Counter-Terrorism and Border Security Bill

Earl Attlee Excerpts

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

[Baroness Hamwee]

My Lords, I asked what it means. The noble Lord, Lord Faulks, has given his view. If it means “published” perhaps it should say “published”, which is well understood, not only by lawyers but by ordinary people—I was going to say “normal people” but I should not say that. I hope none of us is abnormal. If that is the answer, it would be very helpful to know. I am grateful to the noble Viscount for adding to the debate.

To finish the point on direction, there was also a comment about intent meaning to invite support, as in the existing Section 12(1). Does the Minister have any comments on that term and its relationship to this new provision?

Finally, the committee was concerned about a lack of clarity in this provision on the boundaries of a debate. We agree with the Minister that it is hard to define valid debate, but we believe that the lack of clarity and the low threshold of recklessness risk a chilling effect on free speech and a disproportionate interference with the right to free speech.

[Earl Attlee (Con)]

My Lords, my Amendment 6 is in this group. I am grateful for the support from the Opposition Front Bench. I am confident that the Government will have thought very carefully about the need for Clauses 1 to 6, so I support them and share the view of the noble Lord, Lord Carlile. I will leave it to other noble Lords to scrutinise the principles, but I understand the concerns that have been—and will be—raised by other noble Lords when speaking to their amendments.

I have put my name to Amendment 5 and I agree with all that the noble Lord, Lord Rosser, has said. The decision to proscribe a group is not taken lightly. Nevertheless, in a free and democratic society, it is a major step to take and it should be possible to question it. One might want to suggest that proscription is acting as a recruiting sergeant for the group concerned. Under Clause 1, there would be a danger of that suggestion being regarded as a,

“belief that is supportive of a proscribed organisation”,

because it supports the de-proscription. There is also a very fine dividing line between stating that HMG’s policy is flawed and supporting a proscribed organisation.

Earlier this year, I tabled amendments to the Data Protection Bill dealing with press regulation. Some thought that I and other noble Lords were somehow anti-press and against freedom of speech. Nothing could be further from the truth, as we shall see. My Amendment 6 inserts an exemption for opinions or beliefs that are,

“published or broadcast for the purposes of journalism”.

[Viscount Hailsham]

Will my noble friend tell the Committee whether he thinks there is a distinction between “for the purposes of journalism”—the phrase in his amendment—and “in the course of journalism”?

[Earl Attlee]

My Lords, that is a very technical question.

[Viscount Hailsham]

It is rather important.

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[Earl Attlee]

It might be important, but I do not know the answer.

This exemption is needed because the vagueness of the offence, combined with the absence of an intent requirement, puts journalists and news organisations in danger of wrongful prosecution and legal harassment just for doing the job of reporting what is being said and engaging in debate. As drafted, a news organisation reporting on the activities of a terrorist organisation could be ensnared by the offence for relaying to the public the words of the members of the terrorist organisation. It is easy to imagine a situation where doing so is essential for the public’s understanding of a terrorist outrage, yet in doing so the news organisation will be expressing words that are supportive of that organisation and so fulfil the elements of this new offence.

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[Lord Davies of Stamford (Lab)]

My Lords, I did not take part in the Second Reading debate because I was not able to be at the wind-up, although I heard a great deal of it. I am very concerned, as I believe everybody ought to be, about this matter. I cannot think of anything more important in a free society than freedom of speech, which should be tinkered with or eroded with the very greatest reluctance, if we do it at all.

I am concerned about a number of things in the Bill. One is the issue of recklessness, which has already been debated. To bring recklessness in here seems extremely dangerous. I know that I am about to be told by somebody that recklessness already exists in the criminal law in different contexts, but it exists in such a way that it is easily definable. Reckless driving of a motor car involves driving it too fast or taking no account of the traffic on the road, or not having one’s car checked and so forth. There are specific ways in which you can say that is reckless and define “recklessness” in such a way as to create little difficulty for judges or juries, or indeed for one’s general sense of justice. That is not the case here.

