

I support the words of the noble Lord, Lord Anderson. As long as these powers are restricted to the extreme circumstances of national security and are not a passport to a widening of stop and search without justification, I think this is about hanging a notice around the UK—particularly, as he said, in relation to clean skins and travelling companions—saying that this is a hostile place for people with deeply malign intent.

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[Baroness Williams of Trafford]

As the third person to be not legally qualified to respond to this, I thank both noble Lords for raising some important issues with respect to Clause 16. As we have heard, the clause provides for how oral answers or information given to examining officers in response to questioning under Schedule 7 to the Terrorism Act 2000 can be used in subsequent criminal proceedings. Noble Lords will be aware that the powers under Schedule 7 are essential to help the police to tackle the threat posed by terrorism. I have listened carefully to the points made today about these powers and the concerns about how they might be used. One important check and balance for port and border powers is the statutory bar that we are introducing in Clause 16, which is also mirrored in Schedule 3. Under Schedule 7 there is a legal duty on those examined to give the examining officer any information that the officer requests. It is an offence under paragraph 18 to wilfully fail to comply with this duty. Unlike where someone has been arrested and has a right of silence, an examinee under Schedule 7 is compelled, under pain of prosecution, to answer questions put to him or her.

By introducing a statutory bar on the admissibility, as evidence at criminal trials, of any answers or information given orally in the course of a Schedule 7 examination—where the suspect will not have been arrested or cautioned—we are providing greater clarity and therefore comfort to the subjects of these examinations, and helping police to exercise their powers under Schedule 7. We are including a corresponding statutory bar in Schedule 3. The bar will provide that reassurance to examinees who might be unwilling to answer questions for fear of incriminating themselves that their oral answers or the information they provide will not be used against them.

The principle of excluding material from criminal proceedings on fairness grounds is reflected in Section 78 of the Police and Criminal Evidence Act 1984, which already provides the courts with the discretion to exclude such evidence if it would have an adverse effect on the fairness of proceedings. In the case of Beghal in 2015, the Supreme Court held that criminal courts would almost inevitably use Section 78 to exclude from criminal trials any answers or information given in Schedule 7 examinations. This clause puts the position beyond doubt and, in doing so, fulfils our commitment to the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson, to legislate in this way.

However, the statutory bar is not absolute—a point that the noble Lord, Lord Anderson, recognised, as did the Supreme Court in the Beghal case. There are three exceptions. First, the bar will not apply where the individual is charged with an offence under Schedule 7 of wilfully obstructing or failing to comply with an examination. Secondly, it will not apply where an individual is prosecuted for perjury. Finally, the bar will not apply for another offence where, in giving evidence in relation to that offence, a defendant makes a statement inconsistent with their oral response to questioning under Schedule 7—provided that the defendant is the party to adduce evidence relating to that information or asks a question relating to it.

Amendment 43 seeks to narrow the first of the three exceptions to that bar that I have just described. The amendment is intended to ensure that oral answers or information given in an examination are used as evidence against the person in criminal proceedings only where they are charged with wilfully obstructing or failing to comply with a duty arising during that particular examination, and not as evidence in proceedings for the obstruction of any earlier or subsequent examination.

We are of the view that this amendment is unnecessary, as what it seeks to provide for is already the case in practice. This is a consequence of the way the paragraph 18 offence is drafted, requiring as it does “wilful”—that is, “knowing”—obstruction or breach of an obligation. It is not possible for a person’s answer or information given in one examination to represent a knowing obstruction of, or non-compliance with, any previous or subsequent examination. At the time the answer or information is given, the person is beyond the point in time at which he or she can knowingly obstruct a past examination—nor can it be known that he or she will be subject to a future examination, so they cannot knowingly obstruct it. The current drafting of the Bill therefore secures the outcome that the noble Lords intend: namely, that answers given in an examination can be used in evidence only in a prosecution for wilful obstruction of that examination, and not any other examination. We believe that this is the right outcome.

