Counter-Terrorism and Border Security Bill

Gavin Newlands Excerpts

2nd reading: House of Commons & Money resolution: House of Commons
Monday 11th June 2018 Commons Chamber

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a pleasure to follow the right hon. Member for South Holland and The Deepings (Mr Hayes), who made some thoughtful remarks but inexplicably failed to stick to his 15-minute time limit, which was a surprise to us all in the Chamber.

In the past couple of years, we have seen deadly terrorist attacks across the world, including in Mosul, Baghdad, Istanbul, Kabul, New York, Paris, Nice, Munich and Stockholm, and last year the UK was subjected to five terrorist attacks in London and Manchester that killed 36 innocent victims and injured many more. We may have honourable disagreements about many aspects of the Bill, but we owe it to the people affected by last year’s attacks to debate these differences as a matter of principle and efficacy rather than on the basis of petty party political interests.

Glasgow airport, in my constituency, was the target of an attempted terror attack in 2007. It came as a huge shock to all Scots given that we had had very little experience of dealing with terrorist acts on Scottish soil. It proved that nowhere and no one is immune to the threat of terrorism. With that in mind, I can assure the Minister and the House that the Scottish National party will engage in this debate in the appropriate manner, treating it with the respect and seriousness that it deserves.

In an increasingly changing and digital world, the SNP supports giving law enforcement agencies the necessary powers to fight serious crime and terrorism. The world is becoming ever more complex, and terrorists are utilising sophisticated measures to plan their attacks. As such, it is of extreme importance that we keep our response and policies under continual review to ensure that we take the most effective action possible to prevent terrorist acts from occurring, while—crucially—respecting and upholding our civil liberties.

During the debates that will follow, the SNP will judge any proposed new powers or the extension of existing ones according to whether they are appropriate, effective, proportionate and respectful of civil liberties. This is the approach we adopted during the passage of the Investigatory Powers Act, during which my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) and I argued that aspects of the Bill were unlawful. We might have been defeated in this place, but we were not alone, and successful court challenges by the hon. Member for West Bromwich East (Tom Watson) West Bromwich and the right hon. Member for Haltemprice and Howden (Mr Davis), and subsequently by Liberty, proved that we had been right to oppose the measures. I hope that the Government have learned from that experience.

[The Minister for Security and Economic Crime (Mr Ben Wallace)]

I just want to clarify the point about the Investigatory Powers Act. It is important for the House to know that in the legal challenge the Government were successful in defending the Act on three out of four measures. It was on the measure about judicial oversight that we conceded, as hon. Members will see in the Bill.

[Gavin Newlands]

I appreciate the Minister’s intervention. As I outlined, my hon. and learned Friend made these points during the Committee stage of the 2016 Act, but I accept his point.

I hope that the Government have learned the lesson and will work with all parties to ensure that the policy can survive any potential legal challenge and carry the support of the House. There will be no petty opposition for opposition’s sake, but we will cast a critical eye on the Bill and table amendments to improve it in Committee and on Report.

After the London Bridge attack last year, the Prime Minister announced a review of the Contest strategy to establish whether the police and the security forces had the powers that they needed to tackle those who would seek to cause us harm. Following David Anderson’s very thorough review, the Bill is intended to bolster the Government’s counter-terrorism approach and strengthen a variety of measures to respond to the terrorist threat, allowing earlier intervention to disrupt terrorism.

I agree with the Government’s desire to intervene at an early stage. Such intervention is not only effective in stopping terrorist attacks, but helpful in preventing young people from becoming radicalised. Terrorist organisations are using 21st-century measures, including social media, to promote their propaganda as a means of radicalising youngsters. It is only right for the Government to review their approach to ensure that it is fit for the 21st century and future-proofed as far as is practically possible, but the internet providers and the social media companies also have a responsibility to ensure that terrorists cannot exploit their systems to promote their poisonous agenda. They must be involved in this process as well. On too many occasions they have been unwilling to take down terrorist content, and slow in doing so.

We are broadly in favour of the aims of the Bill but, while some of its provisions will attract our support, others will need to be tested in Committee. We must ensure that lowering thresholds and the burden of proof does not become so extreme that it impinges severely on civil liberties.

The Bill seeks to amend the offence of collecting terrorist information to cover the repeated viewing or streaming of material online. I accept the point that streaming material has become far more common since the previous legislation was drafted, and that we need a more robust approach. The implementation of this policy will give our police and security services the power to compel internet companies to assist them in carrying out covert surveillance on suspects streaming terror-related content. However, the way in which the process is set in motion is key.

In Committee, the Government will need to set out their case very well, explaining their proposed definition of “streaming” and the new three strikes, three clicks approach to people who stream extremist terror content. The right hon. Member for North Durham (Mr Jones) pressed the Home Secretary on that point earlier. In all likelihood, the approach will prove to be over-simplistic. While we are sympathetic to the Government’s goal of early prevention of potential terrorist acts, we must ensure that their proposals are evidence-based, and that civil liberties are not eroded or forgotten in the process. Like others who have spoken, I feel that the Government should be doing much more to stop the material at source by placing a statutory duty on the online platforms on which the material is viewed.

The Government intend the offence to cover circumstances in which the defendant is in control of a computer but, in addition, and with a much higher degree of difficulty, circumstances in which an individual is viewing the material, for example, over the controller’s shoulder. That may prove to be impossible, and is an obvious example of parts of the Bill which, if unamended, may be open to challenge in court. Campaigners have already voiced concerns about the proposed policy, suggesting that it unfairly targets innocent people. Rachel Robinson, of Liberty, has said:

“Blurring the boundary between thought and action by locking people up simply for exploring ideas undermines the foundations of our criminal justice system. Terrorists’ primary goal is to undermine our freedom. With proposals like this, the government risks giving them exactly what they want.”

Along with the Scottish Government. we will work with the Minister to ensure that that is not the case and that we get this important part of the Bill right. Campaigners have also pointed out that an attempt to introduce a similar terror streaming law in France last year was struck down twice. I should be keen to learn from the Minister what discussions he has had with his counterparts in France about their experience of trying to introduce a similar law, and whether the Government have been able to learn any lessons from them.

The Home Secretary also seeks to amend the offence of encouragement of terrorism so that action can be taken to target those who seek to radicalise children or young people who may not understand what they are being encouraged to do. It is vital that we reassess our approach to preventing vulnerable youngsters from becoming radicalised, and send a clear message to the recruiters that they will face the full force of the law if they attempt to prey on our young people. In my role on the Justice Committee, I had a long conversation with a now convicted terrorist. That has had a profound effect on me and, in particular, on my thoughts about how we can try to protect young people from terrorist influence online.

I understand the arguments that certain provisions in this Bill unfairly target innocent individuals’ personal liberty. The fact that the Home Office guidance that accompanies the Bill also accepts that point is telling. However, it attempts to alleviate the concern by stating that it would not be

“unlawful to hold a private view in support of a terrorist organisation”;

it would be unlawful only to

“recklessly express those views, with the risk others could be influenced”.

I think that the Government will need to clarify what is meant by recklessly expressing a particular view. That seems to me to be an unnecessarily wide and vague phrase that will undoubtedly be tested later in the Bill’s progress.

There will always be a fine balance between giving the police, the security services and the judiciary enough powers to keep us safe, and liberty itself. Ultimately, it could be argued that, if we restrict our personal freedoms excessively, the terrorists have already won. The Government must tread very carefully, and engage fully not only with the Opposition, the Scottish Government and other Administrations, but with those who instinctively oppose any perceived restrictions of liberty.

The Scottish Government support giving law enforcement agencies and the intelligence services the necessary and proportionate powers that are required to fight terrorism. In the past, the UK Government have chosen not to engage with the Scottish Government before publishing Bills and guidelines on the issue. I am pleased that that has not happened in this instance. I also welcome last week’s telephone conversation with the Minister, but will he assure me that he will engage with the Scottish Government at every opportunity and throughout this process?

Keeping people safe is the primary function of any Government. By means of the Prevent strategy, the Scottish Government will continue to work with key partners to tackle all forms of violent extremism—for instance, through Police Scotland’s model of community engagement. Working with the Scottish Government will enable people to learn lessons about the range of positive work that Police Scotland and other agencies do in our local communities to keep people safe. The distinct Scottish approach to the delivery of Prevent benefits from the positive relationships that are fostered in our communities. That includes our work to develop a range of credible grassroots community-led projects that help to challenge extremist narratives, giving support and guidance to people who are potentially vulnerable to radicalisation.

[John Woodcock]

The hon. Gentleman’s description of the “distinct Scottish approach” to Prevent sounded exactly like what Prevent is supposed to do. Will he elaborate on the difference between the Scottish version of Prevent—which he apparently fully supports, unlike Labour Front Benchers—and the English version?

[Gavin Newlands]

I think that it is a resource issue. In Scotland, resources are invested to ensure that the necessary community engagement takes place and there is support for the policy in the community. At present, that is not always the case south of the border.

[John Woodcock]

Is the hon. Gentleman saying that there is no difference whatsoever between English Prevent and Scottish Prevent, that it is purely a resource issue, and that he does not share the view of Labour Front Benchers that the policy should be changed?

[Gavin Newlands]

I have to say that I am no expert on the delivery of the Prevent strategy in England. I represent a Scottish constituency, and I speak on behalf of the Scottish National party.

[John Woodcock]

The hon. Gentleman said that the Scottish approach was distinct.

[Gavin Newlands]

It is distinct in terms of its success, in comparison with the success of the strategy as it currently operates south of the border.

[John Woodcock]

In what way?

[Gavin Newlands]

I have already outlined in what way.

The Scottish Government recognise that resilient communities which look out for one another are key in keeping people safe and, furthermore, that communities are our greatest ally in that respect. We must ensure that the Bill takes account of the separate and distinct Scottish legal system, respecting the current devolution settlement, and is proportionate and appropriate for Scotland.

I nearly got through an entire speech without mentioning it, but a potential threat to our national security is, of course Brexit, and the loss of access to multilateral information-sharing tools that we face. Organised crime and terrorism do not respect borders, and it is essential for Police Scotland to have continued access to the information systems, support and technical expertise that are available through Europol—not only to keep Scotland safe, but to contribute to making Europe safer through cross-border collaboration. I fear that, after the UK leaves the EU, there will be a major risk that any new arrangements will be sub-optimal in comparison with those that exist at present. I hope that the Minister will give a guarantee that any new legislation will be prepared in time to fill any gaps that arise from our leaving the EU, and that he will explain, as far as possible, how he intends to ensure that that happens. We need to ensure that our law enforcement agencies can retain the level of access to Europol that they currently enjoy.

Let me end by saying that 2017 was a difficult year for the UK, and we owe it to everyone affected by last year’s attacks to work together on this important Bill to give our law enforcement agencies necessary and proportionate powers to eliminate and to prevent terrorism without eroding vital civil liberties.

Counter-Terrorism and Border Security Bill (First sitting)

Gavin Newlands Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 26th June 2018 Public Bill Committees

[Nic Dakin (Scunthorpe) (Lab)]

Q You have drawn attention to a number of areas where these new powers would assist in addressing issues that cannot be addressed at the moment. Are there any other areas that you would like to draw attention to? Are there any other powers that we should be considering in order to make progress against counter-terrorism?

Assistant Commissioner Basu: I did not want to get off clause 3 without making some really important comments about it from the policing perspective, if that is possible, Chair. To answer your question directly, we are very fortunate in this country, with the support of the Government over many decades, to have pretty robust legislation in terms of counter-terrorism.

What we are looking to do—and most of these clauses do it—is close some loopholes, because of the changing nature of the threat and the change in technology. There is very little that was left in the first debates that took place in terms of what would be best to counteract terrorism. One of the major partners that I am looking to involve much more in the counter-terrorism fight is the business sector—and the public sector. We have a Prevent duty that has gone a long way towards getting statutory partners more engaged in the battle, but we do not currently have any licensing, regulation or regime for the business sector to improve its ability to protect its employees, customers and management of events. We do not have that; it is a conversation we are still having.

I think—and you may want to get on to this—that the Australians have a “designated area” offence for people who wish to travel to war zones and fight. Although that would not be retrospective, and therefore would not have great utility in respect of the Syrian conflict, I think it would have utility for the future. If we were dealing with a similar situation in the future, stopping people from going to fight or enabling the prosecution of people fighting in theatre when they return would have great utility to us. Those are probably the two things that I would consider at the moment.

Gregor McGill: The Australians have such a power and they consider it a useful addition to their armament. We do not have a power. As my colleague Mr Basu has said, it would not help us address some of the issues that have happened in the past, but it could help us address some of the issues in the future.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

Q Can I turn back to recklessness for a second? Recklessness is a common test in relation to physical acts against the person, but it is not usually used in speech offences. A report from the Joint Committee on Human Rights said 12 years ago, in 2006, that

“recklessness is normally applied to actions that are themselves within the realm of criminality…if you hit someone or deceive them then it is absolutely appropriate for a jury to be able to convict you of an offence even if you did not intend the consequences of your actions. The same nexus between action and consequence should not exist for speech offences. Speech does not naturally reside in the realm of criminality. This is why the element of intention should always be attached to speech offences.”

Could both of you comment on that quote from the JCHR report? Can you determine the difference between speech offences and physical acts?

Gregor McGill: I appreciate what you say. Recklessness is not an unknown principle in criminal law. It is right that I should say, as well, that it is a particular principle that has caused criminal law some issues over the years, particularly in the field of whether such recklessness should be subjective—that is, you understand its nature—or objective, in that it is more from an objective test. As the court, the prosecutors and the investigators are used to dealing with the question of recklessness, these issues can be properly managed through the proceedings. The difficulty as well is that that quote, I understand, was from 2006. The world in 2018 is very different from the world in 2006, and Mr Basu will no doubt tell you that the threat facing us now is very different. That is one matter.

This is often portrayed as a thought crime, but I would say it is not that. The clause is seeking to address someone who is actively supporting a proscribed organisation and doing it in circumstances where they are reckless—by saying what they are saying and by giving that support—as to the consequences of what is happening.

I endorse what Mr Basu said. The threat that we are trying to address here is the threat of radicalisation, which is one of the big threats facing us at the moment. That is the purpose of this and that is the purpose of the recklessness clause.

Assistant Commissioner Basu: I cannot stress strongly enough the effect that charismatic, radicalising speakers, who profess to support proscribed organisations and encourage violence, are having on a section of our society. Despite the defeat of the caliphate and despite the fact that we have an extreme right-wing threat that is growing, those speakers are still capable of galvanising, mobilising and energising individuals.

If I look at the evidence for that, I would say the proscribed group that is al-Muhajiroun. We had five successful attacks last year, including one extreme right-wing attack. We also had 12 disruptions of international counter-terrorism: Islamist, jihadist plots. If you track back across the past four or five years and look at the pernicious influence of a group such as ALM, it is dramatic. They have a footprint in almost every crime. So to say that radicalisation is the biggest scourge of our time in terms of terrorism is probably an understatement. It is making a significant difference. For me as a police officer, anything that helps me mitigate that threat has got to be a good thing.

[Gavin Newlands]

Q On the lack of time, which has been brought up, do you think that three clicks or three online viewings of terrorist content over, say, 25 years—just to pick a number out—shows enough intent to support terrorist activity to then prosecute someone? Do you think there is any danger whatever that in the end police time and resources could be spent on targeting innocent individuals who are of no interest, rather than focusing on individuals who obviously support and encourage terrorist activity? Do you have any concerns on that front?

Assistant Commissioner Basu: I do not actually have any concerns about that at all. We are very adept at looking at the full intelligence picture behind what somebody is doing.

