Counter-Terrorism and Border Security Bill

Baroness Williams of Trafford Excerpts

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

Moved by

[Baroness Williams of Trafford]

That the Bill be now read a Second Time.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, no Government take any pleasure in having to put before your Lordships’ House another counterterrorism Bill. Like its predecessors, this Bill is borne out of necessity. Regrettably, the threat to this country from terrorism is ever present. Indeed, the threat level has been at severe or higher for over four years, meaning that a terrorist attack is highly likely. The police and security services now assess that over the last two years we have seen an enduring shift in the threat, rather than simply a spike.

It is easy to reel off statistics. Seventeen Islamist or far-right terrorist plots have been thwarted since March 2017; as of June, there were some 3,000 subjects of interest known to the police and intelligence agencies, and 412 arrests for terrorism-related offences in 2017. But dry statistics can never bring home the pain and sorrow suffered by individual victims of terrorism. Over recent weeks, we have heard the harrowing testimony at the inquest into the deaths of the five victims of last year’s terrorist attack on Westminster Bridge and at the gates of this very building. In this and the four subsequent attacks in 2017, in Manchester, London Bridge, Finsbury Park and Parsons Green, a further 31 innocent victims lost their lives, and in total over 200 others were injured. The family and friends of those who lost their lives will have to live with this painful loss for the rest of their lives, while the victims who survive have to deal with the ongoing mental anguish and, in some cases, life-changing physical injuries.

As a Government, we must do all we can to prevent such tragedies happening again, although regrettably there can be no guarantee that every plot will be foiled. One way we can do this is to make sure that our counterterrorism legislation remains fit for purpose. Much of the current legislation dates back to Acts passed in 2000 or 2006. In the intervening years, the nature of the threat has evolved. We have seen new patterns of radicalisation, the widespread use of social media to spread hateful ideology, and the draw of the so-called caliphate in Syria. We have also seen more rapidly evolving plots using everyday items such as vehicles and knives as weapons, which although still deadly are less sophisticated and complex than the plots of previous years. This has led to a lowering of the barriers to entry and a decrease in the time taken to plan and prepare by those with murderous intent.

Against this evolving threat, it is only right that we should bring our counterterrorism legislation up to date so that our law enforcement and intelligence agencies have the necessary, but proportionate, powers to help counter the threat as it manifests itself today, and not the one they had to contend with nearly 20 years ago. The provisions in Part 1 are directed to this end. In reviewing existing legislation, we have listened carefully to our operational partners: the police, prosecutors and the intelligence services, but also the current and former Independent Reviewers of Terrorism Legislation—I am pleased to see the noble Lord, Lord Anderson of Ipswich, in his place. We have also listened and responded to the debates on these provisions during the passage of the Bill in the House of Commons.

The Bill closes a number of gaps in existing terrorism offences. Under Section 12 of the Terrorism Act 2000 it is already an offence deliberately to invite support for a proscribed terrorist organisation, whether expressly or by implication. However, there are demagogues who, without intending to encourage others to support such groups, or at least without the prosecution being able to prove such an intention, nevertheless recklessly choose to voice their own support, knowing full well that the effect of their words will be to do just that. It is right that the criminal law should bite in such cases.

The Bill also updates Section 13 of the 2000 Act which criminalises the display, in public places, of a flag or other emblem of a proscribed organisation in such a way, or in such circumstances, as to arouse a reasonable suspicion that the person is a member or supporter of a proscribed organisation. The provision in Clause 2 makes it clear that the publication of an image of such a flag or emblem online, in circumstances which arouse that reasonable suspicion, comes within the ambit of Section 13. So, for example, a person would commit the offence if he or she posted on social media a picture of themselves taken in their bedroom and displaying a Daesh flag in the background, thereby making the image available to the public, and, if taking all the surrounding circumstances into account, such a display aroused a reasonable suspicion that he or she was a member or supporter of Daesh.

We are also strengthening the existing offence, in Section 58 of the 2000 Act, of collecting or possessing information likely to be of use to a terrorist. Here again, we need to ensure that the criminal law reflects how people now make use of the internet. If someone were to download a document containing information likely to be useful to a terrorist, it would be in their possession and they would therefore be committing the Section 58 offence. If, instead of downloading the document, they were to view it online or to stream a video or audio recording containing the information, without any record being made on their device, the offence would not apply. This cannot be right. This loophole is a clear illustration of how criminal law has not kept pace with the digital age. Clause 3 therefore provides that a person who views or otherwise accesses terrorist material online is within the ambit of the Section 58 offence. But it is not the intention here to criminalise a person who unintentionally views such material, so the clause provides that it is a defence for a person to show that they did not know, or had no reason to believe, that the material is likely to be useful to a person preparing or committing an act of terrorism.

This part of the Bill also helps us to respond more effectively to the threat posed by foreign terrorist fighters—an issue which I know is of great interest to my noble friend Lord Marlesford. We already have a number of powers to disrupt travel to conflict zones overseas but here, as elsewhere, we need to ensure that the coverage is as comprehensive as it should be. Accordingly, the Bill provides for a new offence of entering or remaining in a designated area overseas. The Home Secretary may make such a designation where he or she is satisfied that it is necessary to restrict UK nationals and residents from travelling to, or remaining in, the area for the purpose of protecting the public from risk of terrorism. Any regulations designating an area will be subject to the affirmative procedure; consequently, after they have been made and come into force, they will need to be debated and approved by both Houses if the designation is to remain in effect.

The designated area offence will be subject to a reasonable excuse defence. We are clear, for example, that the defence would apply to a person travelling to a designated area for the purpose of providing humanitarian aid or to carry out work as a journalist. This defence will operate in the same way as the existing reasonable excuse defences in the Terrorism Act 2000. Accordingly, once a defendant has raised the defence, the onus will be on the prosecution to disprove the defence to the criminal standard.

The Bill also seeks to tackle the phenomenon of foreign terrorist fighters by extending the reach of the UK courts. It is not for the law enforcement agencies in this country to police the world but, when someone has travelled from the UK and committed a terrorist offence abroad, it is right that they should be brought to justice if they return here. Many terrorist offences are already subject to extraterritorial jurisdiction. We are now extending the jurisdiction of the UK courts to cover further terrorism offences committed abroad, including activity that we have seen conducted by those who have joined Daesh, such as the dissemination of terrorist publications to individuals back in the UK and the possession of explosives for the purposes of an act of terrorism.

It is not enough that we prosecute and convict those who commit terrorist offences; we also need to ensure that the punishment properly reflects the seriousness of the crime and that our communities are protected by the courts having the scope to hand down appropriately lengthy sentences. New sentencing guidelines which came into force in April will go some way in this direction, but the Sentencing Council and the courts necessarily have to operate within the current maximum penalties set out by Parliament.

Having reviewed the maximum penalties for some terrorism offences, we are satisfied that they no longer adequately reflect the seriousness of the offending behaviour and the high level of harm that can be caused. Accordingly, the Bill increases to 15 years’ imprisonment the maximum penalty for four offences, namely: collecting terrorist information; eliciting, communicating or publishing information likely to be useful to a terrorist about a member of the Armed Forces; encouragement of terrorism; and dissemination of terrorist publications. In response to representations from Max Hill QC, the outgoing Independent Reviewer of Terrorism Legislation, we are also increasing to 10 years’ imprisonment the maximum penalty for the offence of failure to disclose information about acts of terrorism. As now, it will be for the courts to determine the appropriate sentence in each individual case.

In addition, we are bringing preparatory terrorism offences within the scope of the extended sentence regimes in England and Wales, Scotland and Northern Ireland. Where an extended sentence is imposed by the court, the offender is not released automatically at the halfway point of the custodial term, and is instead only released ahead of the end of the custodial term when the independent Parole Board considers it safe to do so. They are then subject to an extended period on licence.

These changes to the sentencing regime will be further reinforced by a strengthening of the notification requirements, which can apply for up to 30 years following conviction. Registered terrorist offenders will be required to notify the police of a wider range of information, including banking and passport details and details of any vehicle they have use of, to enable the police to better manage the risk of reoffending.

As I said, the Government greatly value the work of the Independent Reviewer of Terrorism Legislation, and we are fortunate to have in this House two former occupants of that office. I look forward to hearing the speech of the noble Lord, Lord Anderson, and I hope that we will also be able to hear from the noble Lord, Lord Carlile, during the course of the Bill.

I am pleased that this part of the Bill gives effect to two recommendations made by the noble Lord, Lord Anderson, when he was the independent reviewer. First, it introduces a statutory bar on the admissibility in criminal trials of verbal admissions made during an examination at a port under Schedule 7 to the Terrorism Act 2000. Secondly, it provides for the “detention clock” to be paused where a person arrested or detained under the Terrorism Act 2000 is taken to hospital for treatment. This brings the 2000 Act into line with the long-standing provisions in the Police and Criminal Evidence Act. It is right that the police should have the full time allowed under the law to question a suspect before they are released or charged.

Clause 19 is further evidence that this Government are receptive to reasoned arguments for changes to counterterrorism legislation. Noble Lords will recall that what is now the Counter-Terrorism and Security Act 2015 put the Prevent duty and Channel panels on to a statutory footing. I have no doubt that we will hear more about the Prevent programme during the debate today and subsequently, but for now I just pay tribute to the prescience of the noble Baroness, Lady Hamwee, who argued back in 2015 that local authorities, as well as the police, should be able to refer to a Channel panel a person at risk of being drawn into terrorism. It might have taken us three years to take on board that suggestion but I hope that she can take some satisfaction from the fact that her proposal is now being given effect.

Finally on this part of the Bill, I want to mention the amendment to the Reinsurance (Acts of Terrorism) Act 1993 made by Clause 20. That Act enables the Government to extend an unlimited guarantee to the terrorism reinsurer, Pool Re. This in turn enables the insurance market to provide insurance to businesses for loss caused by damage to commercial property from terrorist attacks. The Bill will amend the 1993 Act to enable Pool Re to extend its business interruption cover to include losses from terrorist attacks that are not contingent on damage to commercial property.

The threats to our national security are not confined to terrorism; they also come from hostile state activity, and we have seen recent devastating evidence of this threat in our communities. In March, we saw the poisoning in Salisbury of Sergei and Yulia Skripal and Detective Sergeant Nick Bailey using a military-grade nerve agent. The Crown Prosecution Service has now charged two men for this attack, and the Government have concluded that they are officers in the Russian military intelligence service, the GRU. This was not a rogue operation. It was almost certainly approved outside the GRU at a senior level in the Russian state. The same two men are now the prime suspects in the case of Dawn Sturgess and Charlie Rowley.

The events in Salisbury are part of a pattern of behaviour by the Russian Government, and they are not alone in engaging in hostile activity that threatens the United Kingdom. Given this, the time has come to harden our defences against hostile state activity. As a first step, Part 2 of the Bill provides for a new power to stop, question, search and detain persons at ports, airports and the Northern Ireland border area to determine whether they are, or have been, engaged in hostile activity by or on behalf of a foreign state.

These provisions will serve to address a current gap in our ability to tackle the threat posed by hostile state actors and will mirror in many respects the existing powers to stop and question persons at the border for counterterrorism purposes. Indeed, this is another area where the Bill reflects a proposal made by the noble Lord, Lord Anderson, in his previous role as independent reviewer. In his report on the terrorism Acts in 2015 and subsequently in evidence to the Home Affairs Select Committee, he argued for a power to determine whether a port user is engaged in national security threats such as espionage or proliferation.

No one wants their travel plans disrupted, or to be subjected to intrusive questioning as they enter or leave the country. As with existing border powers in the Terrorism Act, those afforded by Schedule 3 to the Bill will be subject to a number of checks and balances to ensure that they are not used in an arbitrary fashion, but are subject to rigorous independent oversight—in this case by the Investigatory Powers Commissioner. The important safeguards on the face of the Bill will be augmented in a statutory code of practice, and I can give an undertaking to the House today to publish a draft of the Schedule 3 code of practice before we reach Part 2 of the Bill in Committee.

It is incumbent on the Government of the day to keep the people of this country safe and secure from the threats posed by terrorism and hostile state activity. As part of this, it is inevitable that from time to time we need to refresh our laws to ensure they remain up to date for present-day threats. Faced with the horrors of the five terrorist attacks last year, it is inevitable that such events can act as a catalyst for change. It is right, however, that your Lordships’ House should consider the provisions in this Bill dispassionately. Such individual tragedies should not cloud our judgment, but we must remain alive to the fact that the decisions we make as legislators have real world consequences. This Bill will help reduce the risk of tragedies similar to the ones we saw in London, Manchester, Salisbury and Amesbury from happening again, and on that basis, I commend this Bill to the House.

Counter-Terrorism and Border Security Bill

Baroness Williams of Trafford Excerpts

2nd reading (Hansard - continued): House of Lords & 2nd reading (Minutes of Proceedings - continued): House of Lords
Tuesday 9th October 2018 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have taken part in this very serious debate. We should never forget the nature of the issues we are discussing. Contributions throughout the debate have reminded us just what we are dealing with. I echo the tributes paid to not just the police but the emergency services, who dealt so bravely with the terrorist threats we faced last year, and to my noble friend Lord Tebbit, who spoke not only as a victim of terrorism but for the victims who can no longer speak.

It was particularly pleasing to hear the two maiden speeches. When my noble and learned friend Lord Garnier told the House that he had made his maiden speech in the middle of the night, I did not know whether he had actually engineered that because I arranged for my maiden speech to be in the Moses Room so that not many people would hear it. He brings to this House many years of experience practising at the Bar and of course was Solicitor-General for two years. Drawing on his experiences, he has given us some valuable insights into the provisions in the Bill, particularly those relating to the changes to the criminal law and sentencing. We also heard from the noble Lord, Lord Tyrie. I am glad he is not “Lord Tyrie of Tyrie, Tyrie”, because that might be a bit of a mouthful. But I know he will hold the Government to account in this House with the same vigour that he showed during his 20 distinguished years in the House of Commons, including seven years at the chair of the Treasury Select Committee. I note that one of the accolades he earned in that time was,

“The most powerful backbencher in the House of Commons”,

so it was with some trepidation that I listened to his speech, but I was very interested in some of the things he said and I look forward to further discussions with him.

The many other contributors to the debate demonstrated yet again the considerable experience that the Members of your Lordships’ House bring to bear when scrutinising legislation such as this. I am sure that, given the length and breadth of the debate, noble Lords will appreciate that I cannot possibly answer every single question but, in addition to responding to the debate, I will endeavour to write a fulsome letter, which I will place in the Library. We have had the benefit of insights from a former Independent Reviewer of Terrorism Legislation, a former director-general of the Security Service, two former Metropolitan Police Commissioners, a former Chief Inspector of Prisons, and current members of the Intelligence and Security Committee and the Joint Committee on the National Security Strategy. We are so lucky to have such expertise, while other noble Lords bring to this debate their highly relevant experiences as members of the legal profession or academia.

As this Bill has already been through the House of Commons, where it was given a Third Reading by an overwhelming majority of 376 votes to 10, noble Lords have quite properly approached this debate from the perspective of our role as a revising Chamber. We have heard a range of views, as I have said. It was most important that the noble Baroness, Lady Manningham-Buller, my noble friends Lord King and Lord Tebbit, and the noble Lords, Lord Blair and Lord Hogan-Howe, reminded us how very real the threat of terrorism is. I welcome the broad measure of support for the Bill from the Opposition Front Bench and from many who spoke from the Cross Benches, while accepting that they, like other noble Lords, will want to scrutinise the detail of the Government’s proposals. I think we are in for an interesting Committee stage. I sense from the Liberal Democrats that they might be more sceptical in nature but, even in that, there were expressions of support from noble Lords there. I am sure that they will approach Committee in the same constructive manner that we have heard in the Second Reading speeches.

It is evident that noble Lords will want to probe some of the changes to terrorism offences, the increase in maximum penalties—that was clear—and aspects of the new hostile-state activity ports powers in Schedule 3. I welcome the opportunity to explain these provisions in more detail and respond to some other points that have been raised in the debate.

Regarding Clause 1, “Expressions of support for a proscribed organisation”, and the concept that these provisions might be an attack on the freedom of speech, noble Lords are absolutely right to raise that issue. The noble Lords, Lord Marks, Lord Thomas and Lord Ahmed, and the noble Baroness, Lady Jones, expressed concern that the extension of the offence of inviting support for a proscribed organisation would undermine that freedom of speech. The right reverend Prelate the Bishop of Newcastle also spoke about this issue. It is of course right that we uphold the right to freedom of expression, something which we value so highly in this country and is part of our core values. People are free to express any view they wish, even ones which the wider public might find distasteful, as long as they do so within the law and do not harm others. However, we are clear that any groups or individuals that cause harm to our society and promote hatred and division will not be tolerated. This measure is aimed at those who are reckless—“reckless” being quite a well-established word in law—as to whether statements that they make will encourage others to support a proscribed terrorist organisation. That type of activity is very serious. It can have a strong influence on individuals who are vulnerable to radicalisation, as some noble Lords pointed out, and can create a real risk of harm to the public. As such, it is vital that we are able to target those who seek to exploit others and lure them into terrorism, so that they can no longer skirt the fringes of legality—something that noble Lords have talked about extensively today.

Moving to Clause 4, the noble Lords, Lord Rosser and Lord Anderson, my noble friend Lord McInnes and the noble Baroness, Lady Hamwee, raised the designated area offence that it provides for and sought reassurance that it would not apply to those with legitimate reason to travel to a designated area. I can absolutely confirm that the offence as drafted includes a reasonable excuse defence, which will be available to individuals who travel to a designated area solely for a legitimate purpose—such as, as noble Lords have said, to deliver humanitarian aid or journalism, or indeed to attend a family funeral. The police, the CPS and the courts are familiar with this approach, and it works well in other contexts where an offence has a reasonable excuse defence. In practice, such cases are unlikely to come to court as they would not get beyond the police investigation or scrutiny by the CPS, which would be unlikely to conclude that there was a reasonable prospect of securing a conviction. We do not consider it necessary or helpful to take a different approach for this offence. Whether a particular excuse is reasonable will be highly dependent on the facts and circumstances of the individual case and cannot be prescribed in advance in the abstract.

The noble Lords, Lord Janvrin and Lord Hogan-Howe, asked whether the police have the resources to implement the provisions in the Bill. It is of course important that we ensure that counterterrorism policing has the resources needed to deal with the threat we face. That is why the counterterrorism policing budget has gone up by £50 million of entirely new money in 2018-19 to at least £757 million. This follows the £28 million of new money the Government provided in 2017-18 to forces across the country for CT policing to meet costs relating to recent terror attacks. I totally get the point made by the noble Lord, Lord Hogan-Howe, about the pipeline of people required to fulfil those roles.

The noble Baroness, Lady Hamwee, and the noble Lords, Lord Ramsbotham and Lord Anderson, talked about the definition of hostile state activity and questioned whether the definition in Schedule 3 is sufficiently precise. For the purposes of this power, hostile activity has been defined as the “commission, preparation or instigation” of an act that threatens the national security or economic well-being of the UK or is a serious crime,

“carried out for, or on behalf of, a State other the United Kingdom, or … otherwise in the interests of a State other than the United Kingdom”.

That may seem broad, but I am afraid that the threat posed to the UK from hostile state activity is wide-ranging and includes espionage, sabotage, coercion, assassination and subversion. Consequently, the definition of hostile activity must necessarily be broad to encompass the range of threats this country faces from nefarious states.

The noble Lord, Lord Bew, talked about Schedule 3 and the creation of a hard border. He pointed to concerns that have been raised in some quarters about how the provisions of Schedule 3 will operate on the Northern Ireland border. As the noble Lord, Lord Rosser, indicated, the issue was raised on Report in the Commons and the Minister for Security has written to Tony Lloyd on this question. I will make sure that noble Lords receive a copy of that letter rather than me repeating it this evening.

My noble friend Lord Faulks and the noble Lords, Lord Thomas of Gresford, Lord Kirkhope of Harrogate and Lord Kennedy, raised detainees’ right to consult their lawyer in private in the context of Schedule 3. In exceptional circumstances there may be a need for a more senior police officer to restrict that right by requiring that the consultation take place in the sight and hearing of an officer who has no connection to the detainee’s case, for instance, where there are reasonable grounds to believe that private consultation will result in interference with evidence, gathering of information, injury to another person, alerting others that they are suspected of an indictable offence or hindering the recovery of property obtained by an indictable offence. The aim of the restriction is to disrupt and deter a detainee who seeks to use their right to a solicitor to trigger activity that would lead to those consequences. It could be achieved by the detainee using their solicitor to pass on instructions to a third party by, for example, intimidating the solicitor or using a coded message of which the solicitor is unaware. However, the shadow Security Minister has put forward an alternative proposal for dealing with this issue, and we can explore it further in Committee.

There were a lot of contributions on Prevent, expressing support for aversion to it, or suggesting review of it. In particular the noble Lords, Lord Stunell, Lord Rosser and Lord Ramsbotham, and my noble friend Lady Warsi called for an independent review. Prevent is fundamentally about safeguarding and supporting vulnerable individuals to stop them supporting terrorism or becoming terrorists, regardless of whether that is in support of Islamist, far-right or any other form of terrorism. That point was extremely well made by my noble friends Lady Barran and Lord McInnes. When considered from this perspective, Prevent is working and we do not accept the need for an independent review. It has had a significant impact on stopping people being drawn into terrorism. Indeed, the Commissioner of the Metropolitan Police, Cressida Dick, said recently:

“There have been hundreds of people who have been turned away from violent extremism by their engagement with Channel and other aspects of Prevent, and that is all positive”.


It is clear that those who work to keep us safe from the terrorist threat back Prevent.

The noble Lords, Lord Janvrin, Lord Kennedy and Lord Rosser, and in particular my noble friend Lord Bethell, talked about online harms and ensuring that tech companies are responsible for rapidly taking down terrorist content that is posted online. That point about rapid takedown is very well made. The then Secretary of State for Digital, Culture, Media and Sport announced in May that at the next possible opportunity the Government will bring forward online safety legislation that will capture online terrorist content. We need a comprehensive online safety strategy, not one that tackles specific harms in a piecemeal fashion. That is why the Home Office is working closely with DCMS to publish a White Paper later this Session that will set out proposals for new online safety laws to ensure that the UK is the safest place in the world to be online.

A number of noble Lords, including the noble Lords, Lord Rosser, Lord Kennedy, Lord Marks, Lord Blair and Lord Ramsbotham, and my noble friends Lord King and Lord Kirkhope, talked about co-operation on counterterrorism after Brexit. That is a crucial point and I think that the whole House is in agreement on it. It is something that the Government are absolutely focused on working towards. The government White Paper provides an ambitious and comprehensive vision for our future security relationship with the EU and reinforces the Prime Minister’s message that the UK remains unconditionally committed to maintaining Europe’s security, both now and after our withdrawal from the EU.

Some interesting points were made about updating the treason laws to reflect what is happening, particularly in foreign states, by my noble friends Lord King, Lord Faulks and Lord Marlesford. We have a comprehensive range of terrorism offences and other powers that the Bill will update for the digital age. That will provide the police and intelligence services with the powers that they need to protect the public from terrorism. We do not consider it necessary to create new treason offences for this purpose, but I know exactly where my noble friends are coming from. The Prime Minister announced on 14 March that the Government will consider the need for new counterespionage powers, including legislation to harden our defences against hostile state activity. Where relevant, treason offences may be considered as part of that work.

A number of noble Lords talked about combating radicalisation in prisons, which is a very good point. I must first point out that those convicted of terrorism offences have already themselves been radicalised, but it is important that we do not exacerbate the problem, as noble Lords said, while defenders are serving their sentences. A joint HM Prisons and Probationary Service and Home Office extremism unit was created in April 2017 to lead the response to extremism and terrorism in prisons and probation. We make every effort to ensure that terrorist offenders are given the best possible chance to rehabilitate while in prison and on probation, and all offenders of extremist or terrorist concern are managed actively as part of a comprehensive counterterrorism case management system.

In conclusion, all sides of the House recognise the real threats that we face, whether from terrorism or the hostile acts of foreign powers. As those threats evolve over time, so must our response. We must ensure that our law enforcement and security agencies have the powers and capabilities that they need to disrupt the activities of those who would do the people of this country harm. The safety and security of those who live in this country must always be our paramount concern, but I recognise that the laws that we create to help ensure such security are a matter of legitimate debate and should rightly be subject to proper scrutiny. In that spirit, I look forward to our further deliberations on the Bill, but it is the Government’s firm belief that its provisions are a necessary and proportionate response to the ongoing threats that we face. On that basis, I have no hesitation in commending the Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.

Counter-Terrorism and Border Security Bill

Baroness Williams of Trafford Excerpts

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

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords for their many and varied points on the amendments and, up front, I apologise if I take some time to respond to all of them.

This is the first of a number of clauses in the Bill that update existing terrorism offences to ensure that the police and prosecutors can respond effectively to the current terrorist threat and contemporary methods of radicalisation.

I should say at the outset that I am well aware that this clause addresses a sensitive area of the law—namely, freedom of expression—and I recognise that concerns have been raised both in the House of Commons and in this House. As has been so eloquently explained, it is such concerns that have motivated the noble Lord, Lord Rosser, the noble Baronesses, Lady Hamwee and Lady Jones of Moulsecoomb, and my noble friend Lord Attlee to table their amendments. However, I hope that I can allay such concerns and persuade the Committee to support Clause 1 as drafted by explaining exactly why the Government believe that this measure in its current form is necessary, the types of cases it is aimed at and how it will operate in practice.