Amendments 44 and 45 seek to remove the third exception to the statutory bar in its entirety. This is an important exception, which allows the prosecution to challenge a defendant where they have provided statements to the police in a Schedule 7 examination which are inconsistent with, or contradict, statements made later in criminal proceedings. To accept these amendments would give defendants in such situations the confidence to knowingly mislead the court in the case of another prosecution, as any contradictory statements they made during a Schedule 7 examination would not be admissible.

This third exception to the statutory bar reflects the legal exception that already exists in other legislation—for example, Section 360 of the Proceeds of Crime Act 2002 and, more recently, Section 22C of the Terrorism Act 2000, which was inserted by the Criminal Finances Act of 2017. It is not unique to terrorism legislation and, consequently, I see no case for removing the third exemption.

This clause introduces an unambiguous fair-trial safeguard. But, in putting the almost inevitable application of Section 78 of the Police and Criminal Evidence Act beyond doubt by means of this statutory bar, it is right that we reflect the legitimate exceptions that the Supreme Court has itself contemplated, in confirming that the statutory bar should apply other than,

“in proceedings under paragraph 18 of Schedule 7 or for an offence of which the gist is deliberately giving false information when questioned”.

I hope that that is a clear explanation of what the noble Lord asked and that he will be content to withdraw his amendment.

[Baroness Hamwee]

Before my noble friend responds, as I recall, the draft code of practice has provisions on giving information to people who are stopped as to their rights. I had some difficulty in opening and reading the draft code and so I have been able to do so only quickly, but the points that have been discussed require hot towels and quite a lot of time. In drafting the explanation of individuals’ rights, has the Home Office subjected, or might it subject, the explanation of how these provisions work to, say, the Plain English society, which comes to mind, or Citizens Advice —in other words, to people who are concerned with clear explanations?

[Baroness Williams of Trafford]

My Lords, I am always conscious of the Plain English society when I say some of the things that I do during the passage of legislation.

[Baroness Hamwee]

No criticism is intended.

[Baroness Williams of Trafford]

Then I shall just agree.

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Moved by

[Baroness Hamwee]

47: Schedule 2, page 29, line 5, leave out paragraph 2

[Baroness Hamwee]

My Lords, Clause 18, which has just been agreed, and Schedule 2 amend existing powers to retain fingerprints and DNA samples for counterterrorism purposes, and the JCHR has proposed a number of amendments.

As regards Amendment 47, currently under the Police and Criminal Evidence Act a person who is arrested but not charged or convicted of a terrorist offence may have his data retained for three years for security purposes with the consent of the Biometrics Commissioner. The Bill removes the requirement for that consent. In the view of the JCHR, the oversight of the commissioner is a matter that gives confidence to the public that the powers are used only where “necessary and proportionate”, and we are not aware that this oversight impedes the ability of the police to undertake counterterrorism work.

The Government responded to our first report, stating that they did not agree that,

“it would be appropriate or responsible to reduce the powers available to the police”,

but we did not propose the removal of those powers. We recognise the logic in harmonising the retention periods for biometric data so that cases are treated in the same way, whether an individual is arrested under PACE or under the Terrorism Act, but we were concerned about removing the requirement for the consent of the Biometrics Commissioner, and I have not seen a response from the Government to that point.

Therefore, the obvious question is: what is the justification for the biometric data of a person unlawfully or mistakenly arrested being exceptionally stored rather than destroyed? If the aim is to align the procedures, why not add to the protection by the commissioner having oversight of both categories of DNA retention under both powers? The JCHR made the comment, and did not make it lightly, that it was concerned about a race to the bottom of human rights protections. I beg to move.

[Lord Paddick]

My Lords, I support what my noble friend Lady Hamwee has said. The report of the Joint Committee on Human Rights talks about the oversight of the Biometrics Commissioner giving the public greater comfort that such powers are used only where necessary and proportionate, and it would seem that no valid reason has yet been presented by the Government for removing that oversight.