Back to the comments I wanted to make around the section 58 and the streaming offence: that is the way people are living their lives now. It is not about operational security; it is just what they are doing. I am agnostic as to the number of times, but I appreciate prosecutors need some clear guidelines. That streaming is happening and it is happening en masse. At the moment, we are able to charge on one offence, because it was downloaded, but there might be a wealth of intelligence saying that a massive amount of streaming has been done. We then get a short-service sentence on the basis of one download, which does not say what the rounded threat of that individual is. That is very different from someone who has clicked three times on something over a huge length of time.

I would reiterate what Mr McGill said: these are not absolute offences. There are statutory defences and reasonable excuses built into this, all of which would be looked at very clearly before it went through the Crown Prosecution Service and before it went to trial. Then, an independent judge is overlooking that as well. So I am not concerned that it would be a diversion of police resource. I have examples that I can give to the Committee—or I can write to the Committee—that show that people are doing this as a precursor to much more violent offending in the future.

I do not want to be in the position I have been in many times in the last couple of years, looking at somebody who is committing what the courts might see as a minor crime and gets a very short sentence. That is not long-term public protection if they are out at three to six months. I am looking for them to go that next stage when I have got intelligence rather than evidence that they are preparing for that next stage. I want long-term sustained public protection, and that means that we need to be able to prosecute people who are streaming en masse.

Gregor McGill: Can I add two things to that? First, in such cases the police and Crown Prosecution Service work closely together. What often happens is the police will come to seek advice at an early stage and the Crown Prosecution Service will be able to give that advice in such a case. It is very difficult to say how a prosecutor would advise about a case in the abstract. What I could say is, three clicks over 25 years would be a harder case to prosecute than three clicks over a three or four-day period. One of the things a prosecutor has to do when reviewing a case is ask themselves whether they have sufficient evidence to prove a case.

[Gavin Newlands]

Q Would it be better if there was a term limit, with clear direction for prosecutors in that respect?

Gregor McGill: The difficulty is, cases can turn so much on their own facts. I cannot say that you could not build a case with three clicks over 25 years; it would depend on what the nature of that was and what the reasons for that were. But ultimately whether there should be such a limitation is a matter for Parliament. Prosecutors would work within that limitation, if that was put in.

Assistant Commissioner Basu: I would be nervous about absolute time limits because of our close subjects of interest. Khalid Masood and Salman Abedi are two very good examples from last year. Khalid Masood would have been engaging in looking at some of this material many, many years ago. So where would you put the line?

[Gavin Newlands]

I have one more question, Chair, but I will pass to my colleague, who wants to ask a follow-up.

[The Chair]

As we are in an oral evidence session, I am taking people in the order in which they indicate, which I think is fair. Mr Chapman will have to wait.

--- Later in debate ---

[Simon Hoare]

Q You may have a different view of this question, depending on which end of the telescope you are looking through. Is there anything that you would have liked to have seen in the Bill to help you with your respective jobs and tasks that is not there?

Gregor McGill: From a Crown Prosecution Service perspective, the Bill is a proportionate response to the threat we face.

Assistant Commissioner Basu: We have discussed the designated area offence and, briefly, the Protect duty. I caveat that by saying I understand how difficult a Protect duty would be. Some 80% of British businesses are small and medium-sized enterprises and I know it would be difficult. I do not want to impose a financial cost on people; I just want them to understand the seriousness with which we need their help. I am not sure that legislation is the right vehicle for that, but it is something we have debated.

The last point I have not mentioned is that we have a continual issue with people marching and waving flags—the whole display issue—and we do not have a power of seizure of flags, which is part of the evidential chain for a successful prosecution. That is a minor point. Otherwise, it is a well-balanced set of proposals.

[Gavin Newlands]

Q If I can draw attention to schedule 2, the retention of biometric data. Mr McGill, we—or certainly I—have heard that removing the oversight accorded by the Biometrics Commissioner could be seen as a retrograde step. Any data vulnerability is an issue, but it is particularly important when it comes to biometrics. In America there was a hack of 5.5 million unencrypted fingerprints, which would obviously be an issue if it were to happen over here. With all that in mind, could you provide any examples that would support the notion that the detection of crime is improved by retaining the biometric data of people who are not charged, whose charges are dropped or who are, indeed, found innocent?

Gregor McGill: That is quite a wide question. I do not have specific examples of that, although we could look for them. What we do know is that successful investigations and prosecutions use a number of investigative tools and evidence from different places. The more powers that investigators and prosecutors have to exercise those safeguards, the stronger the prosecutions and better the results. An example of where we have used biometric data for that? Off the top of my head, I do not know in these circumstances.

Assistant Commissioner Basu: The most famous example in recent years was Sardar, a cab driver from Wembley, in 2014. The US shared his biometrics with us. He had been overseas and become a terrorist. The reason we were able to match was that in 2007 he was subject to a schedule 7 stop and his biometrics were taken. So he was not convicted of anything. His biometrics were taken and retained for seven years. He was clearly suspected of travelling for a purpose, but not enough to cross the threshold. He travelled and was later convicted of murder.

[Gavin Newlands]

Q It would be useful if you provided the Committee with more examples. The Bill is asking for an extension from two plus one to five years; that would be more than double in some cases. To justify that, it would be useful for the Committee to have that information.

Gregor McGill: We can certainly look for those examples and write to the Committee.

[Nick Thomas-Symonds]

Q I have a narrow question. Clause 12 concerns the power to enter and search houses. I am trying to get a practical sense of that. There are, of course, various requirements. On at least two occasions there has to have been attempts at entry before. The purpose is this:

“to enter premises specified in the warrant for the purpose of assessing the risks posed by the person to whom the warrant relates;”

Could you expand on that? Mr Basu, what exactly do you think is meant by “assessing the risks”? What practically would be likely in a situation like that?

Assistant Commissioner Basu: This is based around lifetime offender management of terrorism. The parallel is obviously registered sex offenders, where this power exists. You are looking for anything that looks as though they have re-engaged or are breaching their notification requirements, if they are on notification. It is something that allows us to assess the ongoing risk of their re-engaging with terrorism. You might find material if you were to do such a warrant. You might find a flag being displayed. You might find material that is of use to a terrorist. That is the purpose of it.

--- Later in debate ---

[Afzal Khan]

Q I would like to ask about the confidentiality between the solicitor and the client. It has been long-established that that is a privileged sort of advice. You also said you understand where the legislation is trying to go and why the Government are trying to pass it. Is an alternative available where both could be achieved without compromising and losing one?

Richard Atkinson: I do not think the two prevent one another. Obtaining legal advice, bearing in mind that the individual has to answer questions, is not going to stop the objectives of the legislation or investigation. As I have already indicated, if there are specific concerns about the individual adviser, they can be met in the way that the codes of practice attached to the Police and Criminal Evidence Act currently address the matter. So, no, I do not think there is any problem in maintaining legal professional privilege and achieving the objectives that are sought.

[Gavin Newlands]

Q In addition to access to justice and legal professional privilege, or lack of provisions in the Bill, are there any other aspects of the Bill that concern you? Do you think any of the provisions, such as three clicks, could result in aspects of the Bill being successfully challenged in court under human rights laws?

Richard Atkinson: I will take a moment to gather my thoughts around that. As far as other matters go, specifically going back to—although we did not quite touch on it—legal professional privilege, there is the issue of seizure of material and its examination. Again, it concerns me that, where legally privileged material is seized, it can be both examined and seized, even though it is legally professionally privileged material. I understand that the concern is that there will be those who falsely make the claim that the material is privileged—either that they themselves are lawyers and are privileged, or that the documentation and material they are carrying is in some form privileged and therefore should not be viewed by investigators.

In order to maintain privilege, which I think is so important, there are safeguards that can be imposed, which would mean that privilege is maintained but that the objectives are met. It has to be borne in mind that legal professional privilege does not extend to agreements to carry out illegal acts. If someone comes to me and wants to plan some illegal activity, it is not a privileged conversation and material. If there is material that is claimed to be privileged at the time of the seizure—bearing in mind that when he gave evidence to the Joint Human Rights Committee, Max Hill said that he saw this being a handful of cases, so we are not talking of hundreds of cases here—it would be perfectly legitimate to seize that material, bag it immediately and then put it in front of an independent counsel—lawyer—who would then be able to assess whether or not that material is privileged. If it is privileged that is the end. If it is not privileged, that material goes to investigators to be dealt with. It can be dealt with in a very short time, because lawyers are very adept at making themselves available to deal with urgent situations. When we are talking about a small number of cases to protect the fundamental right of legal privilege, that would be, in my view, an adequate and proportionate safeguard for dealing with that situation.

To your wider question—whether there were any other concerns—I suppose I could say three clicks et al. We have some concerns that the three clicks provision could potentially be restrictive or undermining of those with legitimate cause, such as journalists or academics making research into areas where they may find themselves falling foul of the legislation. I understand the statutory defence of reasonable excuse, but that is none the less relatively vague. The timings—you spoke about this in the earlier session and about having no time limit on this—are also vague.

To leave the law in the hands of prosecutorial decision as to whether or not it meets the public interest is a step too far. I think there is a need for greater definition around what is being sought to be prohibited. I understand the rationale for it and the need to prevent radicalisation, but we also need to ensure that we do not inadvertently criminalise those who are undertaking legitimate tasks. Although I was unaware of the specific example that one of your colleagues raised, of the worker in WHSmith, that shows the risk of simply relying on prosecutorial discretion as to whether matters should be prosecuted. In that case, clearly, a discretion was exercised to prosecute, and from what you have said—I do not know the case, so I am relying on the information given here—that was later found to be wrong.

[Dr Huq]

It was at the Old Bailey, and it was overturned by the Court of Appeal—

Counter-Terrorism and Border Security Bill (Second sitting)

Gavin Newlands Excerpts

Committee Debate: 2nd sitting: House of Commons
Tuesday 26th June 2018 Public Bill Committees

[The Chair]

Could you please introduce yourself for the record, Mr Clancy?

Michael Clancy: Good afternoon. My name is Michael Clancy and I am the director of law reform at the Law Society of Scotland.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

Q Welcome Mr Clancy. From a Scottish or a devolved perspective, is there anything in the Bill that the Committee should take cognisance of?

Michael Clancy: Schedule 5 of the Scotland Act 1998 reserves to the United Kingdom issues of terrorism legislation. In that sense, terrorism legislation is not within the competence of the Scottish Parliament or of Scottish Ministers, so one might say no. But there is a “but”, which is of course that criminal law and criminal justice—the courts in Scotland, the police, the prison services and the legal profession—are all elements of devolved competence, so therefore there is a point at which these two tectonic plates meet. Due accord should be given to the fact that one is dealing with a different legal system with different traditions and a different structure.

We have always advocated the idea that the United Kingdom and Scottish Governments should get along on issues where these matters concern us all. An example of that is the memorandum of understanding between the Attorney General and the Lord Advocate, which was signed by Attorney General Patricia Scotland and Lord Advocate Elish Angiolini. I hope to see that sort of co-operation as we go forward.

[Gavin Newlands]

Q We heard this morning, in terms of some of the Bill’s provisions, such as the three clicks and the lack of a time limit on that, that to rely on prosecutorial discretion, rather than having fixed limits and so on in the Bill, is a step too far. Do you agree?

Michael Clancy: That is an interesting question, and it allows me to get out my brief on clause 3. Prosecutorial discretion is an important issue. The position of the Lord Advocate in Scotland, as a Scottish Minister, is separate from his position as head of the prosecution service. Prosecutorial discretion is therefore key to how the prosecution service undertakes its work, and it has to be inherent in any prosecutorial legislation. It is quite difficult to dictate to the prosecutor what cases should be prosecuted, so I would prefer to stick with the arrangements for prosecutorial discretion in Scotland.

[Nick Thomas-Symonds]

Thank you for coming along, Mr Clancy. I appreciate your evidence about terrorism legislation being reserved to the UK and about the memorandum of understanding between the Attorney General and the Lord Advocate and so on. However, moving beyond that, do you have any concerns about clause 3 of the Bill that you have not already referred to?

Michael Clancy: I think we were generally in favour of the idea that this area should be updated to take account of the digital revolution. The fact that the review of terrorism legislation that the Government precipitated last year has resulted in no further offences, as Max Hill described, is a vindication of the extent to which the law captures most of the issues. However, there are always questions that can be asked—some of which you have already heard about—about the balance between the right of expression and the requirements under the Bill.

It is fair to say that the courts have been quite explicit about where they fall on that balance. The right to freedom of expression under ECHR article 10 is not an absolute right; it has to be balanced with the other rights that the rest of us enjoy, such as the right to life, and so on. Therefore, although others may not subscribe to this view, the case has to be made that the provisions in the Bill will upset those rights to the extent that we would be considerably concerned about them, given that they build on existing provisions that have already been tested in the courts.

In that context, we have to look at all the legislation we have got—several Acts relate to counter-terrorism—and construct some sort of codification or consolidation of it. I do not know about you, ladies and gentlemen, but flitting between three or four Acts of Parliament within the compass of one Bill is difficult enough. It is difficult to imagine that those who will be subject to the legislation will do that kind of thing. We should make the law as simple and easily understood as we can.

[The Chair]

Does anybody else have more questions for Mr Clancy? Yes, Mr—

[Gavin Newlands]

It is okay, Chair, I forget my name quite often as well, and my Mum certainly does.

[The Chair]

It is the glasses dilemma. Sorry, Mr Newlands.

[Gavin Newlands]

Q It is fine. I have two questions if we have time. We heard this morning from your colleague of the Law Society of England and Wales that there is great concern that schedule 3 has both access to justice issues and issues pertaining to legal professional privilege—that is, the inability to consult a lawyer in private. Do you share those concerns, or do you have a different view?

Michael Clancy: They can certainly be stated to be real concerns. The concept of legal professional privilege and the concept of confidentiality in Scotland are similar but not exactly the same. If we want people to be in a position where they can freely discuss matters with their legal representatives, we have to preserve this value. It is key to the rule of law that people can discuss matters openly with their legal representatives so that the solicitor, advocate or barrister is in a position to advise properly on what avenues are open to the person. Clearly one would want to ensure that that was adequately protected.

[Gavin Newlands]

Q Back to your earlier point about prosecutorial discretion, do you think there is a danger that elements of clause 3 risk criminalising thought without action?

Michael Clancy: Well, there is an action: clicking three times is the action. It depends on what is clicked on and how that works in practice. It says in the existing provision for the collection of information in section 58 of the Terrorism Act 2000:

“A person commits an offence if…he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism…he possesses a document or record containing information of that kind”

or—this is the addition made by clause 3 of the Bill—

“on three or more different occasions the person views by means of the internet a document or record containing information of that kind.”

That fits in the analogous provision in the 2000 Act of possessing

“a document or record containing information of that kind.”

The fact that it is on the internet is simply an update.

I am not convinced that three strokes is the problem. We heard from Max Hill about the French cases. We have to be cautious about drawing analogies with another legal system—certainly one that has a written constitution and a codified arrangement for its law. Those are two significant differences from the system here, where something that contravenes article 10 or some other article of the European convention on human rights is subject simply—simply—to a declaration of incompatibility. That would require Mr Wallace to come to a decision about whether he would amend the legislation, were the courts to make such a declaration of incompatibility.

We must be careful about demonising this issue in that way, in so far as there has not already been trespass on the idea of freedom of expression and freedom of thought. That is that balance that has to be struck between making the counter-terrorism law work and at the same time preserving our rights. The courts have to be asked to make that balance day in, day out.

I wonder just how one would work around this provision. If I were so minded, would I, for example, click once and then take out my phone and take a film of what I was watching on the internet? Is that a reasonable proposition? Is that captured in this Bill? I do not think so. Those are the kinds of questions that one might return to later on in your deliberations.

[Nick Thomas-Symonds]

Q Just one question, Mr Clancy, arising out of the Minister’s question about section 18 of the Public Order Act 1986 and the Racial and Religious Hatred Act 2006. Both Acts are about the use of abusive, threatening or insulting behaviour to stir up hatred, but do you agree that there is a distinction between that and actual recruitment to the cause, which is what the clause in this Bill is talking about? Are they different things?