Under the law as it stands, it is already an offence under Section 12(1)(a) of the Terrorism Act 2000 to invite another person to support a proscribed terrorist organisation such as Daesh or the racist neo-Nazi group National Action. What is an “invitation” in this context? The Court of Appeal addressed this question in the 2016 case concerning the extremist preacher Anjem Choudary, who was eventually convicted for the Section 12(1)(a) offence. The court made the following point:

“The use of that word means the offence in section 12(1)(a) is one where ‘the words descriptive of the prohibited act ... themselves connote the presence of a particular mental element’, as per Lord Diplock in the 1970 case of Sweet v Parsley. As the judge said, it is difficult to see how an invitation could be inadvertent”.


The invitation may be explicit or more indirect, implicit or opaque, but either way, for a conviction to be secured, the prosecution must be able to prove an intention to influence others to support the terrorist organisation. I recognise that at first blush this might appear to be the right threshold for the offence. However, having conducted a careful review of our terrorism legislation, the requirement always to prove intent to influence others has been highlighted by the police, MI5 and the CPS as a gap in their ability to act against certain individuals: those who, despite it not being possible to prove that they intend to do so, as the noble Lord, Lord Harris, said, none the less clearly and unambiguously risk harm to the public by virtue of their expressions of opinions and beliefs which have the effect of encouraging others to support proscribed groups, with the associated harm that flows from such support.

[Baroness Jones of Moulsecoomb]

Perhaps I should have asked this question earlier of some of the noble and learned Lords here or perhaps of the former police officers, but is there another criminal offence where a person who expresses an opinion has to police themselves to make sure that there is no risk of any outcome from what they write? That seems to me utterly illogical. Are there any other criminal offences of that kind?

--- Later in debate ---

[Baroness Williams of Trafford]

I look to the cavalry behind me to answer that as I am not an expert in criminal law, but noble and learned Lords might wish to say whether such offences exist.

[Lord Judge]

I do not see myself as a horse and therefore I am not the cavalry, but some hate crimes are rather seriously deficient in relation to these issues.

[Baroness Williams of Trafford]

Yes, the noble and learned Lord is quite right. Many of them would be caught, particularly in an online context, expressing an opinion quite poisonous in nature and intended to cause harm.

As a result of the gap, it has not been possible for the police to act against prolific and high-profile preachers of hate—as the noble and learned Lord has just pointed out—who have made highly inflammatory public speeches that are very clear about the speaker’s support for a terrorist organisation and that are, on any reasonable assessment, likely to cause the audience to be influenced to support the organisation. Prosecution has not been possible in these cases because the statements made cannot be proven to amount to an “invitation”—a deliberate act of encouragement—to support the group. The gap that the law needs to address concerns individuals who are reckless as to whether they will cause harm to arise.

Under Amendments 3 and 4, however, in the names of the noble Baronesses, Lady Hamwee and Lady Jones, this gap would not be addressed. They would remove the recklessness test and replace it with one that effectively repeats the existing position, so it would still be necessary to prove the same deliberate act of encouragement. To be clear, Amendments 3 and 4, both of which would have the same effect, would effectively nullify the utility of this clause and, as such, if they are made we might as well strike the whole clause from the Bill—and I know that some noble Lords want to do that.

Reckless activity such as I have described can have a powerful and harmful effect in initiating or moving along the process of radicalisation. We have seen time and again that engagement with radicalisers, hate preachers and organisations such as that headed by Anjem Choudary has been a prominent feature in the backgrounds of those convicted of planning or carrying out terrorist attacks.

In giving evidence to the Bill Committee in the House of Commons, Assistant Commissioner Neil Basu provided two powerful examples—Mohammed Shamsudin and Omar Brooks—to illustrate the type of case where this gap arises. I urge noble Lords to consider carefully that evidence. Both examples are senior figures within al-Muhajiroun, both have an extensive history of involvement in radicalisation and the spreading of extremist propaganda, and one has previous terrorism convictions. Both individuals gave public speeches that were clear about the speakers’ own support for Daesh, its ideology and its actions—including, for example, throwing gay people off buildings—and both voiced their approval of past terrorist attacks, including the murder of Lee Rigby and the 2015 Sousse attack in which 30 Britons and eight others were killed.

I do not need to explain to noble Lords how such speeches can cause great harm, spreading hatred and poison and radicalising vulnerable individuals, potentially to the point of carrying out attacks. But Assistant Commissioner Basu reported that, despite this, it was not possible to prosecute either individual in relation to the public speeches he had described. This is because, on the specific facts, neither could be proved to have invited their listeners to support the proscribed organisation they were speaking so vehemently in support of. This surely is not the right answer.

It cannot be right that we do not give the police and the courts the power to take action in the face of such poisonous rhetoric and such unmasked and virulent support for terrorism, in circumstances where there is, on any objective assessment, a real risk that individuals to whom it is directed will be influenced by it. Clause 1 does just that and would close this gap. Specifically, it amends Section 12 of the Terrorism Act 2000 so that it will be an offence for an individual to express support for a proscribed terrorist organisation when that individual is reckless as to whether another person will be encouraged to support the organisation. The crux of the amended offence will be the introduction of the recklessness test, which Amendments 3 and 4 would remove.

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[Baroness Hamwee]

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

[Baroness Williams of Trafford]

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

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

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

[Lord Harris of Haringey]

The noble Baroness says it is difficult to define. Presumably, the court would then have to interpret it and would say that this is clearly a pattern which is designed to have this effect.

[Baroness Williams of Trafford]

The court might also say that it is evidence, along with other types of evidence, which leads it to a certain conclusion. Just as the three clicks approach was seen as arbitrary in debate in the House of Commons, this is probably similar in the sense that downloading, together with other types of evidence, would lead a court to come to its conclusions, as it would here.

I want to talk about the concept of recklessness. It involves a person being aware of the risk that what they plan to say will have the effect of encouraging support but none the less going on to say it. In such circumstances, a reasonable person would not have gone on to make that statement.

On Amendment 2, the noble Baroness, Lady Jones, explained her concerns both at Second Reading and today that statements supporting an independent Kurdistan may fall foul of the new offence on the basis that it is a political objective held also by the proscribed group the PKK. I hope I can provide some assurance. On the noble Baroness’s example, I suggest that our hypothetical person could have a very high level of confidence that they would not fall foul of the Clause 1 offence. Support for an independent Kurdistan is a view held widely across a far broader range of people than just PKK members. To put it another way, while all members and supporters of the PKK are likely to support an independent Kurdistan, it is certainly not the case that all supporters of an independent Kurdistan are members or supporters of the PKK. It certainly could not be inferred from a statement in the terms described by the noble Baroness that the speaker supports the PKK or another such organisation; rather, they support an independent Kurdistan.

Noble Lords can take further assurance from the fact that in addition to not referencing any particular organisation, our hypothetical speaker has not said anything of the methods by which they would wish to see an independent Kurdistan brought about. Were they to suggest that this should be through means of terrorist violence, a reasonable person might anticipate that such a statement might influence the listener to support a terrorist organisation, such as the PKK, which supports the same political cause. Such a statement may well be reckless and may fall foul of the new Clause 1 offence. I hope we can agree that such a statement of support for terrorist violence would be unacceptable in any event. But in this example, there is no such suggestion of support for terrorist methods to achieve a legitimate political aim.

The same would apply to a statement in support of the withdrawal of Israeli troops from Palestine that does not voice support for violent methods or any proscribed terrorist organisation. There would be no basis on which a reasonable person might equate such a statement with support for Hamas or Hezbollah or anticipate that a listener would be influenced to support those organisations. As such, the statement would not meet the recklessness test and would not be caught by Clause 1. I make it clear that none of this analysis would be any different if “is supportive of” were replaced with “supports”.

Amendment 5, in the name of the noble Baroness, Lady Hamwee, would provide an exemption from the offence for those who make statements to the effect that a particular terrorist organisation should cease to be proscribed. We will have a wider debate on deproscription when we reach Amendment 59 in the name of the noble Lord, Lord Anderson. In that context, the noble Lord, Lord Carlile, is correct in saying that the Home Secretary regularly reviews proscribed organisations.

Perhaps I may make a few observations in the context of Amendment 5. I am happy to agree that those who make neutral statements along these lines should not be caught by the criminal law. However, I am clear that this will be the position under Clause 1 as currently drafted. The amendment, while well intended, is not needed to secure this result and would risk introducing unintended consequences. It has been a long-standing feature of the proscription system that individuals and organisations will question the proscription of certain organisations. It may be suggested, for example, that a group is not really terrorist in nature but is engaged in legitimate activism in the form of resistance or freedom fighting, or that its proscription inhibits a peace process or some other form of positive engagement and should therefore be lifted as a matter of discretion. The law already provides a clear route for people who hold such views to apply to the Home Secretary for the deproscription of any organisation. Three groups have been deproscribed following such applications.

The law also provides at Section 10 of the Terrorism Act 2000 clear and unambiguous immunity from prosecution under proscription offences for anything done in relation to such an application, including any statements made in support of the organisation.

[Lord Carlile of Berriew]

I apologise for interrupting the Minister. Can she reassure the Committee that the Home Secretary’s regular reviews are, first, regular in the sense that they take place at fixed periods and, secondly, that the reviews include looking at organisations—there may be some in Northern Ireland—which now have no members at all and have not engaged in any activity, so no one is going to apply for de-proscription and they are simply redundant? I certainly suspect that there may be some organisations of that kind.

[Baroness Williams of Trafford]

The point the noble Lord makes moves us very much into the territory of Amendment 59. However, I can confirm absolutely that the Home Secretary regularly reviews proscribed organisations. As noble Lords will probably remember, I have advised deproscription on a number of occasions. We will come to that point in due course.

Perhaps the noble Lord would remind me of his second query.

[Lord Carlile of Berriew]

It was simply about the deproscription of organisations that basically do not exist any more.

[Baroness Williams of Trafford]

I have probably answered that, but I know that we will have a full debate on Amendment 59.

Section 10 intentionally does not extend a blanket immunity to situations where a person makes a statement that may generate support for a proscribed terrorist organisation and which is not connected to an application for de-proscription, but is made in the course of a debate about whether in principle the organisation ought to remain proscribed. Such statements may well be entirely legitimate and may address matters of fact and of law in neutral terms, in which case they would not be caught by Clause 1, but they may also be reckless as to whether they will encourage others to support the organisation. They may not only suggest that the proscription should be lifted but argue that this should be done because the terrorist aims and activities of the organisation are a good thing, potentially giving rise to the serious harms I have described. One noble Lord has given examples of both of those scenarios. To provide a blanket exemption for any and all such statements would undermine the fundamental purpose of the offence and would risk preventing its use in exactly the situations for which it is intended.

Finally, I turn to Amendment 6 in the name of my noble friend Lord Attlee. This would introduce a blanket exemption from the offence for any expression or belief that would otherwise be unlawful which is published or broadcast for the purposes of journalism. It is of course beyond doubt that the freedom of journalistic expression, within the law, should be sacrosanct. Given the importance of this public interest, I expect the police, the CPS and the courts to tread very carefully indeed in any case where a journalist is suspected of an offence under Clause 1, in line with the normal safeguards and tests for prosecution. However, just as the noble and learned Lord, Lord Judge, argued so succinctly, I cannot agree that there should be an absolute exception for any person engaging in journalism.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, the amendments in this group seek to provide clarity on the issues in question before the Committee on this clause. They seek to put into the Bill the recommendations of the Joint Committee on Human Rights, which has looked at the Bill in detail. The committee has set out the position clearly. This clause is intended to criminalise the online publication of an image depicting clothing or other articles which arouse reasonable suspicion that a person is a member or supporter of a proscribed organisation. The committee has taken the view that the arousal of reasonable suspicion of support for a proscribed organisation is a low threshold under which to make an offence. I agree very much with the committee in that respect, as I do with the noble Baroness, Lady Hamwee—it may be too low a threshold.

The noble Baroness and the noble Lord, Lord Paddick, have put forward Amendments 7 and 8 in this group, as the Joint Committee suggested. Amendment 9, as proposed by myself and my noble friend Lord Rosser, is similar in effect to Amendment 8 but, as we heard from the noble Lord, Lord Paddick, we also make reference to journalism and academic research. All the amendments in this group are reasonable and proportionate. The new offence of publication of an image would be retained but through them we have created a proper defence of reasonable excuse in the Bill, which is important. The noble Lord, Lord Marks of Henley-on-Thames, has opposed Clause 2 standing part of the Bill. That gives the Minister the opportunity to justify this afternoon what is proposed in the clause.

The noble Lord, Lord Carlile, made an extremely important point in respect of images in Northern Ireland. Like the noble Lord, I have travelled extensively in the Province, where you can now visit areas with murals all over the place. Some of them can still look quite aggressive but they are also very much part of the tourist trail in certain parts of Belfast. We need to look at this issue and be careful about whether what we do here has unintended consequences. If the Minister does not accept the amendments before the Committee, can she set out how we can be satisfied that there is adequate protection in place within the clause as drafted?

[Baroness Williams of Trafford]

My Lords, under Clause 2 it will be an offence to publish an image of an item of clothing or other article associated with a proscribed organisation,

“in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of”,

the organisation, as noble Lords have pointed out. This provision updates for the digital age the existing offence at Section 13 of the Terrorism Act 2000, which criminalises the display in a public place of such an item in such circumstances. That existing offence applies only partially in cases where a person publishes an image online. While it would be likely to catch a person who publishes an image of, for example, a Daesh flag displayed on the streets, it could be argued not to apply to publication of an image of the same flag displayed within a private home, even if both images are made available to the general public by publishing them online in the exact same way.

The purpose of Clause 2 is to put beyond doubt the application of Section 13 to any case where a person publishes an image of something which it would be unlawful to display in person. It does this by inserting a new offence into Section 13 as its new subsection (1A). This is important to ensure that the law applies properly to contemporary online activity. In the 18 years since the Section 13 offence was enacted, we have of course seen an exponential growth in the importance of the internet in day-to-day life, and sadly its role in radicalisation and the spreading of terrorist propaganda is no different. This includes publishing images of flags and logos associated with proscribed terrorist organisations. We therefore need to update our legislation to reflect these developments and to ensure that all public spaces, including those online, are properly covered by laws which prohibit the publication of such material. Amendment 7 would simply remove this provision in its entirety, rather than seeking to amend or improve it, leaving the gap I have just described and leaving our terrorism legislation out of date and incomplete.

Amendments 8 and 9 would add a reasonable excuse defence to the new Subsection (1A) offence I have outlined. Both specify certain examples of reasonable excuse. Amendment 6 includes instances where publication of the image was not intended to be in support of a proscribed organisation, whereas Amendment 7 makes this category an absolute exemption.

Noble Lords have indicated that their intention is to ensure that the offence does not catch those with a legitimate reason to publish images of items associated with proscribed terrorist organisations, in particular in the context of historical or academic research or family photographs, or who otherwise publish such images without nefarious intent. I am very happy to support both the sentiment and the intention behind these amendments. The Government have no desire to criminalise people for simply going about their legitimate professional activities or their normal family life, but these amendments are not needed to secure that outcome. In fact, the same outcome is already secured by Clause 2.

To explain why that is so, it is important to note that the mere publication of an image associated with a proscribed organisation is not enough on its own to constitute an offence under the existing Section 13 offence or the new offence that will be added to it by Clause 2. The offence will be made out only if the image is published in such circumstances as to arouse reasonable suspicion that the individual is a member or supporter of the proscribed organisation. This provides a clear and effective safeguard. For example, in a case where a journalist features an image of a Daesh flag in a news report on the activities of the group or an academic publishes such an image in a book or research paper, it would be clear from the circumstances that they are not a member or supporter of Daesh. Similarly, where a person publishes, say, an old family photo of an ancestor standing next to an IRA flag, the offence would not bite unless all the circumstances of the publication suggest that that person is a member or supporter of the IRA.

On the point made by the noble Lord, Lord Carlile, about the sensitivity of symbolism, pictures et cetera and Northern Ireland, if he will indulge me, I will move on to the specific Northern Ireland point on the next amendment.

This approach provides no less certainty to such individuals that they will not be caught by the new offence than would the proposed reasonable excuse defence, and it offers the advantage that the same formulation—

[Lord Paddick]

Will the Minister address the example I gave at Second Reading and again today of somebody who does not realise when taking a selfie that there is an ISIS flag behind them on their friend’s wall? In what way would it be clear that those circumstances are not intended to lead to a reasonable suspicion that the people in the photograph are supporters of ISIS?

[Baroness Williams of Trafford]

I was going to explain it in my own words, but I think the notes agree with me. On the innocent selfie with the ISIS flag in the background, the offence is clear: it is committed only where all the circumstances in which an image is published give rise to reasonable suspicion that the person is a member or a supporter of a terrorist organisation. The picture in and of itself is not the offence. I hope I have explained that clearly to the noble Lord.

[Lord Marks of Henley-on-Thames]

I invite the Minister to consider that with her department, particularly in view of her concession that she does not wish to criminalise anyone who would be excused by the two amendments we have been discussing. The difficulty is that the drafting of the clause at the moment introduces an objective test of reasonable suspicion in the viewer of the image without any regard to the purpose in the mind of the person publishing the image. The offence is one of publication. The suspicion does not have to be in the mind of the publisher; the suspicion is in the mind of the observer. That is the difficulty that the Minister’s position does not grapple with.

[Lord Kennedy of Southwark]

Before the Minister responds, perhaps I could clarify that point. She is saying that in the example of the photograph with a Daesh flag in the background but where the person does not realise what the flag is, the publication of that picture would not in itself be an offence because you would take into account things such as the message that accompanied the Facebook post—for example, a message saying, “I’m here with my friend and having a drink”—so all those things would be considered together. I think that is what the Minister is saying.

[Baroness Williams of Trafford]

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

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

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

[Baroness Hamwee]

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

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

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

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

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

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

--- Later in debate ---

[Lord Paddick]

My Lords, briefly, I support the amendment. Judging from the Minister’s non-verbal reaction to it, the consultation proposed seems extremely sensible given the history in Northern Ireland. On whether or not the police will use these powers in a public order situation, the police are very experienced—I declare an interest as a former advanced public order trained police officer who dealt with such situations—and, clearly, a decision has to be made on the basis of the circumstances at the time whether items can be safely seized without escalating the situation. The police service is very well equipped in deploying professional photographers and others gathering video evidence which can be used instead of, or in addition to, seizing those items. So although I agree with the sentiment behind the amendment concerning Northern Ireland, I do not share the concerns of the noble Lord, Lord Rosser, about the seizure of items potentially escalating a situation.

[Baroness Williams of Trafford]

My Lords, as the noble Lord, Lord Rosser, has explained, the amendments relate to the new power to seize flags and other articles provided for in Clause 2(4). Under Section 13(1) of the 2000 Act, it is an offence to wear or display in a public place an item of clothing or other article in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. The seizure power in Clause 2 is intended to ensure that the police and the CPS have the best evidence to pursue a prosecution for a Section 13(1) offence.

Of course, the police already have powers to seize evidence following an arrest, but in some circumstances, particularly in the context of policing a march or demonstration, arresting an individual may not always be an option if the legal tests in the Police and Criminal Evidence Act 1984 for making an arrest are not satisfied; or arrest may not be the appropriate policing response at that time if, as the noble Lord, Lord Paddick, pointed out, it is judged that it would provoke further disorder. In such a case, if the police wish to take action against a person displaying an item such as a flag or banner, instead of arresting the individual, the officer may choose to report them for summons on suspicion of committing an offence under Section 13(1) of the 2000 Act.

The new power introduced by Clause 2(4) would enable the officer, in these circumstances, to seize an item such as a flag which they reasonably believe to be evidence of the Section 13(1) offence in the absence of an arrest. The officer must be satisfied that seizure is necessary to prevent the evidence being concealed, lost, altered or destroyed. By preventing the loss or destruction of such items, this power will better support investigations and will provide and better preserve more evidence to help take forward prosecutions.

--- Later in debate ---

[Baroness Hamwee]

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

[Baroness Williams of Trafford]

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

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

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

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

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

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

[Lord Paddick]

They are.

[Baroness Williams of Trafford]

Ignoring what I just said—I am not sure how that happened—I hope that, with the explanation I have given, the noble Lord will feel happy to withdraw the amendment.

[Lord Rosser]

I thank the Minister for her response and thank other noble Lords who participated in this brief debate. Can she confirm that the reason for changing seizure provisions so that seizure can be dealt with by having a person reporting for summons is not meant to be taken as meaning that, where clothing or flags are seized under these provisions, in reality the matter would not be pursued through the courts?

I probably have not made myself clear. There will now be a procedure where clothing, or a flag in particular, could be seized in circumstances where the person could be reported for summons. I asked whether in reality that procedure meant that, once the flag had been seized, the chances were that the matter would not be pursued any further through the courts or whether it was still likely that matters would be pursued through the courts.

[Baroness Williams of Trafford]

Generally, the seizure would be with a view to prosecution, yes.

[Lord Rosser]

I am grateful to the Minister for that clarification, and in thanking her once again for her response, I beg leave to withdraw my amendment.

Counter-Terrorism and Border Security Bill

Baroness Williams of Trafford Excerpts

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

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have spoken in the debate and my noble friend Lord Faulks for moving the amendment. In your Lordships’ House, every day is an education. My noble friend Lord Howe informs me that William Joyce was an Irishman falsely using a British passport, so perhaps the Irish among us should feel—

[Lord Elystan-Morgan]

He was an American.

[Lord Thomas of Gresford]

He was an American who took a German passport in 1940 but was nevertheless convicted when he was a German citizen.

[Baroness Williams of Trafford]

That is a very interesting history. I know that many Americans claim to be Irish but it is not every day that we get a chance to discuss a law that goes back to 1351. It has been an interesting debate.

[Lord Judge]

Perhaps I may ask a serious question. If we are debating an Act that was enacted in 1351, which has absolutely no application to today, through which, among other provisions, the Chancellor doing his job in his place of work is protected but not if he is slain at a party conference, would it not be a good idea for us to get rid of it altogether?

[Baroness Williams of Trafford]

If the noble and learned Lord will indulge me, I will come on to the point about hostile state activity and the place for this law in due course.

I share my noble friend’s belief that those who do harm to the United Kingdom and the people who live here should face justice. I am not entirely convinced that introducing a new offence of treason, as proposed by Amendment 34, is necessary. However, as my noble friend and the noble Lord, Lord Kennedy, have said, this country has a comprehensive range of terrorism offences and other powers that this Bill will update for the digital age—it is ironic that we are talking about the digital age and 1351 in the same debate—to reflect modern patterns of radicalisation and terrorist offending.

The updated legislation will provide the police and intelligence services with the powers they need to protect the public from terrorism, and we do not consider it necessary also to create a new treason offence for this purpose. For example, the activities covered by subsection 2(a) and (b) of the new clause are likely already to be offences under the Terrorism Acts of 2000 and 2006, in particular the offence of preparation for terrorism in Section 5 of the 2006 Act. This proposed new clause would therefore add little to the existing offences on the statute book. However, it is worth noting that the sentencing guidelines applicable to the Section 5 offence provide that where the conduct was with a view to engaging in combat with UK forces, this is to be treated as an aggravating factor when sentencing.

We are aware of the need to update legislation to keep it relevant for the contemporary and future challenges we face. I do not have to remind noble Lords of the phenomenon we have seen in recent years of people travelling overseas, most notably to Iraq and Syria, to engage in terrorist-related activity. That is why the Bill introduces a new offence of entering or remaining in a designated area: to prevent UK nationals and residents from travelling abroad to take part in or help sustain future foreign conflicts, and to protect the public from the risk of terrorism.

Furthermore, prosecuting terrorists for treason would risk giving their actions a credibility—my noble friend Lord Faulks referred to seeing them as martyrs—glamour and political status that they do not deserve. It would indicate that we recognised terrorists as being in some formal sense at war with the state, rather than merely regarding them as dangerous criminals.

As outlined by the Prime Minister on 14 March in her announcement in response to the Salisbury incident, the Home Office is currently leading a review of all legislation applicable to hostile state activity. It is considering the full scope of hostile state activity and, where relevant, treason offences may be considered as part of this work, which is currently ongoing. My noble friend will recognise the need to get the form of any new offences right. The policy exchange paper published in July was a useful contribution to the debate, but we should not rush it.

I hope that, having had the opportunity to debate this important and interesting issue, my noble friend will be content to withdraw his amendment, in the knowledge that there is ongoing work in the Home Office to examine whether there are further gaps in our law, and in order to help us counter hostile state activity.

[Earl Attlee]

My Lords, I am sure that the Committee is grateful to my noble friend the Minister for her comprehensive answer. She mentioned engaging Her Majesty’s Armed Forces. Does she not think that engaging them ought to attract a life sentence automatically?

[Baroness Williams of Trafford]

As I said, it most certainly can be viewed as an aggravating factor when sentencing is taking place.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, Clause 12, as we have heard, is concerned with the notification requirements in the Counter-Terrorism Act 2008; it inserts additional matters into the Act that have to be reported in respect of motor vehicles. Amendment 36 moved by the noble Lord, Lord Paddick, sets out and includes the issue of borrowing or renting a vehicle. He rightly set out the whole issue about people renting or borrowing vehicles for use in the terrorist attacks that happened in Manchester, London and elsewhere. This is very sensible and proportionate amendment which identifies a potential loophole. I hope the Government will support it.

On Amendment 38, which amends Schedule 1 to the Bill, the noble Lord raised a very important point about the notification requirements for financial information— someone may have access to or may operate a bank account; they do not have to be the account holder. He made an important point about being the authorised signatory or being able to use a credit card. I am worried that, as it stands at present, the Bill could allow people to get around the notification requirements it proposes.

The noble Lord has raised important points on both amendments and I hope the Government can respond positively.