The idea that every word one speaks and every sentence one enunciates might be looked at with a view to whether it could have been reckless is quite alarming. It opens up the prospect which concerns me: that one might say something which happens to agree with something that is in the platform of a proscribed organisation and, as a result, find oneself indicted under the Act, if the Bill becomes one, without having the slightest notion that one had committed any offence, or necessarily that some terrorist or proscribed organisation shared one’s view on a matter. I am really concerned about it.

It seems to me that we should have the good old concept of intention here. Intentionality should automatically form part of the criminal law, except in special circumstances. In strict liability, intentionality does not apply, but intentionality is a principle very much bound up with the criminal law in almost all contexts, and I think that is the right way to go. That is much more specific. We would therefore not be doing violence to the precious principle of free speech if we adopted the intentionality route. I very much agree with those in the debate who have taken that line, and I very strongly disagree with those who have not.

There is another matter which I am very concerned about, and I dare say I shall make myself very unpopular by saying this. I do not for a moment think that we ought to have some privilege for journalists in the matter of free speech. I will not only speak against that but will use any opportunity I can to vote against any such Motion. Freedom of speech belongs to every citizen in a free society. Of course journalists must not do dangerous things, any more than anybody else must not do dangerous things, but the idea that journalists have a special form of free speech which is not available to the rest of us is quite absurd. If there are indeed proscribed terrorist organisations and journalists can legitimately report on what they are saying or what they stand for, it should be equally up to any of us. I am thinking not particularly of parliamentarians. Parliamentarians and other people should be able to report on that and talk about that. A free society consists of people being able to express views or refer to views, however awful they may be, without committing a criminal offence. The suggestion is obnoxious. I understand why it has been made. It has been made for the most honourable and pure reasons, but it would not be a good idea.

I also see some difficulty in definition. Who is a journalist? If a journalist leaves a newspaper or the media channel for which he or she is working, does he or she cease to be a journalist? Does he or she cease to be a journalist after five years or 10 years if he or she ceases to practise that profession? What does “practice that profession” mean? Some of us write articles for the press from time to time. In the old days, in my case it was for money, but not at present. Does that make us journalists? If we create a special right and privilege for so-called journalists, obviously a lot of people would like to define themselves or their activities in such a way as to get the benefit of the franchise that has been created. That is an undesirable development.

[Earl Attlee]

The noble Lord raises an extremely good point about who is a journalist. When I was being briefed by the media, I asked that very question. The answer is that traditionally we do not define who is a journalist, but I am confident that it does not cause a problem in the way my amendment works.

[Lord Davies of Stamford]

I have great affection and respect for the noble Earl, but that is no good at all. The idea of creating a special category of people in the key sensitive matter of free speech is bad enough but if you then say that you do not need to define it—in other words, you do not need to restrict in any way the benefit that is being accorded or the possibilities of its misuse—you are on a hiding to nothing. I do not agree with the noble Earl on that subject.

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[Viscount Hailsham]

My Lords, the point made by the noble Lords, Lord Anderson and Lord Carlile, is entirely right. As I get the sense that the Committee wants to hear from the Minister fairly smartly, I shall now proceed to Amendment 6 and deal with it fairly swiftly. I hope my noble friend will forgive that I cannot accept Amendment 6, for this reason: the phrase used is “for the purposes of journalism”. There is no real distinction between the concepts of “in the course of journalism” and “for the purposes of journalism”: they are very close, if not the same. Many of the proponents of the cases of proscribed organisations, including Mr Choudary, often use newspapers to express their view. If you provide a specific defence to cover language in newspapers and people writing in newspapers—that is what the amendment does—you drive a coach and horses through the entirety of this part of the Bill.

The noble Lord, Lord Davies, also has a point here. I am very cautious about making distinctions between journalists and the ordinary citizen. I am very far from persuaded that, as a general proposition, a journalist should have a privileged position as contrasted with the ordinary citizen. I am not able to agree with my noble friend, but I will of course give way to him.

[Earl Attlee]

I remind the Committee that we give journalists a privileged position in the Data Protection Act and significant freedoms of manoeuvre.

