Counter-Terrorism and Border Security Bill

Baroness Howe of Idlicote Excerpts

2nd reading (Hansard): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, I warmly congratulate the noble and learned Lord, Lord Garnier, on his excellent maiden speech, and I look forward with equal enthusiasm to hearing that of the noble Lord, Lord Tyrie, which I am sure will be of equal quality.

Clearly, as other noble Lords have said, it is only right, after the terrorist attacks of last year, that the Government should work hard to make sure that our anti-terrorism legislation is fit for purpose, so I welcome the fact that through the Bill they are seeking to discharge this important responsibility. The challenge that they face in doing so is a difficult one. On one hand, we must do all we can to keep our citizens safe. On the other hand, we do not want to introduce changes that fundamentally change the nature of our society. It would be the supreme irony if, in seeking to preserve our society, we end up changing what it means to be British. In particular, it is very important that, in developing legislation and attendant guidance, great care is taken to ensure that it does not jeopardise the enjoyment of human rights.

In July 2018 the Joint Committee on Human Rights published a report highlighting serious concerns over the new powers in the Bill. Among other things, the report raised concerns about the Prevent programme, which is engaged by Clause 19, on which I shall concentrate. Clause 19 amends Section 36 of the Counter-Terrorism and Security Act 2015 to impose a new duty on local authorities. In addition to being responsible for assessing individuals vulnerable to being drawn into terrorism, through panels mandated by Section 36, Clause 19 also gives local authorities the power to refer people to the panel. The discharging of this new duty will be informed by the relevant guidance pertaining to the Prevent duty, namely the Prevent duty guidance of 2015, the Counter-terrorism Strategy, the newest version of which was published in June 2018, and the Counter-Extremism Strategy of 2015. My difficulty with this arrangement is that while the statute is narrowly focused on terrorism, the Prevent duty guidance, the Counter-terrorism Strategy and the Counter-Extremism Strategy engage with extremism in all its forms, including non-violent extremism, which has no statutory definition.

The lack of a definition of non-violent extremism in law, and the lack of any sanction against non-violent extremism in law, is a very good thing. If someone espouses violence, they cross a very clear threshold. I find it hard to imagine that any Member of your Lordships’ House would have any difficulty in having very robust laws against such practice. The idea, however, that we should target people espousing non-violent views seems deeply problematic to me. The only content we are left with is that the view is “extreme”, but in whose opinion? What is extreme to one person is sensible to another. Unless we are to fundamentally change the nature of the society in which we live and start policing speech in a way that would be deeply inimical to the British tradition. I do not think that we should introduce sanctions against opinions that do not espouse violence.

I appreciate that the Bill does not ask us to endorse directly the Prevent duty guidance and the Counter-Extremism Strategy. We are, however, being asked to indirectly endorse these documents because they provide the guidance according to which local authorities will be required to take on the new responsibilities that we will ask them to assume in sanctioning Clause 19.

The difficulty that this presents is compounded further by a critical development in the courts. In July 2017, in his judgment in Salman Butt v Secretary of State for the Home Department, Mr Justice Ouseley stated very clearly that the Prevent duty does not refer to all forms of extremism as defined in the Prevent duty guidance of 2015 and the Counter-Extremism Strategy of 2015. Mr Justice Ouseley rightly said that extremism is,

“the active opposition to fundamental British values”,

which,

“must in some respect risk drawing others into terrorism before the guidance applies to it. If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it”.

Thus the Prevent duty does not apply to all forms of extremism, and specifically not to non-violent extremism if there is no risk of people being drawn into terrorism.

However, that is not what the Prevent duty guidance, the Counter-Extremism Strategy or the Counter-terrorism- Strategy say. Mindful of this, I very much hope that the Government will introduce an amendment in Committee to the effect that Clause 19 will not be implemented until the Prevent duty guidance, the Counter-Extremism Strategy and the Counter-terrorism Strategy have first been subjected to a review and updated in light of the judgment of Mr Justice Ouseley. Let us uphold the right to non-violent free speech and fight terrorism by preserving rather than compromising our own heritage.

Counter-Terrorism and Border Security Bill

Baroness Howe of Idlicote Excerpts

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

Moved by

[Baroness Howe of Idlicote]

54: Clause 19, page 21, line 19, at end insert—
“(4A) Section 37 (membership and proceedings of panel) is amended in accordance with subsections (4B) and (4C).(4B) At the end of subsection (1)(b) insert “, unless they are the person who referred the particular identified individual for an assessment under section 36, in which case they must appoint an alternative person to represent them on the panel in accordance with subsections (2) and (2A).”(4C) After subsection (2) insert—“(2A) The representative appointed under subsection (2) must not be the person who referred the particular identified individual for an assessment under section 36.””