Michael Clancy: Clearly, there is a legislative distinction between the two. It depends on what the abuse in terms of race or religion is intended to do. Is it simply to make someone feel uncomfortable, aggrieved or violated, because of their religion or race? Or is it in some kind of a way to encourage others to take up that same kind of attitude toward people based on their religion or race?

Legislation in this area, countering discrimination on the basis of religion or race, is something that we have had in this country since the 1960s. Therefore, the fact that we are continually having to look at this again means that the educative value of that legislation has not yet reached its optimum. We have to be aware of pushing that further, to make sure that those who would fall into that pattern of behaviour know that it is wrong, illegal and that they must desist from doing it.

--- Later in debate ---

[Mr Wallace]

GPs are not covered by the Prevent duty.

Abigail Bright: On another view, much training of general practitioners goes into how to deal with Prevent.

[Gavin Newlands]

Q I think we have covered a fairly wide area. I want to go back to biometrics, because we missed out on that answer previously. Ms Bright and Mr Carter, do you think it is justifiable to retain biometrics information for five years, without oversight by a Biometrics Commissioner of those people who are not charged, whose charges are dropped or who are found innocent? Do you think that is of any use to the police and the security services?

Peter Carter: I am afraid I am going to disagree slightly with Liberty on this one. It is a bit like personal data: it needs to be constantly reviewed. There needs to be a finite term to begin with; then if necessary, continued retention needs to be justified. I do not think there should be an automatic prohibition on the retention of data by those who are not prosecuted, because it might well be that a person is diverted from prosecution even though there is very good reason and very strong evidence that they did actually have the material and were on the verge of getting involved with terrorist activity. In those kinds of cases, it is justified to retain the material. I think it is a question of proportionality—two years to begin with, with the possibility of extending it to five or further, if there is justification.

Abigail Bright: From the specialist Bar associations, I would add two things. First, the Bill incorporates a review by the Investigatory Powers Commissioner. That is very welcome and it is a good part of the Bill as drafted. As the Committee knows, the commissioner is to have two functions: to monitor and to keep under review the operation of provisions of the Act, and after that to report as a long backstop every calendar year. Within that, the commissioner has the power to report to the Secretary of State as and when the commissioner thinks appropriate much before a year.

[The Chair]

Order. I am afraid that brings us to the end of the allotted time for the Committee to ask questions. I thank Ms Stoughton, Ms Bright and Mr Carter for the evidence they have given the Committee.

Counter-Terrorism and Border Security Bill (Third sitting)

Gavin Newlands Excerpts

Committee Debate: 3rd sitting: House of Commons
Thursday 28th June 2018 Public Bill Committees

[Nick Thomas-Symonds]

It is a pleasure to serve under your chairmanship, Ms Ryan. I first want to make a few general remarks about clause 1.

I think we all accept that there is a need to update the law in this area, and that is for a number of reasons. The first is the evolving and changing nature of the terrorist threat over past decades. There have also been changes in technology, which I appreciate we will deal with in later clauses. However, there is also—this is vital for clause 1—the fact that we now have experience of the Terrorism Act 2000 in our criminal justice system and in the decisions taken by the Crown Prosecution Service.

The clause essentially updates section 12 of the Terrorism Act 2000. Just so that we are clear, section 12(1) of the Act indicates:

“A person commits an offence if—(a) he invites support for a proscribed organisation, and (b) the support is not, or is not restricted to, the provision of money or other property”.

The key part of that subsection is the inviting of support for a proscribed organisation.

When Assistant Commissioner Basu gave evidence to the Committee on Tuesday, I was careful to ask him whether there were examples of situations that are not covered under the 2000 Act but would be captured—or are intended to be captured—by this new offence, and he gave a couple examples. One was the case of Mohammed Shamsuddin and the Channel 4 documentary, “The Jihadis Next Door”. He referred to a speech that Shamsuddin gave on 27 June 2015, in which

“it was very clear that he supported Daesh and what they were doing…He criticised Gay Pride and said that gay people should be thrown from tall buildings. Having spoken on recent shootings in Tunisia, he said, “The spark was lit,” and that the listeners knew the rest.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 6, Q3.]

Of course, the problem with those remarks, which I will come back to, is that they are not captured by the 2000 Act as it stands, because there was no specific invitation to others to join the cause.

The other example given was of Omar Brooks, in relation to an incident on 4 July 2015. Again, there was clearly talk about religion being spread by the sword and about it not being a soft religion about peace, and there was the mocking of a Shi’ite who had spoken out against killing of Lee Rigby. The tone of the speech shows clear support for the concept and principles of Daesh, but, again, it does not take the additional step of inviting support from others.

Prior to this clause being proposed, the law as it stands was interpreted in the case of Choudary and Rahman, which the Minister referred to in his questions to the witnesses on Tuesday. About the offence as it stands, the Court of Appeal said:

“When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation.”

In essence, along with the two examples I have given on the basis of Assistant Commissioner Basu’s evidence, that captures where the law is and where it stops. There are others acting in a clearly unattractive way whom we wish to extend the law to.

The issue then becomes how, precisely, we want to draft the law to achieve that. Nobody says that freedom of expression is a wholly unqualified right—it is not, actually—but I am sure we all wish to strike a balance between people expressing views that we find distasteful and may not agree with, but that none the less come into our public debate and are defeated by others, and the clear nature of the offence, which is about recruiting people to the terrorist cause. How we draw that distinction is very important.

The amendments in my name seek to consider how we get that balance right. Nobody in the Committee would want to put something unworkable on the statute book, or something that was likely to attract a declaration of incompatibility with the Human Rights Act 1998. I tabled these amendments for the Minister’s consideration in that spirit and to assist in striking that balance appropriately. This is not a partisan issue, and I hope that we would all wish to strike that balance appropriately and to make the clause effective.

The two amendments—there are really two amendments, although there are three on the amendment paper—seek to look at the original offence under the Terrorism Act 2000 and at how the extension of that offence appears in clause 1. I have put forward two options: first, that the offence is committed only when the person intends to encourage support for a proscribed organisation—in other words, when the opinion is expressed, as set out in clause 1, together with intention; and, secondly, that recklessness is attached to the offence. Both options extend the existing offence, but not quite as widely as clause 1 as it stands.

Recklessness is not an unknown legal concept in our criminal law; on Tuesday, the Crown Prosecution Service gave evidence about it. There has been a change in the concept of recklessness in law. It is what we call subjective recklessness, so it is about what the individual person thinks about the risk. Recklessness would be far more difficult as a concept in this area if it was defined as it was prior to 2003, when it was about an objective view and about others assuming what that person might mean. With the restriction that is in our law on recklessness anyway, recklessness should perhaps be less of a concern for the Committee.

I offer the two amendments for consideration in a constructive spirit. Their purpose is to ensure that, when the Committee looks at extending the law, as we all agree we should be doing, to examples of what the Minister has referred to as the “charismatic preacher” and to the impact of a person who is recruiting people to the cause, but who is not quite using a form of words that is captured in the intention in the Terrorism Act 2000, we do that in a way that is workable and proportionate and does not draw a declaration of incompatibility under the Human Rights Act. I therefore hope the Minister will indicate that the amendments will be considered.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

I rise to support the amendments tabled by the hon. Member for Torfaen.

[The Chair]

Order. Sorry, we cannot debate the amendment until I have put it to the Committee—it is my error, not yours. The question is that amendment 2, to clause 1, is made.

[Gavin Newlands]

Practice makes perfect, Ms Ryan.

I rise in support of the amendments. Clause 1 will create a new offence for expressing an opinion or belief that is supportive of a proscribed organisation, in circumstances where the perpetrator

“is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation.”

That extends the existing offence of inviting support for a proscribed organisation to cover acts such as making supportive statements, approving of certain attitudes or behaviours, and providing intellectual support.

It has been argued by others that the term “invitation of support” is already a rather broad concept. The Court of Appeal’s decision in Choudary and Rahman, which has already been mentioned, held that a person need not be personally providing support for a banned organisation; rather, the criminality lies in inviting support from a third party. The support need not, therefore, be tangible or practical, but could include approval, endorsement or other intellectual support.

We are generally supportive of the Bill, and we offer amendments only to try to improve it. However, clause 1 removes the requirement of proving intent. In doing so, it could be claimed that it pushes the law further away from actual terrorism and well into the realm of free speech and opinion—values and freedoms that all four countries of the UK rightly cherish. The clause actively and intentionally reverses the Court of Appeal’s conclusion that the criminal law

“does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs”.

Although recklessness is a commonly used legal term in terms of acts against the person, I have misgivings about using it to criminalise speech. The Joint Committee on Human Rights made that point, as was mentioned during the evidence session on Tuesday, when it said:

“recklessness is normally applied to actions that are themselves within the realm of criminality…if you hit someone or deceive them then it is absolutely appropriate for a jury to be able to convict you of an offence even if you did not intend the consequences of your actions. The same nexus between action and consequence should not exist for speech offences. Speech does not naturally reside in the realm of criminality.”

Others far better versed than me in this area share those opinions. The former Director of Public Prosecutions, Ken Macdonald, wrote:

“The mere fact that someone holds an opinion can never be a reason to prosecute. You can think what you like.”

Without the right to express a thought or belief, freedom of expression would be meaningless. The right to express an opinion is fundamental. Clause 1 would prove that assertion wrong by creating a reason to prosecute someone simply for expressing an opinion.

In addition, the right hon. and learned Member for Beaconsfield (Mr Grieve) wrote:

“If the Irish Taoiseach made a speech about the Easter Rising as a glorious moment in Irish history, and if you have someone who happened to be a member of the Real IRA and it motivated them to go on with some unfinished business, could the Taoiseach be arrested?”

That would be absurd, but given how wide the clause is, that could be its effect. As such, we support amendment 1 and the other amendments tabled by those on the Opposition Front Bench. We are happy to do so, because changing the legal test for the offence of expressing an opinion or belief from recklessness to having to prove intent is something we should all support.

--- Later in debate ---

[Nick Thomas-Symonds]

I beg to move amendment 4, in clause 2, page 2, line 6, at end insert—

“(1C) It is a defence for a person charged with an offence under subsection (1A) to prove that he had a reasonable excuse for the publication of the image.”

This amendment explicitly sets out that a person charged with the new offence under subsection (3) has a defence if they can prove a reasonable excuse for the publication of the image.

Clause 2 fits into the category of offences I have mentioned that are being updated to take account of technology. Amendment 4 is not unreasonable and would simply set out the defence of reasonable excuse. Whether that is necessary may be subject to argument, and I am happy to listen to the Minister’s position, but I tabled the amendment to give a degree of comfort in relation to the scope of the offence.

We would all agree that the situation needs to be updated. It is set out in section 13 of the Terrorism Act 2000, on uniform. Under that provision, which was of course passed some 18 years ago, a

“person in a public place commits an offence if he—(a) wears an item of clothing, or (b) wears, carries or displays an article, in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation.”

A term of imprisonment not exceeding six months can be imposed.

The problem that arises is that people can now perfectly well wear such an item of clothing, or display an article, in a private place and take a photograph to be quickly disseminated on social media such as Facebook or Twitter, or by other means. It is right for the Government to look at that. Wearing something in a private place and putting a picture of it on social media could result in far more people seeing it than would have happened in the situation envisaged in the old offence, where the item was displayed in a public place.

My first reason for tabling the amendment is simply to add a note of caution. We are moving from criminalising behaviour in a public place to criminalising something that happens in a private place in the first instance, but which technology allows to be disseminated in the public sphere.

The second reason is that we should take care not to extend the criminal law to behaviour that we might all think unattractive—I hesitate to use the word “reckless” after the previous discussion—but that none the less would not give rise to terrorist intent. In a question during the evidence sitting on Tuesday, I gave the example of a 16 or 17-year-old going to a fancy dress party who wears something that we might all regard as offensive, in bad taste and showing poor judgment, but whom no one would seriously want to criminalise as the clause would do. The answer I received from Mr McGill on behalf of the Crown Prosecution Service and Assistant Commissioner Basu was simply that, in such cases, they would not be interested in pushing the matter into court. Assistant Commissioner Basu said, with respect to the CPS and Mr McGill:

“I would never get such a case past him anyway, even if I was prepared to put that case. We are far too busy on genuine acts of terrorism to be concerned with such a case. What it might point to is somebody who is in trouble and needs a bit of guidance”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c.7-8, Q4.]

He referred to Prevent.

Assistant Commissioner Basu is right. Such behaviour might suggest that someone had problems. It might just suggest in the situation I described that they were being offensive for the sake of it. I obviously appreciate, too, that the Crown Prosecution Service has to apply a public interest test, but at the same time, while that prosecutorial discretion is important, the legal framework we set out in the first place is also important.

I completely support the intention of the clause. It is right that we update the law in the social-media age. We want to deal with the dissemination of unpleasant images. However, it is not an unreasonable amendment to. We ask simply to put that reasonable excuse on the face of the Bill to cover the situations I have suggested may arise.

[Gavin Newlands]

I neglected to say earlier that it is a pleasure to serve under your chairmanship, Ms Ryan. As has been outlined by the Labour Front-Bench spokesman, clause 2 extends the offence that would result in criminalisation for the publication of an image, the wearing of an item of clothing or the display of an article such as a flag in such a way that would arouse reasonable suspicion that a person is a member or supporter of a proscribed organisation.

It should be noted that it is already an offence to wear certain clothing, or to carry, wear or display certain articles in public places. The behaviour of those who disseminate terrorist publications intending to encourage terrorism, or being reckless as to whether the behaviour encourages it, is already criminalised by section 2 of the Terrorism Act 2006 and will attract a 15-year maximum sentence under the provisions of the Bill.

The clause would criminalise those who might be highlighting their support for a proscribed organisation, which is akin to using a sledgehammer to crack a nut. It overcomplicates the response and risks targeting innocent individuals in the attempt to target people who would look to do us harm. In a briefing, which I am sure the hon. Member for North Dorset fully endorses, Liberty—his favourite campaigning group—[Interruption.] I was talking about Liberty.

[Simon Hoare (North Dorset) (Con)]

I know you were.

[Gavin Newlands]

Indeed.

[Nic Dakin]

You have woken him up.

[Gavin Newlands]

Yes, I know. I said it for that very reason.

[Simon Hoare]

It was a Pavlovian response.

[Gavin Newlands]

In that briefing, Liberty makes a fair point, when it says that

“further criminalisation of photographs of a costume only exacerbates the risk that law enforcement officials attempting to interpret the meaning of a photograph will mistake reference for endorsement, irony for sincerity, and childish misdirection for genuine threat.”

[Simon Hoare]

I suggest to the hon. Gentleman that I do not think my response to the oral evidence—if one can grace it with that word—provided by Liberty was unique to me.

[Gavin Newlands]

That may well be the case, but having served on previous Bill Committees with the hon. Gentleman, I am well aware of his high opinion of that organisation.

It must be noted that the clause risks putting additional strain on resources. It may lead to the investigation of innocent individuals when it would be more effective to target those about whom we should be worried. The new offence does not require an individual to be a member of a proscribed organisation or to have ever offered support to it. The only requirement is that the circumstances around publication arouse reasonable suspicion that a person is a member of or supports a proscribed organisation.

During the evidence session on Tuesday, we heard a number of everyday examples where someone could be in breach of clause 2. As we have heard, that could include someone dressing up in fancy dress for Halloween, a tourist having a picture with a Hezbollah flag, the display of a historical flag, or a journalist or academic researching a particular field of study. Greater clarity and safeguards are required to protect innocent parties from being in breach of this new offence.