[Viscount Hailsham]

That is true but there are many aspects of the law where it is not true. I look nervously at my noble friend Lord Faulks, but I think privileged communications to journalists are not covered by the definition of confidential and privileged information in the ordinary and criminal courts. I would therefore be very chary about extending the privilege to journalists qua journalists. There is also a serious point: who is a journalist? When does a career become spent and when is it still operational? There are quite a few problems along that line. I will bring my remarks to a conclusion so that the noble Baroness can respond to the points made by the noble Lords, Lord Anderson, Lord Carlile and many others.

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[Lord Hylton (CB)]

I hesitate to join this discussion, but I support the intention behind all the amendments in this group. They seem to narrow and clarify the rather wide scope of the Bill. On Amendment 4, it may or may not be right to take away the test of recklessness but the noble Viscount, Lord Hailsham, may have a good point about specific intent. I may need the protection of Amendment 5 myself, because I have previously argued that Hamas and the PKK should be removed from the list on the grounds that they have ceased to use terrorist methods and shown a willingness to enter into negotiations about the conflicts in which they have been engaged.

[Earl Attlee]

My Lords, several noble Lords have opposed Amendment 6, in my name, partially on the grounds that it does not define what “journalism” means. That definition is going to be a problem for my noble friend the Minister in due course, because she will tell us that journalists have nothing to fear from the new Act. It would be helpful if, in due course, she writes to noble Lords to tell us what she means by “journalism”.

[Lord Judge (CB)]

I suspect that the discussion about journalism and journalists focuses the Committee’s attention on these provisions. I share the views expressed in the House that there should be no special position for journalists. When they exercise their rights to freedom of expression they are simply exercising our rights to that freedom and to looking at other people’s expression. Does the current provision in the Bill run a serious—or any—risk that a genuine, bona fide journalist, examining the issues without any criminal intent at all, may be caught? If so, the provisions need to be re-examined; if not, not.

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[Baroness Jones of Moulsecoomb]

My Lords, I speak to my Amendment 19 and support the other amendments in the group. I am aware that Amendment 19 attempts to do exactly what Amendment 17 does but, obviously, in a much inferior way. I have added environmental protection, which is a valid objective when travelling to dangerous zones.

I also support Amendment 20 in the name of the noble Earl, Lord Attlee. I declare an interest because I have daughter who is a journalist and am well aware that journalists perform the most incredible tasks when they go to dangerous areas. I have watched the situation in Syria—about which I know a little because I have worked there—which has been the most dangerous place in the world for journalists for some time. More than 100 have died there because they have tried to report on what Assad has been doing to his own people—atrocities such as gas attacks and so on. We have had a long discussion about what a journalist is and what journalism is, but it is important to remember that they fall into a category which is crucial for our understanding of what goes on—not only in Syria and war zones but in Britain, where journalists often expose wrongdoing of all sorts.

I tried to explain to the Minister about the absence of evidence. I have often been deterred from campaigning on a particular issue in a perfectly peaceful and legitimate way because I know that the policing is going to be over-heavy or for some other factor. There are times when people are deterred from doing the right thing because of legislation like this. In these debates I can offer the House a viewpoint from people who might be affected by it, who might find themselves on the wrong side of these laws. I note that other noble Lords have said that they might be on the wrong side of this law.

The Bill provides for a defence of reasonable excuse but gives nothing more than that. My concern is that too many prosecutions will take place, putting people through lengthy court processes before being acquitted by a jury. This concern is shared by the many humanitarian organisations and journalists who have contacted me regarding the Bill.

The Minister will undoubtedly tell me that these organisations have nothing to worry about—that a jury will find them innocent because they will have a reasonable excuse—but this would be to ignore the real, practical implications that the threat of prosecution has on an organisations. Humanitarian organisations already putting themselves and their people in grave danger will additionally risk being prosecuted for simply trying to help people in need. This risk will increase their insurance premiums or even make it impossible for them to get insurance at all.

Under such circumstances, people may not want to volunteer for these organisations if it risks making them personally liable to prosecution. There is also, of course, the cost of legal advice and representations—thousands of pounds which will have to be spent and will be lost even if they are found not guilty.

