Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

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

[Lord Davies of Stamford]

The noble Viscount has reinforced my point with greater eloquence than I could have done.

[Lord Anderson of Ipswich (CB)]

My Lords, it is an uncomfortable fact that the law as it stands has not been as effective as it might have been in prosecuting radicalisers who have stopped short of inviting support for a proscribed organisation but whose words have none the less been instrumental in encouraging others to support terrorist groups, often by actions, not just words. I shall not rehearse the saga of Anjem Choudary and the many unsuccessful attempts to prosecute him over the years. Clauses 1 and 2 attempt to fill a gap in our law by extending the proscription offences. For that reason I look sympathetically on their general thrust although, like the noble Lord, Lord Carlile, I support Amendment 5.

For my part, I could not vote for an extension of the already strong proscription offences in circumstances where substantial numbers of proscribed organisations— 14 by the Home Office’s own admission, and no doubt more in Northern Ireland—are proscribed despite failing to satisfy the statutory condition for proscription, which is being concerned in terrorism. That would expose people to the risk of long prison sentences for expressing opinions supportive of organisations that have long since laid down their arms and committed to peaceful engagement, but which however remain proscribed because no one associated with them has been willing to go to the expense, or indeed attract the associated publicity, of going to court to get them de-proscribed. My support for Clauses 1 and 2 will therefore depend on the outcome of Amendment 59, which would introduce the meaningful review of proscription orders and which noble Lords will consider on another occasion.

[Viscount Hailsham]

My Lords, I shall speak briefly to Amendments 3, 4, 5 and 6. I accept that there may well be a need to further criminalise the overt support of proscribed organisations; I do not dissent from that view. However, we have to accept that what we are proposing in the Bill is an infringement of human rights—the right to free speech. The noble Baroness, Lady Hamwee, is entirely right about that. We therefore need to apply the test of proportionality: to weigh up the evil in one hand and then look at the consequences of what is proposed in the other. It is in that context that I would be very much happier—I now speak directly to my noble friend on the Front Bench—if we were to look again at the concept of specific intent. I would be very much happier if what we were providing for was that the offence was establishable only on proof of specific intent. I find myself very much in support of Amendments 3 and 4 because they seem to satisfy the test of proportionality.

To comment briefly on Amendment 5, I find myself entirely in agreement with the noble Lord, Lord Carlile. Anyone who advocates the de-proscription of a proscribed organisation seems to fall foul of the general language of this part of the Bill, and that should not be the case. It is perfectly proper as part of public debate to argue that a specific organisation should not be proscribed. I therefore hope—

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Moved by

[Lord Anderson of Ipswich]

17: Clause 4, page 3, leave out lines 9 to 11 and insert—
“(2) A person does not commit an offence under this section if the person entered or remained in the designated area solely for one or more of the following reasons—(a) performing an official duty for the government of any country (including service in the armed forces of that government) where such performance would not otherwise contravene the law of the United Kingdom,(b) performing an official duty for the UN or an agency of the UN,(c) satisfying an obligation to appear before a court or other body exercising judicial power,(d) providing support through a registered charity for humanitarian, peacebuilding or development purposes,(e) making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist,(f) visiting a dependent family member,(g) such other reason as the Secretary of State may by regulations prescribe.”

[Lord Anderson of Ipswich]

My Lords, in moving Amendment 17, I shall speak also to consequential Amendment 30. In doing so I take comfort from the words of the Security Minister on Report that this clause, introduced late in the day, would benefit from discussion in your Lordships’ House and, in particular, from exploration of what he called the reasonable excuse issue. These amendments do not seek to remove the designated area offence but rather to render it more predictable in its application and, in addition, easier to prosecute.

There are three problems in the context of this offence with the wholly general defence of reasonable excuse. First, those few people with good reason to travel to a terrorist war zone will have no assurance in advance that they will not be prosecuted for doing so. Secondly, this troubles some of them considerably, as other noble Lords will know. Thirdly, attempts to prosecute a person for this offence are likely to be met with an ingenious array of excuses to which the jury will be invited to be sympathetic. Without any outer limits on the doctrine of reasonable excuse, the prosecution—which, as the Minister said, still bears the ultimate burden of proof—is likely in practice to have to demonstrate some malign purpose for travel, which is precisely the state of affairs that this offence is designed to avoid.

