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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.