Counter-Terrorism and Border Security Bill (Fourth sitting)

Gavin Newlands Excerpts

Committee Debate: 4th sitting: House of Commons
Tuesday 3rd July 2018 Public Bill Committees

[Nick Thomas-Symonds]

I am grateful for the opportunity to speak to all the amendments together, Ms Ryan, which I think will assist the speed of business in Committee this morning. The Opposition support the aims of clause 3, as I made clear on Second Reading. A clear problem with the law is that the Terrorism Act 2000 covers downloading but not streaming. As I remarked on clause 1, updates to the law need to be made to take into account technological changes. The reality is that people now live-stream many things, rather than formally downloading them. It is not right that we criminalise the downloading but not the live-streaming. That clearly has to change.

However, two major points arise on the updated offence. The first is that it has to be workable from a practical perspective. If it is not, that will clearly be a problem. The second is that the clause should not bring into our criminal law those who carry out perfectly legitimate activities, so how the offence is drawn is extremely important. It was with those two factors in mind that I tabled my five amendments. They all aim, first, to make the clause workable, and secondly, to ensure that the way the clause is drawn targets the activity that we all wish to target and to criminalise but not that which I am sure every Committee member would want to encourage.

Amendment 5 relates to the period of time in the Bill over which the three clicks would be considered to give rise to a criminal offence. I proposed it as a safeguard on the three clicks, although I have severe reservations about the three clicks provision. It is vague, as it stands—we do not know whether it will be three clicks on the same stream or on different streams. By its very nature, it is also arbitrary. I have tabled amendment 5 to draw a period of time to the attention of prosecutors in making decisions on this new offence. I do it on the basis that I have reservations about the underlying three clicks approach in any event.

Amendment 6, on the intention to provide practical assistance, is based on something the Home Secretary said on Second Reading. The chair of the Home Affairs Select Committee, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) intervened on him and made the sensible point that, as clause 3 stood, she was concerned that the Select Committee itself could be in trouble under that clause. He replied:

“The objective is clearly to find and punish those with terrorist intent.”—[Official Report, 11 June 2018; Vol. 642, c. 633.]

That may be right at a common-sense level, but is not quite what the three clicks approach does, because there is no intention requirement alongside it. Amendment 6 would simply introduce the intention requirement to which the Home Secretary referred on Second Reading.

Amendments 7 and 8 are about the reasonable excuse defence, which I would like to see added to the Bill. It would be an important safeguard and reassurance to academics, researchers, members of the Home Affairs Committee or anyone else who might be viewing this type of content, not—to use the Home Secretary’s words—with any kind of terrorist intent, but for perfectly legitimate reasons in studying this kind of activity and helping the rest of society to understand and defeat it. That is very important and something that we should all encourage.

Amendment 7 would also reverse the burden of proof. It should not be for the person raising the reasonable excuse defence to have to prove it. Once raised as a defence, it should then be for the prosecution to disprove it beyond reasonable doubt. I am sure the Minister will also pick up that that reverse burden is in the Terrorism Act 2000 and, in my view, it is reasonable to expect that it should also be in this Bill.

Amendment 9 would provide for a review of the operation of the clause and a report to Parliament on it. If we were to persist with the three clicks approach, Parliament would need to look at its operation carefully in terms of how it is drawn and its workability.

To conclude, I am greatly concerned by the three clicks approach. I have tabled five amendments aimed at workability and safeguards, and I hope they will be considered carefully by the Minister.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a pleasure to see you in the chair again, Ms Ryan. I support amendments 5 to 8 in the name of the hon. Member for Torfaen. As has been outlined at various stages, clause 3—and the Government’s three clicks policy—has received the most attention and probably the most public criticism of any part of the Bill. Furthermore, I think the Minister knows that it is imperfect in its current guise. He has been open about the fact that the Government are not fully aligned to the three clicks policy, as the Home Secretary commented on Second Reading.

The Minister and the Government have my sympathy on this. The first job of any Government is to keep their citizens safe in these difficult times of high terrorist threat combined with the constant march of technology and online communication. It is very hard to keep legislation up to date and answer the calls of police and security services for further powers, while maintaining the balance of freedom and civil liberties that we expect and enjoy.

The SNP has serious concerns about how the policy will work in practice, and the impact that it may have on innocent individuals who have no interest in, intent to engage in, or no wish to encourage terrorist acts. It is self-explanatory that anyone who downloads or streams content for the purpose of planning or encouraging terrorist activity should face a criminal charge and, if convicted, a long sentence. Nobody would disagree with that, but this is about finding the most effective approach that targets the right individuals.

I accept the Government’s point that more people now stream material online than download it to a computer or other device, and as such it is vital that we continue to review our counter-terrorism approaches and ensure they meet the current threat level, but the Government’s approach to tackling streaming content through the three click policy is riddled with difficulty. Amendment 5 deals primarily with timing and does not take into account when a prosecution may be made.

The Government suggest that the three clicks policy is designed as a protection for those who accidentally access certain content online, but we must consider how easy it is for someone to click on a relevant source that could put them into conflict with the provision. It could catch someone who had clicked on three articles or videos of a kind likely to be of use to a terrorist, even if they were entirely different and unrelated and the clicks occurred years apart. Timing is crucial, because it would be difficult to accuse someone of being involved in terrorist activity if they had clicked on a certain source three times over a 10, 15 or 25-year period. Those concerns were echoed in the evidence session, and the independent reviewer of terrorism legislation, Max Hill—who we should all listen to—expressed his concern about the variable threshold proposed. We should act on that independent and expert advice by introducing a safeguard that could effectively help to identify a pattern of behaviour.

Richard Atkinson, the chair of the Law Society, also voiced his concerns about the Government’s three clicks policy, stating that it could undermine or restrict those with legitimate cases, and that the lack of any consideration of timing makes the measure very vague. He said:

“To leave the law in the hands of prosecutorial decision as to whether or not it meets the public interest is a step too far. I think there is a need for greater definition around what is being sought to be prohibited.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 31, Q74.]

Amendment 5 would add the safeguard that an individual would have to view the information three times or more in a 12-month period to have committed an offence, and that position was supported by Max Hill during the evidence session.

On Second Reading many Members made clear their concerns about the lack of other safeguards in clause 3, particularly regarding intent—for example, the clause does not take into account the length of time that anybody watches a video or views a website. That point was raised by the hon. Member for West Aberdeenshire and Kincardine on Tuesday in a question to Gregor McGill, who confirmed that the length of time that someone watches a video is not defined in the Bill, so watching a video or viewing a website for one second by mistake could be counted under the Government’s three strikes policy.

I accept the point made by Mr McGill that such breaches would be harder to prosecute, and that discretion would be applied, but as I have said, I am not comfortable with leaving such a wide area open to prosecutorial discretion. More importantly, as Max Hill said, such an offence without a test of intent is too broad and would capture too many innocent individuals. It is important that the Home Secretary accepts that a balance can be struck between liberty and security. Hoda Hashem, a law student at Durham University and one of many individuals and groups who sent helpful briefings to the Committee—I thank them all on behalf of the SNP—summed it up well by saying,

“the certainty and precision of laws are essential principles of our legal system. It allows ordinary people to know when their behaviour might veer into the realm of criminality, and it also means that the government and police cannot arbitrarily choose who to prosecute. In effect, it is wrong for the Home Secretary to argue that it would be down to the Police and CPS to fix a bad law. As a matter of principle, it is for Parliament to ensure that the laws it passes are clear enough to be applied consistently and, more importantly, predictably…If the government is serious about striking the right balance between liberty and security, the offence must include a criminal intent, or it must be withdrawn altogether.”

The Government may claim that adequate safeguards are in place to protect innocent individuals, but as we have heard, few agree with that position. That is why we support amendments 7 and 8, which have been tabled by the Labour party. The Government are asking for wide and vague powers, and we need safeguards in place to protect innocent individuals by ensuring that they are not prosecuted in the first place, and to provide for an adequate defence in the event that non-terrorists are taken to court. The stress placed on someone who was being investigated in that scenario would be extreme. Unless the safeguards are strengthened, and notwithstanding the Minister’s commitment regarding journalists and academics, it would be a brave journalist or researcher who would not be deterred or at least have second thoughts before viewing such material. Max Hill warned that thought without action must not be criminalised. We all agree that real terrorists should have nowhere to hide. We should also agree that legislating in the name of terrorism when the targeted activity is not actually terrorism would be wrong.

As we have heard, the French courts struck down a similar attempt by the French Government. In addition, a UN special rapporteur, Professor Joe Cannataci, expressed concerns about this provision, saying:

“It seems to be pushing a bit too much towards thought crime…the difference between forming the intention to do something and then actually carrying out the act is still fundamental to criminal law. Whereas here you’re saying: ‘You’ve read it three times so you must be doing something wrong’.”

In our view, amendments 5 to 8 are eminently sensible and, indeed, vital if the Government are to have any chance of surviving a legal challenge to elements of clause 3 and—almost as importantly—if they want to make good on the Home Secretary’s commitment that a balance can be struck between liberty and security.

[The Minister for Security and Economic Crime (Mr Ben Wallace)]

It is a pleasure to serve under your chairmanship, Ms Ryan. I thought that instead of embarking on a long prosecution of clause 3, it would be best to meet the hon. Member for Torfaen to discuss his amendments. I have said from the outset of proceedings on the Bill that my intention was to seek advice and suggestions from all parts of the political spectrum, and I felt early on that the three clicks provision presented a challenge. It opens up a whole debate about whether there were three clicks or four clicks, how far apart the clicks were, whether a time limit should apply to the clicks and so on. We were getting away from what we all agree on, which is the need to amend the legislation to reflect modern use of the internet—the streaming of online content. Partly because of technological advancements and the speed of the internet, people no longer download podcasts in the way they used to; they just click on their 4G device and stream the content. That is, of course, a problem for our intelligence services and law enforcement agencies, which often have to deal with people streaming content rather than downloading and holding it.

As I said, I have spoken to the Opposition Front-Bench spokesman on this issue and the Government will go away and examine a better solution to the three clicks issue. I hear the strong views about a reasonable excuse, and a debate can be had about judicial discretion. Campaigners for judicial discretion are sometimes also those who want much more prescriptive legislation that can contradict their earlier motives. If we included a list of reasonable excuses, rather than leaving it up to a judge to decide, would we end up with a list of 150? That is a matter for further debate, but I have asked officials to see whether reasonable excuses are listed in full anywhere else in statute. I understand that it may be possible to give examples rather than a full list.

I can assuage some of the fears expressed by the hon. Member for Paisley and Renfrewshire North about section 58. First, I cannot find a record of a journalist being prosecuted under the existing section 58, which has been in existence since 2000. Over 18 years, journalists and academics have downloaded some of this content, and they have not, I understand, been prosecuted even if they have failed to provide a reasonable excuse. That relates to section 58(3) of the original Act. We have heard claims of armageddon and the fear that suddenly everyone will be arrested, but that will not materialise—it certainly has not done in 18 years. I hope that that assuages the fear expressed by the hon. Gentleman.

I do not think that simply updating the provision should be cause for concern. It is an attempt to tackle the difficult issue that modern terrorism unfortunately uses incredibly slick recruiting videos—they are grooming videos—to pull people away from the society they are in, to radicalise them and to get them to do awful things. Recently, a young man was found on the way into Cardiff—not far from the constituency of the hon. Member for Torfaen—with knives and an ISIS flag. We found no evidence that that young man had ever met a Muslim, was from a Muslim family or had been to a mosque. He had simply been radicalised by watching streamed videos online. That is the power of such persuasion, and we also see it reflected in cyber-bullying and sexualisation. It is a real issue that we have to face.

--- Later in debate ---

[Nick Thomas-Symonds]

I rise to support clause 13. It is self-evident that terrorism is a serious offence, and the SCPO regime, which has been in place since the 2007 Act, can be an important tool in dealing with terror offences.

As the Minister has set out, the SCPO will come into effect when an offender is released from custody with the purpose of preventing or disrupting their involvement in serious crime. Restrictions on travel and access to property or telephones can be part of that. The regime has worked in relation to other serious offences, and it is sensible to extend to it to terrorism.

Question put and agreed to.

Clause 13 accordingly ordered to stand part of the Bill.

Clause 14

Traffic regulation

[Gavin Newlands]

I beg to move amendment 13, in clause 14, page 15, line 20, at end insert—

“(2A) The authority may not impose any charge where the relevant event is a public procession or assembly as defined by section 16 of the Public Order Act 1986 taking place for the purposes set out at section 11(1) of the same Act.”

This amendment would ensure that a new power to impose charges in connection with anti-terror measures at events or particular sites would not restrict protest rights through the imposition of costs that organisers are unable to pay.

[The Chair]

With this it will be convenient to discuss amendment 29, in clause 14, page 15, line 20, at end insert—

“(2A) The authority may not impose a charge where—

(a) the order or notice is made in relation to an event which is a public procession or public assembly; and

(b) the event is taking place for one or more of the purposes set out in section 11(1) of the Public Order Act 1986.

(2B) In subsection (2A), ‘public procession’ and ‘public assembly’ have the same meaning as in the Public Order Act 1986.”

[Gavin Newlands]

Amendment 13 is straightforward, so I will not detain the Committee too long. Anti-terrorism traffic regulation orders—ATTROs—allow vehicle or pedestrian traffic to be restricted for counter-terrorism reasons. We have all seen the bollards and barriers that are set up during events to protect the organisers, spectators and those taking part. ATTROs can be temporary or permanent fixtures—as is the case at the moment outside Parliament. The amendment is not about restricting the importance of ATTROs, but ensuring that any new measures that are introduced are proportionate and do not restrict people’s ability to protest and demonstrate.

Clause 14 proposes a range of changes to the Road Traffic Regulation Act 1984, including removing the requirement to publicise an ATTRO in advance and allowing the discretion of a constable in managing and enforcing an ATTRO to be delegated to third parties, such as local authority staff or private security personnel.

In addition, the clause would allow the cost of an ATTRO to be recharged to the organisers of an event. It states:

“The authority may impose a charge of such amount as it thinks reasonable in respect of anything done in connection with or in consequence of the order or notice (or proposed order or notice).”

The new charge would be payable by an event promoter or organiser, or the occupier of a site, and relevant events include those taking place for charitable and not-for-profit purposes. Although I see a lot of merit in clause 14, I am concerned that it will stop people gathering for demonstrations.

Amendment 13, which I hope is a common sense amendment, was tabled to address those specific concerns. It would allow an exemption to be made, so that any new power introduced through clause 14 would not restrict an individual’s right to protest on a cause that is important to them. Clause 14 certainly will not save a huge amount of money; the Library briefing on the Bill states that it could be as little as £66,000. The amendment is designed to ensure that the right of freedom of assembly and association, as protected by articles 10 and 11 of the European convention on human rights, is not violated due to the organiser of a protest being unable to meet the costs levelled against them.

Last week, Corey Stoughton of Liberty expanded on that in her evidence to the Committee. She said:

“To be consistent with the right to assemble and protest under article 10, there must be a legislative exemption for activity protected by those fundamental rights. That is an exemption that we have seen replicated in other, similar provisions in UK law…A simple fix to this would be to recognise that putting such charges on activity protected by the right to protest and assemble is an undue burden on that activity, and the cost of protecting those events has to fall on the state in the course of its obligation to protect that right.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 52, Q109.]

I agree. We have created exemptions in the past to protect our right to protest. The state must protect that right and I think most people, even Government Members, believe that a citizen’s right to protest is worth a lot more than £66,000.

[Nick Thomas-Symonds]

I rise to support amendment 13, and amendment 29 in my name. Although the amendments appear to differ, they are essentially meant to achieve the same thing. I would not dream of entering into a competition with the hon. Member for Paisley and Renfrewshire North about who has the better drafted version.