[Baroness Williams of Trafford]

I thank both noble Lords for their contributions to the debate, and thank the noble Lord, Lord Paddick, for what I believe are helpful amendments. I appreciate that they are intended to ensure more comprehensive coverage of the information to be notified.

Amendment 36 relates to the notification of the details of any motor vehicle which a registered terrorist offender is the registered keeper of, or acquires the right to use. Sadly, we have seen the use of motor vehicles as weapons in a number of recent terror attacks. Here in Parliament we have seen first-hand the devastating impact that such an attack can have, in the Westminster Bridge attack which took place last year. The benefits are obvious, ensuring that convicted terrorists are required to inform the police of any vehicle of which they have use.

I therefore fully recognise and support the intention of Amendment 36. It is essential that the provision should extend properly to vehicles which are borrowed or hired, which is the point the noble Lord, Lord Paddick, made. Hired vehicles were used in both the Westminster Bridge and Finsbury Park attacks last year. The terrorists responsible for the London Bridge attack attempted to hire a much larger vehicle than the van that was eventually used in the attack. This was just in the UK. We have also seen the use of vehicles as weapons in the Nice truck attack in July 2016, the Las Ramblas attack in August 2017 and the Berlin Christmas market attack.

I assure the noble Lord that this issue was carefully considered in the drafting of Clause 12, and that the existing reference to vehicles which the terrorist offender acquires the right to use will fully cover vehicles that are borrowed or rented. The Explanatory Notes to the Bill make this point. I therefore suggest that Amendment 36 is not needed, and I hope the noble Lord will feel content to withdraw it.

Amendment 38 similarly relates to a possible gap in the information to be notified to the police, in this instance relating to financial accounts. As currently drafted, this clause specifies that an offender must provide details of any account that they hold with a financial institution, or that is held by a company through which they run a business. Amendment 38 would expand this to refer also to any financial account which the registered terrorist offender is entitled to operate. The noble Lord has explained that this is intended to cover a scenario where a terrorist seeks to use an account which is not held in their name but over which they have effective control, for example because it is held in the name of their child or a relative for whom they have a power of attorney.

I thank the noble Lord for this amendment, which may have considerable merit in ensuring that the notification requirements cover all accounts which a terrorist offender might be able to use for terrorism purposes. The amendment requires more detailed consideration but, for now, I hope the noble Lord will not press it pending that consideration, and on the assurance that I will let him know the outcome of that consideration ahead of Report.

[Lord Paddick]

I am very grateful to the noble Lord, Lord Kennedy of Southwark, for his support, and for the comments of the Minister. I welcome the fact that the Government will look carefully at Amendment 38. On Amendment 36, I ask that the Government also look at whether, when somebody hires a car, the contract says effectively that the person does not have the right to use that vehicle for an illegal purpose; that could be a gap in the legislation as drafted. I hope that the Minister will appreciate that we are trying to be helpful and supportive in suggesting these amendments.

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[Lord Rosser]

My Lords, I shall be very brief. My name and that of my noble friend Lord Kennedy are also attached to this amendment. As has been said, it reflects a recommendation from the Joint Committee on Human Rights. I simply comment that circumstances can change and therefore ask whether it is unreasonable that an individual covered by the enhanced notification requirements should be able to seek a review of the necessity and proportionality of those requirements, as recommended by the JCHR.

[Baroness Williams of Trafford]

My Lords, as noble Lords have said, Clause 12 strengthens the notification requirements under the Counter-Terrorism Act 2008 which apply to individuals convicted of terrorism offences, or offences with a terrorism connection, to enable the police to better manage the risk posed by such individuals. It does so by increasing the amount of information that registered terrorist offenders must notify to the police, in many respects bringing the requirements into line with those already in place for registered sex offenders.

The length of time that a terrorist offender is subject to the notification requirements varies depending on the length of sentence they receive, up to a maximum of 30 years for a person sentenced to 10 years’ or more imprisonment. The notification requirements are not onerous and do not place restrictions on an offender’s activities, but they do provide a proportionate means for the police to monitor the ongoing risk posed by a person who has been convicted of a terrorism offence and, where appropriate, to take action to mitigate any increased risk that they might pose.

The noble Baroness, Lady Hamwee, has explained that her amendment is motivated by a concern that it is not appropriate for a convicted terrorist to be subject to the requirements for this length of time without the ongoing necessity and proportionality of this being reviewed. I understand the sentiment behind her amendment but I disagree. As I have said, the notification requirements are not disproportionately onerous, and they flow as a direct consequence of a conviction for a terrorism offence—a category of offence which is of a particular level of seriousness. The notification measures provide a real benefit to the police in providing a quite light-touch but effective means of monitoring the ongoing risk posed by such a person over an extended period of time.

There is benefit in this, as individuals who are of a sufficiently terrorist mindset that they have been convicted of a terrorism offence, particularly one serious enough to merit a lengthy sentence of 10 or more years, can retain that mindset and can disengage and then re-engage over such an extended period of time. As such, the notification requirements in their current duration are, I suggest, clearly both necessary and proportionate.

The noble Baroness has suggested that, to ensure proportionality, we should follow the approach taken for registered sex offenders, which, following the Supreme Court’s judgment in the case of R (F) v Secretary of State for the Home Department, includes a review scheme along the lines that she has proposed. However, it is crucial to note that the Supreme Court ruled only that a review scheme was necessary in order to comply with Article 8 of the ECHR for registered sex offenders who are subject to the requirements indefinitely.

Of course, the terrorism notification requirements can apply only for a finite period. The Supreme Court did not find that the sex offender notification scheme, as it applied to individuals subject to the requirements for a finite period, was incompatible with Article 8. As a result, for registered sex offenders subject to the notification requirements for a fixed period, there is no review scheme. Furthermore, and in any event, we should also note that the Court of Appeal found in the case of Irfan that terrorism offending is in a different category to sex offending in terms of ongoing risk. Notwithstanding the particularly serious nature of sex offending, terrorism offences have, in the words of the Court of Appeal,

“unique features which compound concern. A single act can cause untold damage, including loss of life, to a large number of people, by someone motivated by extreme political or religious fanaticism”.

A failed or foiled plot can also still serve to inspire many. If anything calls for a precautionary approach, it is terrorism. I hope that, in the light of this explanation, the noble Baroness feels that she can withdraw her amendment.

[Lord Marlesford (Con)]

My Lords, just before the noble Baroness responds, does my noble friend feel that perhaps both points could be met if the period were made indefinite but with an appeal allowed after a certain time, so that this is brought into line with sex offences? I take my noble friend’s point that these offences are extremely serious and that there may be cases where indefinite alerting is absolutely necessary.

[Baroness Williams of Trafford]

I think that my noble friend in fact agrees with my point, if I am not mistaken.

[Lord Paddick]

Can the Minister just confirm that, even for those terrorism offences that might be considered more minor—not that any terrorism offence is minor— there is no chance at all of rehabilitation for those individuals: that they will for ever, or for a very considerable time, pose a risk and that a complete change of behaviour is not possible?

[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.

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[Lord Rosser]

My name and that of my noble friend Lord Kennedy of Southwark are attached to these three amendments. All that needs to be said has already been said and I just wish to indicate my support for the views that have been expressed. I hope that the Government will either accept these amendments or, alternatively, accept the spirit of what has been said, go away and come back with their own proposals on Report.

[Baroness Williams of Trafford]

I thank all noble Lords who have spoken. On the comments of the noble Lord, Lord Carlile, about reflecting on what the Committee said, I should make the point that the Government do reflect on what is said—that is the importance of the legislative process—and that, as the noble Lord, Lord Judd, said, we always have to balance these matters.

I shall deal with the amendments and explain why, for the moment, the Government do not support them.

Clause 13 confers on the police the power to enter and search the home address of a registered terrorist offender under the authority of a warrant issued by a justice for the purpose of assessing the risk that the offender poses. We have already debated the underlying purpose of the terrorism notification requirements and their importance in helping the police to manage the risk posed by those convicted of serious terrorism offences, so I will not go over that ground again.

However, as the noble Baroness, Lady Hamwee, said, these amendments would have a number of effects. Amendment 39 would narrow the purpose for which the power of entry and search may be operated and confine it to assessing whether the offender is in breach of the notification requirements rather than, as is currently drafted, to assess the risk that they pose.

Amendment 40 would introduce a requirement for the grant of a warrant so that the justice must be satisfied that there are reasonable grounds to believe that the registered offender is in breach of his or her notification requirements. Amendment 41 would provide, in addition to the current requirement, that the justice must be satisfied that it is “necessary” for the officer to enter and search the premises for the purpose of assessing the risk posed by the offender. The justice must also be satisfied that entry and search is “proportionate” to that purpose.

It may assist your Lordships if I begin by setting out the purpose of this power and why it is needed in its current form. The purpose of the power is to assess the risk posed by the offender. The police consider that home visits are an important tool in managing and risk-assessing registered terrorist offenders during their time, subject to the notification regime. This power allows them to ascertain whether the offender does in fact reside at the address they have notified to the police and to check their compliance with other aspects of the notification regime. This is, of course, the purpose that the noble Baroness, Lady Hamwee, envisages in Amendment 39.

However, home visits are also helpful as they allow a broader assessment of risk to be made beyond monitoring compliance with the notification obligations. They allow the police to identify any other factors that might contribute to the overall risk an offender poses to themselves or their community and their risk of reoffending. This might include their general living conditions, as well as any signs of mental health decline or drug or alcohol misuse. They can also allow the police to identify any potential risk that the offender may cease to comply with the notification requirements and, in particular, that they may abscond from their registered address.

It is not an inappropriate purpose for the police to wish to keep in touch with a registered terrorist offender. That actually strikes me as quite responsible, given that the police are charged with protecting us all from such serious offenders. Amendment 39 would mean that the new power could not be used for that purpose, so the police may become aware of an increase in risk and potentially harmful activity only at a later stage when the opportunity to take mitigated action may have been missed.

Counter-Terrorism and Border Security Bill

Baroness Williams of Trafford Excerpts

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

[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.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank noble Lords who have raised a number of important issues relating to the ports and border powers under Schedule 3 to the Bill and Schedule 7 to the Terrorism Act 2000. While it is incumbent on the Government of the day to keep the people of this country safe and respond to a range of evolving threats—as the noble Lord, Lord Blair, says, that is what it is all about—it is also critical that we are mindful of the wider impact that these measures can have if exercised arbitrarily or without due care.

As noble Lords will be aware, the powers under Schedule 3 have been introduced to address a gap in our capability to tackle the threat posed by hostile state actors. As with the equivalent powers under Schedule 7 for counterterrorism purposes, they will provide the police with the tools that they need to counter the threat from hostile states. I have listened carefully to the points made at Second Reading and today about the powers and the concerns about how they might be used. The Government share the view that the arbitrary use of any police power is objectionable, as the noble Lord, Lord Rosser, says, which is why they will be subject to a number of checks and balances.

Amendment 64 would ensure that an examining officer may exercise examination and detention powers under Schedule 3 only where he or she has reasonable grounds to suspect that a person is or has been engaged in hostile activity. Amendments 42 and 46 would make similar changes to Schedule 7. Noble Lords may recall that in relation to the powers under Schedule 7 the Government have consistently rejected the introduction of such a threshold. We share the view of our operational partners that to amend the legislation in this way would fundamentally undermine the utility of capabilities that the police rely on to keep the public safe.

There are three key reasons for that and they apply to Schedule 3 in equal measure. First, we would risk disclosing to hostile actors the extent of our intelligence coverage and capabilities, as the noble Lord, Lord Anderson, pointed out. These powers are and will be used to examine individuals who have been identified by operational partners as working with or for terrorists or hostile actors, which could also include foreign intelligence operatives or agents of a foreign intelligence service. Any person examined under a power subject to a suspicion threshold could infer that they were of active interest to the police and intelligence agencies and the tradecraft behind that intelligence coverage. Port officers may also be required to explain to these individuals the reasons for stopping them. In such an event, it is likely that terrorists or hostile actors would use this information to reverse-engineer our methods, bypass future security checks and increase their reliance on clean skins, as the noble Lord, Lord Anderson, pointed out.

Secondly, requiring grounds for suspicion would in effect remove a key tool to identify and disrupt previously unknown terrorists or hostile actors. In giving evidence to the Commons Public Bill Committee, Assistant Commissioner Neil Basu explained that the police are often in possession of intelligence that is “fragmented” or “incomplete” and is not always focused on a specific individual. Such intelligence may instead point to trends or patterns of travel, or an active threat linked to a particular destination and timeframe. The introduction of a suspicion threshold would limit the availability of these powers to known individuals, or those who have demonstrated suspicious behaviour at a port. It would prevent port officers from selecting individuals for examination who are potentially exploiting travel routes that have been uncovered by intelligence or are heading to a specific destination within an identified threat window.

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[Baroness Williams of Trafford]

Because they are implicit in the Bill and, I guess, Schedule 7.

[Lord Paddick]

My Lords, I am grateful to all noble Lords who have contributed to this short debate. Perhaps reasonable suspicion of a particular individual is going too far, but I suggest to the Minister that the nationality of those suspected of coming to the UK to do harm to the UK, their arrival time and where they have come from might be the sort of intelligence that Assistant Commissioner Basu was talking about as fragmented and incomplete, not information about a particular individual. Whether that amounts to reasonable suspicion is arguable.

To give a personal example, every time I tried to go to the United States, I was taken to one side and all my personal property was gone through. This addresses the point about alerting people to the fact that they may be under suspicion. If it happens once, you think it might be random; when it happens every time, you begin to think that there might be some suspicion. There is a redress system where you write to the Department of Homeland Security. It writes back to you some months later saying, “We can’t say whether you were under suspicion or not, whether you are on the list or not, or whether you have been taken off the list or not”. This is not giving away the methodology, or giving some intelligence to terrorists, but insisting that there is something more than simply an arbitrary approach to the situation.

I am getting increasing reports from individuals suggesting that examination might be being used arbitrarily or without due care, which is the other expression used by the noble Baroness. The noble Lord, Lord Rosser, makes a very powerful point. If the guidance says that stop and searches should not be arbitrary, why not have that in the Bill? I understand what the noble Baroness says, but how many people have the time, inclination or means to take civil action against the Border Force in circumstances where they feel that they are being improperly targeted? Surely it would be much better to have it in the Bill.

In summary, I will carefully reflect on what the noble Baroness and other noble Lords have said, and at this point I beg leave to withdraw the amendment.

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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?

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[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.

[Lord Paddick]

My Lords, I am grateful for the explanation that the noble Baroness has given. Obviously, Schedule 7 does not allow a suspect the right to silence that is normally afforded to somebody who is suspected. Safeguards therefore need to be put in place. My query is on new subsection (3), at line 14 on page 20 of the Bill; what does this mean? It says:

“An answer or information may not be used by virtue of sub-paragraph (2)(c) unless … evidence relating to it is adduced, or … a question relating to it is asked, by or on behalf of the person in the proceedings arising out of the prosecution”.


I accept that the Minister read that out very slowly and carefully, but it reminds me of my mother, who, when speaking to somebody who does not speak English, speaks loudly and clearly in English again to try to get them to understand, but unfortunately it does not really help. Perhaps the noble Baroness, together with officials, can see whether there is some way in which that can be deciphered for me.

[Baroness Williams of Trafford]

I certainly will, although I resent being compared to the noble Lord’s mother.

[A noble Lord]

She is a lovely lady.

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[Lord Kennedy of Southwark]

Clause 19 provides for a local authority to have the power to refer a person who is vulnerable to or at risk of being drawn into terrorism to a Channel panel for support. Amendment 54 in the name of the noble Baroness, Lady Howe, would place a requirement in the Bill that the person who previously referred the individual cannot be the representative of the local authority on the panel.

The noble Baroness set out a clear and compelling case for the amendment, and I will be happy to support her. She addressed a number of points that need to be responded to by the Minister in this short debate. The noble Lord, Lord Carlile, also made an important point about the risks to decision-making if you are the person making the referral and you make decisions as well. It may be that the Minister will say that the points made by the noble Lord will be taken into account by the local authority anyway, so it would not get into that situation, but he made a very valid point.

[Baroness Williams of Trafford]

I thank the noble Baroness, Lady Howe, for explaining her amendment. It might be helpful if I begin by briefly explaining how an individual is referred to a Channel panel, before turning to why it is important that we do not preclude someone who refers an individual from sitting on the panel itself. I apologise to noble Lords who know precisely how someone is referred to a Channel panel.

When talking about referrals to Channel, it is important to recognise that it is a two-stage process, the second of which is covered by the Counter-Terrorism and Security Act 2015. The first stage is the initial raising of a concern that someone might be vulnerable to being drawn into terrorism. I take slight exception to the noble Baroness, Lady Howe, describing the person as the “accused”; they are not accused but are being referred because they are vulnerable.

This referral can be done by anyone at all, such as, but not limited to, a social worker—referred to by the noble Lord, Lord Carlile—a teacher, a police officer, a healthcare worker, a family member or, indeed, a friend. All such concerns will eventually, if they make it that far, be assessed by the police, often using information provided by local partners to help them. The police will decide whether there is a genuine vulnerability that merits the attention of a Channel panel and, if there is, make a referral to the panel. This second-stage referral is covered by the 2015 Act. The purpose of Clause 19 is to allow a good deal of that assessment process and second-stage referral to be carried out by local authority staff.

The chair of the Channel panel can invite local partners to the panel, and this will almost certainly include the professional who has made the second-stage referral, and perhaps the individual who raised the initial concern, particularly if they are both from one of the panel’s statutory partners. Both of these professionals are likely to have important information on the subject of the referral. I mentioned social workers—as did the noble Lord, Lord Carlile—because noble Lords will be able to see that in other contexts where the referring person may be involved, such as safeguarding, it is important and not a conflict.

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[Lord Kennedy of Southwark]

My Lords, Amendments 55 and 56 in the names of the noble Lords, Lord Paddick and Lord Stunell, seek to insert amendments to Clause 19. As we have heard, Amendment 55 would require the collection and release of data which details the religion and ethnicity of a person referred to a panel. This could provide valuable and meaningful data to help the Government in dealing with these very difficult matters, and I very much agree with the noble Lord, Lord Stunell, in this respect. When he listed what is included, it was even more interesting to reflect on the fact that these two pieces of information are not collected. I am sure that the noble Baroness, Lady Williams of Trafford, will address that point in her reply.

On the face of it, Amendment 56 seems very sensible—but it may well be that it is not necessary, so I will listen carefully to the Government’s response.

[Baroness Williams of Trafford]

My Lords, I shall start by addressing Amendment 55. I wholeheartedly agree with the noble Lord, Lord Stunell, that it is very important that both the Prevent programme and the Channel process are open to public scrutiny, and, to this end, we support calls for greater transparency. Indeed, we have already published two years-worth of Channel statistics, covering 2015-16 and 2016-17—the latter in March of this year. We are committed to publishing these statistics on an annual basis, and expect to publish 2017-18 data towards the end of this year.

The data is extensively quality assured before publication to ensure accuracy. However, due to the provisional nature of the dataset and the need to further develop and improve our data collection, it is currently published as “experimental statistics”, indicating that the information is, as I said, at an early stage of development. As such, we look for feedback from users on what information is included, while working to improve training and guidance for those responsible for providing the data and assessing its quality and limitations.

We absolutely appreciate that figures on ethnicity and religion are likely to be of interest to users of these statistics, for all the reasons that noble Lords have outlined. Working through the Home Office Chief Statistician, we are happy to explore the inclusion of such data in future publications. However, I should stress that whether this proves to be possible will depend on a number of factors, including the quality and completeness of the data. To give an example, currently at least half of the records supplied to the Home Office do not include ethnicity or religion, so publication of such variables could be misleading at this stage. However, that is not a no; it is saying that we will work on statistics that will be useful to the public and provide for wider transparency.

Turning to Amendment 56, I am pleased that the noble Lord, Lord Stunell, recognises the significant role that a Channel panel can have in helping to safeguard very vulnerable individuals. Although the Government agree wholeheartedly with the intent of the amendment, I will set out why we do not think it is needed to achieve this end.

Section 36(4) of the Counter-Terrorism and Security Act 2015 requires the Channel panel to prepare a plan for an individual whom the panel considers appropriate to be offered support. Section 36(5) sets out what information must, as a minimum, be included in such a support plan—that is, how consent is to be obtained; the nature of the support to be provided; the people who will provide the support; and how and when the support will be provided.

The current wording of the Act does not preclude other information being included in the support plan, but it should also be recognised that this is not the only place where information about the individual being discussed is recorded. The vulnerability assessment framework, for example, contains relevant information about the particular vulnerabilities of the individual, drawing on all the information from the various panel members. Panel minutes will contain the record of the multiagency discussion and a risk assessment is also completed. All these documents are brought together within the case management file.

The Government agree entirely with the thrust of the amendment, which is that it is essential that the panel is aware of, takes account of, and indeed records, all matters relevant to the safeguarding needs of the individual. As noble Lords will know, that is the bread and butter of what Channel panels are about, and I reassure the Committee that the statutory Channel duty guidance makes it clear that this is the case. Paragraph 71 of the guidance, for example, says:

“The panel must fully consider all the information available to them to make an objective decision on the support provided, without discriminating against the individual’s race, religion or background”.


However, the support plan is not necessarily the right place to record that information. It is intended instead to be a simple, unambiguous document that sets out exactly who will do what and when with regard to the actual support being provided. Requiring panels to include other information here, rather than in other parts of the case management file, would be likely to diminish rather than add to its value within the process.

The noble Lord asked whether Prevent was discriminatory. The statistics reflect the type of extremism being referred and what happens at each stage of the process. It is important to note that one-third of all cases provided with support were actually referred for far-right concerns. He also asked which agencies had the highest and lowest conversion rates from referral to support. I will be happy to look at the underlying statistics and see whether that analysis is actually possible, and I will get back to him on that.

I hope that I have given the noble Lord sufficient information so that he will feel that he can withdraw his amendment, on the understanding that the Home Office Chief Statistician is looking precisely at the issue that he raised in Amendment 55.

[Lord Stunell]

My Lords, I thank all noble Lords who contributed to the debate, and I particularly thank the Minister. If I may say so, for a ranging shot we seem to have done very well. We look forward very much to seeing the Minister convince the statisticians that the much-needed information can be made available in a timely fashion. On that basis, I beg leave to withdraw the amendment.

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[Lord Kennedy of Southwark]

My Lords, Amendment 57A, tabled by me and my noble friend Lord Rosser, is similar to Amendment 57. However, the amendment in my name seeks to require the Secretary of State to produce a statement to accompany the review, when it has reported to Parliament, which responds to each recommendation made.

First, I place on record my thanks to all those who work to divert people from a life of terrorism and keep them on the path to a constructive life where they contribute positively to the community. We should all recognise the good work that has been done. It is, though, an important part of good governance to review matters regularly to see whether policies are working as intended or improvements can be made. That is in no way intended as a criticism of any particular programme, or of the generality of the programme.

The noble Lord, Lord Anderson of Ipswich, made important points about transparency and the need for a review. I very much agree that this strategy is important and we must make sure that we get it right. The Independent Reviewer of Terrorism Legislation would seem to be the right person to undertake this review when they are appointed. I agree with the noble Lord, Lord Stunell: I have seen no project—the noble Lord, Lord Carlile, intervened on this—that is actually failing. The review should be much more about the programme generally than specific projects.

There is a concern about the programme’s aims. We have to be clear as to those aims and look at whether communities have lost confidence in the programme. If they have, what are we going to do about that? Trying to understand the positives and the successes, as well as the failures, is a good thing to do. Further, the Prevent programme has the aim of community cohesion but concern has been expressed about whether this is deliverable in the light of spending reductions among local authorities, as my noble friend Lady Lawrence of Clarendon make clear in her contribution.

It is necessary to review the programme. As I said, that is not a criticism but it is important to review it to understand whether we are getting the programme right.

[Baroness Williams of Trafford]

My Lords, perhaps I may start with a statement about our common values. A comment was made at the beginning that I or the Government were against British values. I state for the record that I am in absolutely no way against British values or the common values that we hold in this country, but the Government are committed to doing everything they can to protect communities from the threat of terrorism. That is a noble aim. It is vital that we use all the means at our collective disposal to divert people from terrorist-related activity.

As the noble Baroness, Lady Manningham-Buller, said, Prevent is one of the four pillars that comprise Contest, the UK’s counterterrorism strategy. It is designed to safeguard and support those vulnerable to radicalisation, and to prevent their becoming terrorists or supporting terrorism. To put this into context, it might help if I initially explain Prevent’s aims and the reasons that the Government have maintained the programme. It has three overarching aims. The first is to tackle the causes of radicalisation and respond to the ideological challenge of terrorism. The second is to safeguard and support those most at risk of radicalisation through early intervention, identifying them and offering support. The third is to enable those who have already engaged in terrorism to disengage and rehabilitate. I do not think anyone could disagree with those aims.

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[Lord Anderson of Ipswich]

Since the Minister mentioned Assistant Commissioner Basu and what he had to say about the Prevent strategy, is she familiar with the interview he gave, I think to an American periodical, a few weeks before he was appointed to his current role in relation to counterterrorism in which he made a number of constructive suggestions for changing the Prevent strategy, in particular to make it more, as he put it, community focused and less top down?

[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.

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[Lord Rosser]

I will listen to what the Minister says in response to the amendment, but from what I have heard so far, the case for it appears somewhat compelling.

[Baroness Williams of Trafford]

My Lords, it is never nice to stand up and feel defeated on a matter. I shall outline the various points on proscription. As noble Lords will know, the effect of proscription is that the organisation is added to Schedule 2 to the 2000 Act, and that a number of offences bite in relation to membership and support for it. In practice, the Home Secretary is responsible for proscriptions relating to international and domestic terrorist groups, and the Northern Ireland Secretary for Northern Ireland-related terrorist groups.