Personally, I feel that the Government should not put these innocent people at risk of prosecution. As with Amendments 17 and 19, putting these specific examples in the Bill will help to make it clear to prosecutors that these groups have specific, absolute defences and should not be charged. If the Government reject the amendments, I would ask why. They do nothing to undermine the Government’s intent but would allow humanitarian and environmental protection organisations to do their heroic work without fear of being persecuted and prosecuted when they return to safety in the UK.

[Earl Attlee]

My Lords, Amendment 20 in the group is in my name. The Committee has looked already at why journalism is vital so there is no need to repeat those arguments in detail. I accept that the amendment moved by the noble Lord, Lord Anderson, may be a better solution than mine, which would create an explicit exemption for journalists travelling to or remaining in a designated area.

Since the new offence does not require a person to have any harmful intent, it risks capturing those who mean no harm at all and are acting in the public interest, even if the Government of the day do not think so. Journalists travelling to an area to cover events and inform the public are one obvious such group. Following our debate on the first amendment, I accept that I will have to go away and consider carefully what I mean by journalism and journalistic purposes, but the same problem arises with the amendment of the noble Lord, Lord Anderson.

Ministers have stated that journalists are not the target of the offence and would qualify for the broad defence of reasonable excuse. I listened very carefully to what my noble friend Lord Howe said about that. However, the same problem that I described when speaking to my Amendment 6 arises, namely that journalists may be unjustly interfered with or arrested. It needs to be clear in the Bill that journalism is exempt. Amendments 21 and 22 would provide for prior authorisation from the Secretary of State. Although that may have its merits for certain sectors, it would be highly undesirable for press freedom as it would allow the Government to whitelist or blacklist journalists and could operate as a de facto licensing system which the press has, rightly, always resisted.

Although there are good reasons for an open-ended reasonable excuse defence, as my noble friend has outlined already, the amendment does not circumscribe it. Given the scope of the offence, the Bill should anticipate the most obvious scenarios where people will have good cause to travel to or remain in a designated country and provide certainty to those people. That is exactly what would be done by the amendment of the noble Lord, Lord Anderson.

The combination of the lack of an intent requirement and the vagueness of the reasonable excuse defence means that whether an offence is committed becomes a matter of prosecutorial discretion entirely. That is undesirable for legal certainty and the rule of law. In practical terms it would delay, even deter, correspondents from travelling to an area where events are unfolding. Civilians suffering humanitarian catastrophes will not be able to tell their stories to the wider world and the British public will not be able to hear them and do whatever they can to help.

Ministers and other noble Lords may push back against my arguments by pointing out how hard it is to define “journalist” or arguing that terrorists might try to pass themselves off as journalists. I argue that where there is doubt over an individual claiming to be a journalist, the police, prosecutors and the courts can test their bona fides. Some people will wrongly claim the defence; that does not mean that it should not exist. The same argument applies to Amendment 17, moved by the noble Lord, Lord Anderson.

Amendment 17 may well meet my concerns but I am slightly worried about its proposed new subsection (2)(d), which would provide an exemption for a “registered charity”. It might be worth considering restricting the exemption to either a UK registered charity or one that is accredited by the United Nations in some way, because I have been aware of some charities in an operational area being rather less than pure.

[Lord Garnier (Con)]

My Lords, I briefly return to our discussion to Amendment 17, moved so well by the noble Lord, Lord Anderson of Ipswich. He made no claims of infallibility. When we are discussing this sort of subject, he probably comes the closest in this Chamber to infallibility, at least for the moment. I understand his reasons for moving the amendment; I can see that the reasonable excuse provision in the Bill he seeks to amend is somewhat vague. None the less, I want to ask one or two questions relating to the amendment.

I can accept that the genesis of at least some of the new provision comes from other countries’ and jurisdictions’ legislation; the noble Lord mentioned Australia in particular. A few things about the amendment trouble me slightly. I can see that proposed new paragraphs (a) to (e) provide a reason for making a visit to the designated area, but I am a little troubled by the fact that proposed new paragraph (f) states simply that,

“visiting a dependent family member”,

may provide a reasonable excuse. The reason for the visit to the dependent family member needs to be explored fully. The amendment could lead us into difficulty. The purpose of the visit may be to see a bed-ridden grandparent, but it may be to see a rather ill-motivated teenager with terrorist sympathies. As long as that is not made clear, the problem I see in proposed new paragraph (f) remains.