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[Mr Wallace]

I should say at the outset that although ATTROs have been available for a long time they are not a substitute for the existing public order powers to put traffic management systems in place, and for the protection of large crowds. I would not want the measures to be used as a new opportunity for imposing charges when events are held, or for concocting a spurious terrorist link to try to regain money. They are designed for occasions when there is a specific terrorist threat to an event, or when an event is likely to attract a terrorist attack. That might be said of the recent Commonwealth summit, or similar events, as opposed to a champions league football match that is in the diary, a major sporting event that everyone knows is about to happen. For such events the local authority has always had the power under the Road Traffic Regulation Act 1984 to charge the organisers. I would not want a situation in which everything—the galas or village fetes we attend—suddenly becomes a terrorist threat, to some over-eager person.

[Gavin Newlands]

I appreciate what the Minister is saying. Will he commit, on that basis, to giving further consideration to whether we can tighten the provisions and ensure that what he has said is in the Bill?

[Mr Wallace]

I was hoping that we would get to this moment, because I have good news: I shall now have to arbitrate on whether Scotland’s or Wales’s drafting is better.

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[Mr Wallace]

I totally agree with my hon. Friend. I will make it clear to police chiefs and to the LGA on the conclusion of the Bill’s passing that this should not become a wheeze to either not do something or to impose fines. That is important.

On reducing costs and maximising policing at events, we are also keen to enable the better use of personnel charged with protecting sites subject to ATTROs. To put this in context, the 1984 Act provides that an ATTRO may include a provision that enables a constable to direct that a provision of the order shall be commenced, suspended or revived, or that confers discretion on a constable. We want the police to be able to make more effective use of officers’ time and also of the other available resources in providing security for a site protected by an ATTRO.

To that end, subsection (9)(c) will provide that an ATTRO may

“enable a constable to authorise a person of a description specified in the order or notice to do anything that the constable could do by virtue of”

the 1984 Act. Under such delegated authority, it might be left to a security guard or steward to determine when a provision of an ATTRO is to commence or cease operating on a given day. The ATTRO might, for example, provide for a road to be closed off from 10 am to 10 pm, but a security guard could determine that, on a particular day, the road could be reopened an hour earlier.

An ATTRO’s ability to confer discretion on a constable may be utilised, in particular, to enable a police officer manning a barrier or gate that has closed off a road to exercise his or her discretion to allow accredited vehicles or persons through that barrier or gate. Subsection (9)(c) would enable another authorised person to exercise such discretion. I suppose that that is where I differ from the hon. Member for Torfaen. I want our police officers to be in a lead position at events. Freeing up constables from checking passes at barriers and handing that responsibility to a security guard enables them to better use their powers at an event. That is why we are keen to give that discretion to constables.

The clause will place on a statutory footing the power of the police to deploy obstructions to enforce compliance with temporary traffic restrictions imposed under section 67 of the 1984 Act. That section empowers the police to deploy temporary traffic restrictions in exceptional circumstances linked to the prospect of terrorism, and to deploy signs on the road indicating what those restrictions are. Those powers currently only relate to vehicular traffic, so the clause will apply them to pedestrian traffic.

[Gavin Newlands]

I am grateful to the Minister for his comments; indeed, I am heartened. If it makes any difference to his consideration, I am not concerned in the slightest whether he picks the Scottish or Welsh drafting—or the third way he will no doubt find—to amend the clause. With that in mind, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Counter-Terrorism and Border Security Bill (Fifth sitting)

Gavin Newlands Excerpts

Committee Debate: 5th sitting: House of Commons
Tuesday 3rd July 2018 Public Bill Committees

[Mr Wallace]

I want to speak to clause 16 because I am conscious that, even if no amendments are tabled, some parts of the Bill are important and the concerns that we heard in evidence should be reflected. Even if hon. Members on both sides of the Committee agree with the provision, it is important that those on the outside can hear some of our justification.

The clause amends the Terrorism Act 2000 to exclude time spent in, and travelling to and from, hospital from the calculation of the time a suspect spends in pre-charge detention. General criminal law has long recognised that it is appropriate to pause the detention clock so that the time an individual spends in pre-charge detention does not include any time they are receiving hospital treatment or travelling to or from hospital, in the relatively rare cases where a detainee needs hospital treatment.

At present, the calculation of the maximum period of pre-charge detention for an individual arrested under the 2000 Act makes no allowance for any time spent by the suspect receiving hospital treatment. Consequently, if a suspect were to be injured or fall ill in custody, the amount of time available to the police to interview the suspect would be reduced. That could impair the police investigation and prevent a proper decision from being reached on whether to charge the individual before they must be released. They could therefore evade justice and the public could be put at risk.

The change will ensure that the police can use the full amount of time permitted to them under the law to question a suspect, investigate the suspected offence, and work with the Crown Prosecution Service to reach a charging decision. Terrorist investigations are often exceedingly complex and can involve a high level of risk to the public. As such, it is important that the police are able to investigate fully and get such decisions right.

The change will also apply to the calculation of the maximum time for which an individual may be detained for the purpose of examination under schedule 7 to the 2000 Act, which stands at six hours including the initial hour during which a person may be examined without being detained. That will give effect to a recommendation made by the former independent reviewer of terrorism legislation, David Anderson, QC, and will bring the provisions of the 2000 Act in line with the Police and Criminal Evidence Act 1984.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clause 17 ordered to stand part of the Bill.

Schedule 2

Retention of biometric data for counter-terrorism purposes etc

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

I beg to move amendment 14, in schedule 2, page 26, line 5, leave out paragraph 2.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 34, in schedule 2, page 26, line 16, at end insert—

“(c) the Commissioner for the Retention and Use of Biometric Material has consented under section 63G to the retention of the material.”

Amendment 15, in schedule 2, page 26, line 29, leave out sub-paragraph 3(4).

These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 16, 17, 18, 19 and 20 would mean that the time period remains at two years.

Amendment 16, in schedule 2, page 29, line 3, leave out sub-paragraph 7(4).

These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 17, 18, 19 and 20 would mean that the time period remains at two years.

Amendment 17, in schedule 2, page 30, line 3, leave out sub-paragraph 10(4).

These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 16, 18, 19 and 20 would mean that the time period remains at two years.

Amendment 18, in schedule 2, page 31, line 32, leave out sub-paragraph 13(4).

These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 16, 17, 19 and 20 would mean that the time period remains at two years.

Amendment 19, in schedule 2, page 33, line 4, leave out sub-paragraph 16(4).

These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 16, 17, 18 and 20 would mean that the time period remains at two years.

Amendment 20, in schedule 2, page 34, line 28, leave out paragraph 19.

These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 16, 17, 18 and 19 would mean that the time period remains at two years.

[Gavin Newlands]

It is a pleasure to see you in the Chair this afternoon, Mrs Main. I rise to speak on amendments 14 to 20, which have been tabled in my name. Clause 17 is obviously a significant provision and relates to the governance and retention of fingerprints, DNA samples and profiles, otherwise known as biometrics, by the police for counter-terrorism purposes. It would affect, among other powers, the retention of biometric data, in particular increasing the maximum duration of a national security determination, or NSD, from two years—or two plus one—to five years.

In addition, paragraph 2 of schedule 2 amends the Police and Criminal Evidence Act 1984, so that fingerprints and DNA evidence relating to a person arrested but not charged with a terrorism-related qualifying offence may be retained for three years. The fact that the power could affect an innocent individual who has not been found guilty of any offence is concerning. That concern was shared by Richard Atkinson of the Law Society, who provided evidence to us. He said:

“It is an area of concern for us because, clearly, it is right that individuals’ data is not routinely withheld”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 32, Q76.]

He suggested that the case for the provision has yet to be made by the Government.

The Police and Criminal Evidence Act 1984 provides the authority to a chief officer of the police to determine whether it is necessary and important to retain biometric data for an additional period of up to two years for the purpose of national security. Although NSDs are reviewed independently by the Biometrics Commissioner, the Bill proposes extending the duration of an NSD from the maximum of two years to a maximum of five years. Amendment 14, in deleting paragraph 2, would retain the Biometrics Commissioner oversight and keep the status quo in terms of the length of time data can be kept.

These provisions have attracted controversy due to the belief of many that they are a direct attack on individuals’ right to privacy. Throughout the Bill’s passage, I have spoken about the need to adopt appropriate counter-terrorism methods that can deal with the current threat. However, that goal does not mean that we should eliminate all appropriate checks and balances that safeguard potential abuses of power, which can affect individual civil liberties.

The commissioner also performs a vital, independent role, reviewing every NSD. In doing so, he will assess the nature, circumstances and seriousness of the alleged offence, the grounds for suspicion, the reasons why the arrestee has not been charged, the strength of any reasons for believing that retention may assist in the prevention or detection of crime, the nature and seriousness of the crime or crimes that that retention may assist in preventing or detecting, the age and other characteristics of the arrestee and any representations by the arrestee about those or any other matters. In addition, the commissioner has the power and authority to order that retained material be destroyed where retaining it is no longer necessary.

--- Later in debate ---

[Gavin Newlands]

Despite the Minister praying in aid the Biometrics Commissioner, I still do not buy the Minister’s comments or the strength of his argument about these provisions. However, despite the outrageous description by the hon. Member for Torfaen of my amendment as a blunt instrument, I am conscious that the Labour Front Bench has tabled an amendment in the next group that retains the Biometric Commissioner’s oversight, although it also retains the five years. I will throw my support behind that amendment and for that reason I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Nick Thomas-Symonds]

I beg to move amendment 33, in schedule 2, page 35, line 17, at end insert—

“21 (1) A person whose biometric data is retained under the provisions of this schedule may apply to the Commissioner for the Retention and Use of Biometric Material (‘the Commissioner’) for the destruction of that data when the conditions in sub-paragraph (2) are met.

(2) The conditions referred to in sub-paragraph (1) are—

(a) that the retention of the biometric data has not been previously authorised by the Commissioner or a court of law; and

(b) that the biometric data was taken from the person—

(i) in circumstances where the arrest or charging of the person was substantially due to a mistake, whether of identity, place or other material fact; or

(ii) the person was arrested but never charged for the relevant offence.

(3) On receiving an appeal under sub-paragraph (1), the Commissioner must seek representations from the chief officer of police in the area in which the biometric data was taken as to whether the data should be destroyed or not.

(4) The Commissioner must determine an appeal under sub-paragraph (1) within three months of receiving the appeal.”

Although I described the previous amendment as a blunt instrument, it was proposed in an effective way and was eloquently argued.

[Gavin Newlands]

You are forgiven—just don’t do it again.

[Nick Thomas-Symonds]

I will try not to.

I will put the case for amendment 33, as I started to do in the last series of amendments. The amendment squarely aims at striking an appropriate balance between liberty and security. Two circumstances are highlighted. The first is when there has been a mistake, which can happen, such as a mistake involving identity, place or any material fact—or in the intelligence, which can also happen, as the security Minister would accept. The second circumstance is when a person has been arrested but not charged for the offence. My hon. Friend the Member for Manchester, Gorton referred to the impact on the BAME community, which fits precisely into that category—people who do not end up being charged with an offence.

The amendment states that an application can be made to the commissioner for the destruction of data when the conditions are met. On receiving the appeal, the commissioner must seek representations from the chief officer of police in the area from which the biometrics data was taken as to whether it should be destroyed or not. Even if there is an appeal by an individual to the commissioner, that additional sub-paragraph means that the chief officer of police can make representations, which seems to strike a balance between the two. The individual person has the right, but if there are background concerns, the chief officer of police can make those representations.

There would also be a period of three months in which to determine the appeal, which is a reasonable period for collecting the necessary data from the chief officer of police and for consideration. Of course, there will be circumstances in which appeals will be turned down on that basis, but none the less it provides a framework. If people’s data is being retained in circumstances where a mistake has been made or when they have not ultimately been convicted of an offence, they can appeal to have it taken away, but that safeguard of representations from the chief officer of police remains. In those circumstances, I commend the amendment as a reasonable way through what I accept is a difficult problem.

--- Later in debate ---

[Gavin Newlands]

In supporting the intention of the amendment, I shall briefly set out the differences in the devolved Administrations’ implementation of the Prevent strategy.

The Prevent strategy is implemented in Scotland through Scottish public bodies. The delivery and implementation of Prevent in Scotland is overseen through Consent. There has always been a distinction between preventing terrorism, and community cohesion and integration. In Scotland, Prevent has been more closely aligned to the areas of policy that promote community safety, tackling crime and reducing violence.

Agencies in Scotland have defined terrorism on the basis of the rule of Scottish law. The delivery of Prevent in Scotland benefits from the positive relationships that the community has built through years of regular engagement. That is perhaps missing from its implementation in England and Wales. The Prevent strategy is not universally popular. The Educational Institute of Scotland, a teaching union, opposes it. However, it noted the difference in implementation, stating:

“Scottish councils have, by and large, not bought into the anti-Islam narrative that pervades Prevent in England.”

Given that, will the Minister, in acquiescing to the amendment of the hon. Member for Torfaen, as I feel sure he will, look at the implementation of Prevent in Scotland in any overall review of the Prevent strategy?

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship, Mrs Main. I, too, support a review, but perhaps for slightly different reasons.

I have had a close working relationship with South Wales police for many years, and my experience of Prevent locally has been largely positive. Indeed, my interactions with South Wales police overall have been positive. I know that they take great care to engage with the relevant parts of communities, build the necessary personal relationships and focus on what they can do to prevent young people from being drawn into any form of terrorism or extremism—not just Islamist-related extremism, which is regularly referred to, but far-right and other types of extremism.

I am clear from speaking to colleagues in this place that experiences of Prevent vary widely up and down the country. I have no truck whatever with those who suggest that we should prevent Prevent—scrap the whole programme—or those who demonise it, because that does not reflect how it operates in many parts of the country, and scrapping it would be wholly counterproductive in dealing with the issues that we want to deal with.

Many members of my community—Muslims, Hindus, those of other religions and those of no religious faith—have concerns about extremism and terrorism, and want to deal with them. In fact, when I was first elected to this place just under six years ago, a local imam came to me to express serious concerns about what young Muslims in the community were viewing online—the sort of grooming that we discussed in previous sittings.

I take a slightly different approach from my hon. Friend the Member for Ealing Central and Acton. We should have nothing to do with organisations such as Cage—she did not suggest we should. I also have deep concerns about the organisation Muslim Engagement and Development, which I have raised directly with MEND representatives in my community. I have seen some of its positive work to tackle Islamophobia and raise awareness of issues affecting the Muslim community. However, like any other organisation, it does not speak for “the” Muslim community or any other sector of society. It is one organisation that puts forward a set of views and concerns. Sometimes those are positive, but sometimes I have significant concerns.

I have discussed those with my local police force and directly with the organisation. I believe in having a dialogue and understanding where the organisation is coming from, but I am not afraid to raise concerns about things that have been said. Cardiff featured in the Channel 4 documentary to which my hon. Friend referred. I was somewhat alarmed by its findings, although some parts of it may have been alarmist and created undue fear. We have to be cautious, frank and robust with such organisations.

I support a review, but because of a different set of reasons and concerns about the way Prevent is working. My major concern, which I have expressed to the Minister and his predecessors, is that at times Prevent is too focused on elites and community leaders, who are often self-appointed, and does not do enough to deal with grassroots organisations and individuals, particularly young people. That is my experience locally. At times there has been too much silo working. People meet under local authority structures and ways of working when we actually need complex, nuanced and deep relationships across the community to understand what is going on and the concerns that people have about Islamist extremism or far-right extremism, and to build the trust that can help prevent people from being drawn into such activity.

I do not think Prevent’s role in relation to far-right extremism is understood fully enough. I know about the work that is going on locally and the extent to which work is done with individuals who are drawn into far-right organisations, but there is a great deal of concern in some of the most diverse religious communities in my area, such as Grangetown, Butetown and the docks areas of Cardiff, where we have one of the oldest Muslim communities in the UK. We have six mosques and three Hindu temples—there are many different faiths and backgrounds—but unfortunately we have recently seen concerning examples of far-right extremism.