Under Section 4 of the 2000 Act, either a proscribed organisation itself, or a person affected by its proscription, may apply to the Secretary of State for it to be deproscribed. Section 5 establishes the Proscribed Organisations Appeal Commission to consider appeals against refusal of an application under Section 4, and there is a route of appeal on a point of law from the commission to the Court of Appeal.

Amendment 59 would place a duty on the Secretary of State to review every proscribed organisation on an annual basis, to determine whether it continues to meet the legal test for proscription. The Secretary of State would, further, be required to decide whether each organisation should remain proscribed or should be deproscribed, and to publish that decision. As the noble Lord, Lord Anderson, has explained, his amendment reflects recommendations he made in his former role as Independent Reviewer of Terrorism Legislation—a role which he performed with great eminence and authority, and in which he made a great contribution. I do not think that he will agree with me just because I have said that.

The noble Lord will, of course, be familiar with the Government’s long-standing policy on removing terrorist organisations from Schedule 2 to the 2000 Act, from the responses of successive Home Secretaries to his reports as independent reviewer. However, for the wider benefit of your Lordships, I will, if I may, spend a short while setting this out. The Government continue to exercise the proscription power in a proportionate manner, in accordance with the law. We recognise that proscription interferes with individuals’ rights—in particular the rights protected by Articles 10 and 11 of the European Convention on Human Rights: freedom of expression and freedom of association. That is why the power is exercised only where necessary.

We should recall that organisations are proscribed for a reason—because they are concerned in terrorism. Our first priority is to protect the public and support our international partners in the fight against terrorism, and the power to disrupt a proscribed organisation by preventing it from operating or gaining support in the UK is an important one in this struggle. Where the Home Secretary has decided on advice, including from operational partners, that this test is met, with the serious consequences that flow from that, we consider it appropriate to continue to take a cautious approach when considering removing terrorist groups from the list.

While we take extremely seriously our responsibility to protect the public and to prevent terrorist groups from operating in the UK, it is not the Government’s position that once a group has been proscribed that should simply be indefinite, without the prospect of ever being removed from the list. To this end, Parliament provided a clear route for any proscribed organisation, or any person affected by an organisation’s proscription, to submit an application to the Home Secretary for the organisation to be deproscribed. Indeed, three groups have been deproscribed following such applications.

This, I believe, is the most appropriate and balanced way to deal with the question of deproscription. It ensures that any person who believes that any proscription is inappropriate has a clear route to challenge that proscription, so that groups which are not concerned in terrorism and no longer pose a risk to the public can be deproscribed. But it also avoids placing the public at risk, or causing alarm, through precipitate decisions to lift restrictions on organisations with a significant terrorist pedigree but which may have, for example, become less visibly active in recent times. It is an enduring feature of the terrorist threat that both individuals and organisations with a terrorist mindset can disengage and then re-engage in terrorist activity, potentially without warning. Such individuals and groups will continue to pose a threat, and to be properly characterised as terrorist, during both their fallow and active periods, and it would not be responsible for the Government to remove the prohibitions and stigma that apply to proscribed organisations unless we are truly certain that they have changed and no longer pose a threat.

The Government are committed to ensuring that the right groups are proscribed and that the public are protected. But we are not persuaded that introducing regular formal reviews of past proscription decisions would in practice prevent any injustice, particularly given the existence of a review system on application, whereas such a system of formal reviews could lead to perverse outcomes and would have a significant operational impact in terms of diverting investigative and intelligence resource from current threats to public safety in order to carry out the reviews.

[Lord Pannick]

I am very grateful to the noble Baroness. Her argument appears to be that there is a power to apply for a review. She will be aware that under the Sanctions and Anti-Money Laundering Act 2018, which Parliament approved earlier this year, where a person is subject to sanctions, they can apply for a review, but nevertheless there is an obligation on Ministers to conduct a periodic review to ensure that the process is properly applied, and that sanctions are continued only against those who deserve to continue to be sanctioned. What is the difference in this context?

[Baroness Williams of Trafford]

My Lords, I am not entirely sure. They are different procedures. I shall write to the noble Lord on the difference because he makes a valid point.

[Lord Anderson of Ipswich]

I am grateful to the Minister. While she is writing to the noble Lord, Lord Pannick, could she perhaps answer my question? Even if she is correct that the ability to apply to have an organisation deproscribed is a substitute for my amendment—the track record very much suggests that it is not—and assuming that in her favour, could the Minister explain in the letter, or in person if she prefers, what consolation that could be to the innocent member of the community in London who comes under suspicion for alleged links with a proscribed organisation but who has no connection with it and could not in 100 years have been expected to be the person who makes that application?

I am trying to avoid naming specific communities, although I have spent plenty of time in London with Tamils, for example. For them, the fact that the LTTE remains a proscribed organisation—rightly or wrongly; I have no judgment on that—can be a significant impediment on how they go about their everyday life. What consolation could it be for the Tamil greengrocer in London to know that, had they wished to do so, the top brass of the LTTE, or others intimately connected with it, might have made an application for deproscription?

[Baroness Williams of Trafford]

They could have done. I do not know whether or not it is a consolation, but they could have done.

The point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, does not conflict with Clause 1 because there is no offence to suggest that a group should be deproscribed under Clause 1. Is that what he was referring to?

[Lord Brown of Eaton-under-Heywood]

Unless you are saying that it should be deproscribed because it is actually doing good work and certainly no harm.

[Baroness Williams of Trafford]

The first part of that would not conflict with Clause 1, but the second part of that statement would, as you are then promoting it as an organisation. Perhaps we can talk about that subsequently.

I move on to Northern Ireland, because I want to talk about the amendment in that context. Any change to the current regime must be carefully considered, paying particular regard to the unique historical and current security context and challenges in that part of the United Kingdom. Paramilitary activity has a greater impact in Northern Ireland than in any other part of the UK. Because of this complex environment, proscription remains an essential tool in the wider, strategic approach to tackling the continued and widespread existence and impact of paramilitary groups in Northern Ireland.

Terrorism legislation, including the proscription regime, is of course an excepted matter in Northern Ireland—it is reserved to the UK Government—but the impact of this amendment cannot be divorced from what is happening at the devolved level. Any change to the proscription regime would have a significant impact on wider efforts to tackle paramilitary activity currently being undertaken at a devolved level and supported by the UK Government and multiple agencies and bodies through the Tackling Paramilitarism programme. A decision to change the proscription regime in Northern Ireland could not, and should not, be taken in isolation from these other initiatives and without detailed prior consultation with the devolved Administration and security partners.

Given the current suspension of the Northern Ireland Assembly and Executive, the opportunity to undertake such consultation does not present itself at this time. We simply cannot ignore the operational, policy, resourcing and wider political ramifications of this amendment. These implications arise in relation to the proscription of international terrorist organisations, but are particularly acute in relation to Northern Ireland-related terrorist organisations. I know that this is a sensitive area, and that this House is rightly concerned to ensure that we strike the right balance, both in relation to the proposed new clause and to the other clauses in the Bill which amend proscription offences.

Finally, I suggest that noble Lords proceed with great caution in this area, given the considerations which I have just outlined. The learned position which the noble Lord has set out needs to be balanced against the reality that these are serious and, in some cases, unpleasant terrorist groups. They have been proscribed with good reason and the Government are anxious to ensure that they do not pose a resurgent threat to the public. I hope that, at this stage, the noble Lord will be content to withdraw the amendment.

[Lord Anderson of Ipswich]

My Lords, I am grateful for the flattering words with which the Minister began and overwhelmed by the distinguished support for the amendment from so many noble Lords. With great respect to the noble Lord, Lord Carlile, I hope that the Minister will not only carefully consider the amendment—as improved by the noble Lord, Lord Pannick—but see the benefits to the Government of having it enshrined in law and not just in an undertaking, so that there can be no doubt who wins in any future conflict within the Government of the sort that the noble Baroness, Lady Manningham-Buller, and I have experienced in our different capacities.

In case it was in any doubt, I clarify that the amendment seeks not to change the proscription regime in Northern Ireland but simply to ensure that the existing regime, as written very plainly in law, is applied. I beg leave to withdraw the amendment, but fully expect to return to it on Report.

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[Lord Hope of Craighead]

My Lords, I am in sympathy with the idea behind the amendment but I fear that the noble Lord, Lord Paddick, is right that one cannot participate in the framework decision which sets up the arrest warrant without being a member state. When you read the framework decision, it is perfectly clear that that is what you must be. The advantage to us of the present system is that it gets over the constitutional problem of Germany, which agreed to the framework decision but is most unlikely to be able to extend the benefit to something else. Having said that, I hope that the Government can achieve, by treaty arrangements, something as close as possible to the present system.

[Baroness Williams of Trafford]

My Lords, I thank all three noble Lords for their points on the European arrest warrant and our future law enforcement, internal security and criminal justice relationship with the European Union following our exit from it. The Prime Minister has repeatedly made clear that the UK is unconditionally committed to maintaining Europe’s security now and after our withdrawal from the EU. We are proposing a comprehensive security relationship which preserves that mutually important operational capability that enables UK and EU operational partners to work together to combat fast-evolving security threats, including in respect of terrorism and hostile state activity.

In July, the Government published a White Paper on our future relationship with the EU. It sets out how we are seeking a relationship that provides for mechanisms for rapid and secure data exchange, practical measures to support cross-border operational co-operation, and continued UK co-operation with EU law enforcement and criminal justice agencies. We continue to value our co-operation and information sharing on issues such as extradition, and believe that a pragmatic solution is in the interests of EU member states and the UK. Our primary objective is to keep our citizens safe.

While I welcome this opportunity to reiterate the Government’s commitment to maintaining a strong security partnership with the EU after exit, the nature of the future relationship is a matter for negotiations. As such, it would not be appropriate or necessary to include in primary legislation any measure that pre-emptively binds the Government’s hands by setting our negotiating objectives. That point was accepted when this matter was voted on in the House of Commons in September, and was accepted by both Houses when the European Union (Withdrawal) Bill was enacted.

We are clear that we want a security partnership that maintains co-operation in these areas but negotiating objectives are just that, and not a matter for this or any other Bill. Parliament will agree the final form of the withdrawal agreement when legislation to give effect to it is brought forward in due course. Therefore, at this stage, I ask the noble Lord to withdraw his amendment.

[Lord Rosser]

I thank the Minister for her reply and other noble Lords for their participation in this brief debate. From what has been said in response, I am not entirely clear whether that meant that it was part of our negotiating position that we would continue to participate in the European arrest warrant, or whether the Government are accepting that, under whatever deal is done, it will not be possible to continue to participate, for some of the reasons that have already been voiced in this evening’s debate. I do not know whether the Minister is able to help me on that and say whether it is our negotiating position to try to remain within the European arrest warrant system or whether the Government accept that we cannot, and the hope is that something comparable can be the subject of negotiation.

[Baroness Williams of Trafford]

I said to the Committee that that aspect of security co-operation was absolutely vital, and therefore some sort of security agreement was being worked on at the time. I cannot pre-empt what that will look like, but all the co-operation we enjoy now should continue, although, as the noble Lord, Lord Paddick, said, it may not be in the form of a European arrest warrant, given that no other non-EU states have been able to avail themselves of it. But it should certainly align closely with what we have now.

[Lord Rosser]

I thank the Minister for that clarification. This short debate has been useful; one thing it has shown—by the way, I do not suggest that it has only just come to light—is that the future of the European arrest warrant is in doubt at present, which is potentially quite serious from our nation’s point of view. Let us hope that that does not come to pass. I beg leave to withdraw the amendment.

Counter-Terrorism and Border Security Bill

Baroness Williams of Trafford Excerpts

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

Moved by

[Baroness Williams of Trafford]

60: Clause 21, page 22, line 4, leave out from “borders” to end of line 7

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the government amendments in this group make a number of necessary changes to the provisions in Schedule 3 governing the retention of property and the power to make and retain copies of documents and other items.

The new powers under Schedule 3 have been introduced to strengthen the tools of our law enforcement officers to tackle the harmful activities of hostile actors. Over recent years, we have seen a number of foreign powers demonstrating a significantly increased risk appetite regarding the conduct of their intelligence officers and agents. They seek to acquire and pass on property or information that would damage our national security. This could include highly classified protectively marked UK Government material, prototypes of UK defence infrastructure and hardware, or even the contact details of persons employed by our secret intelligence agencies. The Committee will appreciate that, to assert themselves in this way, foreign intelligence officers or those acting on their behalf are known to actively use the cover of certain professions; this includes journalists, lawyers and others. There is, therefore, a national security imperative for the police to be able to retain, copy and examine articles which may also include confidential journalistic or legally privileged material.

In response, Schedule 3 introduces new powers that would allow an examining officer to retain, examine, copy and potentially destroy a person’s property, including confidential material, where the officer believes it could be used in connection with a hostile act or to prevent death or serious injury. Once a person’s property has been retained under these powers, no further action can be taken without the authorisation of the Investigatory Powers Commissioner. The retention process requires the commissioner to consider representations made by the owner of the article, the police and the Home Secretary before coming to a decision.

Section 3 of the draft Schedule 3 code of practice, which I recently circulated to noble Lords, outlines the steps and timings for this process, which have been designed to strike a balance between affording the examinee an opportunity to defend possession of their property with the operational need to retain, use or potentially destroy it. The entire process from the point at which the property has been retained, to the point at which the commissioner authorises further action may take as long as four weeks but could possibly take longer as a result of delays or appeals.

In the vast majority of cases, this process will be the right one, as there will not be an urgent need to examine the property and the immediate risk will have been mitigated by dispossessing the individual of the article in question. In some cases, however, these timeframes will not be acceptable, in particular where urgent action is needed to prevent death or significant injury or a hostile act. An example of such a situation might be where hostile agents are trying to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In such a case, an expedited process would allow an urgent decision to be taken on whether the property should be returned to the individual, in parallel to examining the property to mitigate the immediate threat.

Amendment 77 would provide for this expedited process by allowing the examining officer, with the approval of a senior officer not below the rank of superintendent, to examine or copy the property, including confidential material, before a decision has been made by the commissioner. This mechanism would require authorisation to be given or withheld by the commissioner, or a delegated judicial commissioner, after the event. Should the commissioner withhold that authorisation, he would have the power to direct that the article be returned to the examinee and the destruction of any information taken from it, including copies. As with the existing process provided for in the Bill, the decision of the commissioner will be taken after consideration of any representations made by affected parties and there will also be an opportunity to appeal that decision where it has been delegated to a judicial commissioner.

This urgency procedure has been modelled on similar provisions in the Investigatory Powers Act in relation to interception warrants and has been set out in further detail in Section 3 of the draft code of practice. We had considered with operational partners and the IPC whether an expedited prior authorisation procedure could be put in place but have concluded that, while the process could be truncated, the requirement to receive and consider representations is such that any fast-track prior authorisation procedure would still take some days. I want to reiterate that these powers would only be used in the most urgent circumstances and subject to the safeguards that I have described. The consequences of misusing the powers are clear—the commissioner may direct the destruction of any information acquired through use of the property.

I now turn to Amendments 78 to 82, which concern similar retention powers for copies that consist of, or include, confidential material. These amendments aim to make two key changes. First, as with Amendment 77, which I have just described, they would provide for an urgent process for the retention and use of copies that consist of, or include, confidential material. Secondly, they will ensure that the non-urgent process for retention of copies works in the same way as the non-urgent retention process for a person’s property.

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[Lord Rosser (Lab)]

Perhaps I may add one further question to those raised by the noble Baroness, Lady Hamwee. It relates to the urgency procedure. The noble Baroness has already asked who makes the decision on what is or is not urgent, but can we also have some feel, presumably based on the experience of the agencies concerned, of how frequently they expect to use this procedure?

[Baroness Williams of Trafford]

My Lords, the kind of situation in which we can expect the urgency provisions to be used possibly goes to the question asked by the noble Lord, Lord Rosser, about how frequently they are used. It is difficult for me to talk about the average frequency in any week, year or other given timescale, but clearly there is a spike nature to some of these events. Therefore, I hope that the noble Lord will accept that I cannot give a definitive answer to his question. However, basically the provisions will be used to disrupt a live threat—for example, where a hostile agent tries to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In the aftermath of something like the Salisbury event, Schedule 3 powers would provide the police with additional tools to stop and question persons with potential links to a hostile state or its actors who might have knowledge of or involvement in the attack. In such a scenario, it would be critical to analyse their devices and material at speed in order to understand the extent to which they were engaged in hostile activity.

The noble Baroness, Lady Hamwee, talked about the timeframe. Obviously, the urgency procedures would be used only where there was an immediate risk of death or significant injury or of a hostile act being carried out. In such a case, the police must be able to act with immediate effect. However, on the question of whether we could have done it the other way round, with a prior authorisation procedure being put in place, the answer is that that would still take some days. I hope that that answers the question.

The point was made that the timeframe for the urgency process—that is, within 24 hours—makes it very difficult to make representations to the commissioner. I was asked whether that is enough time or whether it should be longer. The timescales for the urgency process aim to strike a balance between giving the property owner enough time to make representations and ensure that the police are not able to use the property without judicial authorisation with the decision having to be taken by the commissioner within three days, and, by the same token, conceding that it is likely the property owner will want a decision to be taken as quickly as possible to prevent the police using their property without a decision by the commissioner. The draft Schedule 3 code of practice, which is available online, makes it clear that the examining officer must provide a notice that will explain to the property owner that they are invited to make representations to the commissioner, including contact details and the associated timescales.

Did the noble Baroness ask me what happens if the property owner cannot be contacted?

[Baroness Hamwee]

I asked about what is “reasonably practicable”.

[Baroness Williams of Trafford]

She did, and I have the answer here—as if by magic. Paragraph 63 of the draft Schedule 3 code of practice is clear that, where the examining officer retains a person’s property beyond the period of examination, the officer should ask the person how they would prefer to be contacted regarding the status or return of their property. The officer will typically seek to acquire the phone number, email address or postal address of the examinee. However, under the urgency process, the examining officer would attempt to use the details provided by the examinee to make contact and to provide the information. This would typically include attempting to call the person a number of times, as well as sending them information by recorded post and email. If the person is at the known UK address then the officer from the local force could be tasked to attend the address to deliver the relevant information in person. Obviously, however, it would not be reasonably practicable for the police to take this approach on every occasion or where the person is abroad. It would not be reasonably practicable for the examining officer to make contact with the person where they have provided false contact details. I hope that satisfies the noble Baroness.

[Lord Rosser]

I appreciate that the Government cannot stand at the Dispatch Box and announce that this will be used X number of times a week, a month or a year—of course I understand that. But is the provision there because of previous experience that there is a gap in the arrangements, for which we have had to pay a price because we have not been able to enact the procedure, or is it there because there is a feeling that there might arise a need for such a procedure in the future?

[Baroness Williams of Trafford]

There are several answers to that. Obviously, the Terrorism Act 2000 needs updating. The Salisbury attack showed us the need to update our laws in this regard, and clearly the way that technology and other things have moved on creates a gap in our abilities because they have not been provided for in previous legislation.

Amendment 60 agreed.

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[Lord Paddick (LD)]

My Lords, I support the noble Baroness, Lady Jones of Moulsecoomb, in opposing the additional powers conferred by Schedule 3, for some of the reasons she has just mentioned. We have already debated whether the powers in Schedule 7 of the Terrorism Act are used appropriately in every case. From complaints made to me, I believe that there is increasing concern that Schedule 7 powers may be being used arbitrarily—particularly against black and other ethnic minority passengers—resulting in missed flights with no compensation.

As the briefing provided by Liberty suggests, Schedule 3 covers a potentially vast and uncertain range of behaviours. Paragraph 1(1) refers to,

“a person who is, or has been, engaged in hostile activity”.

As the noble Baroness said, the Bill defines hostile activity as any act which threatens national security, the economic well-being of the UK or which constitutes a serious crime, where the act is,

“carried out for, or on behalf of, a State other than the United Kingdom or … otherwise in the interests of a State other than the United Kingdom.

However, the person need not be aware that they are engaged in hostile activity, and the state for which the hostile act is being carried out need not even be aware that the hostile act is being carried out. As the Bill is worded, someone from Paris or Frankfurt travelling to the UK to encourage UK businesses to relocate to their city in the face of Brexit will be caught by these provisions, because his mission would threaten the economic well-being of the UK and would be in the interests of another state—France or Germany. In a later group, the noble Lord, Lord Anderson of Ipswich, has an amendment in relation to what the definition of hostile act should be, and we will return to this subject then.

This schedule and the powers it contains, according to the Home Office briefing we were provided with, is supposed to be a response to the attempted assassination of Sergei and Yulia Skripal, yet almost all commentators agree that this was an act of terrorism already adequately covered by Schedule 7 of the Terrorism Act. Perhaps the Minister can give an example of a hostile act that has been committed against the UK that was not an act of terrorism.

The fact sheet provided by the Home Office suggests that these provisions are needed because:

“The UK faces a sustained threat from hostile actors seeking to undermine our national security in a wide variety of ways”.


Can the Minister explain how every and all acts that threaten the economic well-being of the UK are a threat to national security, and why the wording used in the Investigatory Powers Act 2016 is not used here—for example, with regard to the issuing of bulk interception warrants under Section 138(2) of the 2016 Act, where the issue of a warrant has to be,

“in the interests of the economic well-being of the United Kingdom”,

but only so far as those interests are relevant also to the interests of national security?

[Baroness Williams of Trafford]

My Lords, we have already debated a number of points related to the new ports powers under Schedule 3 to the Bill. Groups of amendments to come will address other aspects of these provisions. That being the case, I will limit my remarks in responding to this stand part debate to explaining the overarching case for these new powers to combat hostile state activity. Schedule 3 will serve to address a current gap in our ability to tackle the threat from hostile state actors by introducing provisions to allow an examining officer to stop, question, search and detain persons at a UK port or the border area in Northern Ireland to determine whether they are or have been engaged in hostile activity.

For the purposes of this legislation, a person is or has been engaged in hostile activity if they are or have been concerned in the commission, preparation or instigation of a “hostile act” that is or may be carried out for or on behalf of a state other than the United Kingdom, or otherwise in the interests of a state other than the United Kingdom. An act is a hostile act if it threatens national security, threatens the economic well-being of the United Kingdom, or is an act of serious crime. The noble Baroness, Lady Jones, asked about the types of activity that would threaten the economic well-being of the UK. Acts of that kind include those which damage the country’s critical infrastructure or disrupt energy supplies. The power absolutely will not be used to target the legitimate activity of foreign businesses, an example of which was given by the noble Lord, Lord Paddick. The noble Baroness also asked whether the power will be used in a discriminatory fashion. The response is an emphatic no, it will not. That is because selection based solely on ethnicity, religion or other protected characteristics is quite clearly unlawful. Selection for examination will be informed by a number of considerations, including available intelligence about hostile activity, as listed in the criteria set out in the draft code.

The events in Salisbury were a stark reminder of the impact that hostile activity can have on the safety and security of our communities. The use of a military grade nerve agent on UK soil demonstrated very clearly the lengths to which hostile actors such as the Russian state will go in order to achieve their illegitimate ends. We should not underestimate this threat. The Director General of MI5, Andrew Parker, set out the position in stark terms in a speech delivered in Berlin in May:

“We are living in a period where Europe faces sustained hostile activity from certain states. Let me be clear, by this I … mean deliberate and targeted malign activity intended to undermine our free, open and democratic societies; to destabilise the international rules-based system that underpins our stability, security and prosperity … Chief protagonist among these hostile actors is the Russian Government”.


It is not often that the general public are so exposed to the work of hostile actors. These actions highlight a contempt for public safety, the rule of law and international norms. However, they are consistent with the activities of the Russian state and others which our operational partners work tirelessly to counter.

In introducing these new powers, the Government are seeking to provide the additional capability needed better to detect, disrupt and deter the threats from these hostile actors. As the noble Lord, Lord Anderson, put it in his evidence to the Home Affairs Select Committee in January, if it is accepted that we need powers to stop and examine people at ports to combat terrorism, should not the police have similar powers to stop people on a similar basis who pose an equal but different threat to national security? In the Government’s view, the answer to the question must be an unequivocal “yes”.

It is worth reiterating that the provisions of Schedule 3 are not entirely novel. They will in many respects mirror existing powers to stop and question persons at the border to determine whether they are terrorists, but will instead be used to determine whether a person is or has been engaged in hostile state activity.

The Government are not saying that, simply because we have these powers for counterterrorism purposes, it justifies expanding them to hostile activity. Rather, we are saying that we have experience in exercising these powers; we already know the vital role that they play in countering the activities of terrorists, and we have taken into account the views of the Independent Reviewer of Terrorism Legislation on the exercise of the powers to ensure that the subject of an examination is appropriately safeguarded.

The noble Lord, Lord Paddick, asked for examples of hostile activity that would not be considered a serious crime or even be captured under current UK law or constitute terrorism. Examples might include unauthorised disclosure under the Official Secrets Act 1989; foreign intelligence officers building relationships with government officials with a view to influencing decision-making or recruiting them as an agent, or foreign intelligence officers receiving protectively marked information or stealing research plans for the UK’s next aircraft carrier. Section 1 of the Theft Act 1968 is applicable to tangible and in-action property, but does not cover information. It may be possible to prosecute a person for theft of the medium on which sensitive information is recorded, but the offence would carry limited sentencing.

The threat to this country from hostile state activity is greater now than it has ever been. It is therefore vital that the police are equipped to disrupt and deter such activity.

