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.

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[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.