To some extent, although not as greatly, I am troubled by proposed new paragraph (c), which gives the reason of,

“satisfying an obligation to appear before a court or other body exercising judicial power”.

I can see that in an organised state with an organised court system, complying with an obligation to appear in court to give evidence, or whatever it may be, provides one with a reasonable excuse. However, going to a designated area suggests that there may not be such an organised system there. Although one may be under some obligation to appear before it, I hesitate to suggest that in all circumstances one is likely to find in a designated area a recognisable court or other body exercising judicial power in a way that we would find acceptable in this country and this jurisdiction.

Perhaps these are quibbles. The noble Lord, Lord Anderson, expressly stated that he did not claim his amendment to be perfect. I understand where the amendment comes from and where it intends to go. I simply ask my noble friend on the Front Bench not to dismiss the amendment out of hand but perhaps to go away and rewrite it in such a way that it would be acceptable as a government amendment that would pass muster in both this House and the other place.

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[Baroness Manzoor (Con)]

My Lords, I beg to move that the House be resumed. In moving this Motion, I suggest that the Committee begin again not before 8.17 pm.

[Earl Attlee]

My Lords, surely we should return at 8.33 pm?

[Baroness Manzoor]

My Lords, it has been decided that the break will be 45 minutes.

House resumed. Committee to begin again not before 8.17 pm.

Counter-Terrorism and Border Security Bill

Earl Attlee Excerpts

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

[Earl Howe]

My Lords, as the noble and learned Lord, Lord Judge, has raised this, I cannot ignore what he has said. If he will allow, after this Committee stage, I will take advice and be in touch with him.

[Earl Attlee (Con)]

My Lords, did not my noble friend the Minister state that other similar offences were drafted in the same way?

[Earl Howe]

My Lords, my noble friend is quite right. “Prove” is used in some six other sections of the 2000 Act, including Sections 57, 58 and 58A, so it is not inconsistent with the generality. However, as the noble and learned Lord has picked this out, I can do no other than to take the point very seriously, and I undertake to do so. If he will suspend his scepticism for a moment, I want to make the point that, in addition to creating an inconsistency between the designated area offence and others with a similar reasonable excuse defence, this would also unsettle a well-established legal position with which the courts and prosecutors are very familiar, and on which there is clear case law.

I very much hope that, on this basis, the noble Lord will be content to withdraw his amendment, subject to the undertaking that I have just given.

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[Earl Attlee]

My Lords, the power to designate an area is a significant power, as pointed out by the noble Lord, Lord Anderson. However, I think it is a desirable power, provided that we amend the Bill slightly in the way we have discussed. I am not clear why anyone would want to go to a designated area other than for any of the purposes we have outlined in Amendment 17.

[Lord Stunell (LD)]

I should like to add to the remarks of my noble friend Lady Hamwee by making two points. First, if one looks at the current situation in Syria, there are clearly many women there who do not have the freedom to leave. Will they have committed an offence simply by virtue of being held as virtual or real captives? These are aspects which need to be looked at quite seriously.

I want also to make the darker point that, at the moment, we are focusing on the Middle East and terrorism as we appreciate it there. However, if this legislation had been in force in 1936 or 1937, I wonder what would have been the realpolitik of designated areas within Spain. We need to understand that legislation passed for one reason can sometimes be adapted and used in a completely unforeseen way or, as I am perhaps suggesting, in a foreseeable way. I would like to hear what the noble Earl might have to say about these two points.

Counter-Terrorism and Border Security Bill

Earl Attlee Excerpts

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

[Lord Bethell (Con)]

My Lords, I too thank my noble friend Lord Faulks for moving this amendment. I also thank my noble friend Lord Hodgson for supporting it, and I am glad to support it myself.

Many Peers spoke at Second Reading about the extraordinary changes to warfare, terrorism and espionage, and the growing risk of home-grown participants and recruiters. There is clearly a need for a modern response to these challenges, and I think the Bill does a huge amount to deal with them, but I wonder whether it goes far enough.