[Baroness Jones of Moulsecoomb]

I have not quite understood. If these stops by border guards are to be based on intelligence, why do they not need reasonable suspicion?

[Baroness Williams of Trafford]

My Lords, I think we went through this the other day. It is because officers may have fragmented information which does not amount to reasonable suspicion but may show a pattern emerging. That may not reach the “reasonable suspicion” threshold. As the noble Baroness said, we cannot just stop and search black people arbitrarily; there has to be some rationale for stopping that person. It would not be arbitrary but would not meet threshold of reasonable suspicion.

[Lord Carlile of Berriew (CB)]

I am grateful to the Minister for giving way. If somebody is coming through a port of entry and their passport is examined, and in the moment of examination it becomes apparent that there is something about the passport that does not look quite right—for example, there may be very few entries in it whereas the person concerned looks to be a sophisticated traveller—would not such a situation fall well short of being reasonable suspicion but be a proper exercise of the ability of good officers to use intelligence applied in the moment?

[Baroness Williams of Trafford]

The noble Lord provides a very good example. It might not amount to reasonable suspicion, but there would certainly be a pattern of activity or information which allowed that officer to stop the individual.

[Lord Paddick]

Will the Minister answer my question about why the wording from the Investigatory Powers Act 2016 is not used? It attaches to the consideration of the economic well-being of the United Kingdom the further consideration of the interests of national security to differentiate between acts such as I described, of envoys from Paris and Frankfurt trying to steal UK business, and the example given by the Minister of somebody looking to target the electricity infrastructure.

The Minister said that the powers could not be used to target people on the basis of race and religion because it would be illegal. In which case, can she explain why, in one police force area, you are 25 times more likely to be stopped and searched if you are from a black or minority ethnic background than if you are white? Why is that happening when it is illegal?

[Baroness Williams of Trafford]

Police stop and search is very often intelligence based. There may be areas where there is a higher than average proportion of black people. Quite often, some of the gang activity is black on black, but you cannot be stopped because you are black.

[Lord Paddick]

The force I am quoting from is Dorset, if that helps the Minister.

[Baroness Williams of Trafford]

That does help me, and of course it is where the noble Baroness, Lady Jones, lives. The noble Lord makes a very good point in that instance. As for envoys trying to steal business, there is nothing wrong with healthy business competition, but undermining the economy, through critical infrastructure, is entirely different. He also asked about the IP Act and I will write to him on that. The answer just handed to me contains a quotation from the noble Lord, Lord Anderson, who wrote:

“If Schedule 7 is being skilfully used, therefore, one would expect its exercise to be ethnically ‘proportionate’ not to the UK population, nor even to the airport-using population, but rather to the terrorist population that travels through UK ports”.


That is a far more eloquent description of the proportionality. I will write to the noble Lord about the IP Act.

[Baroness Manningham-Buller (CB)]

It may help the Committee to focus on this as a counterespionage issue. In the years that I have been here we have had, as I said at Second Reading, endless debates and legislation on terrorism. We are now talking about something that was part of my career 30 years ago. The noble Lord, Lord Paddick, rightly suggests that the poisoning of the Skripals was attempted murder and a serious crime, but there is a range of hostile activity, much of which has been mentioned by the Minister, which is potentially seriously damaging to the UK. At one end, obviously, there is the Skripals and coercive repatriation, but before that there is the collection of information, the targeting of dissidents, collecting really important stuff which is sometimes difficult to detect. In answer to the noble Lord, Lord Rosser—which I should not do—I suspect that this will not be a very frequent occurrence, but as we heard from my successor but one in MI5, this is an increasing and serious problem. This is an attempt by the Government to address a counterespionage issue.

I have a commitment this evening which may mean that I cannot stay to the end of this important debate, but I want to say at this stage that there is also the problem that there is quite a lot of this activity which is not serious crime. Under the Official Secrets Act—which, a bit like me and possibly some of your Lordships, is old and creaky—that is not adequately covered. I was encouraged to see that the Prime Minister suggested in the House of Commons on 5 September that some espionage legislation was necessary to bring this subject up to date. I look forward to seeing whether that materialises, and it would be interesting to know whether it is regarded as a patch, temporary or long-term, to some of those other problems. I fear that the later amendments trying to make this all serious crime will not work, because Official Secrets Act offences get only two years’ maximum, whereas serious crime starts at three years. So there is a gap which we have to attempt to fill.

[Baroness Williams of Trafford]

I thank the noble Baroness for her very experienced and helpful comments. She asked: is this a patch or have we thought further ahead? Obviously, in legislation that we introduce we try to look at future threats, but who is to know what threats may emerge in the future? Clearly, cybercrime is a hugely growing threat to us. But I thank her for those very helpful clarifications. On that note, I beg to move.

Clause 21, as amended, agreed.

--- Later in debate ---

[Lord Anderson of Ipswich (CB)]

My Lords, the provisions relating to access to a lawyer, so far as they replicate those in Schedule 7, which I understand they are intended to do, should be seen against the background of three matters.

First, the maximum period under both schedules is six hours’ detention, which was reduced from nine hours a few years ago and from much longer periods during the Troubles, when, as now, these controls could be applied to travellers between Northern Ireland and Great Britain—a long-standing example of a border down the Irish Sea. Secondly, some of these seaports and airports are remote, and stops, let alone detentions, are so unusual that it would be quite impracticable always to have a panel of lawyers on tap. Thirdly, a fact long considered obvious by the courts, and now enshrined in Clause 16, is that answers given under these compulsory powers may not be used in subsequent criminal proceedings save in the special circumstances outlined for Schedule 7 by the Supreme Court in Beghal and echoed in the Bill.

The last of those factors caused Mr Justice Collins, in the case of CC, in 2012, to doubt whether there was any value at all in the presence of a lawyer during Schedule 7 questioning, since no responsible lawyer could advise their client to break the law by remaining silent. That view was rejected by the Divisional Court in the case of Elosta, which held that:

“The solicitor does have a useful, if limited, role to play”.


The fact remains that there are differences between an examination under Schedule 3 or Schedule 7, on the one hand, and a classic police interview under caution, on the other. It is perhaps also relevant to have in mind that, unless I am mistaken—I am sure I will be corrected if I am—these equivalent powers appear not only under Schedule 7 to the Terrorism Act but under Schedule 8, where detention for much longer periods, of up to 14 days, is contemplated.

Before the Minister thinks I have become too tame, let me please make this point. The operation of any powers to delay or impose limitations on access to legal advice, if they are to continue and to be extended, must be subject to effective independent review. This will only be possible if the reasons are recorded, as is correctly provided for in Schedule 3, and if the number of occasions on which they have been used is published, so that concerned citizens are aware and the independent reviewer can investigate individual cases or draw attention to and explore the reasons for any increasing trend in the use of the powers.

The number of occasions on which access to a solicitor has been delayed for those detained under Schedule 8 is logged meticulously in Northern Ireland and published by the NIO in its annual statistics on terrorism legislation. The latest figures tell us that between 2001 and March 2018, only five persons in Northern Ireland were refused immediate access to a solicitor. However, effective review requires the equivalent figures to be available for the whole country.

I was given to understand four years ago by the Home Office—not for the first time—that this was work in progress, at least where Schedule 8 was concerned. Will the Minister undertake that the statistics relating to delayed and conditional access to a solicitor on the part of those detained under the Terrorism Act and the new hostile state activity powers will be published across the country; and will she tell us whether there is anything she can do to speed things up a bit?

[Baroness Williams of Trafford]

My Lords, I thank noble Lords for their comments on these amendments, particularly the noble Lord, Lord Marks. I hope that by the end of my remarks, your Lordships will be more satisfied about the progress of the Bill in this area.

The amendments in this group raise the important issue of a detainee’s right to access a solicitor when detained under the ports powers in Schedule 3 to the Bill or Schedule 7 to the Terrorism Act 2000. These amendments seek to ensure that where an individual has been detained under these schedules, the examining officer must postpone questioning until the examinee has consulted a solicitor in private.

I am aware that the right to access a solicitor under these ports powers was the subject of much debate as this Bill was scrutinised in the House of Commons, as the noble Lord, Lord Rosser, pointed out. The good speeches at Second Reading in this House served as a fitting reminder that, as new threats emerge, we must continue to be steadfast in our commitment to the principles that our laws and practices are founded on.

The powers under these schedules would afford any person formally detained the right to consult a solicitor, privately, if they request to do so. In the vast majority of cases where an individual has been detained under these powers, there will be no reason to interfere with that right. In exceptional circumstances, however, there may be a need for a more senior police officer to restrict that right where the officer has reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences—for example, interference with evidence or the gathering of information; injury to another person; alerting others that they are suspected of an indictable offence; or hindering the recovery of property obtained by an indictable offence.

I have listened carefully to the debate; it is clear that there are particular concerns about the restrictions under these schedules that would allow an assistant chief constable to require the detainee to consult their solicitor within the sight and hearing of another police officer. Let me explain that the intention behind this restriction is to disrupt a detainee who seeks to exploit their right to consult a solicitor by using the solicitor as a conduit to pass on instructions to a third party, either through intimidation, willing collusion or the use of a coded message, as the noble Lord, Lord Marks, pointed out. Reasonable grounds for belief might develop where prior intelligence indicates that the individual may seek to obstruct an examination, either because they have a history of doing so or they have been trained to evade, frustrate or subvert police examinations. The officer might also witness interactions between the individual and their solicitor that alerts them to the possibility that the detainee is intimidating their solicitor.

Amendments 85, 86 and 88 and the equivalents in the new clause proposed by Amendment 63 would see these restrictions removed from Schedules 3 and 7 in their entirety. I understand the rationale for these amendments and recognise the force of the arguments that have been made in defence of the principle of lawyer-client confidentiality. At the same time, we are all here because we recognise the threat that we face from hostile state actors and terrorists and the risk of leaving loopholes to be exploited.

As alluded to by the noble Lord, Lord Rosser, during the debate on similar amendments on Report in the House of Commons, the Security Minister undertook to consider the proposal of the Opposition Front Bench to allow a senior officer, in such circumstances, to direct that the detainee use a solicitor from an approved panel—a point mentioned by the noble Lord, Lord Marks, and the noble Lord, Lord Rosser, who reiterated this same proposition in today’s debate. Such an approach may offer an acceptable way through this issue and I can undertake to give sympathetic consideration to his amendment in advance of Report.

However, I cannot be so accommodating about Amendment 84 because it would remove the power under Schedule 3 to delay a consultation between the detainee and their solicitor where a senior officer has reasonable grounds to believe that the exercise of this right will result in the consequences I have previously described. Powers for an officer to delay the communication of the fact of a person’s detention to a named person and to delay that detainee’s access to a solicitor have been enshrined in PACE for many years. These powers are therefore not novel but are familiar in the wider policing context and allow the police to delay contact with a third party or consultation with a solicitor where there are reasonably founded concerns that knowledge of the person’s detention may result in serious consequences. Removing this power of delay would undermine the ability to mitigate these risks.

I have already addressed part of Amendment 63 but let me now respond to the proposed changes to the other powers that allow an examining officer to restrict a Schedule 7 detainee’s access to a solicitor. These restrictions under Schedule 8 to the 2000 Act currently allow an examining officer to question a detainee without a consultation having first taken place with a solicitor in person. However, I must point out that this does not preclude the detainee from consulting a solicitor via another means—for example, by telephone.

These powers can be exercised only where the officer reasonably believes that to wait for the solicitor to arrive in person would prejudice the determination of the relevant matters. Amendment 63, however, would limit the availability of these restrictions to a situation where waiting for the solicitor to arrive in person could create an immediate risk of physical injury to any person. This is contrary to the intention of the powers, which were designed to mitigate the risk of a detainee using their right to consult a solicitor to obstruct and frustrate the examination and run down the short detention clock. As noble Lords will be aware and as the noble Lord, Lord Anderson, pointed out, the maximum period of examination is limited to six hours. It would not take a trained terrorist or hostile actor to work out that if they were to insist on speaking to a solicitor, in person, who happens to be located many miles away from the port where they are being examined, they have a means of significantly delaying their examination.

The current powers under Schedule 8 provide a practical solution to mitigate that risk by allowing the person to consult that solicitor over the phone. If the person refuses that alternative, or the solicitor is unavailable, the officer can continue questioning the person while they wait for the solicitor to arrive. Any decision by the officer to apply these restrictions must be clearly recorded.

Before using these restrictions, the examining officer will exhaust all other means to ensure that the detainee has been able to consult a solicitor in private, including directing them to a solicitor of the duty solicitor scheme. The changes proposed in Amendment 63 would resurrect the risks that I have described and undermine key powers for countering terrorism.

The noble Lord, Lord Anderson, asked about recording when restrictions are used in Great Britain and Northern Ireland. We will consider with our operational partners which statistics it would be appropriate to publish with regard to Schedule 3. I hope that the noble Lord is satisfied with that response and I will keep him updated.

[Lord Anderson of Ipswich]

The noble Baroness has asked whether I am satisfied with the response. As the independent reviewer, I was told four years ago that this was happening, and it was not the first time that I had been told it was happening, in relation to Schedule 8. I am sure that the Minister did not mean to backtrack on that commitment, but I would be very grateful if she felt able to give someone a bit of a push.

[Baroness Williams of Trafford]

I was going to use the word “shove”, but I will give them a push instead, which is probably more in keeping with your Lordships’ House.

Perhaps I may move on finally to Amendments 83 and 87. I draw the attention of the Committee to the draft Schedule 3 code of practice, which I have already circulated to noble Lords. Like its equivalent for Schedule 7, the draft code is clear that a person detained under either power must be provided with a notice of detention that clarifies their rights and obligations. The examining officer must also explain these rights and obligations to the detainee before continuing with the examination. In addition, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.

The Government are in complete agreement that any person detained under Schedule 3 should be informed of their rights before any further questioning takes place. It has always been the case through the exercise of Schedule 7 powers and it is why we have made it explicit in the equivalent draft code of practice for Schedule 3. While the Government are clear that the intention behind these amendments has already been satisfied through the provision of the draft code, I am now ready to consider further the merits of writing such a requirement into Schedule 3 and Schedule 8 to the Terrorism Act.

With those remarks, I hope that the noble Lord, Lord Marks, will be content to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

I am grateful to the Minister for the points that she has said she will consider. We will wait to hear the results of that consideration. I also thank all noble Lords who have spoken in the debate. Although I do not necessarily come from the same position as the noble Lord, Lord Anderson, on these amendments, he made an important point about the recording of incidents when the right of consultation with a solicitor is either delayed or restricted. Whether it is a push or a shove that is needed, it would be helpful if that could be clearly achieved.

I also make the point that while it is helpful that, in the vast majority of cases, the Government intend to ensure that the right to consult a solicitor in private in a timely and confidential manner is preserved, they should not underestimate the importance of the confidentiality of advice—a point made eloquently by the noble Lord, Lord Pannick. That is of course particularly relevant in circumstances where answering questions under these powers is compulsory. I therefore invite the Government to consider carefully, over and above the matters that the Minister has said she will consider, how far more proportionate ways of ensuring that detainees do not disrupt the purposes of their examination can be achieved without compromising confidentiality or the fundamental right to consult a solicitor. If we have that assurance—I note that the Minister is nodding in assent—I am happy to withdraw my amendment. However, it is a matter that we may well return to on Report.

--- Later in debate ---

[Lord Paddick]

My reading of the amendment is that it would differentiate between a Schedule 7 encounter, where the person is not entitled to silence and has to answer questions because they commit an offence if they do not, and the informal process that leads up to a Schedule 7 encounter.

[Baroness Williams of Trafford]

I thank noble Lords for their points on this amendment. I start by saying to the noble Lord, Lord Anderson, that the IPC has been consulted throughout the drafting of the code.

The interactions between noble Lords probably go to the root of the amendment proposed by the noble Lord, Lord Rosser. The section on screening outlined in the Schedule 3 code, which mirrors the existing guidance for the equivalent CT powers, is there to provide ports officers with clarity on the distinction between questions that can be asked by police officers in the ordinary course of their duties with a view to deciding whether to examine someone and questions that are permissible only once a Schedule 3 examination has commenced; that is, those questions designed to elicit information to enable an officer to determine whether the person is or has been concerned in hostile activity.

We have all come across police officers as we go about our daily lives and are used to seeing them on local streets and in tourist hotspots or protecting our national infrastructure. Wherever officers are on the ground, it is reasonable to expect them to interact with the public. It is not only a reasonable expectation but a vital aspect of front-line policing.

Such interactions will vary and depend on the specific purposes. They may range from polite conversation between an officer and a member of the public to a situation where an officer wants to query why a person is acting in a certain way or why they are present in a certain place. In such circumstances, police officers do not rely on specific powers of questioning; rather, they are simply engaging members of the public during their ordinary duties, as the noble Lord, Lord Carlile, pointed out. It is no different when officers are stationed at UK ports.

It would be unusual if officers did not interact with the public in this way. It would be even more unusual if front-line officers were not able to use those interactions to determine whether any further action was needed. It is unfortunate that, in trying to clarify this distinction between what would constitute questioning or interaction during ordinary police duties and questioning that can take place only once a Schedule 3 examination has commenced, the language and intention of the code have somehow been misunderstood.

Let me be clear: what is referred to as “screening” in the draft code is not a prescribed process or procedure that ports officers must adopt before selecting a person for examination. It is a clarification of what questions can be asked, if appropriate, prior to selection for examination, as against the questions that can be asked only during an examination.

It is quite possible that a ports officer will speak to members of the public at a UK port in the course of their duties with no intention of selecting them for an examination of any kind. Of course, the person’s behaviour might lead the officer to consider use of a police power, but Amendment 63A could have the unfortunate implication that, in other contexts and absent specific statutory powers, officers are unable to talk to the public or request to see their documents in the ordinary course of their duties to determine whether they need to take the further step of invoking their legal powers. It would define such questioning as being part of the Schedule 3 examination itself, rather than something that takes place before an examination. All that said, even though I do not agree with the amendment, we will consider whether further clarity is needed in the code before formally laying it before Parliament for a debate and approval by both Houses. I hope that, with that assurance, the noble Lord will be content to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that response and all other noble Lords who have participated in this brief debate. I am grateful to the Minister for saying, if I understood her correctly, that there will be further reflection on this issue. I accept that she has not, on behalf of the Government, accepted the amendment. I do not know whether it is the listing of potential questions that is the cause of the difficulty. If it is, one solution might simply be to make reference to the fact that there may be a screening process, without laying down specifically what the questions are that may or may not be asked as part of it, since most of the debate seems to have centred on listing the specific questions. These, of course, were lifted straight from the code of practice.

[Baroness Williams of Trafford]

I think that the noble Lord, Lord Carlile, put it correctly. Rather than prescribe a list of questions, I am seeking to get clarity within the code in due course.

[Lord Rosser]

I take it from that that the Minister will be coming back to let us know the outcome. On that basis, I thank the Minister for her response and I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Rosser]

I will be very brief indeed. We will listen with interest to what the Government have to say in response to the amendment moved by the noble Lord, Lord Anderson of Ipswich, but—obviously, subject to what the Government say—it seems to us to have considerable merit.

[Baroness Williams of Trafford]

My Lords, I echo the words of the noble and learned Lord, Lord Judge: the noble Lord, Lord Anderson, is indeed wise and elegant in his words. As the noble Lord has explained, this group of amendments deals with the definition of “hostile act” in Schedule 3.

It is important to emphasise that the design of any new power should be specific to the threat it is seeking to mitigate. The scope of this power has been designed to do just that; namely, to mitigate the known threats from hostile state activity. The danger of these amendments, therefore, is that they will limit the scope of the power, thereby limiting the range of threats that it has been designed to combat.

For the benefit of the Committee, the ports powers under Schedule 3 will be used by examining officers at UK ports or the border area,

“for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.

A person is engaged in hostile activity if they are,

“concerned in the commission, preparation or instigation of a hostile act that is or may be … carried out for, or on behalf of, a State other than the United Kingdom, or … otherwise in the interests of a State other than the United Kingdom”.

Under this schedule, a hostile act is defined as an act that,

“threatens national security … threatens the economic well-being of the United Kingdom, or … is an act of serious crime”.

By replacing “hostile act” with “serious crime”, these amendments would significantly narrow the range of hostile activity that these powers are designed to counter. It would undoubtedly limit the ability of our ports officers to detect, disrupt and deter hostile actors. Serious crime is defined in the Bill as being an offence which could reasonably be expected to result in,

“imprisonment for a term of 3 years or more, or … the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”.

Some of the activities which I believe noble Lords would expect to be captured through these new powers would not fall within the scope of the truncated definition of hostile activity. As the noble Baroness, Lady Manningham-Buller, explained earlier, some offences under the Official Secrets Act 1989 attract a maximum penalty of only two years’ imprisonment and may not involve the use of violence, result in financial gain or involve a large number of people acting in pursuit of a common purpose. Consequently, an examining officer would not be able to exercise Schedule 3 powers for the purpose of detecting, disrupting or deterring this type of hostile activity even if the activity threatens national security or could be prosecuted for offences under the Official Secrets Act. This is simply not acceptable.

There may even be occasions when we have intelligence to suggest that a person linked to hostile state activity is travelling to the UK for a hostile purpose but the intelligence we have is incomplete and the nature of the hostile purpose cannot be determined; therefore, we cannot assess whether the purpose is linked to a serious crime. In this circumstance, it would be very important to have a power to stop and examine them at the port to establish the nature of the hostile act.

As noble Lords will know, following the appalling acts in Salisbury, the Government are undertaking a review of legislation to combat hostile state activity. Hostile activity, by its very nature, is often covert and undertaken by foreign intelligence officers or their agents seeking to acquire sensitive information to gain an advantage over the United Kingdom and undermine our national security. On occasions this activity may not be considered criminal under the law as it stands; for example, if a foreign intelligence officer intended to travel to the UK to maintain or build a relationship with employees contracted to work on UK defence projects with the aim of acquiring sensitive information, this may not be a crime but it would be imperative to detect and disrupt this activity at the earliest opportunity, before irreversible damage to our national security occurred.

It is entirely plausible that a hostile actor should want to visit the UK in order to collect classified documents from an agent who had committed acts of espionage on their behalf. It is not a crime for the hostile actor to receive these documents and leave the country but, although the individual has not committed a crime, a Schedule 3 examination would enable an examining officer to make a determination as to whether they have been engaged in a hostile act. An examination would also allow the examining officer to remove the classified documents from the hostile actor, preventing the disclosure of potentially damaging information.

Even though the purpose of a Schedule 3 examination is to make a determination as to whether the actor has been engaged in a hostile act, exercise of the power may provide a number of secondary benefits. In instances such as the example I have just talked about, it would provide the first leads into an investigation to detect who the agent is—if we did not already know—and prevent the documents from ever being disclosed. These investigations may or may not lead to future prosecutions. It is therefore right to give the police the power to investigate hostile state activity, even at a preliminary stage before we have reasonable suspicion that a foreign intelligence officer has committed an offence. I know that noble Lords do not really think that the police should not have the power to stop someone who is from, or acting on behalf of, a foreign intelligence service as they enter or leave the United Kingdom.

If we were to accept these amendments, traditional behaviours undertaken by hostile states which have the potential to have such a detrimental effect would fall out of scope of the power and we would not be able to detect, disrupt or deter them. I put it to noble Lords that such activity should not go unchallenged. The definition of “hostile act” is necessarily broad to ensure that the powers capture the full range of activities which hostile actors engage in. We recognise the concerns that have been raised and I reassure the Committee that these were considered in the drafting of Schedule 3. This is why we have explicitly restricted the definition to an act that is carried out for, or on behalf of, or otherwise in the interests of, a state other than the United Kingdom.

I also recognise the concerns about the term,

“economic well-being of the United Kingdom”.

As has been pointed out, there may be instances where an act undertaken by a hostile state actor threatens that economic well-being yet does not threaten our national security; it is also true for acts of serious crime. Economic well-being, like national security, is a term already used in UK legislation. The intention of this limb of the definition is to ensure that these powers can be used to mitigate hostile acts which could damage the country’s critical infrastructure or disrupt energy supplies to the UK. For example, if an employee in the banking sector of the City of London discovered a serious vulnerability in computer networks and shared this information with a hostile state, it would drastically undermine confidence in the City of London and cost the UK economy millions, if not billions.

I hope that with these explanations, the noble Lord will feel content to withdraw his amendment.

[Lord Anderson of Ipswich]

My Lords, I am grateful to the Minister and to all noble Lords who contributed to this debate, including the noble Baroness, Lady Manningham-Buller, who made her remarks earlier.

I asked the Minister whether she could give another example of the police being given strong, coercive powers for the purpose of determining whether people are acting in a way which may be undesirable but which is perfectly lawful under the law of the land. I do not think that I had an answer and, if there is no answer, I would suggest that the Bill as written constitutes a new and very dangerous departure. That is the point of principle behind this amendment and, with great respect to the Minister, she did not address it in her reply. I hope that the Minister will consider this carefully because my concerns, as she has heard, are shared by lawyers far more distinguished than I—and not only by lawyers.

As to the pragmatic solution, the Minister has heard suggestions as to how the scope of this power could be reduced in a way that achieves its objectives in a manner more consistent with the principle of legality. I hope that she will deliberate further on those suggestions. I would be more than happy to discuss them with her but, in the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I was not clear whether the noble Lord, Lord Rosser, was using this amendment to seek more information, but we wonder about the operational practicality of its first paragraph. It suggests that if the commissioner is informed of a particular stop, they would have some power or role to respond. More important are the points implicit in what the noble Lord said about keeping records or data. In another context, the noble Lord, Lord Anderson, used the term “meticulous” about keeping records in Northern Ireland, and reference was made to using them as the basis for review of practice. That is very important and although we have hesitations about the amendment’s first paragraph, what has prompted it is important.