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[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for tabling this amendment and I understand both her concern and that of the Joint Committee on Human Rights. However, I stress, as the Government did in their response to the Joint Committee’s first report on the Bill, that this measure to enable biometric data to be retained when an individual is arrested under the Police and Criminal Evidence Act 1984—PACE—for a qualifying terrorist offence is both proportionate and necessary to help protect the public.

Schedule 2 contains amendments to the laws governing the retention, review and deletion of fingerprints and DNA profiles by the police for counterterrorism purposes. This is a complex area of law, and it may assist the Committee if I first spend a short while explaining the current position. The relevant statutory framework was introduced by the Protection of Freedoms Act 2012, which established the principle that the biometric data of people who have not been convicted of any offence should no longer be kept indefinitely. This means that for the vast majority of people who are arrested and whose fingerprints and DNA are taken by the police, that biometric data will be promptly deleted if they are not convicted. This system is overseen by the independent Biometrics Commissioner, currently Professor Paul Wiles.

When passing the 2012 Act, Parliament recognised that it would be irresponsible, and would put the public at risk, to make this a blanket requirement in every case, regardless of the risk the individual might pose. So it made limited and tightly circumscribed provision for biometrics to be retained for limited periods in certain circumstances in the absence of a conviction. For example, if a person is arrested using the general power of arrest in the Police and Criminal Evidence Act 1984 and is charged with a qualifying sexual, violent or terrorist offence, but is not ultimately convicted, it was recognised that there may be a range of reasons why they were not convicted and that they could still pose a risk of harm to the public, despite the discontinuance of the case.

In these circumstances it would be inappropriate, and indeed complacent, to ignore this risk to public safety and to require the police to immediately and automatically delete the individual’s DNA profile and fingerprints once a case is discontinued or the suspect is acquitted. The 2012 Act in these circumstances provides for a clearly limited three-year retention period before the data must be deleted. Similarly, if a person is arrested on suspicion of being a terrorist under the Terrorism Act 2000, whether or not they are subsequently charged, there is also a three-year retention period. This means that the police are better able to identify whether the individual is involved in terrorism, or other activity that poses a threat to the public, during that period. But it also means that the individual’s biometrics will not simply be held indefinitely.

In counterterrorism cases a person’s biometric data can be retained beyond the point when it would otherwise have to be deleted only if the chief officer of police of the area in which the material was taken personally considers that this is necessary for national security purposes. In these circumstances he or she can make a national security determination—or NSD—authorising retention for a further limited period, subject to a maximum of two years currently, and renewable if retention continues to be necessary. NSDs will, of course, be made only where it is proportionate to do so. This determination must then be reviewed and approved by the independent Biometrics Commissioner, who has the power to order deletion of the data if he is not satisfied that the determination is necessary. An NSD can be renewed for a further period, but only if the legal tests continue to be met and if the commissioner approves the renewed NSD. The assessment is made on the basis of intelligence and other relevant information about the threat the individual poses. We shall, of course, come to national security determinations in the next group of amendments, but it is helpful to provide an overview of these provisions up front to inform the debate on Amendment 47.

The amendments to existing legislation contained in Schedule 2 do not depart from these principles. Rather, they are intended to strike a better balance between on the one hand enabling the police to use fingerprints and DNA in an agile and effective way to support terrorism investigations and protect the public, and on the other ensuring that this continues to be subject to proportionate safeguards, regular case-by-case review and robust independent oversight.

We should not underestimate the value of biometric data in helping to secure convictions in terrorism cases. Such information played a vital role in the conviction in June of this year of Khalid Ali. Noble Lords will recall that Ali was arrested not far from this House and was subsequently convicted of terrorism offences, including his involvement in the use of explosive devices against coalition forces in Afghanistan.

Paragraph 2 of Schedule 2—which Amendment 47 would delete—will harmonise the retention periods for biometric data obtained when an individual is arrested on suspicion of terrorism, but not subsequently charged, under PACE and the Terrorism Act 2000. At present, an individual arrested under the Terrorism Act may have their biometric data automatically retained for three years. However, this automatic retention would not be available if the same individual were arrested in relation to the exact same activity under PACE.