Amendment 21 contemplates a pre-authorisation system, as operates in Denmark. The Danish counter-terrorism officials, to whom I had an opportunity recently to speak to in Copenhagen, expressed themselves as broadly content with that system. However, the Australian independent national security legislation monitor—the equivalent of our independent reviewer—stated in his careful and positive review of the equivalent Australian offence that,

“an authorisation regime could only be effective to the extent that individual compliance with the authorisation could be properly monitored”.

In place of the reasonable excuse defence, I propose a series of reasons which, if they constitute the sole reason or reasons for entering or remaining in a designated area, will mean that no offence has been committed. On the method to which the noble and learned Lord, Lord Judge, referred—the method he commended to me—whatever the scope of the law, no sensible prosecutor would wish to proceed against persons who fall into any of those categories. However, by spelling them out, everyone knows where they stand.

It will be said that no one can predict all the reasons why someone may wish legitimately to travel to a designated area. I give three answers to that. First, the categories of such people are limited and relatively easily defined, in contrast to the categories of person who may have a reasonable excuse to download or access material under Section 58. Secondly, my list is closely based on that which appears in the equivalent Australian legislation, which the Security Minister referred to as a model for this clause. The Australian list was introduced in 2014 by the foreign fighters Act, and it has not been found necessary to substantively amend it since then.

I suggest amending it in only a couple of respects. Proposed new subsection (2)(d) expands on its Australian equivalent, which is providing aid of a humanitarian nature, though limits it to activities conducted through a registered charity. Proposed new subsection (2)(f) replaces the Australian formulation of making a bona fide visit to a family member on the basis that visits to brothers or sisters who are fighting are not to be encouraged and that Latin should not be inflicted upon juries more than is necessary. The third answer to the objection lies in the regulation-making power, which I propose should operate by the affirmative resolution procedure. In four years it has not been found necessary to use a similar power in the Australian law, which noble Lords may find encouraging.

The amendment does not aspire to infallibility but offers a degree of certainty appropriate to the criminal law. It will give assurance for those who travel for good reasons and assist the prosecution of those whose reasons are not so creditable. I beg to move.

[The Deputy Chairman of Committees (The Countess of Mar) (CB)]

I have to tell noble Lords that if Amendment 17 is agreed I cannot call Amendment 18 by reason of pre-emption.

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[Lord Anderson of Ipswich]

My Lords, I am extremely grateful to the Minister for his thorough and courteous response, and indeed to all noble Lords who have contributed to the debate on these amendments. It was intimidating when one noble and distinguished lawyer after another stood up—the noble and learned Lord, Lord Garnier, the noble Lord, Lord Carlile, the noble Lord, Lord Faulks—and rather a relief when most of them had only improvements to offer rather than outright opposition. On the point made by the noble Lord, Lord Faulks, about the ultimate purpose of this clause, with great respect, I prefer the view that the noble Baroness, Lady Manningham-Buller, put forward.

I entirely agree that there is room for discussion about the way some of these elements are phrased, particularly in relation to families and journalists, and perhaps in relation to courts—although it did seem that if there is no recognisable court in a place, then in a sense the issue does not arise of the non-application of the statute. But the fact that the scope of the exceptions is discussable does not mean it should not be done in the way that the noble and learned Lord, Lord Judge, endorsed in his short speech. The principle must surely be to define very tightly the situations in which the Act does not apply, and then allow the prosecutors to exercise their discretion in other cases. To my mind, that is the appropriate area for prosecutorial discretion. We will save the CPS and the courts a lot of trouble if we set out the broad lines now.

But I entirely accept that the Minister, in his helpful speech, has hinted at an alternative way forward, to retain reasonable excuse and perhaps couple that with an indicative list. I give no ground whatever on that, but will certainly reflect hard—and with others—on what he has very constructively suggested. The Minster kindly offered at the end of his intervention to reflect carefully on what had been said. I have not been in this place long enough to be able to decode very expertly what that means. I rather hope it is good news, but it may not be, and in any event I suspect we may be hearing more on this subject. I beg leave to withdraw the amendment.

Amendment 17 withdrawn.