[Baroness Williams of Trafford]

As the noble Lord, Lord Rosser, pointed out, Amendment 67ZA would require an examining officer to notify the IPC each time a person is examined under Schedule 3 and require the commissioner to publish an annual report on the use of the powers in the Northern Ireland border area. In relation to the second part of the amendment, as the noble Lord stated, Part 6 of Schedule 3 already requires the commissioner to review the use of the powers and make an annual report.

The police will make a record of every examination conducted under Schedule 3, as they already do with Schedule 7. I reassure noble Lords that the commissioner will be afforded full access to these records on request, and to information on how the powers have been exercised. It would place an unnecessary burden on the examining officer to have to notify the commissioner each and every time a person has been examined.

Regarding concerns about how these powers will be exercised at the border in Northern Ireland, media and political commentary over the summer sought, wrongly, to conflate the introduction of this legislation with the discussions on the Irish border in the context of Brexit and concerns over the possibility of more stringent measures. The Security Minister wrote to the shadow Secretary of State for Northern Ireland on 4 October to address these concerns. I circulated a copy of that letter after Second Reading, so I will not repeat his response in full here. However, I want to reiterate that it is simply not the case that these powers will be used as an immigration control or to interfere with the right to travel within the CTA. Their application to the border area mirrors that of the analogous counterterrorism powers in Schedule 7 to the 2000 Act, which have been in operation for 18 years. In that time, we have not seen a blanket or large-scale use of these powers in the border area. In fact, the number of examinations in Northern Ireland as a whole during 2017-18 amounted to 6% of the UK total.

The Schedule 3 powers must be used only to determine a person’s involvement in hostile activity. The location and extent of their use will be informed by the threat from hostile activity and any decision to use them will be on a case-by-case basis. While the commissioner’s annual report will not provide a location breakdown of where the powers are exercised, for clear national security reasons, he will review police exercise of the powers, including their use in Northern Ireland.

The noble Lord, Lord Rosser, asked whether the Bill regularises stops that are already taking place under Schedule 7. The answer is no. Schedule 3 powers will be used only to determine whether a person is engaged in hostile activity. We have already discussed the definition of hostile activity. Its broad scope is to mitigate a range of threats. Schedule 7 is about persons engaging in terrorism.

I hope that I have been able to reassure the noble Lord, Lord Rosser, and that he will be content to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that response and the noble Baroness, Lady Hamwee, for her contribution to this brief debate. The point I was seeking to clarify is that, as I understand it, the Government have maintained that sometimes the powers under Schedule 7 to the Terrorism Act 2000 were being used to stop people who, it might be argued, are involved in hostile activity. The point that I was trying to confirm is whether the Government feel that they are simply regularising what happened under another Act, or whether we are talking about a new group of people who may be stopped and detained. I gather from what the Minister said that we are, and that we are not talking about people who, rightly or wrongly, may have been stopped and detained under the Terrorism Act on the basis that it was counterterrorism.

I assume that the Minister is once again going to say that she is unable to respond, but are we expecting any significant increase in the number of people being stopped and detained? She said that they will be people who are not being stopped and detained at present under other powers when perhaps those powers should not have been used, and that these will be new people. Is that the situation? Is it likely to be an extensive number? She said that it would be very difficult for the commissioner to be advised every time somebody was stopped, which suggests that there will be significant numbers of people.

[Baroness Williams of Trafford]

Mercifully for the UK public, the number of people involved in hostile state activity is low. The commissioner will have access to all the reports. We are expecting far fewer stops than under Schedule 7. I think I expressed that, but in a different way. We do not expect a plethora of new cases. The IPC can have access to all the records, but he does not have to be informed every time. He will have all the information he needs.

[Lord Rosser]

I thank the Minister for that response. I want to reflect on what has been said. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Paddick]

My Lords, briefly, I agree in principle with the intention behind the amendments, at least on confidential journalistic material and material that is subject to legal privilege. However, I recognise the dilemma of how you determine whether it is confidential information unless you just take the person’s word for it. Clearly, if you just accepted the person’s word that the matter was confidential, anybody could get away with not handing over documents. I do not think that Amendment 69A could work in practice in real time, but there is a real problem here that needs an explanation and some reassurance.

[Baroness Williams of Trafford]

My Lords, I hope that I can reassure noble Lords with my explanation, but I thank those who have raised their concerns about the use of Schedule 3 powers to compel a journalist to reveal their material, including confidential material.

In drafting the Bill, we have been alive to such concerns and at pains to ensure that adequate safeguards, which I think noble Lords are talking about, are in place to protect confidential material, including confidential journalistic material. As the noble Lord, Lord Rosser, pointed out, the new retention powers in respect of confidential information require the authorisation of the Investigatory Powers Commissioner, who has to be satisfied that certain conditions are met before granting that authorisation.

In earlier debates on the powers under Schedule 3, I explained that a number of foreign powers and hostile actors are becoming even more bold and inventive in their methods. For example, as I outlined earlier, intelligence officers and their agents actively use the cover of certain professions, including journalism, the law and others. To ensure that our police officers are equipped to detect, disrupt and deter such activity, it is critical that they are able to retain, copy and examine documents or other articles that may include confidential journalistic or legally privileged material. That is why Schedule 3 introduces new powers and mechanisms to allow for such action to be taken where the article, which may include confidential material, could be used in connection with a hostile act or to prevent death or significant injury.

I recognise that the protection of journalistic material held by any individual examined under ports powers is a sensitive matter and one where we clearly need to get the safeguards in the Bill right. I want to be clear that the powers in Schedule 3 are not intended to disrupt or impede the vital work of journalists in any way. Journalistic freedoms of speech and expression are the absolute cornerstone of our democracy, which should be protected in the exercise of any police powers. The provisions in the Bill, however, are aimed at those who seek to abuse our legal frameworks to put our national security at risk and who are often trained to do so.

Amendment 68 would allow a person to refuse a request for documents or information where the information or documents in question consist of journalistic material, as defined by the Police and Criminal Evidence Act and the Investigatory Powers Act, or are subject to legal privilege. In practice, this would prohibit the examining officer from verifying that the material in question was confidential and would require the officer to take the examinee at their word. Amendment 69A is similar and, while it does not quite go as far as allowing a person to refuse to provide requested documents or information, it would prohibit an examining officer from verifying that that material was confidential. Instead, it would be for the IPC to determine the question.

Restricting powers in this way would be problematic, particularly where the examinee is a trained hostile actor. Amendment 68 would provide a ground for a person to refuse to hand over documents or information simply by claiming that the material is journalistic or legally privileged. Furthermore, it would mean that the examining officer could not seek to examine such material, where there was a need, by retaining the material and applying for IPC authorisation. Amendment 69A is also concerning, as it would impose a restriction on the examining officer such that they were unable to establish their own reasonable belief that the article consisted of confidential material. The police have a duty to protect our citizens and prevent crime. They cannot be expected to take at face value the word of someone they are examining who, in some cases, will be motivated to lie.

It is important to note that there are additional safeguards to govern the retention of property under Schedule 3 that consists of, or includes, confidential material. The IPC will authorise the retention and use of the material only if satisfied that arrangements are in place that are sufficient for ensuring that the material is retained securely, and that it will be used only so far as is necessary and proportionate for a relevant purpose—that is, in the interests of national security or the economic well-being of the United Kingdom; for the purposes of preventing or detecting serious crime; or for the purposes of preventing death or significant injury.

The Government are of the view that it is reasonable to expect that an examining officer will need to review material, to conclude one way or the other that specific items are, or include, confidential journalistic or legally privileged material. That being said, the draft Schedule 3 code of practice is clear:

“If during the process of examining an article it becomes apparent to the examining officer that there are reasonable grounds for believing that the article consists of or includes items that are confidential material, the examining officer must cease examining and not copy these items unless he or she believes there are grounds to retain it under either paragraph 11(2)(d) or (e)”.


The provisions in paragraph 11 of Schedule 3 contain the retention powers involving oversight by the IPC and the safeguards that I described earlier. I acknowledge that handling confidential material requires vigilance and discretion to safeguard it against unnecessary examination or retention, which is why the mechanisms under paragraphs 12, 13 and 15 of Schedule 3 in relation to these retention powers require prior authorisation of the IPC to be sought, save in exceptional circumstances, before an examining officer is able to examine such material.

We are therefore confident that the safeguards provided for in Schedule 3 and the associated draft code of practice are sufficient to protect the work and privacy of legitimate journalists and lawyers, and are consistent with the Court of Appeal’s judgment in the Schedule 7 case of Miranda that,

“independent and impartial oversight … is the natural and obvious adequate safeguard”,

in examining cases involving journalistic material.

Amendment 69 would extend this bar to information and documents where the material falls under the definition of journalistic material, as defined by the PACE and IP Acts. Such a position would go much further than safeguarding the examinee against self-incrimination. By extending the statutory bar to cover information or documents that are considered journalistic material, Amendment 69 could prevent evidence of a hostile act being used in criminal proceedings where it had been acquired through the legitimate examination of confidential material on the authorisation of the IPC. This would significantly undermine the ability of the police and the CPS to prosecute hostile actors who have used journalistic cover to disguise their criminal activities and been uncovered through the Schedule 3 examination powers.

In answer to the noble Lord, Lord Rosser, an officer can proceed to verify that material is confidential, subject to IPC authorisation, and look at confidential material, even if satisfied of the credentials of the journalist who might nevertheless be a hostile state actor.

Amendment 71 concerns the definition of “confidential material” in paragraph 12(10) of Schedule 3 and the associated protections. For the purposes of Schedule 3, confidential material adopts the definition of the IP Act. This definition covers, for example, journalistic material and communication that the sender intends the recipient to hold in confidence. As I explained, this material would fall under the definition of confidential material. It cannot be used or retained by an examining officer unless authorised by the IPC.

With those explanations—I am sorry they were so lengthy—I hope that the noble Baroness will feel happy to withdraw her amendment.

[Baroness Jones of Moulsecoomb]

My Lords, I have listened very carefully and will reread the Minister’s arguments tomorrow. I do not feel entirely comforted. I hope that the Government feel that this has been a useful debate in terms of perhaps adjusting their position. I very much hope that that will happen. While we talk all the time about hostile actors and people who could lie, we also rely so much on the individual who is stopping them, and on their discretion and judgment. When there is so much leeway for these people, there are opportunities for wrong decisions that could impact quite heavily on some people. I beg leave to withdraw my amendment.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

72: Schedule 3, page 45, line 6, after “representations” insert “, before the end of whatever period the Commissioner may specify,”

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

82: Schedule 3, page 47, line 6, at end insert—
“15A(1) Before proceeding under paragraph 15 in relation to a copy, the Commissioner—(a) must invite each affected party to make representations, before the end of whatever period the Commissioner may specify, about how the Commissioner should proceed under that paragraph, and(b) must have regard to any representations made by an affected party before the end of that period. (2) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under paragraph 15 in relation to a copy, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.(3) Each of the following is an “affected party” for the purposes of this paragraph—(a) where the examining officer is a constable, the responsible chief officer,(b) the Secretary of State, and(c) the person from whom the article was taken from which the copy was made.(4) In sub-paragraph (3) “responsible chief officer” means—(a) in a case where the copy was made in connection with an investigation being conducted by a police force in England and Wales, the chief officer of police of that police force;(b) in a case where the copy was made in connection with an investigation being conducted by the Police Service of Scotland, the chief constable of the Police Service of Scotland;(c) in a case where the copy was made in connection with an investigation being conducted by the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland;(d) in any other case—(i) where the examining officer is a constable of a police force in England and Wales, the chief officer of police of that police force,(ii) where the examining officer is a constable of the Police Service of Scotland, the chief constable of the Police Service of Scotland, or(iii) where the examining officer is a constable of the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland.(5) Sub-paragraph (6) applies where—(a) a direction for the destruction of a copy is given under paragraph 15, or (b) authorisation for the retention and use of a copy is granted under that paragraph.(6) The Commissioner must inform the person from whom the article was taken from which the copy was made that—(a) a direction to destroy the copy has been given, or(b) (as the case may be) authorisation to retain and use the copy has been granted (and in this case the Commissioner must provide details of any conditions subject to which that authorisation was granted).(7) A requirement under this paragraph to invite representations from, or to provide information to, the person from whom an article was taken from which a copy was made applies only so far as it is reasonably practicable to do so.(8) Representations under sub-paragraph (1) must be made in writing.15B(1) This paragraph applies where—(a) a copy consisting of or including confidential material is retained by virtue of paragraph 14(3)(d) or (e), and(b) the examining officer who retained the copy considers that the urgency condition is met in relation to the copy.(2) The urgency condition is met in relation to a copy if—(a) there is an urgent need for the copy to be examined or otherwise used for the purpose of preventing—(i) the carrying out of a hostile act, or(ii) death or significant injury, or for the purpose of mitigating the risk of any such act, death or injury occurring, and(b) the time it would take for the requirements of paragraphs 15 and 15A to be complied with in relation to the copy would not enable such use to take place with sufficient urgency.(3) The examining officer may apply to a senior officer for authorisation to continue to retain and use the copy.(4) An application under sub-paragraph (3) in relation to a copy may be made only to a senior officer who has not been directly involved in the exercise of any power under this Part of this Schedule to make the copy or to question a person from whom the article was taken from which the copy was made.(5) A senior officer may grant an authorisation under this paragraph for the retention and use of a copy if satisfied that—(a) there are reasonable grounds for considering that the urgency condition is met in relation to the copy,(b) arrangements are in place that are sufficient for ensuring that confidential material contained in the copy is retained securely, and(c) the material will be used only so far as necessary and proportionate for a purpose mentioned in sub-paragraph (2)(a).(6) An authorisation under this paragraph—(a) must be recorded in writing;(b) may be granted subject to whatever conditions the senior officer thinks appropriate.(7) Paragraphs 15C and 15D contain further provision about authorisations granted under this paragraph.(8) In this paragraph—“confidential material” has the meaning given by paragraph 12(10) and (11);“senior officer” means—(a) where the examining officer is a constable, another constable of at least the rank of superintendent, (b) where the examining officer is an immigration officer, an immigration officer of a higher grade than the examining officer, and(c) where the examining officer is a customs officer, a customs officer of a higher grade than the examining officer.15C(1) If a senior officer grants an authorisation under paragraph 15B, the examining officer who applied for the authorisation must inform the Investigatory Powers Commissioner and each affected party of its grant.(2) The information required under sub-paragraph (1) must be given as soon as reasonably practicable and in any event within 24 hours after the grant of the authorisation.(3) An affected party may make representations to the Commissioner about how the Commissioner should proceed under paragraph 15D in respect of an authorisation granted under paragraph 15B.(4) Representations under sub-paragraph (3) must be made in writing no later than the end of two working days beginning with the first working day after the day on which the authorisation is granted.(5) The information provided under sub-paragraph (1) must include an explanation of the right to make representations in writing and the time by which they must be made.(6) The Commissioner must have regard to any representations made before the end of the time mentioned in sub-paragraph (4) in determining how to proceed under paragraph 15D.(7) The requirement under this paragraph to provide information to the person from whom an article was taken from which the copy was made applies only so far as it is reasonably practicable to do so. (8) In this paragraph and paragraph 15D—“affected party” has the meaning given by paragraph 15A(3);“working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom in which the authorisation is granted.15D(1) This paragraph applies after the Investigatory Powers Commissioner has considered any representations made about an authorisation in accordance with paragraph 15C.(2) The Commissioner must—(a) approve the grant of the authorisation, or(b) cancel the authorisation.(3) A decision under sub-paragraph (2) must be made—(a) after the end of the period for making representations referred to in paragraph 15C(4), and(b) before the end of three working days beginning with the first working day after the day on which the authorisation is granted.(4) If the decision under sub-paragraph (2) is to approve the grant of the authorisation, the retention and use of the copy may continue in accordance with the conditions on which the authorisation was granted (subject to any further conditions or variation of the existing conditions that the Commissioner specifies).(5) If the decision under sub-paragraph (2) is to cancel the authorisation, any further use of the copy must stop as soon as possible.(6) If the Commissioner cancels the authorisation the Commissioner may direct that—(a) the copy is destroyed, and (b) all reasonable steps are taken to secure that any information derived from the copy is also destroyed.(7) Sub-paragraphs (5) and (6) do not apply if the copy is further retained under a power conferred by paragraph 14(3)(b) or (c).(8) The Commissioner must inform each affected party of the Commissioner’s decision under sub-paragraph (2).(9) The requirement under this paragraph to provide information to the person from whom the article was taken from which the copy was made applies only so far as it is reasonably practicable to do so.(10) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under this paragraph in relation to a copy, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.(11) Nothing in this paragraph affects the lawfulness of—(a) anything done under an authorisation before it is cancelled;(b) if anything is in the process of being done under an authorisation when it is cancelled—(i) anything done before that thing could be stopped, or(ii) anything done which it is not reasonably practicable to stop.”

--- Later in debate ---

[Lord Morrow (DUP)]

My Lords, I congratulate the noble Baroness, Lady Howe, on bringing forward Amendments 89 and 91, which I am content to support.

Like the noble Baroness, I scrutinised the Minister’s letter, which I will come back to. The letter makes two key claims with respect to the Channel guidance. First, it states:

“The Channel Duty Guidance is clear that ‘preventing terrorism will mean challenging extremist (and non-violent) ideas that are also part of a terrorist ideology’”.


In this context, the Minister argues that the only point of intervention would be where extremist ideas are used,

“to legitimise terrorism and are shared by terrorist groups”.

In truth, however, as the noble Baroness, Lady Howe, pointed out, the guidance contains some references to extremism that are not rooted in a necessary connection to terrorism, and it thereby effectively mandates two interventions: one quite properly, where there is concern that the individual in question is being drawn into terrorism, whereas the other is effectively a monitoring intervention to monitor people whose views the state considers extreme but in relation to which there is no need for any immediate connection to terrorism. I assume that the thought is that because they have extreme views, there is a chance that they could at some point show signs of interest in terrorism, but in the absence of anything other than a vague definition of extremism, this opens the door for the state to start monitoring any views its officers decide are extreme. I find this second intervention Orwellian and illiberal.

The current legislation in Section 36 of the 2015 Act provides a clear and narrow remit that is confined to terrorism. It is completely inappropriate to issue guidance that strays into undefined views that the state or its representatives happen to find extreme, unless they are connected to espousing or celebrating terrorism.

This problem is clearly underlined by the fact that paragraph 124 of the new Counter-Terrorism Strategy, published in June, comments on the Channel programme and states:

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


That tells us all we need to know: it addresses extremism in all its forms, and thus there is no necessary connection of any sort with terrorism. I find somewhat disingenuous the suggestion from the Minister that the Channel guidance is the only guidance that will inform the approach of local government officials in discharging their responsibilities under Section 36. I completely accept that the Channel guidance has been specially developed to help local government discharge its responsibilities with respect to Section 36. It is certainly the guidance to which local authorities refer first when considering their Section 36 responsibilities. However, that does not mean that the other guidance documents to which the noble Baroness, Lady Howe, referred will not be consulted.

The fact that the Channel process is part of the Prevent strategy is spelled out for us by the Channel guidance. Paragraph 7 of Section 1 states:

“Channel forms a key part of the Prevent strategy”.


In this context it would not be at all surprising if the Prevent Duty Guidance was consulted in addition to the Channel guidance to provide a broader context as Channel is, by the guidance’s own admission, part of the Prevent strategy. On the same basis, it would not be at all surprising if a local authority in want of a better understanding of extremism also turned to the Counter-Extremism Strategy, or if a local authority in want of a better understanding of terrorism also turned to the Counter-Terrorism Strategy. This is where Justice Ouseley’s judgment becomes so important.

In her letter, the Minister said:

“The High Court in the case of Salman Butt v the Secretary of State for the Home Department, which Baroness Howe also mentioned, was clear that the Government was fully within its powers to include this form of non-violent extremism within the scope of the Prevent Duty Guidance”.


I accept that it is possible to find a good number of statements in the Prevent Duty Guidance that are consistent with this statement. Take paragraph 38, for example, which states:

“We expect local authorities to use the existing counter-terrorism local profiles … produced for every region by the police, to assess the risk of individuals being drawn into terrorism. This includes not just violent extremism but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”.


However, it is also possible to find numerous references to extremism in the Prevent Duty Guidance, where no such distinction applies—for example, in paragraph 106, which states:

“Prisons should perform initial risk assessments on reception, including cell-sharing risk assessments, and initial reception and induction interviews to establish concerns in relation to any form of extremism, be that faith based, animal rights, environmental, far right, far left extremism or any new emerging trends”.


Let us now consider paragraph 109:

“Appropriate information and intelligence sharing should take place, for example with law enforcement partners, to understand whether extremism is an issue and to identify and manage any behaviours of concern”.


Again, there is plainly no necessary link to terrorism here; and let us consider paragraph 131:

“In addition PCTLs should lead the development of, for example, faith awareness or Extremism Risk Screening training of local training and staff development to supplement the Prevent awareness training. This should focus on emerging issues and any new support and interventions that become available”.


I could go on, but in some ways the most damning statement from the guidance is the glossary definition of extremism, which provides the baseline account for the term in the guidance. The glossary in the 2015 guidance, which can be located on page 21, states:

“‘Extremism’ is defined in the 2011 Prevent strategy as vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces, whether in this country or overseas”.


Crucially, this definition does not require any connection with terrorism. The calling for the death of servicemen is not necessary to meet the definition which also does not require any other link to terrorism. It is this glossary definition of extremism that is being used to broaden the scope of the Channel and Prevent duties. The very moment these duties divert from their primary aim of addressing the risk of people being drawn into terrorism to addressing the risk of people being drawn into terrorism and extremism—where the two are contrasted they clearly are not the same—we are at risk of becoming an Orwellian state.

In this context, it is particularly concerning that, as reported by the Joint Committee on Human Rights, Dr Charlotte Heath-Kelly at the University of Warwick has warned about her concerns with local authority involvement in Prevent. She said:

“We have found that this leads healthcare professionals and Local Authority processes to enquire into incidences of dissent and illiberal political beliefs—rather than vulnerability to abuse in persons with formal care needs (the legal definition of safeguarding). For example, during our study of local authority owned Prevent work, we found cases where children had been referred to safeguarding teams for watching Arabic television, and where adults were referred for planning pilgrimage trips. While these incidents did not reach Channel, it is crucial that the select committee investigate the low level, and misguided, monitoring of religiosity and political beliefs. People have a right to their beliefs without them being interpreted and medicalized as ‘vulnerabilities’”.


I very much hope that, when the Minister responds to this debate, she will acknowledge that there are real concerns here; I hope she might be willing to meet concerned Members to discuss the matter between Committee and Report about the way the relevant guidance documents handle extremism.

I should say that there are members of the other place who would also like to attend such a meeting with the Minister. They had wanted to raise this matter through an amendment on Report but were somewhat taken aback by the fact that the day the Government announced the date for Report in another place was the very same day as the deadline for submitting amendments. This meant that the only amendments tabled on Report in another place were from the Front Benches, who knew in advance the date for Report and thus the deadline for tabling amendments to explore these issues. There was not a single Back-Bench amendment.

[Baroness Williams of Trafford]

My Lords, I thank both the noble Lord, Lord Morrow, and the noble Baroness, Lady Howe, for explaining the amendments at length. I say at the outset that I am happy to meet with both the noble Baroness and the noble Lord in due course.

Both at Second Reading and today, the noble Baroness mentioned a number of guidance documents and strategies which she suggested had informed the decisions made by local authorities about the referral of individuals to a Channel panel. Among them, she referred to the Prevent Duty Guidance. However, this guidance is not the relevant document which will guide local authorities through this process. The Prevent Duty Guidance concerns a separate duty, the wider Prevent duty, containing Section 26 of the Counter-Terrorism and Security Act 2015. The proposal in Clause 19 instead talks of the duty of local authorities to maintain a panel to assess and provide support to people who are vulnerable to being drawn into terrorism; this is commonly known as the Channel panel. The statutory basis for these Channel panels is found in Sections 36 to 41 of the 2015 Act. This is accompanied by its own statutory guidance, issued under the power in Section 36(7), known as Channel duty guidance.

Counter-Terrorism and Border Security Bill

Baroness Williams of Trafford Excerpts

Report: 1st sitting: House of Lords
Monday 3rd December 2018 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendments 1 and 2, in the names of the noble Baroness, Lady Jones, and the noble Lord, Lord Paddick, concern issues that we discussed in Committee. I listened carefully to the debate then and have listened carefully to the debate this afternoon. I have great respect for the noble Baroness but I want to make it clear that if she puts her amendment to the vote today and divides the House, we will not be with her. For me, the crucial word is “and”, which links new subsections (1A)(a) and (1A)(b). My noble friend Lord Harris of Haringey made the point that we need to read and consider both paragraphs together.

In Committee, the noble Lord, Lord Carlile, put it much more eloquently and succinctly than I can and he has done so again today. In Committee, he said:

“First, it recognises that even in this relatively gun-free”,


society,

“if someone expresses support in a certain way for a proscribed organisation, it may put some of our fellow citizens in mortal danger of their lives.”.

He went on:

“It does not criminalise the expression of support, rather it forbids and criminalises the expression of support on certain terms as set out in proposed new Section 1A(b), and that is the test of recklessness. Recklessness requires awareness of the risk that is being taken by the speaker”.—[Official Report, 29/10/18; cols. 1130-31.]