A few months ago, just before I was due to speak at an anti-racism march in Cardiff, neo-Nazi swastikas and slogans were posted all over the community on the route that many children take to school. The fantastic response by South Wales police and the council re-established trust and assurance in the community, but there is understandably concern about what the individuals who are drawn into such groups may do.

We have only to look at the individual who drove from Cardiff to attempt to kill many people in Finsbury Park, or of course at the tragic murder of our former colleague, Jo Cox, by a neo-Nazi who was inspired by far-right ideology, to understand why that is so crucial. However, the issue is not widely understood. Dealing with extremism and terrorism, whatever community or ideological background it comes from, is key to bringing confidence to all communities.

I note what the hon. Member for Paisley and Renfrewshire North, who represents the Scottish National party, said about the devolved Administrations. The Welsh Government play a crucial role as a partner, but that can create clunkiness in the system. I am sure the Minister accepts that UK Departments do not always deal as consistently with the devolved Administrations as we may want. I have had conversations about things that it was assumed were being done by the Ministry of Housing, Communities and Local Government with civil servants and officials who did not understand that those matters were dealt with on a practical level by the devolved Administrations in Scotland, Wales and Northern Ireland. I would therefore like assurances from the Minister about how the UK Government will work with the Welsh Government to ensure that these programmes work.

I support a review, so I support the amendment tabled by my hon. Friend the Member for Torfaen, but I do so for the reasons I have outlined rather than because I think we should not have such a programme or we should not attempt to stop people being drawn into extremism and terrorism.

Counter-Terrorism and Border Security Bill (Sixth sitting)

Gavin Newlands Excerpts

Committee Debate: 6th sitting: House of Commons
Thursday 5th July 2018 Public Bill Committees

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a pleasure to see you in the Chair again, Ms Ryan. I shall speak in support of new clause 2 and amendment 44.

The new clause would largely do similar things, with an addition in our case. It would implement the recommendations of the Joint Committee on Human Rights and would require an officer to have reasonable grounds for suspecting that an individual is or has been concerned in the commission, preparation or instigation of acts of terrorism before they could detain an individual for up to six hours under Schedule 7. In addition, it would institute safeguards with regard to electronic devices.

The issues concerning this schedule are topical, given that some of it has been drawn in response to the Skripal incident in Salisbury in March. Obviously, in recent days there has been another incident, which is under investigation. The Bill was introduced with the intention of

“giving the police new powers to investigate hostile state activity at the border.”

The press release that accompanied the Bill stated:

“Using the new power, the police or designated immigration or customs officer will be able to stop, question, search and detail an individual at a port, airport or border area to determine whether he or she is, or has been engaged in hostile activity.”

On the face of it, there is little to disagree with in terms of the sentiment. Obviously, it is right and proper that we are able to take action on those who look to enter our country to do our country or its citizens harm. The authorities that do that do an incredibly important job and we should be grateful to them and ensure they have the necessary powers, but as drafted, these powers are concerning due to the lack of a reasonable grounds test for suspecting that an individual may be entering the UK to cause harm. They are therefore open to abuse and there is not enough assurance for officers working at our borders.

In addition, the Bill fails to protect any individual who has been designated a suspect. The arguments against these search and detail powers have been rehearsed over the years, but we should not dismiss the concerns that have been raised about racial profiling and how these powers allow for an element of discrimination in our society.

New clause 2 would implement the sensible recommendation of the Joint Committee on Human Rights and would require an officer to have reasonable grounds for suspecting an individual. It would provide greater clarity on when someone should be detained and would eliminate the chances of an individual’s personal belongings being searched and retained. It would therefore protect any individuals suspected of carrying out such an offence and also offers protection to the relevant officer on the border by providing greater clarity as to when they should detain a potential suspect. I urge the Minister to give new clause 2 and amendment 44 due consideration.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

The Minister and I discussed some of these powers privately, and I welcome the chance to discuss them again. He is aware of a number of cases that I am concerned about regarding detention or stopping and searching at borders. I make it absolutely clear that, when needed to protect public safety—whether from hostile state activity or from those travelling abroad or entering this country to commit acts of terrorism—the powers must absolutely be there to enable searching, detention and other necessary processes to deal with that and to keep the public safe.

However, there are two crucial points. The first is that, wherever possible, action should be taken before we have to detain or search or interdict somebody at a border, particularly if that person is leaving the UK. We should, if possible, detain them at their home or interview them elsewhere—voluntarily or otherwise—because if we get to the stage at which somebody attempts to board a plane or a ship or a Eurostar or whatever, there will be a risk both to public safety and of unnecessarily detaining or disrupting the travel of individuals who are not guilty of any offence.

The second point, which the Minister is aware of, is that we need to be aware that individuals may travel with family members or other individuals who are in no way connected and should not be under the reasonable suspicion that may be directed at that individual. What steps are being taken to ensure that information and processes are being shared to ensure that such detentions, searches and interdictions take place at the earliest possible opportunity? What arrangements are there to ensure that relevant information is shared, wherever possible, between airlines or other forms of transport, the Border Force, the Passport Office, the security services, the police and others to ensure that those things I mentioned are done at the earliest stage? I will move amendments on that issue later.

--- Later in debate ---

[Gavin Newlands]

I beg to move amendment 21, in schedule 3, page 46, line 17, leave out “and 26”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 22, in schedule 3, page 46, line 26, leave out sub-paragraph (3).

Amendment 38, in schedule 3, page 46, line 27, leave out from “would” to the end of line 28 and insert

“create an immediate risk of physical injury to any person or persons.”

Amendment 40, in schedule 3, page 46, line 28, at end insert—

“(3A) Where the examining officer believes that there is an immediate risk of physical injury to any person or persons under subparagraph (3), they must allow the detainee to consult a solicitor by telephone.”

Amendment 23, in schedule 3, page 46, line 33, leave out sub-paragraph (6) and insert—

“(6) Sub-paragraph (5) does not apply if the examining officer reasonably believes that the time it would take to consult a solicitor in person would create an immediate risk of physical injury to any person.”

Amendment 39, in schedule 3, page 46, line 34, leave out from “would” to the end of line 35 and insert

“create an immediate risk of physical injury to any person or persons.”

Amendment 41, in schedule 3, page 46, line 35, at end insert—

“(6A) Where the examining officer believes that there is an immediate risk of physical injury to any person or persons under subparagraph (6), they must allow the detainee to consult a solicitor by telephone.”

New clause 3—Access to a solicitor—

“(1) Schedule 8 of the Terrorism Act 2000 is amended as follows.

(2) In paragraph 7 leave out ‘Subject to paragraphs 8 and 9’.

(3) In paragraph 7A—

(a) leave out sub-paragraph (3),

(b) leave out sub-paragraph (6) and insert—

‘(6) Sub-paragraph (5) does not apply if the examining officer reasonably believes that the time it would take to consult a solicitor in person would create an immediate risk of physical injury to any person.’

(c) in sub-paragraph (7) at end insert ‘provided that the person is at all times able to consult with a solicitor in private.’

(d) leave out subparagraph (8).

(4) Leave out paragraph 9.”

This amendment would delete provisions in the Terrorism Act 2000 which restrict access to a lawyer for those detained under Schedule 7.

[Gavin Newlands]

The amendments would delete the provisions that restrict access to a lawyer for those detained under schedule 3 for the purpose of assessing whether they have engaged in hostile activity. However, in doing so, the amendments would add an important safeguard that would ensure that that would not apply if the examining officer reasonably believed that the time it would take to consult a solicitor in person would create an immediate risk of physical injury to any person.

In addition, new clause 3 would amend schedule 8 of the Terrorism Act 2000 with regards to access to a lawyer. It acts on the concerns that have been expressed to us by many different organisations and respected individuals. As we have heard, this section of the Bill would allow an individual to be detained for a significant period of time without reasonable grounds.

Notwithstanding the Minister’s points about the varied forms of intelligence that are received, the amendments are not about constraining the powers of the men and women who work at our borders, but acting on the concerns that have been expressed to ensure that correct and proper due process is followed. During the evidence session, we heard from Richard Atkinson that the schedule was of “great concern” to him as

“It fundamentally undermines what I would consider to be a cornerstone of our justice system—legal professional privilege.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 26, Q55.]

We will come on to that in more detail in the next set of amendments.

In addition, during the oral evidence, Abigail Bright of the Criminal Bar Association also had concerns about

“having no access to a lawyer, on the face of it for no good reason”

and

“why the rights of a suspect, who is potentially an accused person, should be diminished”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 58, Q128.]

I suspect that the schedule has been drafted as a result of concerns that lawyers and legal advisers could be exploited and manipulated in some way, as has been outlined. However, as was pointed out, that is not unknown to our criminal justice system and we already have powers in place to deal with such occasions. For example, in code H of the Police and Criminal Evidence Act 1984, which deals with counter-terrorism cases, if there is a concern about an individual lawyer, there is provision for the suspect to have the consultation with that lawyer delayed but to be offered the services of another lawyer in the meantime, so the suspect is not devoid of legal advice.

Access to legal advice is a cornerstone of the British justice system—as a Scottish National politician, I should say the English and Welsh justice system and the Scottish justice system, before I get chided—and one that we should protect at all costs. I accept the Government propose the changes with the best of intentions to keep us safe but, as we have pointed out, there are ways that that can be done without eliminating or infringing on the basic principle of the rule of law.

The amendments provide a degree of flexibility to the authorities while ensuring that individuals can still access and make use of proper legal representation. Specifically, amendment 23 would, as I have outlined, provide that an individual can be prevented from consulting a lawyer in person only where the officer reasonably believes that the time it would take to secure a solicitor’s presence would create an immediate risk of physical injury to an individual or group of people. Those are important safeguards when there is valid suspicion about waiting for a lawyer to meet a client. Public harm can be caused by the wait, but at the same time there is an issue in the majority of circumstances of protecting someone’s basic right of access to a lawyer.

New clause 3 would amend schedule 8 to the Terrorism Act 2000. It would delete provisions restricting the access to a lawyer of people detained under schedule 7 to the same Act. I respect the concerns that the Minister has outlined, but I think that they were alleviated in the oral evidence given by Max Hill a couple of weeks ago. By tabling the amendments and new clause I am trying simply to maintain access to justice.

[Nick Thomas-Symonds]

I support the amendments tabled by the hon. Member for Paisley and Renfrewshire North; I also want to speak to amendments 38 to 41, which I tabled. They follow the same general tenor as the hon. Gentleman’s amendments, in that they are practical suggestions for maintaining the right to access to a lawyer. Amendment 41 is about consultation via telephone.

I will not discuss the amendments in the next group now. They have far more to do with the right to consult a solicitor in private. None the less, that issue is also at the heart of the amendments in the group we are now considering. The hon. Member for Paisley and Renfrewshire North has already referred to the evidence given by Max Hill, and I commend the evidence of Richard Atkinson, too. He chairs the criminal law committee of the Law Society, and I am sure that the Minister recalls a conversation with him on this very issue.

The Minister put the practical point to Mr Atkinson about whether access to a lawyer would be requested on every stop at the border. However, that is not what is at the heart of the amendments. The Minister asked Mr Atkinson whether he thought

“that when a Border Force person, a customs person, seeks to detain you for an hour or however long to examine and question you further, they, too, should have access to a lawyer”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 29, Q66.]

That was about when the stage of being questioned was reached. The Minister mentioned a series of stages—whether it was a screening stop or another type of stop; but what I am talking about applies when questioning starts, when legal advice would be a necessity. We are not talking about the thousands of stops that are made. We are talking about particular circumstances that would be analogous to the position in the Police and Criminal Evidence Act 1984.

I also commend Mr Atkinson’s evidence in terms of seeking practical solutions to deal with the Government’s concerns and still maintain our cherished right of legal professional privilege. As I have said, Ms Ryan, I will not talk about that in principle now, as I will do so on the next group of amendments. However, Mr Atkinson suggested several ways in which the balance could be maintained. He said the consultation could be delayed; if there were concerns about a particular lawyer, the services of a different one could be offered; and advice could still be given within the sight of examining officers without necessarily being given within their hearing.

I recognise the issue of immediate physical threat, as well. However, I urge the Minister to look at the matter practically, and not to sacrifice legal professional privilege but to take note of the practical solutions by which we could deal with concerns about individuals abusing the right to consult a lawyer by, for example, consulting someone who is not a lawyer or passing on information. I accept that there is a risk and I accept what the Government say, but we should turn our minds to finding a practical solution that maintains legal professional privilege.

--- Later in debate ---

[Nick Thomas-Symonds]

I do not propose to take this particular group of amendments to a vote at this stage, but I say to the Security Minister that the first of the two explanations given—that somehow solicitors bound by a code of conduct would be unwilling and unaware stooges passing on information to third parties—is not particularly credible. I do not think the distinction between a police station and a border security stop is particularly strong either, and I urge the Minister to look again at the practical steps around this. However, it is not my intention to push the amendments to a vote at this stage.

[Gavin Newlands]

I have to say that I remain somewhat unconvinced by the Minister’s arguments, and we may choose to revisit some of these amendments on Report, but at this stage I will keep my powder dry until the next group of amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Paul Maynard.)

Counter-Terrorism and Border Security Bill

Gavin Newlands Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 11th September 2018 Commons Chamber

[Dr Johnson]

Again, I agree profoundly.

The Bill is the result of a thorough review carried out by not just the Government but the security services of how we can best protect our citizens. I believe that we can best protect them by ensuring that the Government, the police and the security services have to hand all the tools that they need to deal with the modern threats that are posed to this country.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

I echo the comments made by both the Minister and the hon. Member for Torfaen (Nick Thomas-Symonds) about the anniversary of 9/11 and the Westminster Bridge inquiry, and all who have been affected by those tragic events.

As we have heard from the hon. Member for Sleaford and North Hykeham (Dr Johnson), the first job of any Government, whether in London or in Edinburgh, is to keep their citizens safe. It is clear that we need to take action to update legislation in these difficult times of high-level terrorist threat combined with the constant march of technology and online communication. I fully appreciate the difficulty of keeping legislation current, answering the calls of the police and security services for further powers and maintaining the balance of freedom and civil liberties that we expect and enjoy. Of course, while we are supportive of the Government’s efforts, it is incumbent on any decent Opposition to offer amendments to improve the Bill and ensure that the Government get that balance right.

In Committee, we submitted many amendments that, sadly, the Minister was not wise enough to accept. However, he was wise enough to make some concessions to the Opposition. Amendment 2, for instance, would remove the requirement to view documents or records containing information likely to be useful to terrorists on three or more occasions—the three-click policy. We have some serious concerns about the impact that that may have on innocent individuals who have no interest in, intent to engage in, or wish to encourage terrorist acts. I am glad that the three-click policy has been removed, but I fear that it has simply become a one-click policy.

The previous policy was arbitrary and unworkable, given that the clicks could occur in an unspecified window of time, did not have to relate to the same content on each occasion and did not require any terrorist intent for the offence to be committed. As I did in Committee, I accept the Government’s point that more people now stream material online than download it to a computer or other device, and in that context it is vital that we continue to review our counter-terrorism approach.

The Government had argued in relation to clause 3 that the three-clicks requirement was intended to identify a pattern of behaviour; this amendment runs completely counter to that objective. As had been asked for in Committee, the Minister has included a reasonable excuse defence for this new one-click offence. I would like the Minister to address concerns raised by many, not least my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who say that it is possible that the wording will have the perverse impact of narrowing the reasonable excuse defence available to people charged with the offence, as the courts are likely to reason that, in legislating for a reasonable excuse without including lack of terrorist intent within that excuse, Parliament did not intend for lack of terrorist intent to be an available excuse for this offence. We have to ensure that the clause does not criminalise people who may view these documents with no nefarious intent, such as academics and journalists.

--- Later in debate ---

[Mr Deputy Speaker]

No problem.