In a terrorism case, retention for national security purposes would require the police to make an NSD with the approval of the Biometrics Commissioner, or would otherwise require the consent of the Biometrics Commissioner under Section 63G of PACE if retention was necessary solely for the prevention or detection of crime generally. However, the noble Baroness’s amendment would mean that this inconsistency between the retention regimes under the Police and Criminal Evidence Act and the Terrorism Act 2000 would remain. This could therefore result in the situation where the police are deprived of information that could prove vital to keep the public safe. The measure as drafted will remove this anomaly and ensure a consistent approach to the retention of biometric data for all those arrested on suspicion of terrorism, by providing for the same retention period regardless of the power of arrest used.

I do not accept the noble Baroness’s argument that this is a race to the bottom in terms of civil liberties. I say that because, as the Committee would expect, we have consulted the Biometrics Commissioner about this and other provisions in Schedule 2. In relation to this particular provision, perhaps I may read out what Professor Wiles has said:

“In my 2017 Annual Report I mentioned several issues that I thought the Government might wish to consider reviewing as part of the CT legislation review ordered by the Prime Minister ... I … noted in my Report my concerns about the police applying for ‘pre-emptive’ NSDs, often where a person has been arrested under PACE on suspicion of a terrorism offence. It is proposed in the CT Bill to allow biometric material taken after a PACE arrest for a terrorism offence to be retained automatically for three years (with the possibility of extending this period by making an NSD), as is already the case for the biometrics of those arrested on suspicion of terrorism offences under TACT”—


that is, the Terrorism Act. He goes on:

“It seems to me to be a sensible approach to bring the retention periods for arrest on suspicion of terrorism offences into line”.


Given that authoritative opinion, which we sought expressly from the Biometrics Commissioner, and his view that this aspect of the Bill adopts a “sensible approach”, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, the Biometrics Commissioner’s response does not seem to go to the question of oversight. As I have heard and read it, it is about the period of retention. I am not sure, but the Minister may be saying that through this amendment I have produced another failure to make the two regimes consistent, and that would certainly be an oversight on my part. If the commissioner has powers of oversight under PACE, that immediately throws into question the proportionality, and maybe the necessity, of this Bill’s provision in omitting the oversight.

What the Minister has had to say will require careful reading and I will do that. However, there has been a temptation to slide from the issue of oversight into other aspects of the arrangements, and I am not sure that the Committee has quite been answered. We will look at it, and I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Moved by

[Baroness Hamwee]

48: Schedule 2, page 29, line 29, leave out sub-paragraph (4)

[Baroness Hamwee]

My Lords, Amendments 48 to 53 would remove the proposed extension of national security determinations, which the Minister has explained, for the retention of biometric material to five years in six existing provisions. The Minister has also explained the role of the chief police officer and the rolling determinations, if necessary, but a review every two years for a fresh determination is required. The Bill will change that to five years. We are not questioning the retention as a legitimate aim, rather we are questioning the period of time and whether five years is proportionate for retaining the biometric data of people who have never been convicted of a crime, particularly in the absence of the possibility of a review. The Government have told us that operational experience has shown that in many cases the two-year period is too short and that cases of national security concern will often pose a more enduring threat. That does not entirely go to answer the point of the initial period.

The retention of biometric data is a significant intrusion on an individual’s right to privacy. It is lawful as long as it is not blanket and indiscriminate, but is it proportionate without the possibility of a review? We think not. I beg to move.

[Lord Paddick]

My Lords, I rise briefly to support these amendments. Other than for the convenience of senior police officers in having to review these cases every five years as opposed to every three, I do not understand what is to be achieved operationally by extending the period from three years to five when the period of retention can be extended every three years.

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[Earl Howe]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining that the amendments seek to strike out the provisions in Schedule 2 extending the maximum duration of a national security determination from two years to five years. In responding to her previous amendment, I explained to the Committee the circumstances in which such a determination can be made. I will not cover that ground again but I reiterate that all such determinations are reviewed by the independent Biometrics Commissioner, who may order the deletion of a person’s fingerprints and DNA profile if he is not satisfied that a determination is necessary.