I agree very much with that position and, on the basis of it and what I have heard today, we will not support the noble Baroness in the Lobbies today. I did not accept at all her point that you can be supportive of an organisation but not support it. I think that if you are supportive of it, you do support an organisation. The clause as drafted is reasonable and, for me, it strikes the right balance.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank noble Lords who have spoken in this debate and particularly the noble Baroness, Lady Jones, for moving her amendment. She has set out her position on this clearly and consistently, but I hope that your Lordships will indulge me if I rehearse the reasons why the Government cannot support the amendments.

As the noble Baroness said, Clause 1 amends Section 12(1)(a) of the Terrorism Act 2000, under which it is currently an offence to invite another person to support a proscribed terrorist organisation. An invitation in this context may be explicit or indirect, and may be implicit or opaque, but for a conviction to be secured the prosecution must be able to prove that the person intended to influence others to support the terrorist organisation. I recognise that, when considered in the abstract, this may appear to be the right threshold for the offence. However, in its operation it has been shown to leave a significant gap in the ability of the police, the CPS and the courts to act against hate preachers and radicalisers, as noble Lords have pointed out. This is because such individuals will often be careful to err on just the right side of the law. They will express opinions and beliefs which, in the judgment of a reasonable person, would be likely to have the effect of encouraging others to support proscribed terrorist groups but will stop short of statements which would go far enough to allow the CPS to prove that they intended such encouragement. This is despite them clearly and unambiguously risking harm to the public by virtue of their expressions.

This gap is illustrated by some of the cases to which I have previously drawn the House’s attention, and which were described by Assistant Commissioner Neil Basu in his evidence to the Public Bill Committee in the House of Commons. I urge noble Lords to examine that evidence carefully. In those cases, it was not possible to prosecute prolific and high-profile preachers of hate who had made highly inflammatory public speeches which were very clear about the speaker’s own support for terrorist organisations and methodology and which were on any reasonable assessment likely to cause their audience to be influenced to support a proscribed organisation. They included open admiration for Daesh and other terrorist groups and praise for their methods, ideology and activities.

However, I hope I will reflect the views of many noble Lords when I say that the current position strikes the wrong balance if it allows such obviously harmful behaviour to go unchallenged. This is behaviour that can have a powerful effect in initiating or moving along the process of radicalisation. There are radicalisers and hate preachers who have, time and again, been shown to have played a prominent and influential role in the backgrounds of those who have been convicted of planning or carrying out terrorist attacks.

Clause 1 is intended to close the gap I have described by bringing within the ambit of the Section 12(1)(a) offence individuals who are reckless as to whether they will cause this harm to arise. We have previously debated what is meant by “reckless”, but I think it is worth briefly setting this out again, before I turn to my concerns with the noble Baroness’s proposed amendments to Clause 1.

To answer the noble Baroness’s question, the term “reckless” is a well-established and well-understood concept in the criminal law, and one with which the courts are familiar, in particular as a result of clear case law established by the then Appellate Committee of this House in 2003 in the case of R v G and another. A person acts recklessly where he or she is aware that in the circumstances there is a risk that their conduct will result in the proscribed outcome, and they none the less engage in that conduct in circumstances where a reasonable person would not.

So, under Clause 1, a person might act recklessly if, in the course of addressing an audience consisting primarily of individuals whom he believes are of an Islamist extremist mindset, he speaks of his own support for Daesh, believing he has a degree of influence over the audience and being aware of the risk that members of the audience will be influenced by him to support Daesh. I hope noble Lords will not disagree when I say that a reasonable person would not, and should not, proceed to make that speech in those circumstances. A person who none the less does so would therefore be doing so recklessly. It may not be possible to prove beyond reasonable doubt an intention to influence their audience to support Daesh, but I consider it appropriate and proportionate that the courts can hold them to account if they are reckless in this way. Clause 1 will ensure that this is the case.

Turning now to Amendment 1, the noble Baroness, Lady Jones, set out a concern that the reference to a statement that is “supportive” of a proscribed organisation might risk a person being found guilty of a terrorism offence having tweeted their support for a legitimate political objective which happens to be shared by a proscribed terrorist organisation. She gave the examples of support for an independent Kurdistan and for the withdrawal of Israeli troops from the Occupied Territories, both of which are entirely legitimate standpoints but which are also objectives of, respectively, the PKK and the military wings of Hamas and Hezbollah. I have previously assured her, and I am happy to repeat those assurances, that this is not the case. In her example, there would be no suggestion that the person supported terrorist methods to achieve the political objectives to which they aspired or that they supported any proscribed terrorist organisation. There would, therefore, be no basis on which a reasonable person might equate such a statement with support for the PKK or for the proscribed wings of Hamas or Hezbollah or might anticipate that a listener would be influenced to support those organisations. As such, the statements would not meet the recklessness test and would clearly not be caught by Clause 1.

The noble Baroness further highlighted in Committee that the existing Section 12(1)(a) offence refers to,

“inviting support for a proscribed organisation”,

whereas Clause 1 refers to,

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

She suggested that “supportive” is, intentionally, a broader wording, which will cast the net of the offence more widely than would be the case if the word “supports” were used instead.

I think we are all clear that there is no difference in meaning in the context of the drafting. The existing Section 12(1) offence criminalises those who invite others to support a terrorist group. That word has the wider meaning that the noble Baroness described, repeating what the court said in Choudary, but in the new offence, we are talking about an opinion or belief. As a matter of syntax, an opinion or belief cannot support an issue; a person supports something. That is why parliamentary counsel has used the word “supportive” here. There is no intention to introduce a wider concept than the existing offence. Crucially, new Section 12(1)(b) requires that a person will be encouraged to support a proscribed group by the expression.

However, I can offer the noble Baroness a clear assurance that it would in any event have no meaningful impact on the effect of the clause, the scope of the offence or the range of causes that would be caught by it. This would be exactly the same whichever formulation were used.

Amendment 2 would remove the recklessness test and replace it with one that effectively repeats the existing position in the Section 12(1)(a) offence, so it would still be necessary to prove the same deliberate act of invitation to support.

The noble Baroness has made it clear that she does not support the purpose of Clause 1, and I respect that view, even if I do not agree with it, but I should make it clear to noble Lords that the amendment would entirely nullify the utility of this clause and, as such, were it to be made, we might as well simply strike the whole clause from the Bill.

I hope that with that explanation, noble Lords are satisfied and the noble Baroness will feel able to withdraw her amendment.

[Lord Paddick]

Before the noble Baroness sits down, perhaps she might address the remarks of the noble and learned Lord, Lord Judge.

[Baroness Williams of Trafford]

I heard what the noble and learned Lord, Lord Judge, had to say, but I do not agree. I hope that the reasons I set out explained why I do not agree.

[Baroness Jones of Moulsecoomb]

I thank the Minister for her assurances. I do not accept that Amendment 1 nullifies Clause 1; that is not true. I thank the other noble Lords who have spoken this afternoon.

I feel that I represent in this House someone against whom the law has been used illegally on other occasions. I am very law-abiding, I am extremely respectful of the law, but, at the same time, I have been targeted by the police. Therefore, I come from a particular perspective, which is that if definitions are not tight enough, they can be used against the innocent. This is personal. I have been in your Lordships’ House for five years and feel passionately about a lot of issues and have moved amendments to many Bills, but this is the first time that I am moved to divide the House.

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[Lord Judd (Lab)]

My Lords, I declare an interest because of my professional and voluntary past, as recorded in the register. We are touching on immensely significant issues. I have great respect for those responsible for the grouping of amendments, and have seen its effectiveness over many years, but there are occasions when the overlap between two different groups becomes particularly significant.

I note that the amendment from the noble Lord, Lord Paddick, which deals with the matter that I am about to raise in specific terms, is equally significant and perhaps more controversial in this area. I am talking about the invaluable and courageous contribution made by dedicated people to the long-term task of peacebuilding. They go into an area for a long period of time and become what might be referred to in other spheres as embedded—they become part of the local population by the very nature of their work. They are trying to build the reconciliation and understanding which is necessary for a long-term solution.

Unfortunately, we are limited by the grouping of the amendments. I have had a certain amount of discussion with those responsible and very much value, as I always do, their advice. However, it is fair to say that I am uneasy. It seems to me that by the very nature of the work of peacebuilding—sometimes having to get close to people who are not necessarily very attractive or who are controversial—people could give a police officer grounds for arrest on the basis that we have heard explained.

It is therefore absolutely essential that at every moment in our relevant discussion of this part of the Bill, the Minister is at pains to spell out that bona fide peacebuilders are exempt and protected. Otherwise, this could have terrible dumbing-down effects on those who would be anxious to do such work. It would put great strain on them in terms of what could happen to them and would therefore hamper their work considerably. If that were to happen, it would be a great loss. No matter how important the humanitarian dimensions—humanitarian aid and the rest, to which I will take second place to nobody in terms of my support—it is very often in this area of peacebuilding that the really significant work for the future is undertaken. I therefore hope that the Minister will take this point seriously and perhaps take the opportunity to pay tribute to those who sometimes undertake this work, and that we can be sure that exemptions in any other sphere, in all aspects of the operation of the Bill, apply in this case.

[Baroness Williams of Trafford]

My Lords, I thank the noble Lord, Lord Paddick, for taking us through an explanation of his amendment and explaining it with reference to Amendment 15 and his point about people who have a reasonable excuse.

In relation to viewing terrorist information in Clause 3 and entering or remaining in a designated area in Clause 4, the amendments would reconfigure the offences. Rather than the person who committed the offence of engaging in prohibited conduct being acquitted because they use the defence of having a reasonable excuse, there would instead be an exception—they would not be capable of committing the offence in the first place in circumstances where they have a reasonable excuse.

In relation to the offence of publishing images under Clause 2, there is currently no “reasonable excuse” defence. Rather, the offence is committed only if an image of an article is published in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. Amendment 3 would insert the same reasonable excuse exception that I have just described, which would operate in addition to the reasonable suspicion requirement concerning the circumstances in which the image is published.

Noble Lords have set out their arguments that there should be, at the outset, no question that a person might be guilty of an offence if they have a reasonable excuse for engaging in the activity covered by these offences. It has been argued that that approach will prevent the CPS from charging a person in these circumstances rather than the person potentially being charged and then having to invoke a “reasonable excuse” defence. I recognise that the approach of structurally rearranging the legislation may seemingly provide a greater degree of comfort to a person who finds themselves under suspicion in respect of one of these offences despite having a reasonable excuse, but I am not persuaded that these amendments would secure the outcome sought in relation to Clauses 3 and 4.

Amendments 4, 5, 8 and 9 are unnecessary as they would, in practice, make no material difference to the position of subjects of investigations and of defendants facing a charge under these clauses or on the matters that the prosecution will need to prove and that the court will need to resolve.

We have debated how the existing safeguards influence investigative and prosecutorial discretion, and how they prevent cases from proceeding where there is evidence that the person has a reasonable excuse. The amendments in my name which expand on these provisions in Clauses 3 and 4, and which we will shortly come to, will strengthen these safeguards further by providing indicative lists of reasonable excuses.

I shall go briefly over this ground again. Charges may be brought only if the CPS determines that the full code test is met. This is met only if there is evidence to provide a reasonable prospect of conviction, and if so, whether a prosecution would be in the public interest. Those are very important points. If there is evidence to suggest that the person has a reasonable excuse for engaging in the otherwise prohibited conduct, there will not be a reasonable prospect of conviction because they will be able to successfully invoke the “reasonable excuse” defence. Furthermore, it would not be in the public interest and would be fundamentally inappropriate for prosecutors to charge a person who they believe is likely to be innocent of any criminal conduct as a result of having such a defence. The effect of this is the same as that envisaged by the noble Lord’s amendments. In either case, the CPS will not bring a prosecution if there is evidence that the person has a reasonable excuse which the CPS considers could not be disproved by the prosecution beyond reasonable doubt.

Furthermore, neither the existing model nor that proposed by the noble Lord provide immunity from either investigation or prosecution purely on the basis that the person states that they have a reasonable excuse. Under either model, the police will need to investigate the person to establish what activity they have been involved in and whether they may have a reasonable excuse for it, and to gather evidence.

It will rightly remain open to the CPS to prosecute if it believes, following the investigation by the police and on the basis of the evidence gathered, that the person does not have a reasonable excuse, despite any assertion that the person might make to the contrary. Under either model it would then be for the person to advance their reasonable excuse, for the prosecution to disprove it beyond reasonable doubt, and ultimately for the jury to determine whether or not it is a reasonable excuse. Unless we were to introduce a unilateral immunity from prosecution for any person who declares themselves to be innocent, this must always be the position and the noble Lord’s amendments would not change it.

Although these amendments would not make a significant change to the practical operation of the law in this area, they would depart from the commonly taken approach in the criminal law where offences provide a “reasonable excuse” defence. In particular, they would overturn what is a well understood and settled position, with clear case law, in relation to Section 58 of the Terrorism Act, which Clause 3 amends. I do not think that it would be wise to do so unless there was a very persuasive case for it, which I do not think is being made here.

I turn finally to Amendment 3. Clause 2 in its current form does not make any provision in relation to reasonable excuses. But it is not an offence of strict liability and it cannot be committed by the mere fact of publishing an image. Rather, it is committed only in particular circumstances which the prosecution is required to prove beyond reasonable doubt. These are where the image is published in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation.

We have previously debated the operation of this aspect of Clause 2, and I am happy to reiterate the Government’s clear position that it will provide both certainty and protection for those who have a legitimate reason to publish images of flags or other articles associated with proscribed organisations, and who are not themselves members or supporters of the organisation. This clear limitation on the scope of the offence is the best way to provide a safeguard for individuals such as journalists or historians, and the addition of a reasonable excuse provision is not necessary in addition. Indeed, it would be likely to overcomplicate and undermine the operation of the offence.

The Government do not consider that a person should in fact have a reasonable excuse for publishing such an image in circumstances which do not meet the criteria of the offence; that is to say, where a court is satisfied that the circumstances give rise to a reasonable suspicion that the person is a member or supporter of a terrorist organisation. Indeed, I would query whether there is a scenario which would not be covered by the existing safeguard but which should be considered a reasonable excuse. I cannot think of one. For those reasons, I invite the noble Lord to withdraw his amendment.

[Lord Paddick]

I am grateful to the Minister for her explanation. The Government seem to be relying on the CPS charging decision, which is very different from the decision that an operational police officer in an uncontrolled environment makes at the time about whether to arrest or not to arrest. The Minister said that there was no material difference, which there is not in terms of successful prosecution. However, it makes a difference to the likelihood of a person being arrested or people being deterred from engaging in completely legitimate activity for fear that they may be arrested, whether they have confidence in the police making the right decision or not.

The Minister talked about a commonly taken approach in law, yet I gave the example of the Prevention of Crime Act 1953, where a person does not commit an offense of possessing an offensive weapon if they have “lawful authority” or “reasonable excuse”; that is determined by the operational officer on the street at the time. I am afraid that I find few of the Minister’s arguments compelling. However, we will return to this issue, particularly in relation to designated areas, when we come to the fifth group of amendments. I beg leave to withdraw the amendment.

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Moved by

[Baroness Williams of Trafford]

16: Clause 4, page 3, line 26, at end insert—
““relative” means spouse or civil partner, brother, sister, ancestor or lineal descendant;”

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Moved by

[Baroness Williams of Trafford]

18: Clause 4, page 4, line 18, at end insert—
“(4A) Regulations under this section cease to have effect at the end of the period of 3 years beginning with the day on which they are made (unless they cease to have effect at an earlier time as a result of their revocation or by virtue of section 123(6ZA)(b)).(4B) Subsection (4A) does not prevent the making of new regulations to the same or similar effect.”

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Moved by

[Baroness Williams of Trafford]

20: Clause 4, page 4, line 27, at end insert—
“(6ZAA) Regulations laid before Parliament under subsection (6ZA) designating an area outside the United Kingdom must be accompanied by a statement setting out the grounds on which the Secretary of State has determined that the condition for making the regulations referred to in section 58C(2) is met in relation to that area.”

Counter-Terrorism and Border Security Bill

Baroness Williams of Trafford Excerpts

Report stage (Hansard - continued): House of Lords
Monday 3rd December 2018 Lords Chamber

[Lord Paddick (LD)]

My Lords, I support my noble friend’s comments. We on these Benches have for some time had a concern about the so-called conveyor belt theory that radical, non-violent, extreme views necessarily lead to radicalisation and violence. Many groups in this country hold what most of us would consider to be extreme views, such as fundamentalist Christian groups and ultra-Orthodox Jewish groups, where we have no concerns at all that their extreme views will lead to radicalisation and violence.

There are other factors at play that receive no consideration as far as the Bill’s measures are concerned. We also express our concern that the Bill would tend to put people off debating extreme views, during which the counternarrative can be expressed, peoples’ dangerous views can be openly debated and their ideas shown to be false. The Bill and other measures like it are likely to close down that debate. Ultimately, a battle of ideas is the way to address the underlying issues rather than the approach the Bill takes.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank both noble Lords for their explanation of these amendments. One of the things that the noble Lord, Lord Alderdice, challenged the Government on was the rationale behind our counter- terrorism work. Perhaps it would be useful to set out some of that for him.

As stated in Contest, government and academic research has consistently indicated that there is no single sociodemographic profile of a terrorist in the UK, and no single pathway or, indeed, “conveyor belt” leading to involvement in terrorism. Terrorists come from a broad range of backgrounds and appear to become involved in different ways and for differing reasons. Few of those who are drawn into Islamist terrorism, for example, have a deep knowledge of the faith.

While no single factor will cause someone to become involved in terrorism, several factors can converge to create certain conditions under which radicalisation can flourish. These include background factors such as aspects of someone’s personal circumstances that might make them vulnerable to radicalisers, such as being involved in criminal activity; initial influences such as people, ideas or experiences that influence an individual towards supporting a terrorist movement; and an ideological opening or receptiveness to extremist ideology.

Most individuals who experience this combination of factors will not go on to become involved in terrorism because there are protective factors that safeguard against their doing so. These range from having no opportunity to develop extremist contacts to having other, more important priorities in their lives, such as their family, career or community. A small number of people who lack these protective factors may become radicalised. In these circumstances, a range of social and ideological influences can combine to intensify commitment to a terrorist cause and provide opportunities for them to act.

The process of radicalisation is driven by universal psychological needs for identity and belonging—those words are very important in this context—meaning and purpose, and, of course, self-esteem. Where these are met by constructive sources radicalisation will not flourish, but we also know that as a person deepens their involvement in terrorism this process will typically include voracious consumption of online propaganda. When in a group, further engagement in terrorism is also likely to include the individual isolating themselves from non-extremists and participating in low-level activity such as the radicalisation of others, or facilitation, fundraising, et cetera. There is some research to indicate that lone-actor terrorists have a higher incidence of certain mental and developmental health conditions than the general population, but I must stress that no one should assume that a terrorist suffers from a mental health condition or that a person with a mental health condition is a terrorist.

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Moved by

[Baroness Williams of Trafford]

27: Schedule 1, page 28, line 8, at end insert—
“(ca) the cases in which a person “holds” an account include those where the person is entitled to operate the account;”

[Baroness Williams of Trafford]

My Lords, the noble Lord, Lord Paddick, helpfully proposed an amendment in Committee to close a gap he had identified on accounts which a terrorist offender is entitled to operate but does not hold in their own name—for example, because they are an authorised signatory to the account of the relative or employer. I recognised then that there might well be merit in the amendment and committed to take it away to consider it further. I have just done that and find myself in agreement with the noble Lord that this is indeed a gap in the current Bill and that his suggestion will close it and improve the Bill.

Amendment 27 therefore implements his suggestion, for which I am very grateful, and I commend the amendment to the House.

[Lord Paddick]

My Lords, I am very grateful to the Minister, but I cannot possibly claim credit for the amendment: it is actually the work of my noble friend Lady Hamwee. That having been said, we are very grateful that she listened to our arguments. We hope that noble Lords will realise that we on these Benches look to be hopeful, not necessarily negative about legislation. We hope that closing this loophole shows that we are working together to try to improve legislation.

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[Baroness Williams of Trafford]

My Lords, as the noble Baroness pointed out, Clause 13 confers on police the power to enter and search the home address of a registered terrorist offender, under the authority of a warrant issued by a justice, for the purpose of assessing the risk the offender poses. Amendment 28 would narrow the purpose for which the power of entry and search may be operated, limiting it to assessing whether the offender is in breach of the notification requirements. There was a good debate on this in Committee, so I will not detain the House by setting out again the underlying purpose of the terrorism notification requirements, and their importance in helping the police to manage the risk posed by those convicted of serious terrorism offences. However, it may assist your Lordships if I briefly rehearse the purpose of this power, and why it is needed in its current form.

The purpose of the power of entry and search, as currently drafted and as intended by the Government, is to allow the police to assess the risk posed by a convicted terrorist who is subject to the notification requirements. The police consider that home visits are an important tool in managing and risk-assessing registered terrorist offenders during the time they are subject to the notification regime. Such visits allow them to ascertain whether the offender does in fact reside at the address they have notified to the police, and to check their compliance with other aspects of the notification regime. Home visits are also helpful, as they allow a broader assessment of risk to be made. They allow the police to identify any other factors that might contribute to the overall risk an offender poses to themselves or their community, and their risk of reoffending. This might include their general living conditions, as well as any signs of mental health decline, or of drug or alcohol misuse.

It seems an entirely appropriate purpose for the police to wish to keep in touch with a registered terrorist offender. Indeed, given that the police are charged with protecting us all from such serious offenders, it would surely be irresponsible to do otherwise. However, Amendment 28 would mean that the new power could not be used for that purpose. The police will, of course, always seek to conduct such visits on a voluntary basis and the clause requires that this approach must be attempted at least twice before a warrant is sought. A positive and co-operative relationship is always preferable, and leads to more effective management of risk. However, a power of entry and search is needed because this is not always the reality, and registered terrorist offenders will often not comply with such home visits voluntarily. They will often be generally unco-operative and refuse to engage constructively with the police in conducting necessary checks.

In previous debates, I have highlighted that an identical power exists in relation to registered sex offenders. It was introduced by the Violent Crime Reduction Act 2006, by the then Labour Government. Indeed, the then Home Office Minister, the noble Lord, Lord Bassam, said at the time in reference to sex offenders that,

“we are now of the view that further powers are required to enable the police to gather all the information they need about a small but, it has to be said, determined group of offenders who, while in apparent compliance with the notification requirements, do all they can to frustrate the risk assessment process”.—[Official Report, Commons, 22/5/06; col. 678.)

I can only echo the noble Lord’s words.

The police report that their experience with registered sex offenders, as a result of this power being available, is that the offenders will normally comply voluntarily and that they are able to build a far more constructive relationship with them. This is simply because those offenders know that if they refuse to engage on a voluntary basis the police will be able to return with a warrant. We anticipate this power bringing similar benefits in the management of registered terrorist offenders, who are equally in a particular category of risk, such that monitoring of this kind is appropriate following a conviction. I cannot see that there is a rational argument for why the police should have less effective powers to monitor the risk posed by registered terrorist offenders than they do for registered sex offenders. I hope that the noble Baroness will withdraw her amendment in light of this explanation.

[Lord Anderson of Ipswich]

Before the Minister sits down, perhaps she can explain whether she is saying that, if there is no rational basis for providing this power in a different way from the way it was done in the case of sex offenders, the TPIM Act 2011 was not rational in how it approached the issue, and what does she say about that parallel with the TPIM Act?

[Baroness Williams of Trafford]

I would not like to say that the TPIM Act was not rational. I can write to the noble Lord to outline the significant differences here, but I think that the parallel with sex offenders that I posed is pertinent.

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Moved by

[Baroness Williams of Trafford]

29: After Clause 16, insert the following new Clause—
“Persons detained under port and border control powers
(1) Schedule 8 to the Terrorism Act 2000 (detention) is amended as follows.(2) In paragraph 6, after sub-paragraph (3) insert—“(4) A detained person must be informed of the right under this paragraph on first being detained.”(3) In paragraph 7, after sub-paragraph (2) insert—“(3) A detained person must be informed of the right under this paragraph on first being detained.”(4) In paragraph 9—(a) for sub-paragraphs (1) and (2) substitute—“(1) This paragraph applies where a detained person exercises the right under paragraph 7 to consult a solicitor.(2) A police officer of at least the rank of superintendent may direct that the right—(a) may not be exercised (or further exercised) by consulting the solicitor who attends for the purpose of the consultation or who would so attend but for the giving of the direction, but(b) may instead be exercised by consulting a different solicitor of the detained person’s choosing.(2A) A direction under this paragraph may be given before or after a detained person’s consultation with a solicitor has started (and if given after it has started the right to further consult that solicitor ceases on the giving of the direction).”, and(b) omit sub-paragraphs (4) and (5).(5) In paragraph 16—(a) in sub-paragraph (8), omit “Subject to paragraph 17,”, and(b) after sub-paragraph (9) insert—“(10) A detained person must be informed of the rights under sub-paragraphs (1) and (6) on first being detained.”(6) In paragraph 17—(a) for sub-paragraphs (1) and (2) substitute—“(1) This paragraph applies where a detained person exercises the right under paragraph 16(6) to consult a solicitor.(2) A police officer not below the rank of superintendent may, if it appears to the officer to be necessary on one of the grounds mentioned in sub-paragraph (3), direct that the right— (a) may not be exercised (or further exercised) by consulting the solicitor who attends for the purpose of the consultation or who would so attend but for the giving of the direction, but(b) may instead be exercised by consulting a different solicitor of the detained person’s choosing.(2A) A direction under this paragraph may be given before or after a detained person’s consultation with a solicitor has started (and if given after it has started the right to further consult that solicitor ceases on the giving of the direction).”, and(b) in sub-paragraph (3), in the opening words for “(1)” substitute “(2)”.”