[Gavin Newlands]

Thank you, Mr Deputy Speaker. I fully accept the central point that the Minister is making, but he has failed to convince us on the question of proportionality and on the necessity for the new clause. I should also point out that Safaa was not radicalised or groomed by someone who had returned; she was radicalised and groomed by someone overseas. In conclusion, I urge the Minister to commit to this review of the Prevent strategy.

[Sir Edward Davey]

Across the House, we share a determination to tackle terrorism. Seventeen years ago today, I was visiting my grandmother. She was watching the television and she showed me what was happening in the appalling attacks in the United States. We in this House also know about the atrocities that happened just 100 yards away on Westminster Bridge recently. So we all want to ensure that we can do whatever we can to keep our people safe and to fight against the scourge of international terrorism. The question tonight, however, is whether the new clause and the new Government amendments will help to protect us. We have seen a huge number of laws added to the statute book, quite rightly, to help us and our security services in the attack that we are making on terrorism and in the fight back, but I am not yet convinced that this new clause and these amendments will add to the successful work that has been going on.

I say to the Minister that I reach that conclusion reluctantly, but I should like to put forward my arguments, because I am not alone in this. Skilled independent commentators have reached a similar judgment to the one that I have reluctantly reached. My first argument in relation to new clause 2 is that it is not needed. Clause 5, with which we agree, will quite rightly expand extraterritorial jurisdiction. We have seen this before, and clause 5 takes those measures further to ensure that terrorist offences committed abroad can be prosecuted in the United Kingdom. That is sensible stuff. New clause 2 wants to go further, however. Rather than being primarily concerned with terrorist acts abroad, it seeks to criminalise the whole concept of going abroad. In other words, it is not about the actions of a person but about locations.

The Minister, in his usual rational way, tried to reassure us that this was not meant to apply to aid workers or journalists, and I presume that it would not apply to people who wanted to visit sick relatives and who might even risk going to a war-torn country to do so. He referred to proposed new subsection 58B(2), which is found in new clause 2, which offers that defence, but the way I read it, the person charged will have to prove that they had a reasonable excuse for entering a designated area. That is not quite what the Minister said at the Dispatch Box, and although I did not intervene at the time, I do not think that people will be innocent until proven guilty, and that should worry the House.

The other issue is one of common sense. If a terrorist or freedom fighter who has returned is accused of going to such an area, they could no doubt make a reasonable excuse defence. They could say that they were an aid worker, and the Government would then still have to prove that they have evidence that the person was doing something wrong and was not an aid worker. I am not absolutely convinced that the Government have got this right, and I will go on to quote the former independent reviewer of terrorism legislation, David Anderson QC, who supports my view.

--- Later in debate ---

[Robert Neill]

I promise to keep my remarks short. Two important matters have been raised, and I take on board the force of the shadow Minister’s arguments in favour of the value of the European arrest warrant. My right hon. Friend the Security Minister will know that, in the last Parliament, the Justice Committee produced a report on the legal implications of Brexit, which included a strong case for retaining access to the European arrest warrant and its arrangements.

It is important that we stress the value of the European arrest warrant to our crime-fighting arrangements. It is particularly significant, of course, that the National Crime Agency, giving evidence to our Select Committee at the time of the report, stressed the value of the European arrest warrant. All the legal practitioners stressed its importance, and the Minister recognises that the European arrest warrant arrangements are infinitely superior to those that were available under the Extradition Act 1989.

It has sometimes erroneously been said by one or two Members of this House that the European arrest warrant can be used disproportionately, and my right hon. Friend the Minister will know that, since the reforms to the operation of the European arrest warrant back in 2013, that disproportionality has been removed and the UK is actually an overwhelming beneficiary of the proper use of the European arrest warrant.

The Prime Minister made it clear at the beginning of this negotiation process that it is her objective to achieve this, and I am sure my right hon. Friend the Minister will be able to say that whatever the mechanism, whether in the Bill or not, the Government are committed to maintaining access to the EAW and to the rest of the supporting mechanism of criminal justice arrangements, such as data sharing, information sharing and intelligence sharing, the European criminal records information system and other schemes. All those will necessarily be a crucial part of the Government’s negotiating strategy. Whether or not it is mentioned in the Bill is not the point—the Government are reaffirming their commitment.

Legal professional privilege is an important issue to be considered. Unless I am wrong, there are sometimes arrangements for counsel, such as in relation to some of the specialist tribunals dealing with these matters, to be specially cleared and vetted. Perhaps my right hon. Friend the Minister will take that away and consider whether further application of that scheme might offer a sensible and proportionate way forward.

[Gavin Newlands]

It is a great pleasure to follow the irrepressible Chair of the Justice Committee, of which I am a member.

Before I discuss access to lawyers under legal professional privilege, it would be churlish of me not to thank the Minister for tabling amendments 6 and 7, versions of which both the shadow Minister and I tabled in Committee. The amendments will essentially ensure that public demonstrations cannot be subject to any financial charge under the Road Traffic Regulation Act 1984. It is vital for our democracy, now more than ever, that the right to assemble, and to do so without charge, is protected.

Without going over the ground covered fairly extensively from the Labour Front Bench, I put it on the record that I share the concerns voiced by the hon. Member for Torfaen (Nick Thomas-Symonds) about the Northern Ireland border stops and the huge sensitivity of this issue. I genuinely hope that the Minister will look at that, take it away and come back having addressed it.

The Bill as it stands restricts access to a lawyer for those detained under schedule 7. Specifically, it would restrict the right of an individual to consult their legal representative in private, away from a relevant officer. Being able to speak with a legal representative in private is a fundamental right, which should not be infringed. Indeed, in oral evidence, a whole cast of people backed us up. Michael Clancy of the Law Society of Scotland spoke about the fundamental importance when he said:

“If we want people to be in a position where they can freely discuss matters with their legal representatives, we have to preserve this value. It is key to the rule of law that people can discuss matters openly with a legal representatives so that the solicitor, advocate or barrister is in a position to advise properly on what avenues are open to the person. Clearly one would want to ensure that that was adequately protected.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 49, Q103.]

Richard Atkinson from the Law Society of England and Wales also raised concerns, suggesting that the proposal risked the excellent reputation across the world of UK justice systems. He said:

“The cornerstone is legal professional privilege. That is not access to a lawyer; it is the confidential nature of discussions between a lawyer and their client. That is the cornerstone that has been in existence for hundreds of years and that is held out internationally as a gold standard that we have in this country. That is what is being undermined by this Bill saying that a police officer can stand and listen to the consultation that is going on between the client and the lawyer.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 28, Q63.]

Access to a lawyer—fundamental access to justice—is something we should not compromise on. This is not about constraining the powers of the hard-working men and women who work at our borders; it is acting on the concerns that were expressed to us, to ensure that correct and proper due process is followed.

I suspect that the schedule has been drafted as a result of concerns that lawyers and legal advisers could be exploited and manipulated in some way, as has been outlined. However, as was pointed out, it is not unknown to our criminal justice system; we already have powers in place to deal with such occasions. For example, in code H of the Police and Criminal Evidence Act 1984, which deals with counter-terrorism cases, if there is a concern about an individual lawyer, there is provision for the suspect to have the consultation with that lawyer delayed, but to be offered the services of another lawyer in the meantime, so the suspect is not devoid of legal advice. We should protect that access at all costs. I accept that the Government propose the changes with the best of intentions, but we have pointed out that there are ways for it to be done without eliminating or infringing on the basic principle under the rule of law.

I express my support for the Liberal Democrats’ new clause 1, to which I have added my name. One of the greatest threats to our national security currently is, of course, Brexit and the fact that we face losing our seamless access to multilateral information-sharing tools. As we have heard, organised crime and terrorism do not respect borders and it is essential that Police Scotland—in fact, all the police services in the United Kingdom—can access the information systems, support and technical expertise available through Europol, not only to make Scotland safe, but to contribute to making Europe safer. As the hon. Member for Torfaen said, the recent naming of two suspects in the Salisbury incident and the issuing of a European arrest warrant showed just how vital this tool is to protecting the UK from threats, and why it must be maintained.

Following our exit from the EU, there is a major risk that any new arrangements that are put in place will be suboptimal to those at present. Further to that, there is also an issue with data sharing between the UK and the EU, as the EU will most likely require the UK to maintain data protection and privacy laws that can be deemed equivalent to those in force in the EU. We must ensure that our law enforcement agencies can continue to have the same access to Europol as they currently enjoy.

There is also a need to preserve stability in the law. Repealing legislation and preparing new legislation to fill in gaps arising from leaving the EU will compromise a significant part of domestic legislation that is passed at, or following, a withdrawal. Any future arrangements must take into account the autonomy of Scottish criminal justice institutions and provide a continuing basis for the direct co-operation that currently exists between law enforcement agencies in Scotland and their counterparts.

As a matter of security, we cannot afford an operational break in our access to EU cross-border tools, because they are part of the day-to-day work of the police force. Just today, the Lord Advocate of Scotland, giving evidence to the Scottish Parliament Justice Committee, said:

“I don’t think it controversial to observe that leaving that regime without replacing that regime would significantly and adversely affect our capabilities. From a professional criminal justice point of view, the realistic issue is the extent to which this can be mitigated.”

The Government’s dangerous Brexit plans, such as they are, may well leave us outside the European arrest warrant and key agencies such as Europol. I cannot insist enough that that would be incredibly dangerous to the future security of Scotland, the United Kingdom and, potentially, the EU. We must be able to share vital information to keep people safe from terrorism, human trafficking and organised crime. Leaving the European arrest warrant is yet another potentially disastrous Brexit bonus that we could all do without. I wholeheartedly support new clause 1.

--- Later in debate ---

[Gavin Newlands]

I would like to echo the thanks expressed by the hon. Member for Torfaen (Nick Thomas-Symonds) to our police and security services and all those who put themselves in harm’s way to keep us safe. We owe them a debt of gratitude. I also thank the Clerks in the Public Bill Office for their assistance during the passage of the Bill. This is the first time I have been in charge of a Bill for the Scottish National party. I also thank the individuals and organisations that provided evidence—[Hon. Members: “We can’t hear you.”] Is that okay? Have I got you now? Right, thank you. I also thank the Opposition Front-Bench team for their collegiate approach during the Bill Committee’s deliberations.

[Mr Mark Francois (Rayleigh and Wickford) (Con)]

I do not agree with it, but I want to hear it.

[Gavin Newlands]

I appreciate that.

The Minister himself, despite the late tabling of new clause 2, has been open to improvements suggested by the Opposition, and I thank him also.

The SNP supports the Government in their attempt to modernise this crucially important legislation, and we appreciate the need to combat the constantly evolving threat from international terrorism in the modern digital world, but we must be extremely careful about how this is executed. We are fully aware of the challenges that we face from increasingly sophisticated criminals and terrorists, and we are in favour of giving law enforcement agencies and the security and intelligence agencies the powers they require to keep our communities safe, but those powers must be subject to stringent checks and safeguards if we are to maintain the balance of security and civil liberties that we currently enjoy.

While stressing that we support the Government’s aims, I remind the Minister that they have awarded themselves, and the police and security services, an enormous amount of power in the last three years, not only—potentially—in this Bill, but in the Investigatory Powers Act 2016 and the Immigration Act 2016, to name but two. Sadly, more often than not the Government have simply not got the balance right between civil liberties and the extension of intrusive powers.

If Scotland were independent—and that time is coming—we would no doubt be drafting and enacting more legislation to deal with the increased threat of terrorism. Luckily, that legislation would not be drafted by me, but I cannot help wondering how similar our measures would be. I should like to think—in fact, I am positive—that we would ensure that our Ministers, our police and our security services had the necessary powers, without impinging too much on civil liberties. That, I am sorry to say, often seems to be an afterthought in the case of this Government.

Counter-Terrorism and Border Security Bill

Gavin Newlands Excerpts

Ping Pong: House of Commons
Tuesday 22nd January 2019 Commons Chamber

[Nick Thomas-Symonds (Torfaen) (Lab)]

I am grateful to the Security Minister for his opening remarks, and for his tone and the consensual approach he has taken. We most definitely do not agree on everything, and we have robust exchanges across the Dispatch Box, but we try to work together constructively on these serious matters whenever we can. I am grateful to him for accepting Lords amendment 1 to clause 3, which has caused controversy in the past. The clause deals with a situation in which it was previously illegal to download these terrible recruiting videos but not illegal to stream them. We have to have a situation in which both are illegal. We cannot have a situation in which watching something later on is illegal but watching it at the time is not. This has been difficult to deal with, and there is no perfect way to capture it in legislation.

As the Minister knows, I was also concerned about the three clicks approach, and I am pleased that the Government have dropped it. Dropping it has not, as some suggested, led to a situation in which one click could lead to an offence being committed. The Bill sets out clearly that anyone inadvertently clicking in that way would not be covered by the offence. I was concerned that the reasonable excuse defence mechanism went put on to the face of the Bill, particularly in relation to journalists and academics, and I am pleased that the Government have now accepted those concessions. It is clear that in the years ahead we will have to look at precisely how the clause works in practice, but it is important to send a clear message that streaming these terrible videos is equally as awful as downloading them and watching them later on.

On designated areas, the Security Minister quoted what I said in the Commons because this measure was introduced at a very late stage and I was unable to have that discussion with him in Committee. We do not oppose the overall aim of dealing with so-called foreign fighters, but the clause needed significant work. Again, I am pleased with the work that has been done and I pay tribute to my Labour colleagues in the Lords and those of other parties there who have put in the work and time to improve the clause. I am also grateful to the Minister for accepting the changes.

There was originally a non-exhaustive list of reasonable excuse defences on the face of the Bill. This has essentially been taken and carved into the law itself, so that people do not commit the offence in the first place if they have a particular purpose for travelling. That was important for two reasons. First, someone with a perfectly legitimate reason for doing something would inevitably have been stopped, and would have been able to raise the reasonable excuse defence only further down the line. It is therefore much better in principle that they do not commit the offence in the first place. Secondly, the last thing anyone in this House wants is to deter people with a perfectly reasonable motive from going to areas of conflict. Aid workers are an example, and I know that the Chair of the International Development Committee, my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) has tabled an amendment on that.

For completeness, Lords amendment 3 states that the offence is not committed if one or more of the purposes of the visit is to provide

“aid of a humanitarian nature…carrying out work for the government of a country other than the United Kingdom…carrying out work for the United Nations or an agency of the United Nations…carrying out work as a journalist…attending the funeral of a relative or visiting a relative who is terminally ill…providing care for a relative who is unable to care for themselves”.

That is not meant to be an exhaustive list.

In addition, the reasonable excuse defence is maintained. This relates to the amendment tabled by my hon. Friend the Member for Liverpool, West Derby. The reason is that if no exception is already carved into the law and the purpose of the visit is not included in the list, it could none the less appear as a reasonable excuse defence. In an intervention on the Minister, the hon. Member for Torbay (Kevin Foster) talked about a burden in these cases. With the reasonable excuse defence, there is of course a burden on the defendant to raise it, but the burden to disprove it lies with the prosecution. In the carve-outs in the law that I have suggested, however, these people would not be committing the offence in the first place.

I want to press the Security Minister on how exactly this is going to work in practice. As he knows, there are two models around the world: the Australian model, which I think the sunset clause has been taken from, and the Danish model. The way the Danish model works in terms of not committing the offence in the first place involves an extensive system in which people obtain licences before they go. That is not without its problems, because journalists sometimes like to travel to certain areas without advertising the fact that they are doing so, so I am not suggesting that this would be a silver bullet or a magic solution. However, there will presumably have to be a system whereby we can show clearly that someone has not committed the offence in the first place, as against those situations in which there might be a reasonable suspicion that an offence had been committed and in which the reasonable excuse defence was raised later. Any details from the Minister on how this will work would be appreciated.