Schedule 2 extends the maximum length of a national security determination from two years to five years. In his most recent report, the Biometrics Commissioner commented that in some cases,

“the evidence/intelligence against the relevant individuals is such that they could be granted for longer than two years”,

and suggested that the Government may want to consider legislating on this issue. We have considered the issue carefully and agree that it would be appropriate to introduce a longer maximum period. I am grateful to the noble and learned Lord, Lord Hope, because his comments put this issue in its proper context.

Operational experience has shown that the current two-year length is too short in many cases and that those involved in terrorism—such that it is necessary and proportionate for the police to retain their biometric data—will often pose a more enduring threat than this. The views of those who embrace terrorism can be very entrenched. Individuals who hold such views can disengage and re-engage in terrorism unpredictably and without warning over a period longer than two years, and so can pose an ongoing risk. Individuals who travel overseas to engage in terrorist training or fighting may remain there for more than two years and are likely to pose a particularly high risk to the public on their return. There is a broad range of circumstances in which a person who presents a terrorist risk today may continue to pose a sufficient risk in two years’ time such that it will still be necessary and proportionate for the police to retain their fingerprints and DNA to help them identify if the person continues to engage or re-engages in terrorism.

This provision will therefore ensure that if a chief officer reasonably judges that the case before him or her is such a case, they will be able to authorise retention for a period of up to five years if this is necessary and proportionate. I emphasise that this will be the maximum period; it will be open to the chief officer to specify a shorter period if they consider that more proportionate. In every case, the NSD will need, as now, to be reviewed and approved by the Biometrics Commissioner, who has the power to order deletion of the data if he is not satisfied that its retention is necessary.

This measure will retain the key principle that biometric data should not be retained indefinitely where the individual has not been convicted. It will continue to provide that ongoing retention should be authorised at a senior level on a case-by-case basis, and subject to approval by the independent Biometrics Commissioner. Where ongoing retention is approved, this will not be open-ended but will continue for a finite period, with review and further authorisation needed if it is to be extended beyond the expiry of the NSD. But it will strike a better balance between these important safeguards, on the one hand, and, on the other, enabling the police to use biometrics to support terrorism investigations and identify suspects without placing a disproportionate burden on themselves. The increased maximum length of an NSD will ensure that, in appropriate cases, the police do not have to review cases and reaffirm necessity and proportionality more frequently than is necessary.

I hope that I have been able to explain the operational challenge which this provision is intended to address in a proportionate manner and to reassure the noble Baroness that we are not removing the important oversight of all national security determinations by the Biometrics Commissioner. For that reason and the others that I have advanced, I ask her to consider withdrawing her amendment.

[Baroness Hamwee]

My Lords, as the Minister said on the previous amendment, these amendments have to be read with that one. NSDs and their oversight are to some extent part and parcel of the same debate. As my noble friend said, it is perhaps a debate about convenience or inconvenience. It would probably be naive of me not to accept that there is an issue of resources here, but balancing how resources are applied and human rights does not always produce immediately obvious answers. This may be a matter of fine detail or where we place the line—that, too, can be a challenge.

Thinking of challenges and listening to what the Minister had to say about the period not necessarily being two years, I wonder how an individual would challenge the period applied and how many times over recent years NSDs have been of less than two years. That may be something that the Minister is able to tell me after today’s debate. For now, looking at these two groups of amendments together, I beg leave to withdraw the amendment.

Amendment 48 withdrawn.

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[Lord Sheikh (Con)]

My Lords, I will talk about the Prevent strategy in greater detail when we discuss Amendment 57. At this stage, I would like to say that there is disquiet among Muslims regarding the application of the Prevent strategy and it is felt that a review is necessary.