[Baroness Williams of Trafford]

My Lords, the government amendments in this group make a number of changes in response to the debates in both Houses regarding the ports powers under Schedule 3 to the Bill and Schedule 7 to the Terrorism Act 2000. They also respond to the reports of the Joint Committee on Human Rights, the Constitution Committee and the Delegated Powers Committee, and to representations from the Law Society and others.

During the course of the previous debates, there has been much focus on the important topic of a detainee’s right to consult a solicitor in private, and on the exceptional power that would allow an officer to overhear that consultation to mitigate concerns that the detainee might pass on a message to a third party. While this power was not without safeguards—for example, it could only be authorised by an assistant chief constable where the officer had reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences—the Government have heard the concerns raised and are prepared to take a different approach.

Amendments 37 to 39, 41 and 42, would replace that power and instead allow an officer, in the situation that I have just described, to require the detainee to choose a different solicitor. The detainee will then be reminded of the right to free legal counsel from an approved duty solicitor who has met the standards and competence of the Law Society’s criminal litigation accreditation scheme. This approach, which will apply to both Schedule 7 and Schedule 3 ports powers, will mitigate the concerns regarding the detainee’s first-choice solicitor but will still allow the detainee to receive private legal counsel—in all likelihood, with a trusted solicitor from the duty solicitor scheme. It mirrors the provisions in PACE Code H with regard to the detention of terrorist suspects as proposed by the Law Society in its evidence to the Public Bill Committee in the House of Commons, and aligns with the proposals of the shadow Security Minister and noble Lords in this House.

The new power will also be subject to important safeguards. For example, it can only be directed by a superintendent and only where the officer has reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences: for example, interference with evidence or gathering of information; injury to another person; alerting others that they are suspected of an indictable offence; or hindering the recovery of a property obtained by an indictable offence.

Amendments 35, 36 and 40 concern the points raised in Committee by the noble Baroness, Lady Hamwee, regarding the information provided to a detainee about their right to access a solicitor. During that debate, I drew the House’s attention to the draft Schedule 3 code of practice which, like its equivalent for Schedule 7, is clear that a person who has been detained under either power must be provided with a “notice of detention” that clarifies their rights and obligations. The examining officer must also explain these rights and obligations to the detainee before continuing with the examination. Furthermore, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.

While the Government are satisfied that all the safeguards that the noble Baroness asked for are already in place through the codes of practice, Amendments 35, 36 and 40 will make it explicit in the primary legislation that a detainee has to be made aware of his or her right to access a lawyer at the moment of detention. We are in complete agreement that any person who is detained under these ports powers should be informed of their rights before any further questioning takes place.

Amendments 43 and 44 will address concerns raised by the Delegated Powers and Regulatory Reform Committee with respect to the scope of the regulation-making power in what is now paragraph 60 of Schedule 3. This power would allow the Secretary of State to specify additional persons who may be supplied with information acquired by an examining officer. The power mirrors an equivalent in Schedule 14 to the Terrorism Act 2000 relating to information acquired through a Schedule 7 examination. These regulation-making powers are an important means of future-proofing the mechanisms to share information with government bodies and operational partners. Currently this information can be shared, if needed, with the Secretary of State, HMRC, a constable or the National Crime Agency.

We recognise the concerns raised by the Delegated Powers and Regulatory Reform Committee that the powers as drafted could allow sensitive information to be passed to any organisations, including those in the private sector. That is not our intention. The Government are clear that such information should be held and managed responsibly and should not be made available to any person or organisation. Amendments 43 and 44 would ensure that the Secretary of State, in relation to either power, could specify a person to be supplied with this information only if the person exercised a public function, whether or not in the United Kingdom.

I hope that noble Lords are reassured that the Government have listened to a number of concerns raised during the debates and have acted to improve this legislation. I beg to move.

[Lord Rosser (Lab)]

The shadow Security Minister in the Commons, it has been said, proposed that a list should be drawn up of lawyers properly regulated through the Law Society and the Solicitors Regulation Authority, who would be available to give legal advice and thus overcome the Government’s concern that a person detained under the hostile activity ports powers might seek the service of a rogue solicitor to give legal advice but, in reality, use that person to pass on information to a third party with potentially damaging consequences.

The Government in the Commons said they would consider this proposition and, as the Minister has just said, they have now tabled an amendment that takes out the reference in the Bill to consulting a solicitor,

“in the sight and hearing of a qualified officer”,

and instead provides for a senior officer to be able to require a detainee to consult a different solicitor of the detainee’s choosing. In her letter of 27 November setting out the Government’s amendment, the Minister has said that in practice a different solicitor of the detainee’s choosing is likely to be the duty solicitor. Can she say what will happen if the further different solicitor of the detainee’s choosing is also deemed unacceptable? Will, in effect, the detainee be told either that they choose the duty solicitor or they will not have a solicitor to consult? It would be helpful if this point could be clarified in respect of persons detained under the port and border control powers.

We support the amendments and recognise that the Government have endeavoured to address the concerns expressed in the Commons by the shadow Minister, as well as the similar concerns expressed by noble Lords in this House.

[Baroness Hamwee]

My Lords, we too support these amendments and recognise the steps that the Government have taken. Perhaps I may put on the record a couple of comments made by the Law Society on this general area. Unfortunately, its briefing arrived too late for us to build on it by way of amendment, but it comments on legally privileged material being retained for use as evidence or for deportation proceedings. It gives the view that:

“Legally privileged material should not be retained for any purpose other than a potentially urgent need to prevent death, injury or a hostile act”.


It also comments on:

“The process by which material can be identified as constituting legally privileged material”,


and asks who is responsible for making the determination, as that is not,

“explicitly clear in the Bill as drafted”.

It continues:

“It is important that this determination is made by a legally qualified person who is capable of accurately assessing whether a given article is subject to legal professional privilege”.


As I said, I thought that it was worth putting those comments on the record.

My noble friend Lord Marks is sorry not to be able to be here this evening and asks that his thanks to the Minister for building on the indication given at the last stage is recorded. He too asks about what he calls an “unacceptable, dodgy solicitor”. I think that any dodgy solicitor is unacceptable—you do not have to fill two criteria. If an unacceptable dodgy solicitor is selected for a second time, he and I assume that the senior officer might give a further objection. My noble friend also asks whether the Government intend to issue a further draft code of practice relating to the considerations that senior officers should take into account when considering making these directions.

[Baroness Williams of Trafford]

I thank the noble Baroness for those questions. The noble Lord, Lord Rosser, asked what happens if the detainee chooses another solicitor, who is then of concern. I am trying to read the writing here. If concerns still exist, the superintendent is within his or her right to direct that the detainee should choose a different solicitor, and that applies not just to the first-choice solicitor. The point about confidential material—

[Lord Rosser]

I appreciate the difficulty with reading writing. I cannot read my own, let alone somebody else’s. Does it mean that if the detainee chooses an unacceptable second solicitor, they will then be told, “It’s the duty solicitor or you don’t have a solicitor at all”?

[Baroness Williams of Trafford]

From what I understand, a panel of approved solicitors is available to detainees—I am sure that the Box will fly over with a piece of paper if I am wrong about that. However, if, for whatever reason, the first solicitor from the panel is given to the detainee—

[Lord Carlile of Berriew (CB)]

May I make an effort to help out the noble Baroness? There was a time in my professional life when I used to be instructed by duty solicitors at London Heathrow Airport and London Gatwick Airport. The fact is that the duty solicitors at ports of entry are accustomed to dealing with all kinds of issues that arise there. Indeed, the quality of work that emanates from being a duty solicitor in significant ports of entry is high. Therefore, one can reasonably assume that one is getting not any old solicitor but a solicitor who has some understanding of the kind of work that can arise in that setting. There is also some training available, and it is usually done very co-operatively. Has that given the Minister enough time to be able to read the writing—or she may wish to just agree with me?

[Baroness Williams of Trafford]

I do agree with the noble Lord; that is absolutely brilliant. But I have just received another piece of information: if the detainee is still not satisfied, they can consult a solicitor by phone, so that is a third arm of the options for detainees. Between us, we have got there.

As for who approves the access to confidential material, it would be the Investigatory Powers Commissioner.

[Lord Rosser]

The reason for my asking the question is that, as I understand it, sub-paragraph (2)(b) of Amendment 41 states that the right of the detainee,

“may instead be exercised by consulting a different solicitor of the detainee’s choosing”.

I have nothing at all against duty solicitors and hold them in high regard. However, if the detainee then chooses another solicitor who is unacceptable—presumably not one of the duty solicitors—we are fairly clear that the detainee will then be told to use the duty solicitor or have no solicitor at all.

--- Later in debate ---

[Baroness Williams of Trafford]

He or she will be perfectly entitled to consult a solicitor by phone.

Amendment 29 agreed.

Counter-Terrorism and Border Security Bill

Baroness Williams of Trafford Excerpts

Report: 2nd sitting (Hansard - continued): House of Lords & Report: 2nd sitting (Hansard): House of Lords
Monday 17th December 2018 Lords Chamber

[Lord Hylton (CB)]

My Lords, I agree with the noble Lord, Lord Carlile, that Muslim communities in this country are extremely diverse. They come from many different countries and backgrounds. Within them, there are many points of view, theological opinions and so on. Having said that, I can give some indirect evidence on this matter. I am a trustee of an English charity which, for the last 12 to 13 years, has been working with Muslim communities up and down this country. It has helped them to build bridges with all levels of authority, from local authorities up to the Home Office. It has tried to give them greater self-confidence in dealing with authority. However, the evidence is that, over this period, the Prevent programme has made relationships much more difficult. I think that it is a question of perception. The existence of the programme and the way in which it has been administered have led many Muslims to feel that they are being discriminated against and that the weight of government is falling on them disproportionately.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

Does the noble Lord agree that it would possibly be better to talk about this in the next amendment? This amendment is about transparency of data. If he wants to talk about it now, I am perfectly happy to hear what he has to say, but it is actually the subject of the next amendment.

[Lord Hylton]

I will conclude what I was saying. I believe that this amendment is modest and necessary and will be helpful. It will provide statistics with which future judgments can be made, so I support it.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this issue was raised by the noble Lord, Lord Stunell, in Committee and again today on Report. As he told the House previously, in 2016-17, 6,093 people were referred to the process, but only 6% of them were referred to a Channel programme. The ethnicity and religion of those who are referred are missing from the data. That omission denies the Minister, officials and others important and valuable data.

The noble Baroness, Lady Williams of Trafford, was clear in Committee that the Government wholeheartedly agreed with the intent of the amendment, but she was not convinced that it was needed to achieve the intention. When she responds, will she update the House on the work that is being done by the Home Office chief statistician, who, we are told, is looking at this issue?

To conclude, I support the aims of the amendment. It will provide valuable information for the Government. It would be welcome if the Minister could update the House on whether what has been asked for could be done through other means.

[Baroness Williams of Trafford]

My Lords, I thank noble Lords who have spoken to this amendment, particularly the noble Lord, Lord Stunell. I will be happy to update the House on some of the work that is going on. The Government agree wholeheartedly with the principle that activities under the Prevent strategy are made as transparent as possible.

The noble Lord, Lord Carlile, mentioned the Prevent oversight board. I am pleased to hear that it met just the other day. However, there is great interest in the operation of the Channel programme, and the publication of statistics on it has already added to that transparency, dispelled some of the myths which surrounded its operation, and provided useful substance to debates in this House. We have so far published data on referrals to Prevent, and the progress through the Channel system of those referrals, covering in detail 2015-16 and 2016-17 and, in lesser detail, the previous years from April 2012. The latest set of statistics, covering 2017-18, was published last week.

The published data covers the numbers at different stages of the process from initial referral, through discussion at Channel panel, to the provision of support. It includes, among other things, the type of extremism which led to the referral; the age, gender and regional location of the person referred, and the sector which made the referral. It also looks at how successful the programme is.

The data is still at a relatively early stage in its development and is therefore classed as experimental statistics. Feedback from users is very important as the dataset develops, and it is clear from noble Lords’ comments that additional categories of data, such as the religion and ethnicity of those who are referred—as the noble Lord, Lord Stunell, said—would be a welcome addition to the current set. As I indicated in Committee, working through the Home Office chief statistician, we would be happy to explore including this data in future publications. At this stage, that would depend on the quality and completeness of the data.

I mentioned in Committee that currently at least half of the records supplied to the Home Office do not include ethnicity or religion. The publication of such variables could therefore be misleading at this stage. There will clearly be more work which officials can do to ensure that this data is captured and recorded in an accurate and nationally consistent manner.

I return briefly to a point raised by the noble Lord, Lord Stunell, in Committee. He was interested in whether referrals made by the police were more or less likely than others to end up being discussed on Channel panels and offered support. I promised at the time to look at the underlying data to see if such an analysis were possible, and I am happy to confirm what my noble friend Lady Barran said on that occasion—that this data already forms part of the published data set and can be found in accompanying tables available on the GOV.UK website.

On the understanding that the Home Office chief statistician is looking at the issue raised in this amendment, I hope the noble Lord will be happy to withdraw it.

--- Later in debate ---

[Baroness Warsi]

That is the point. When Prevent has been applied correctly and has been led by and with the community, it has made real progress. When you speak to practitioners on the ground—those who have ignored much of national policy; those who have ignored the rules on engagement and disengagement with British Muslim communities and have spoken to whom they want, when they want and how they want—you find that they have built really strong relationships which have allowed sections of the policy to be implemented properly.

Even if you speak to officers like Mr Neil Basu, who was referred to earlier, he himself will say that the biggest challenge for the police has been operating Prevent within a policy of disengagement with British Muslim communities whereby more and more individuals and organisations are simply seen as beyond the pale and are not engaged with. There is a challenge when large sections of the British Muslim community are disengaged and distrustful of a policy that will not be independently reviewed. I can tell my colleagues in government that if it were independently reviewed, it would enjoy more support and therefore would be more effective.

The noble Lord suggested that I believe that the British Muslim community is monolithic. I say to him as someone who is a Muslim and now 47 years of age that I am acutely aware that the British Muslim community is not monolithic. If he would care to read the first four pages of chapter one of my book, he will see that I explain that British Muslim communities are black and brown and Asian and Persian. They come from all over the world and have different theological beliefs and practices. They dress, eat and behave differently. He would then realise that I am a huge advocate of a diverse British Muslim community from many backgrounds. It is therefore wrong of him to attribute to me on the Floor of this House something which I have simply not said.

[Baroness Williams of Trafford]

My Lords, I thank all noble Lords who have spoken in this debate. As the noble Lord, Lord West, has said, the Prevent programme is one of the core pillars of the strengthened Contest strategy which was published in June of this year. The strategy was developed taking into account views across the breadth of delivery. The Prevent programme serves as a key pillar in our response to the heightened terrorist threat we face now and in the coming years.

The programme is designed to safeguard and support those vulnerable to radicalisation, both on the far right and Islamist, as my noble friend Lady Warsi said. It is designed to stop them becoming terrorists or supporting terrorism. As the noble Lord, Lord Harris of Haringey, said, we should have no qualms about doing so, just as we should safeguard them from sexual exploitation. That point is often forgotten but it is very pertinent. The noble Baroness, Lady Jones, expressed her concern about freedom of speech and civil liberties, but terrorism is an infringement of civil liberties of the severest type. I am also sorry to disappoint my noble friend Lord Marlesford, but the Government remain firmly of the view that an independent review of Prevent of the kind envisaged in this amendment is not necessary at this time. Perhaps I may take a few moments to explain why.

As has been said, Prevent is a safeguarding programme that works. The Mayor of London, Sadiq Khan, has described how Prevent is the only show in town and the intention is to help those who are vulnerable and are being targeted and exploited by radicalisers. Sir Rob Wainwright, the former head of Europol, has described Prevent as the,

“best practice model in Europe”,

for tackling extremism.

In Committee I outlined how Prevent was not the beginnings of state surveillance, as it has been portrayed sometimes; rather, it is a locally driven programme that works with communities to deliver resilience-building activity and prevent some of the most vulnerable in our society becoming terrorists or supporting terrorism. In Committee the noble Lord, Lord Carlile, challenged a number of noble Lords to identify a specific local Prevent project which had given rise to concerns. It was very telling then, as it is now, that no noble Lord has yet identified such a project. The noble Lord talked about how private and public NGOs are now working on Prevent projects. Moreover, to answer the question put by the noble Lord, Lord Stunell, about the proportions being delivered by each, while I do not have the exact numbers, perhaps I may write to him.

While Prevent is successful at safeguarding individuals from becoming radicalised, it is not always well understood. I agree with the point made by the noble Lord, Lord West, about promoting the safeguarding aspect of Prevent. It also supports partners to run a programme of engagement events with their communities. These events seek to engage members of the public and provide opportunities to hear at first hand from practitioners and community organisations about Prevent delivery, as well as acting as an open forum for discussion about its implementation. Further, Prevent does not target any one group, as is often said. It helps to address the growing and pernicious threat from the far right and to provide support for those referred due to concerns about Islamist extremism, among a range of other extremist beliefs. Indeed, the latest statistics, published just last week, show that of those individuals who received Channel support in 2017-18, near equal numbers were referred for concerns relating to far right extremism and to Islamist extremism.

On the positive impact of Prevent, I would remind the House of what Cressida Dick, the Commissioner of the Met police, said in June in evidence to the Home Affairs Select Committee.

[Lord West of Spithead]

Everything the noble Baroness is saying supports the importance of Prevent, which I think all noble Lords would agree with. That is not really the issue. What we are saying is that, given that it is really important, does it not make sense to have a review to look at whether we can make it even better?

[Baroness Williams of Trafford]

If the noble Lord will indulge me, I was about to explain how the Prevent programme is evolving and being scrutinised, including through Contest. Perhaps I may go back to the comments made by the Commissioner of the Met:

“There is an awful lot of very, very good work that has gone on under Prevent in relation to all forms of extremism, not forgetting extreme right-wing, which takes up a big part of it. There have been hundreds of people who have been turned away from violent extremism by their engagement with Channel and other aspects of Prevent, and that is all positive”.


Prevent is not about restricting debate or free speech, as the noble Baroness, Lady Jones, might suggest. On the contrary: as the Government have said previously, schools ought to be safe spaces in which children and young people can understand and discuss sensitive topics, including terrorism and extremist ideologies. An independent study of education professionals found that almost three-quarters of them believe that the Prevent duty has not stifled classroom discussions of extremism, intolerance and inequality.

Since it was launched in 2011, Prevent training has been completed more than 1.1 million times to enable front-line practitioners, including teachers, to recognise the signs of radicalisation so that they know what steps to take, including, where appropriate, how to make a referral to Channel. This has positively supported teachers in discussing the risks of radicalisation with those in their classes. To our knowledge, no event or speaker has ever been cancelled or banned as a result of the Prevent duty. It is about upskilling individuals, not curtailing them. The Government believe that it is imperative that young people learn how to challenge dangerous beliefs which are all too easily accessible online. Since February 2010, some 300,000 pieces of illegal terrorist material have been removed from the internet.

In addition to the examples of increased transparency that I outlined in Committee, which included the annual publication of Prevent and Channel data and increasing the number and geographical reach of community round tables, there is increased cross-party engagement, led by the security Minister. Also, as mentioned earlier by the noble Lord, Lord Carlile, on 28 November the Home Secretary chaired the latest meeting of the Prevent oversight board, which brings together other Secretaries of State, operational partners and independent members to review delivery and to provide the strategic challenge noble Lords have talked about. I therefore understand the concerns of noble Lords.

[Lord Stunell]

Is the Minister able to tell us when the preceding meeting of the oversight board was held, and what the gap was?

[Baroness Williams of Trafford]

I am not, but I suspect the noble Lord, Lord Carlile, can.

[Lord Carlile of Berriew]

I can. The previous meeting—and the noble Lord is making a fair point—took place 18 months previously. During that period, I for one requested meetings take place on a regular basis. At least two meetings were cancelled during that time, dates having been set and put in diaries. I happen to be a member of the Prevent oversight board, so I am aware of the calendar. One of the points made at the most recent meeting was that, if the board is to be effective, it must meet more frequently. One of the reasons why there was such a long delay—and the noble Baroness may confirm this—was because it had been established that the Prevent oversight board should be chaired by the Home Secretary. That has been a difficulty, but on the most recent occasion, if I remember rightly, the Home Secretary and the Lord Chancellor were present, along with a number of other Ministers.

[Baroness Williams of Trafford]

I thank the noble Lord, Lord Carlile, and I think that is right. If this debate has done nothing else, it has probably given the impetus to ensure the oversight board meets more regularly, and I shall take that back.

There needs to be evidence of systemic failures to justify a review. I will take back the point about the oversight board meeting more often. Prevent should be subject to proper scrutiny, but I hope I have already outlined a number of mechanisms for this. It is also open to the Home Affairs Select Committee to conduct an inquiry into Prevent, should it wish to do so. Furthermore, the fifth anniversary of the passage of the Counter-Terrorism and Security Act 2015 does offer the opportunity to undertake the normal pre-legislative review of the provisions in Part 5 of that Act, providing the legislative framework for Prevent.

I hope my explanation has provided some comfort to noble Lords. I suspect by the gathering crowds it has not.

[Lord Carlile of Berriew]

I am sorry to interrupt again, but can the Minister also deal with the point made by the noble Lord, Lord Marlesford? It was suggested that the Home Office contains officials who do not really focus on Prevent. Could she confirm there is a strong Prevent group within the Home Office, chaired by an experienced and competent person who does a great deal of conceptual thinking in this area and is open to discussion with any Member of your Lordships’ House who shows some understanding of this issue and cares to discuss it with him or his team, which is now frighteningly large?

[Baroness Williams of Trafford]

The noble Lord is absolutely right, and that team is growing. I think my noble friend Lord Marlesford is concerned about the Home Office in general, but I can confirm what the noble Lord, Lord Carlile, says.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, this issue was also looked at in detail in Committee. The noble Lord, Lord Anderson of Ipswich, raises an important issue concerning groups that have been added to the list of proscribed organisations and that have, to all intents and purposes, stopped engaging in the activity or activities that led to them being added to the list in the first place and the risk to individuals getting caught up in that.

I have listened carefully to the issues raised in that previous debate and in today’s debate and reflected on them, but I have come to the conclusion that I am not persuaded that the change proposed by these amendments is necessary or right at this time. The first duty of government is to protect the public. As we have heard, the 2000 Act already provides a mechanism for an organisation to seek deproscription: there is detailed in Section 4 and further in Section 5 an appeals process to the Proscribed Organisations Appeals Commission. Further, on a point of law, organisations can go to the Court of Appeal.

I say in response to the noble Lord, Lord Paddick, that there is a process already in place and further, on the points that the noble Lord, Lord Carlile, made regarding Northern Ireland, I am not persuaded that these amendments are right today. That is not to say that the points raised by the noble Lord, Lord Anderson, could not be considered to be introduced at some point in the future, but I am not convinced on the merits of the case at this time.

[Baroness Williams of Trafford]

My Lords, these amendments return to an issue raised with some force by the noble Lord, Lord Anderson, in our earlier debates. I am conscious that I was unable to persuade him of my view that the well-intentioned amendment he tabled in Committee would not be in the public interest. I am grateful to him for the further amendment which he has tabled, which would operate in parallel to his original proposal for annual reviews, and which he has explained is intended to address some of the concerns the Government have with that proposal. On careful consideration, regretfully, I cannot agree that it does do so and the Government are not able to support it for reasons I will come to shortly.

Before I come to the detail of the amendments, I should be clear that the Government consider proscription to be a necessary power that plays an important role in protecting the public. Organisations are proscribed for a good reason: because they are terrorist in nature, and because it is in the public interest to prevent them being able to operate or to gain support in the UK. This plays an important role in protecting the public from potentially very dangerous organisations, as well as more generally in maintaining public confidence and, where relevant, supporting our international partners in the struggle against terrorism. The Government also consider that the power’s impact is proportionate to that purpose.

In forming this view I have in mind that, beyond restricting the ability of an individual to engage in the specific activities covered by the proscription offences relating to the particular organisation which has been proscribed, the power does not otherwise impact on their ability to conduct a normal day-to-day life. The impact of proscribing an organisation is not, therefore, overly intrusive or unavoidable from the individual’s perspective.

Counter-Terrorism and Border Security Bill

Baroness Williams of Trafford Excerpts

3rd reading (Hansard): House of Lords
Tuesday 15th January 2019 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the Bill do now pass.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I extend my thanks for the wide range of expertise from around your Lordships’ House that has provided such a constructive and measured approach to what is a very serious Bill that has passed through the House. I thank first my noble friend Lord Howe, who has helped me through all stages of the Bill, and my two noble friends Lady Manzoor and Lady Barran for their contribution as Government Whips.

On the Opposition Front Bench, I thank the noble Lords, Lord Kennedy and, of course, Lord Rosser—I express the feeling of the whole House in wishing him well and looking forward to seeing him back in his place very soon. On the Lib Dem Benches, I thank the noble Baroness, Lady Hamwee, and the noble Lords, Lord Paddick, Lord Marks and Lord Stunell, for their contribution. Then, of course, there are the heavyweights on the Cross Benches—I refer not to their frames but to their intellects—the noble Lords, Lord Carlile and Lord Anderson, the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Manningham-Buller; I thank them all for the helpful advice they have given me in proceeding with this Bill. Finally, I thank the officials from both the Home Office and the Ministry of Justice who have supported us as the Bill proceeded.

I am very pleased at this stage that we have achieved an outcome where there is a broad consensus on all aspects of the Bill bar one: whether there should be an independent review of Prevent. We continue to reflect on that matter in advance of the Bill returning to the House of Commons. In any event, I hope that this issue will not stand in the way of the Bill securing Royal Assent. On that basis, I beg to move.