[Baroness Howe of Idlicote (CB)]

My Lords, my amendment proposes that those who refer an individual for assessment under the Channel programme are different from those who assess the individuals once they have been referred. For reasons that I will set out, the amendment constitutes a crucial safeguard to protect the integrity of the programme. Amendment 54 addresses the issue concerning Clause 19 that was identified by myself, the noble Lords, Lord Stunell and Lord McInnes of Kilwinning, and the noble Baroness, Lady Barran, during Second Reading: namely, granting local authorities the additional powers to refer individuals for assessment under the Channel programme, an assessment that they themselves would undertake if Clause 19 were accepted with its current wording.

It is important, moreover, that this concern about Clause 19 is seen in the broader context of the concerns raised by the Joint Committee on Human Rights in commenting on the Counter-Terrorism and Border Security Bill. In relation to Clause 19, the report says that the committee is,

“concerned that any additional responsibility placed on local authorities must be accompanied by adequate training and resources to ensure that the authorities are equipped to identify individuals vulnerable to being drawn into terrorism”.

However, these recommendations cannot address the challenge flowing from the imposition of the extra duty arising from Clause 19, which, for reasons that I will explain, is likely to lead to the creation of perverse incentives.

Clause 19 amends Section 36 of the Counter-Terrorism and Security Act 2015 to impose a duty on local authorities to play an additional role to assess individuals vulnerable to being drawn into terrorism. This is a function that under the current wording of Section 36(3) of the 2015 Act rests with a chief officer of police. In accordance with Clause 19, apart from assessing—by way of a self-established panel—the extent to which identified individuals are vulnerable to being drawn to terrorism, local authorities will also have an extra power to refer individuals to its panel.

Ultimately, the safeguard that currently arises from splitting the responsibilities between a chief officer of police, responsible for referring individuals, and the panel, responsible for assessment, will no longer obtain. While the local authorities should be more involved in countering terrorism, the amendment of Section 36 of the 2015 Act through Clause 19 of this Bill introduces a dangerous model that may be abused where the referral and assessment are conducted by the same person.

My concern about Clause 19 in its current form is that if a person refers an individual for assessment and then sits on the panel assessing that individual, there is a risk that the person, even if unintentionally, may steer the assessment panel in a direction that would help to justify their prior decision to refer the person for the assessment. If an individual is wrongly referred and then wrongly assessed, that could significantly jeopardise the process and lead to its abuse.

--- Later in debate ---

I hope that, with those explanations, the noble Baroness will feel it appropriate to withdraw the amendment.

[Baroness Howe of Idlicote]

My Lords, I am most grateful to the Minister, and to all noble Lords who have taken part in this short debate. The assessment that has been made will lead one to consider all the comments carefully. As for withdrawing the amendment, I am pretty certain that I will return to this at a later stage, when the issue is looked at in more detail. In the meantime, there is a lot to think about. In particular, the comments of the noble Lord, Lord Carlile of Berriew, set the tone for the debate. I beg leave to withdraw the amendment, at least temporarily.

Amendment 54 withdrawn.

Counter-Terrorism and Border Security Bill

Baroness Howe of Idlicote Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

Moved by

[Baroness Howe of Idlicote]

89: Clause 26, page 25, line 30, at beginning insert “Subject to subsection (2A), ”

[Baroness Howe of Idlicote (CB)]

My Lords, I rise to speak to Amendments 89 and 91 in my name and, in doing so, I thank the Minister for the letter that she sent to noble Lords before Committee stage began, which responded to a number of different concerns, including the points that I made at Second Reading. I am grateful for that response and will use it as my starting point in moving these amendments today. By way of introduction, it would probably help if I recapitulated my central concern, which I expressed at Second Reading and is the reason that I move these amendments.

It is absolutely right that the Government should do everything in their power to tackle the great evil that is terrorism. The events of last year must cause them to apply themselves, with even greater determination than before, to the development of really effective policy and legislation to deal with the threat that terrorism poses. Part of our response to terrorism is to say that it has no place here and to defend the British commitment to liberty and all the attendant constitutional safeguards that uphold it. In this context, it seems to me that when we cross from terrorism to extremism which is not related to terrorism, we enter very difficult territory. While I have no problem with the state intervening when someone’s values cause them either to commit a terrorist act, to glorify a terrorist act or to encourage others to engage in a terrorist act, I have the greatest difficulty with the idea of censuring extremism without a connection to terrorism.

When we start to engage extremism with no connection to terrorism, it seems to me that we enter entirely different territory. It is all so very subjective. One person’s “extreme views” could be another’s common sense, just as their common sense could seem extreme to another person. Part of the challenge of living in a free society is accommodating differences of opinion, including those that we may find, for want of a better phrase, “nutty and extreme”. I feel uncomfortable about the idea that we should start policing these thoughts.

Having reminded noble Lords of this backdrop, I turn to detailed consideration of my amendments and the Minister’s letter. As things stand, Clause 19 amends Section 36 of the Counter-Terrorism and Security Act 2015, which requires local government to seek to identify those at risk of being drawn into terrorism. Clause 19 broadens the scope of Section 36 and the point that I made at Second Reading is that Clause 19 should not be implemented until such a time as the accompanying guidance is updated to prevent policing people’s views which the state describes as extreme but which do not espouse and celebrate acts of violence. There is no basis for that reach beyond terrorism in the primary legislation.