The Home Office should gather and publish figures to see whether the strategy is disproportionately affecting any particular ethnic group or religion. I understand that the Government publish data on the age, gender and region of residence of those referred under the Prevent programme, together with the type of concerns raised. It is important that there is complete transparency and people are given all the appropriate information, including details regarding ethnicity and religion. This will enable us not only to have a complete understanding of all the issues but to take appropriate remedial action. As regards Muslims, we need to involve members and leaders of the community, the mosques, the imams, Muslim centres and the media. We can then make arrangements for all the people to get involved and provide the necessary guidance and support.

Islam is indeed a religion of peace and forbids any form of suicidal act or terrorism. We need to explain to people who are misled about the true principles of Islam, once we have examined the total extent of the problem. I therefore support the amendment.

[Baroness Hamwee]

My Lords, I support my noble friend. I do not know whether he used the words “confidence”, “trust” and “perceptions” but he certainly alluded to them when speaking about the operation of Prevent—that is something we will come to in the next group of amendments. He referred to the public good that comes of transparency. I understand that local authorities that are in receipt of freedom of information requests about the local operation of Prevent are advised by the Home Office to say that they cannot answer, on grounds that include national security, health and safety and—something I was particularly puzzled by—commercial interests.

When questions are asked about the delivery of Prevent projects, the generic answer is apparently that to disclose information could reveal commercial interests and negatively affect the commercial viability of the organisations that deliver the projects. I am sure that the Committee will be interested in how the Home Office suggests that requests for information of this sort should be answered. I do not expect the Minister to disclaim the way in which the Home Office has been advising, if it has been—or at any rate not without taking some advice. But the issue of commercial confidentiality throws a light on this that I had not expected to see.

[Baroness Barran (Con)]

I just want to clarify one point. I believe that the information about the difference in referrals to Prevent that end up at a Channel panel is in the Home Office information bulletin. So the answer to the noble Lord’s question about whether a police referral is more likely to get through than education or local authority referrals is that it is just over half as likely to get through if it is initially a police referral. Therefore, I think that your Lordships can take some comfort from this being, as the noble Lord, Lord Carlile, suggested, genuinely about safeguarding rather than a criminal justice intervention.

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Moved by

[Baroness Hamwee]

57: Clause 19, page 21, line 25, at end insert—
“( ) After section 40 (indemnification), insert—“40A Independent review of preventing people being drawn into terrorism and support for those vulnerable to being drawn into terrorism(1) The Secretary of State must make arrangements for an independent review of the Government’s Prevent strategy for preventing people from being drawn into terrorism and for supporting those vulnerable to being drawn into terrorism within 6 months of this provision entering into force.(2) The Secretary of State must report on the findings of the review. This report must be laid before both Houses of Parliament within 18 months of this provision entering into force.””

[Baroness Hamwee]

My Lords, Amendment 57 is another amendment that I am moving on behalf of the Joint Committee on Human Rights. The noble Baroness, Lady Jones, my noble friend Lord Stunell and the noble Baroness, Lady Lawrence—who is also a member of the committee—have their names to it as well. This amendment calls for an independent review of Prevent. We are by no means the first to call for such a review.

The Government have said that, in the Bill, extending to local authorities the power to refer to the Prevent programme individuals regarded as vulnerable to being drawn into terrorism is not an expansion of the scope of Prevent but just a sensible measure to streamline the process of referrals. As the Minister may point out again, I proposed that in 2015. It seemed to me then—and in some ways does now—that it is odd that local authorities, which through social services and other services are at the heart of prevention and safeguarding, should be excluded from that part of the process. As I have said before, and will go on saying, the important word here is “safeguarding”. Other important words are “trust” or “mistrust”, “perception” and “independent”.

The committee took evidence earlier in the year on the issue of Prevent. Again perhaps to pre-empt it being pointed out, we reported—because we wanted to report fully on the evidence—that although a number of stakeholders had reiterated the call for an independent review there were concerns. A doctor and academic expressed concerns about local authority involvement. She said that healthcare professionals and local authority processes can mean that people go down the track into,

“incidences of dissent and illiberal political beliefs–rather than vulnerability to abuse in persons with formal care needs … People have a right to their beliefs without them being interpreted and medicalized as ‘vulnerabilities’”.