On the legal case for a revival of the treason law, my noble friend Lord Faulks and others have put the arguments much better than I can. I also recommend the paper by Policy Exchange, Aiding the Enemy, which has an enormous amount of support from senior figures in the law and the police. However, my angle is slightly different. I am coming at it from the point of view of cohesion and the need in this country to ensure that there is a really strong sense of trust in our communities.

We are living with a huge amount of immigration—something that I am really proud of and glad to see happen. There is an almost post-modern attitude among many people towards even the concept of a nation state, and a sense of “anywhere-ness” among a lot of people. The noble and learned Lord, Lord Falconer, the former Lord Chancellor, argued in 2010 that the law of treason was no longer appropriate because people might feel their strongest allegiance to be towards their religion or even towards Greenpeace. He said that we live in an era when the freedom of the individual is put above practically everything else.

That thinking, I am afraid, has contributed to our becoming embarrassed when talking about big ideas such as treason, betrayal and allegiance. We have lost a sense of what is acceptable and what is not. It is acceptable to criticise your country and to obey your God or to follow the tenets of your ideology, but it is not acceptable to aid one’s country’s enemies in their attacks. I think this confusion has contributed to 900 people, many of them young and naive, fighting for an enemy, and we are now living with those consequences.

I was greatly struck by the story of Kimberley Miners, who travelled to Syria and recently returned. She said of her experience of living with ISIS:

“People have no idea, but ISIS is actively searching Facebook for vulnerable people. People just like me. These people befriended me, I felt accepted”.


I feel a mixture of enormous compassion for her and enormous anger that she could have been so stupid in this decision. I cannot help feeling that, if our citizens and those who chose to live here had a clearer sense of where the boundaries lay, naive young people would not have made such stupid mistakes. We could then sleep with confidence that our neighbours, whatever their views and beliefs, ultimately have a peaceful intent towards their country, and further damage to trust in our communities could be avoided.

By way of conclusion, a treason law should not become a coercive or reactionary measure, and I pay tribute to the thoughtful briefings on the Bill from Liberty and the Open Rights Group, and to the contributions of my noble friends Lady Warsi and Lord Ahmed during Second Reading. But there is social merit in a narrowly drafted measure that makes clear our duty not to aid one’s country’s enemies in their attacks. That is why I am pleased to support this amendment.

[Earl Attlee (Con)]

My Lords, I too support the amendment. When I read it, I was surprised that it did not include the words “take up arms against Her Majesty’s forces” or something to the same effect. It is, as my noble friend pointed out, a procedural point. I gently point out, however, that we in this House have great freedoms of manoeuvre and are able to table amendments that you simply would not be able to in the House of Commons. I hope that, in the end, the provision will include the words “taking up arms against Her Majesty’s forces”. We cannot have UK citizens attacking the UK or its forces in an organised way while still enjoying our way of life and the privileges of living in the UK. How do we think our security services and Armed Forces feel when they realise that a member of the enemy was brought up in the UK?

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

My Lords, Amendment 34, moved by the noble Lord, Lord Faulks, was the subject of some debate at Second Reading, and the issue has since been referred to several times. I was not persuaded then that this is the right way to proceed and, having listened to a number of noble Lords speak in favour of the amendment, I am not persuaded now.

As we have heard, the Treason Act 1351 is still in force today, although it has been amended. I believe it was last used to prosecute William Joyce in 1945 after the Second World War. As the noble Lord, Lord Faulks, said, it has a somewhat chequered history. There is ample opportunity to prosecute British citizens, and those who are not British citizens, who commit acts of terrorism for a range of offences, using legislation that is already on the statute book.

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[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.

Counter-Terrorism and Border Security Bill

Earl Attlee Excerpts

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

[The Marquess of Lothian (Con)]

My Lords, as my noble friend the Minister will know, the committee which I have the honour to serve on behalf of this House along with the noble Lord, Lord Janvrin, produced a report 10 days ago on the lessons to be learned from terrorism incidents last year. One of the points that we made was that in most of, if not all, those incidents, the perpetrators had had access to the type of extreme material covered by this Bill and clause. We therefore support the way in which the Bill is being amended and developed today, because it provides another safeguard against one area where radicalisation can take place leading to terrorism incidents in due course. That is the position of my committee—I am sure that the noble Lord, Lord Janvrin, would accept that.