The other Lords amendments on these issues are also important. They include the introduction of a sunset clause for the statutory instruments to designate particular areas so that they cease to apply and have to be replaced. This will ensure that the Government regularly make the case to Parliament if they wish to continue with a designation in the long term. Lords amendments 7 and 8 relate to two additional concessions. Lords amendment 7 provides that the Government have to make a statement outlining why they believe an area needs to be designated at the same time as they lay the relevant statutory instrument. Similarly, Lords amendment 8 states that when the Government revoke a designation, the change must be subject to the negative resolution procedure in Parliament in case anyone wishes to object to it. Taken together, the amendments produce a much better clause in relation to the designated areas. It will allow the Government to tackle the problem of so-called foreign fighters, of which we are all conscious, but it now does so in a more balanced, fair way, without deterring those who wish to travel to areas of conflict for perfectly honourable and legitimate reasons. No one in the House would wish to prevent them from doing that.

There are three other broad themes to the amendments in this group. The first relates to extraterritorial jurisdiction, which the Minister will be aware I have raised before in a slightly different context. The Government added extraterritorial jurisdiction to the offence of inviting or recklessly expressing support for a proscribed organisation, and concern was expressed about that by the Joint Committee on Human Rights. The Committee was concerned that the extension of extraterritorial jurisdiction to certain offences was problematic when there was no equivalent offence in the country involved. The safeguard will now ensure that extraterritorial jurisdiction applies only if the offence was committed by a UK national or UK resident. That is in line with what the Joint Committee recommended, and I welcome that change.

Turning to the independent review of the Prevent strategy, I genuinely welcome the Security Minister’s acceptance that a review is required, and I give credit to the shadow Home Secretary, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), who has argued for one for some considerable time. As the Security Minister knows, I have visited Prevent programmes across the country, including in south Wales. My hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) also raised the issue of far-right terrorism, which this House must be conscious of and take action on.

My argument about the independent review of Prevent is that there is a concern that its aims may end up in conflict with or become slightly confused between intelligence gathering, what I would call the more welfarist or safeguarding aspect of Prevent, and community cohesion. There has been an issue around community cohesion, because the facilities that are available to local authorities, for example, are an important part of that. I have had conversations in which it was clear that the pressures on local authority services are really affecting Prevent’s ability to deliver.

There are also aspects or parts of our society—in fairness to the Security Minister, he pointed this out himself—that have lost faith in the programme, and it is time to look at that. We need a programme in which everyone can have faith. None of us wants to see people living a life of violence and hatred that is driven by these kinds of ideologies. We all want to prevent people from doing that, but let us do so in the most effective way. From our conversations, I am hopeful that the Security Minister will be keen to have a wide-ranging review that can deal with such issues.

While I am on the subject of Prevent, I know that the competition to become the new independent reviewer of terrorism legislation has now closed to applications, and I hope that someone new will be appointed soon. I hope, too, that the Minister will be receptive to suggestions about how exactly to construct this independent review, so that we can have the most robust and reliable conclusions possible and, if necessary, make appropriate changes.

Lords amendment 16 is another sensible amendment, relating to bank accounts or terrorist’s bank accounts. There was an issue in the law as originally drafted in that the account would have to be in the name of a particular person. Of course, that did not take into account the fact that people can have control of other people’s bank accounts by their behaviour, and it is important that that was covered in the legislation as well.

Taken together, all the Lords amendments make this legislation far better, and it is pleasing that we end the passage of this Bill on a note of significant consensus.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

I echo the comments of the hon. Member for Torfaen (Nick Thomas-Symonds) about the consensual approach taken by the Government during the passage of this Bill and about the concessions already made during earlier stages, including on the likes of the three-clicks provision. As the Scottish National party has said since this process started last June, we welcome the Government amending this important legislation and appreciate the need to combat the constantly evolving threat from international terrorism in the modern age. However, we must be extremely careful how that is executed, and any new powers must be subject to stringent checks and safeguards if we are to maintain a healthy balance of security and civil liberties.

I will deal with the amendments in fairly short order lest I repeat many of the points already made by the Labour spokesman today or points that either of us made during earlier stages. The SNP welcomes the amendments—the improvements—made to the Bill in the other place and, as an SNP Member, I say that through gritted teeth. However, most of the amendments made in the other place were argued for in one way or another by the hon. Member for Torfaen and myself throughout the passage of the Bill in this place. None the less, I am pleased that the Government have dropped their opposition to many of the additional safeguards, and I hope the Minister is as generous in his treatment of the Crime (Overseas Production Orders) Bill on Report and Third Reading next week.

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[Mr Wallace]

rose—

[Gavin Newlands]

I am not saying that the review will be watered down in any way, but I will give way to the Minister on that point.

[Mr Wallace]

I am grateful to the hon. Gentleman. I would not like him to think that we ordered the review because we do not think that the strategy is safeguarding people. He refers to the fact that we must do much better based on his meeting with Safaa Boular, who by the way was convicted of planning a proper terrorist plot, no matter how nice she may have been in the detention centre. The reality is that the strategy has safeguarded hundreds of people away from violence and has been proving a success, so I would not want him to leave an impression that it has not. Of course, I agree that, like all schemes, it does not work for every single person, but it has had considerable success in all our constituencies.

[Gavin Newlands]

I do not dispute anything that the Minister has just said, but there is a huge clamour for review because of the inadequacies of the Prevent strategy, as seen by many in the community. His points about the terrorist plot, and so on, are well made, and I do not dispute them for one second. I am not arguing that Safaa Boular should not have been punished or put in prison; my point is about the fact that she was radicalised in the first place.

Yes, we need legislation that gives the police everything they need to fight serious crime and terrorism, but the Government should bear in mind that this Bill is, in many respects, deeply controversial. They must get it absolutely right, and that will be impossible without a full, independent review—that review has been hamstrung by the Government before it starts. I ask that the Opposition be consulted on the terms of reference, to which the right hon. Member for Kingston and Surbiton (Sir Edward Davey) alluded earlier, and on the timescale for that consultation.

[Stephen Twigg (Liverpool, West Derby) (Lab/Co-op)]

I rise to speak to amendment (a), in my name, to Lords amendment 3. Two years ago, in the space of just six months, we saw five terrorist attacks here in the United Kingdom: the Westminster attack, Manchester Arena, London bridge, Finsbury Park and Parsons Green. Those attacks killed 36 people and remind us all of the very real and continuing threat of terrorism here in the UK. Indeed, we were reminded of it again just last weekend by the latest terror bombing in Northern Ireland.

We know there are people living in fragile states across the world who face this threat daily. Last week, we saw the appalling attack in Nairobi, which killed 21 people, and in western and central Africa, we have seen the appalling terrorist activities of Boko Haram, notably in Nigeria. Earlier this month, more than 9,000 people had to flee Nigeria for Cameroon after such an attack.

The whole House is united in our condemnation of terror, in extending our condolences to all those who have lost loved ones to terror and in our debt of gratitude to the emergency and security services. These appalling acts, both here and in other parts of the world, underline the need to update existing powers to respond better to the threat of terrorism in the modern age, which is why I support the Bill.

I am grateful for the changes that have been secured, and I pay tribute to the Labour Front-Bench team, particularly my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), to the shadow Home Affairs team and to others on both sides of this House and in the House of Lords. The Bill’s consideration has served to make significant changes that have improved the Bill. I particularly welcome Lords amendment 3, tabled by my noble Friend Lord Rosser and agreed by the Lords, and my amendment (a) relates to that amendment.

As has already been explained, the Government’s original approach was to introduce a “designated area” offence to give the Home Secretary the power to designate all or part of a country as forbidden to UK nationals and residents. If an individual is charged with the offence and they are not able to prove that they have a reasonable excuse for entering or remaining in the designated area, they could receive a sentence of up to 10 years in prison. The only original exemption was for Crown agents, and there was wide concern that that could have unintended consequences for a number of categories of people, including United Kingdom citizens who work as aid workers.

Lords amendment 3 was made to reverse the burden of proof by introducing a number of specified purposes that are excluded from the scope of the new offences. I absolutely accept the urgent need to tackle the real issue of so-called foreign fighters, but in doing so, it would be wrong to have the unintended effect of deterring people with perfectly legitimate purposes from travelling. The amendment refers to those working in the humanitarian field and to journalists, which is a truly significant improvement in protecting UK nationals who have legitimate reasons for travelling abroad. I am particularly concerned that, without this amendment, there might not be sufficient protection for aid workers and for the organisations that employ them, which could have a devastating effect on the provision of vital humanitarian aid.

Non-governmental organisations, led by BOND—British Overseas NGOs for Development—have been urging this House to accept Lords amendment 3 because it exempts individuals involved in the provision of aid of a humanitarian nature. In December 2018, the chief executives of 22 organisations signed a statement calling on the Government to introduce an exemption for aid workers and others with a legitimate reason to travel to a designated area.

I am delighted that the Government, on reflection, are content with Lords amendment 3, but the purpose of amendment (a) is to urge the Minister to go a little further and add a number of additional specified purposes. Lords amendment 3 refers to those working to deliver

“aid of a humanitarian nature”.

I am concerned that, defined narrowly, this could unnecessarily limit the activities that are considered legitimate, which is why my amendment would extend that list. First, it would cover work on a development project or programme. That could be a long-term programme to deliver health or education, or one that promotes women’s economic empowerment. Secondly, and importantly, it would cover work on a peace-building project or programme. Peace building is defined by the United Nations as:

“A range of measures targeted to reduce the risk of lapsing or relapsing into conflict by strengthening national capacities at all levels for conflict management, and to lay the foundation for sustainable peace and development.”

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[Nick Thomas-Symonds]

I again welcome the approach that the Security Minister has taken in reaching consensus on these matters.

First, and this is a very important principle, in this Bill we have maintained and preserved the right to receive legal advice in private. It is a very important principle and, as the Security Minister knows, I pressed him on it at a very early stage of and throughout the proceedings on the Bill. There was a concern either that someone who had been stopped and detained would use the ability to contact a lawyer to communicate the fact that they had been stopped—in other words, to contact someone who was not a lawyer—or, alternatively, that a genuine lawyer was contacted but that the lawyer would then somehow, inadvertently or otherwise, pass on information about the stop. I pressed the Minister on the solution that is now in the Bill at quite an early stage about a kind of duty solicitor scheme that could deal with both of those concerns, but also ensure that we preserved the very important right of legal advice in private. I am pleased that we have reached this stage on the Bill and that the Government have made that concession.

I now turn to a set of Lords amendments, starting with Lords amendment 14, on the urgent procedure for retaining and copying property at the border. I have looked at the Court of Appeal judgment in the David Miranda case. As the Minister says, the judgment, at paragraph 96, identified that there is

“no provision for authorisation by a court or other independent and impartial decision-making body in a case involving journalistic material prior to the use of the Schedule 7 power or, in an urgent case, immediately after the obtaining of the material pursuant to the exercise of the power.”

I fully accept that there are going to be very urgent situations, and this is expressed in terms of an imminent threat of loss of life or of injury. I am pleased to hear what the Minister has said about the code of practice, which we can look at in due course. I previously suggested that there could be situations where a decision maker was available at the end of a telephone line, but I appreciate that there will be truly exceptional cases. The key to this is that, while I fully accept the law needs to be brought into line with what has been suggested in the Miranda case, we have to understand that these must be truly exceptional cases. That is something we can set when we come to debate the code of practice, being very clear that in these particular circumstances there will have to be a genuine, imminent threat that needs to be dealt with. Again, however, bringing the law into line with what the Court of Appeal has suggested is, on the whole, to be welcomed.

I want to speak to two other sets of Lords amendments. I will start with Lords amendments 17, 19, 26, 28 and 29 on the definition of hostile activity. The difficulty is that if this is defined purely in terms of criminal activity, that does not capture other types of hostile espionage activity, which may not necessarily bring into play parts of the criminal law. I did think that there was a danger of this being drawn too broadly, and I am pleased that these amendments narrow the definition, so that when we talk about threatening the economic wellbeing of the UK, we have now added

“in a way relevant to the interests of national security”.

The key is to ensure that we have the powers we need while also being precise about what we consider “hostile activity” to be. It is a welcome amendment that improves the Bill.

Finally, Lords amendments 41 and 42 relate to information sharing. Schedule 3 provides that an officer questioning someone at the border can hand over information to appropriate bodies, as decided by the Secretary of State. I think that narrowing the provision to bodies exercising public functions is to be welcomed, but I have regularly made the point to the Minister during the passage of the Bill that bodies such as local authorities will need the appropriate resources, expertise and support to handle the information, particularly when it is likely to be highly sensitive.

Taken together, I think that the Lords amendments that I have spoken to, covering the four themes I have referenced, make the Bill a better and more effective piece of legislation, although I am keen to engage with the Minister when the codes of practice to which he referred come before both Houses.

[Gavin Newlands]

The House will be relieved to hear that I intend to be even more succinct in my comments on the provisions pertaining to port and border control powers. We have again seen positive movement in this area.

Despite the best efforts of the hon. Member for Torfaen (Nick Thomas-Symonds) and myself, when the Bill reached the other place it restricted access to a lawyer for those detained under schedule 7. Specifically, it restricted an individual’s right to consult their legal representative in private, away from a relevant officer. As I and other Members have said at every stage of the Bill’s consideration, the ability to speak to a legal representative in private is a fundamental right that should not be infringed. Indeed, as the Minister outlined in oral evidence to the Public Bill Committee, both the Law Society of Scotland and Law Society of England and Wales have reinforced that point. Richard Atkinson stated in evidence that the UK’s criminal justice systems have an excellent reputation but that their very

“cornerstone is legal professional privilege…not access to a lawyer”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 30.]

We therefore very much welcome Lords amendments 12, 15, 35 to 37, 39 and 40, which ensure that that right is protected. Our preference would be for anyone detained under these powers to be able to consult legal representatives of their choosing, but I have heard the Government’s case for the power to require a detainee to consult a different solicitor and, although I would prefer not to have that provision, I completely understand the rationale behind it. I only hope that the power is not abused to ensure lesser representation.

On that note, we also very much welcome amendments 33, 34 and 38, which confirm a detainee’s right to be informed of their rights, which will now be in the Bill rather than simply in the draft code of conduct.

We also welcome Lords amendments 17, 19, 26, 28 and 29—I am not used to having so many Lords amendments, Madam Deputy Speaker. As the hon. Member for Torfaen said, the narrow definition of “hostile act”, so that it is an act that threatens the UK’s economic wellbeing, qualifies only if it

“is relevant to the interests of national security”.

We on the Scottish National party Benches are well known for standing up for civil liberties and human rights, but we do understand that keeping people safe and secure is the primary function of government and fully support our services having the appropriate powers to keep us safe. We therefore support an expedited process for retaining and examining property and confidential material where there is an immediate risk of death or serious injury, or of a hostile act being carried out. That relates to Lords amendments 18, 25, 27 and 30 to 32.

I am sorry to have to mention Brexit so close to the end of our considerations, but it will potentially have a huge impact on the effectiveness of much of this legislation. One of the greatest threats to our national security and counter-terrorism capacity is Brexit and the risk of losing seamless access to multilateral information-sharing tools. Terrorism and organised crime will continue to operate after 29 March without care towards the UK’s membership of the EU—I see that the Minister is delighted by the mention of Brexit. Yet without Europol, Police Scotland will no longer have access to information systems, support and expertise that help make Scotland, the rest of the UK and Europe a safer place. We cannot risk having arrangements that dilute the access that we currently have, and any new arrangements must consider Scotland’s distinctive criminal justice system in order to provide a continuing basis for the direct co-operation that currently exists between law enforcement agencies in Scotland and their counterparts. If we have not made provision to keep our policing effective outside the EU, how can we expect Prevent and everything that has been discussed today to work even after a review?

I thank the hon. Member for Torfaen and the Minister for the manner in which the Bill has been debated throughout its passage and I look forward with joy unconfined to dealing with them again next week on the Crime (Overseas Production Orders) Bill.