I agree that beliefs should not be medicalised, but what she describes is not what should be the catalyst for safeguarding.

The noble Lord, Lord Carlile, who I am sure will intervene in this discussion, conducted a one-off independent review of the Prevent strategy in 2011. However, unlike many aspects of counterterrorism law or terrorism law, this is not subject to continuous review or oversight. I hope that the noble Lord, Lord Anderson—I am sure he will—may refer to his work. It is inevitable that I will trail his comments and pray him in aid, but I hope not to pre-empt him. In a submission to the Home Affairs Select Committee of the Commons two years ago, he said that he thought that,

“Prevent could benefit from independent review. It is perverse that Prevent has become a more significant source of grievance in affected communities than the police and ministerial powers”.

Two years ago, the Joint Committee picked up the subject when we expected there to be a counterextremism Bill. The noble Lord, Lord Carlile, said then,

“reviewers can help the Government by challenging them … I cannot see anything being lost by reviewing the Prevent policy”.

I take that as at least not opposition. It may be support. I hope that it was not damning with faint praise.

[Lord Carlile of Berriew]

The noble Baroness has managed successfully to provoke me on to my feet. Could she give her view on the following? There is about to be appointed a new Independent Reviewer of Terrorism Legislation—the advertisement was on the Cabinet Office job site last week. Can she see any reason why the review, which I and she share the opinion would be sensible, cannot be carried out by the same Independent Reviewer of Terrorism Legislation as is appointed as a result of that advertisement? Does she see any utility in having another reviewer with overlapping responsibility? Also, given that she has taken a great interest and shows great expertise in these matters, can she cite to the Committee by identity any Prevent projects that have given rise to the mistrust—that was the word she used—and can she tell us whether she has visited them in order to make her own assessment?

[Baroness Hamwee]

I would have denied the expertise in any event. I shall not go into what I have visited but I have not visited any of the projects that would fall into that category. If the people affected tell us—not only me—that they are unhappy and mistrustful, that answers the question in itself.

[Lord Carlile of Berriew]

I promise to intervene only once more. Has the noble Baroness had cited to her projects—and will she tell us which ones if that is the case—that fall into the mistrust category? I have a sense that Prevent is being demonised as a campaigning route and not on an evidential basis.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have visited several Prevent schemes and I have heard from people who are deeply mistrustful of them. That is set out in various reports from the London Assembly if noble Lords would like to look them up. It is not simply campaigning and I think that is a slur.

[Baroness Hamwee]

My Lords, I cannot cite schemes but I do not think that undermines my argument because Prevent is wider than individual schemes. As it happens, I agree with the noble Lord on his first point. My amendment does not propose a separate independent reviewer and I have noticed some frustration among past reviewers at their having to be somewhat at arm’s length, or slightly detached, from Prevent because it does not fall within their terms of reference. Perhaps I may say that I hope an appointment is made soon so that there is not too much of a gap in the process.

Where was I? I quoted the noble Lord and I think he still supports the proposition. I have mentioned the comment of the noble Lord, Lord Anderson of Ipswich, about the lack of transparency and we have just debated an amendment on that. Whether it is on individual schemes or as a result of demonisation—if that happens, that is a problem too—there is clearly mistrust of the regime; perhaps I can put it as widely as that. On sensitive issues such as this, in my view, perceptions are fundamentally important.

In evidence to the Joint Committee, the Muslim Council of Britain—I am choosing to quote the council only because it is a convenient quotation; I know it has its fans and its critics—referred to,

“an undermining of trust and human rights and civil liberties in Muslim communities. The resulting self-censorship”—

something I have heard about from others as well—

“the lack of transparency and expansion of ‘Prevent’ risk being a threat to cohesive societies that can effectively respond to terrorism”.

In oral evidence to the committee, Liberty said:

“The Government have ignored calls”—


for an independent review—

“and seek to extend and reinforce the Prevent strategy without looking back at questions like what its interaction is with other legal duties in the criminal law … How is personal information being dealt with in the Prevent programme?”.