In her response, the Minister has suggested that the Channel guidance is very clear that the point at which an intervention is made is the point at which the person concerned is indeed deemed at risk of either espousing, celebrating or committing acts of violence. There are, however, two problems. First, while the Channel guidance is clear about the point of intervention to bring someone in, it in fact ranges rather more widely. This is reflected in the references to extremism in that guidance, where there is no need for any reference to terrorism. Paragraph 51, for example, encourages the consideration of,

“indicators that an individual is engaged with an extremist group, cause or ideology”.

It goes on to say that these indicators include things such as,

“spending increasing time in the company of other suspected extremists”,

and

“day-to-day behaviour becoming increasingly centred around an extremist ideology, group or cause”.

It seems to me that, as currently defined, the Channel guidance mandates two forms of intervention: an intervention where there is a perceived risk that someone is in danger of being drawn into terrorism—with which I have no difficulty—and a prior intervention for the purpose of monitoring because the state does not like the views espoused, even though they have nothing to do with espousing, celebrating or committing acts of terrorism. Of course I have no difficulty with the idea of monitoring to identify when someone is at risk of being drawn into terrorism, but that must be because they are coming under the influence of those who are in some sense connected to terrorism, and not simply because they come into contact with those whose views the state deems extreme. That is a key distinction, but it is one that I am not convinced the Channel guidance currently respects.

In expressing this concern, I highlight once again the judgment in the case of Salman Butt. In her letter, the Minister suggested that Mr Justice Ouseley’s judgment in that case merely underlines and indicates the current approach of the Government in being clear that the point of intervention is when there is a risk that the person will be drawn into violence. With respect, however, Mr Justice Ouseley was underlining this distinction in response to a concern that, while on some occasions it is being respected by guidance, on other occasions it is not. Of course I fully understand that Mr Justice Ouseley’s judgment refers specifically to the Prevent guidance, but I think the same principle should be applied with respect to the Channel guidance.

This takes me to the second difficulty with the Government’s response. In her letter, the Minister suggested that the only relevant guidance at this point is the Channel guidance, inferring that other forms of guidance such as the Prevent guidance and the Counter-Extremism Strategy are simply not relevant. I do not find that argument in any way convincing. Quite apart from anything else, paragraphs 6 and 7 of section 1 of the Channel guidance relate it to Prevent and the Prevent guidance. In this context, it seems entirely possible that those discharging their duties under Section 36 of the 2015 Act will feel it entirely appropriate to allow their conduct to be impacted by the broad approaches set out in that document.

Moreover, it seems entirely reasonable to me that someone discharging their duties under Section 36 and wanting a better handle on extremism should turn to the Counter-Extremism Strategy or counterterrorism strategy for additional guidance. However, these documents completely fail to respect the crucial distinction that Mr Justice Ouseley sets out in his judgment. For example, paragraph 74 of the latest version of the counterterrorism strategy states:

“We protect the values of our society – the rule of law, individual liberty, democracy, mutual respect, tolerance and understanding of different faiths and beliefs – by tackling extremism in all its forms”.


Paragraph 124, meanwhile, references the Channel guidance and says:

“Channel is run in every local authority in England and Wales and addresses all types of extremism”.


The Counter-Extremism Strategy, meanwhile, states at paragraph 8:

“We are clear that this strategy will tackle all forms of extremism: violent and non-violent”.


These are just a few of the examples. This means that the guidance that feeds into thinking about the application of the duty to prevent people from being drawn into terrorism, or assessing the extent to which identified individuals are vulnerable to being drawn into terrorism, is broadened to cover a very broad concept of extremism where there is not always a connection to terrorism. I believe that this is simply not acceptable, and the Government need to rein in their focus away from extremism in all its forms to focus very specifically on those who espouse, celebrate or commits acts of violence or who are in danger of doing so. In making that point—and in moving this amendment—that would require the Channel guidance, the Prevent duty guidance, the counterterrorism strategy and Counter-Extremism Strategy to be updated, so that they do not transgress beyond the narrow focus on a necessary connection to violence to extremism in all its forms.

--- Later in debate ---

We keep the Channel guidance under review and from time to time it will need updating. But it would be quite wrong to make the revision of this guidance, or the separate Prevent guidance, a precondition of the commencement of the much-needed provisions in the Bill. As I said, I am very happy to meet the two noble Lords and, in the meantime, I ask the noble Baroness to withdraw her amendment.

[Baroness Howe of Idlicote]

My Lords, I thank the Minister for her reply although it was obviously not the one I would have hoped for. I will have to think about it in quite a lot of detail before coming to a conclusion about what should happen on Report. I also thank the noble Lord, Lord Morrow, for his contribution and for backing what I still consider to be a very important range of thoughts. As there is a need for a bit of talk before we come to any full conclusions about this, a look at diaries before Report would be good to fix a convenient time for all concerned. I beg leave to withdraw the amendment.

Amendment 89 withdrawn.