Can we have a definition of “academic”? I presume that it is not limited just to professional academics, because that would be very restrictive. There is a lot to be said for learning lessons from terrorism incidents, with those doing that type of work, including the committee of which I am a member, having access in order to see what type of material is leading to the radicalisation taking place. I hope that the Minister will be able to reassure me that “academic” would cover that area.

My other point relates to “journalist”. I may be behind the times and not know how it is defined in law, but “journalist” seems a very broad definition. There are professional journalists—I quite accept that this amendment should cover them—but there are in my experience other journalists, some of whom call themselves bloggers and others who call themselves contributors to particular types of publications. It might not be in the interests of security that those people have access to such material. Can the Minister respond to those two points?

[Earl Attlee (Con)]

My Lords, I thank the Minister for tabling the amendment. It is hard to think of any reason other than journalism or academic research, but it is good that the legislation as it will be drafted allows for that possibility. As for my noble friend’s point about journalism, it has never been accurately defined. Other terrorism legislation refers to journalism, but the drafting of my noble friend’s amendment makes it quite clear that it has to be journalistic work.

[Lord Kennedy of Southwark]

We fully support government Amendment 6 in the name of the noble Baroness, Lady Williams of Trafford, and moved by the noble Earl, Lord Howe. As we have heard, it responds to concerns raised during consideration of the Bill in Committee in this House and the other place. It is a helpful amendment, as it puts in the Bill a specific provision making it clear that a person has a reasonable excuse for possession of certain material where it is for the purpose of carrying out journalistic or academic research.

Amendment 7 is an amendment to Amendment 6. I have considered it carefully and can see the point being made the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, but the amendment is unnecessary and would add nothing to the clause as amended by Amendment 6. As the noble Earl said, “but … not limited to” covers the other points made. As amended the clause is fine; I do not think that we need the other amendment. The noble Marquess, Lord Lothian, made some important points which I hope the Minister will respond to, but we support the government amendment.

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[Baroness Hamwee]

The last words of line 40 read,

“in which at the time”

and the next line starts, “of the person’s action”. As I said, I identified two places in line 40 where paragraph (a) might be inserted. It is a drafting point but also a point of substance, because where paragraph (a) starts actually affects the whole of the point. Can the Minister give a little more assistance?

[Earl Attlee]

My Lords, perhaps if my noble friend the Minister is not absolutely certain on this point we could return to it at Third Reading to clarify the drafting amendment.

[Earl Howe]

My Lords, I was not as precise as I should have been. The words after,

“(but are not limited to) those in which”,

will become paragraph (a). So it will read,

“(but are not limited to) those in which (a) at the time of the person’s action or possession, the person did not know”,

et cetera. Paragraph (b) will follow after line 44. I hope that that clarifies the point.

My noble friend Lord Lothian asked a series of very reasonable questions about the meaning of the words “journalist” and “academic”. The distinction between journalism that constitutes a reasonable excuse and that which does not, for the purpose of this offence, will inevitably be highly fact-specific. As several noble Lords commented in earlier debates on the Bill, it is just not possible to provide in advance an exhaustive definition of a journalist or of a legitimate journalist. This is something that we are clear needs to be determined by a jury in particular cases on the basis of all the evidence. We have made it clear that our amendment adds an indicative list of categories of reasonable excuse and does not provide either an exhaustive list or an absolute exemption. It is important to remember that juries will retain their existing discretion to decide whether a particular excuse is reasonable on a case-by-case basis. The same logic would apply to the meaning of the word “academic”. The category of person that my noble friend described might or might not be considered by a jury to be an academic: it would depend on the facts of the case. The jury might consider that there was still a reasonable excuse for a particular individual. I hope that that is helpful.