Keeping the strategy under review internally, to anticipate what we may hear from the Dispatch Box, or by anyone seen to be close to the programme, is not enough. It needs to be someone who is accepted as being independent. A challenge—that does not mean opposition—to the Government on this is important. We need to know what is working and what is not working. Who knows? The Government could gain a great deal of credit not just from the process of review but from its outcome. However, we do not have the review to reassure us. I beg to move.

[Baroness Jones of Moulsecoomb]

My Lords, I have attached my name to this amendment because it is an issue that goes to the heart of civil liberties in this country. The Prevent strategy is of great concern to me and to tens of thousands of others, particularly campaigners and those from ethnic minorities. As a Member of the London Assembly and the Metropolitan Police Authority, I visited Prevent projects and heard from local people and the practitioners themselves. I can assure noble Lords that there is mistrust, and even distrust, of Prevent in many places. One project I saw appeared to work well, but many did not.

A person is referred for political re-education through the Prevent strategy for opposition to so-called “fundamental British values”. I think it is the Government who are undermining fundamental British values and I should be referring them to Prevent. The Government are challenging informed debate and transparent government. They cannot continue to justify Prevent with their internal Home Office reviews; it is time to shine the light of public scrutiny on the whole process.

I must ask: why would the Government say no to this amendment? If the Prevent strategy is a success, if it does not discriminate against Muslims, ethnic minorities and campaigners of all sorts, and if it does not infringe too far our rights and freedoms, what is the problem with holding a proper review and what is there to hide? An independent review would surely prove the Government’s case and force all doubters, like me, to back down. The Government would be celebrating Prevent in all its glory, not trying to cover up the facts.

In the absence of reliable assessments of the Prevent strategy, we are forced to conclude the exact opposite. The fears expressed by the Muslim Council of Britain—that Muslims are being disproportionately targeted and are increasingly fearful of unjustified state intrusion in their lives—must therefore be accurate. The concerns of social workers, teachers and academics that they have been conscripted as oppressive counterterrorism officers must be taken seriously, and the idea that the Government are wasting money and scarce police resources on chasing people who pose absolutely no threat of harm must be assumed to be true.

The Prevent definition of “extremism” is,

“vocal or active opposition to fundamental British values”.

Such a broad and meaningless definition means that too many people are getting caught in a trap. I urge the Minister to adopt this amendment and prove to us sceptics that Prevent is operating lawfully and effectively. As is often said in support of the Government whenever they want to curtail our rights, “You have nothing to fear unless you have something to hide”. I therefore have to ask: what are the Government hiding?

--- Later in debate ---

[Baroness Williams of Trafford]

I shall read it with interest.

[Baroness Hamwee]

This has been an interesting debate. I do not think anyone other than the Minister has opposed the amendment, even if the routes to support it have been slightly different. The amendment is not about scrapping Prevent, nor is it about particular projects. I am sorry that the Minister felt the need to be so defensive. We have rightly been reminded of the breadth of what underlies terrorism by the noble Baroness, Lady Manningham-Buller. We might not always agree on the means, but of course we agree that the Government’s commitment to do all they can to protect the community and divert people from terrorism is a hugely important objective. The Government assert that a review would not lead to a different outcome. I do not know how one can assert that. I prefer to go down the route that we must not miss opportunities, which is in effect what the noble Baroness, Lady Barran, said, and that the strategy is too important not to do it as well as we can, as the noble Lord, Lord Anderson, said.

The Minister has, perhaps understandably at this point, not responded to the suggestion about extending very slightly the remit of the Independent Reviewer of Terrorism Legislation. I wonder whether after today she might be able to respond to that. It seems a very useful opportunity for the Government to consider it. As several noble Lords said, challenge can be useful. The more the Government oppose the proposition of a review, the more worried I become because I do not know what we do not know. I would prefer the reassurance of a review, which is in the circumstances quite a moderate proposal. We are only in Committee, and no doubt there will be some further discussions. I beg leave to withdraw the amendment.

Amendment 57 withdrawn.