--- Later in debate ---

[The Earl of Sandwich (CB)]

My Lords, I offer my support for Amendment 15. I will speak on behalf of humanitarian aid workers following the remarks made by the noble Lord, Lord Judd, and I do so because it seems to me profoundly wrong that aid workers should potentially come under suspicion and be bracketed with potential criminals simply because they are travelling to and from a sensitive area. Of course, I realise that the Government understand in principle they are not in that category, so they have put down their own amendment with an indicative list, which the JCHR acknowledges is a step forward. Nevertheless, the Bill still potentially subjects aid workers and journalists to every sort of interference, which can only mean that aid will inevitably be held up and that people living in distressed conditions will suffer more. If aid workers in government programmes, including those of Governments in the designated areas, are protected, why on earth should non-governmental organisations and their beneficiaries suffer? What is the logic of that?

This clause has to be amended. Imagine what would happen in a country like the DRC today if people monitoring the Ebola virus had to consider the prospect of being arrested for having dealings with the Mai Mai or the Interahamwe militia. The noble Lord, Lord Judd, and the noble Baroness, Lady Hamwee, have already mentioned peacebuilding, which often involves the Red Cross and the Churches. What would be the climate of suspicion surrounding not only them but the whole aid programme? The noble Lord, Lord Paddick, quite rightly mentioned the “deterrent effect”.

I speak with feeling, having worked with several aid agencies over the years, and knowing the conditions in which they already have to work. No wonder that 21 organisations are protesting. These are in many cases the front line of our aid programme, whether they work with government or not. I will repeat two sentences of what they said in a signed letter:

“Unless urgently amended, the bill … will make it impossible for civil society organisations to deliver much needed humanitarian, development and peacebuilding support to people desperately in need … it is vital that the government and peers amend the bill so that it exempts aid workers and others with a legitimate reason to travel to designated areas”.


Let us not forget the cost of this exercise. We do not of course know the parameters of the designated regions, but we know that, for obvious reasons, many aid workers tend to be in sensitive areas of the world, so the overlap between political sensitivity and humanitarian commitment will be vast.

The noble Earl mentioned the possibility of the terrorist who intends to assume the disguise of an aid worker and become a wolf in sheep’s clothing. Obviously, that is quite different; he or she must be stopped on the grounds laid down in the Bill, and will not ultimately pass the test of reasonable excuse. I realise the difficulty the Government are in here, having to act on behalf of society. But it is quite irresponsible to risk the professional lives of all aid workers leaving those areas, with all the consequences for the programmes concerned, as a means towards that end.

[Earl Attlee]

My Lords, I am grateful to the Minister for these amendments, and in particular for his response to my amendments moved in Committee on journalism. When we are trying to convince people like President Erdoğan of Turkey not to persecute his journalists, it would be a complete disaster if we accidentally arrested a legitimate journalist in the UK.

I have worked overseas on international aid—in theatres unlikely to have been designated—but I think the noble Earl, Lord Sandwich, has slightly misinterpreted the Minister’s amendment. New Clause 3B(a) excludes providing aid “of a humanitarian nature”, so his concerns are absolutely met by the Minister. I believe the Minister has the balance right, both in principle and in the drafting of his amendment.

[Lord Judd]

My Lords, I strongly support the amendment; indeed I welcome the moves the Government have already made. Looking back on my life outside this House, it is impossible to express strongly enough my respect for the courage and dedication of some of those working on the front line. We ought to be ensuring that they have all possible support, rather than being put through greater anxiety about their own futures. The point about de-risking by banks and other relevant authorities is, of course, very important. Development assistance is crucial and sometimes—if not more often than not—the most important development assistance is long term, because it builds human and institutional resources that will be essential for the future.

Alongside that, the point I made in my earlier intervention is crucial: peacebuilding is vital. Are we just going to have industries and charities whose activities are dependent on failure, or are we supporting charities, voluntary organisations and others who say we have to understand the causes of the problems that confront us and tackle those causes at root? That means sometimes dangerous, controversial work with a wide cross-section of people. I hope that the Minister will be able to respond positively to the amendment and underline in specific terms the Government’s commitment to the support and well-being of the bona fide, responsible organisations that engage in the crucial task of peacebuilding.

I said that I had a range of interests in the register, and I should specifically say that I have been an adviser to International Alert and subsequently a trustee. International Alert is respected by a great number of Peers across the House for the work it does. It is deeply concerned about the need to make explicitly clear that peacebuilding is high on our list of considerations.