Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Lord Anderson of Ipswich (CB)]

I support the Government’s position on Amendments 42 and 46. In a report of July 2013, The Terrorism Acts in 2012, I recorded the result of an extensive inquiry conducted with MI5 and counterterrorism police into the value of no-suspicion stops under Schedule 7 to the Terrorism Act. I started from a position of, I hope, healthy scepticism, but noted three useful functions of the no-suspicion stop: deterring and detecting the use of “clean skins” to transport terrorist material; avoiding alerting travellers that they were the object of surveillance; and enabling the travelling companion of a person suspected of involvement in terrorism to be stopped and questioned. I followed this up with several real-life examples, which I had verified, of no-suspicion stops that had brought significant benefits in terms of disrupting potential terrorists. More to the point, perhaps, in the case of Beghal in 2015 a majority of the Supreme Court held that having regard to the many safeguards on its exercise, the absence of a suspicion requirement was not such as to render the basic Schedule 7 power inconsistent with the principle of legality. That judgment contained a lengthy comparison of Schedule 7 with the former Section 44, to which the noble Lord, Lord Paddick, addressed some remarks.

These few words should not be understood as a rejection of some enhanced threshold for the use of more specialised powers under Schedule 7 to the 2000 Act, or Schedule 3 to this Bill, such as downloading a phone or, indeed, taking a person into detention. Still less should it be understood as support for no-suspicion powers of stop and search in more orthodox areas of policing where threats to national security are not in issue. I hope, however, that it explains why I do not support these amendments.

[Baroness Hamwee]

The noble Lord reminds us about the draft code of conduct. It spells out considerations that relate to the threat of hostile activity and lists a number of factors, one of which, in the context of the stop not being arbitrary, is to have consideration of “possible current, emerging … hostile activity”, which is understandable, and “future hostile activity”. Can the Minister explain the distinction between emerging and future hostile activity?

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[Lord Anderson of Ipswich]

My Lords, I support the amendment. The independent review of terrorism law in this country dates back to the 1970s. It offers us in Parliament an assurance that in return for consenting to some exceptionally strong laws, whose operation is often shrouded in secrecy, a security-cleared person will be appointed to report on their application.

More recently, in a development pioneered by the noble Lord, Lord Carlile, the post of reviewer has become a token of good faith to the general public. Successive reviewers have criticised the Government where it is justified but their approval, when offered, has proved most helpful in dispelling myths and reconciling all sections of the public to controversial aspects of these sadly necessary laws, whether or not they are found to have been mistakenly applied in particular instances.

However, as has been said, Prevent has never been subject to the remit of the independent reviewer and is expressly excluded from the remit of the counterextremism commissioner. I would be the first to accept that policies must be decided by Ministers accountable to Parliament, but external review of the operation of a policy can be of particular value when potential conflicts between state power and civil liberties are acute but information about the use of those powers is tightly rationed.

Prevent is a well-intentioned, voluntary strategy that has achieved striking success, without a doubt, but it is handicapped from reaching its full potential by mistrust, in terms of both individuals and organisations that are willing to work with it. Criticism can fairly be aimed at some of the groups that devote themselves to promoting that mistrust. In my experience, such criticism is generally returned with interest, but blaming others is not enough. One has to ask why an anti-Prevent narrative, promoted by a controversial few, has been allowed to become so prevalent, not only in Muslim circles but more generally among the chattering classes of liberal Britain, and why there appears, from what I am told, to be more mistrust of anti-radicalisation programmes in this country than in comparable places, such as the Netherlands and Denmark.

For some years, I have thought that the Government should combat this hostile narrative through more transparency, wider engagement and commissioning a no-holds-barred independent review. On transparency, they have acted; I applaud the personal efforts of the Security Minister, Ben Wallace. The resulting, regularly published figures are a very good start and are now central to any informed debate, as indeed they were in previous debate on amendments to Clause 19.

On the other two fronts, we have further to go. This strategy is too important not to do as well as we can. An independent operational review with comparative reach would provide public reassurance where it is justified and constructive challenge to the Government where improvement is possible. I accept that it would be more useful if the Government wanted it, but the argument for a review does not depend on the prior identification of specific defects. I hope that the Government will agree to work with the amendments in a spirit not of self-harm but of self-help.

[Baroness Jones of Moulsecoomb]

I am not sure whether the noble Lord includes me among the chattering classes, but I forgive him anyway. Does he accept that those who feel mistrust are not the sort of people to make formal complaints and put their views on record, which is perhaps part of the problem with having cases where we can point a finger and say, “This is a problem and this is where the mistrust comes from”?

[Lord Anderson of Ipswich]

We have heard echoes of mistrust within this Chamber today from a number of noble Lords, so I do not suggest that it is limited to those who are incapable of expressing themselves or have no outlet by which to do so. Nor, for the sake of emphasis, do I suggest that such mistrust is justified. That would be precisely the point of a security-cleared independent review: to get to the bottom of whether things are as they seem and as they should be.

[Lord Sheikh]

My Lords, I want to make some comments relating to the Muslim community in the United Kingdom. There are more than 3 million Muslims in the country, who have come here from different parts of the world. The population is youthful in comparison with other communities. Muslims have done well in every walk of life and contributed to the advancement and well-being of the country. Nearly all of them are law-abiding people, but unfortunately a tiny minority has caused problems. They have been radicalised and committed terrorist acts.

What those misguided persons are doing and have done is totally un-Islamic. They have misunderstood our glorious religion and what they have done is not in accordance with Islamic principles. In the Holy Koran it is written: “Whoever kills an innocent person it is though he has killed all mankind, and whoever saves a life it is as though he has saved all mankind”. It is therefore imperative that we guide such people and tell them about the true principles of Islam. The Muslim community has a role to play in this regard, and I shall expand on this point later.

I have been actively involved in combating radicalisation among the community. In this regard, I prepared a report setting out the various problems and suggesting my recommendations. It was sent to the Prime Minister and a number of Muslim centres and mosques. In addition, I have had numerous meetings and conversations with members and leaders of the community, imams, teachers, parents and the media.

I want to emphasise that I support the Prevent strategy in principle but it is necessary for a review to be undertaken. I therefore support the amendment. To deal with issues concerning radicalisation, we need input and participation from local authorities, the police, schools, prisons and members of the community at all levels. I am trying to raise awareness that the onus is on the Muslim community to be honest and to realise that there are problems among a tiny minority and that it is therefore necessary to take positive action to remedy the issues. This means that a holistic approach must be taken by the community in conjunction with others. The involvement of the community is imperative. We must secure its co-operation to make the Prevent strategy work without problems.

I have travelled to various parts of the country and talked to leaders of mosques, imams, heads of community centres and members of the communities. The Prevent strategy has caused concerns and raised objections. Some critics of the strategy have said that there is racial profiling, excessive spying and the removal of basic civil liberties from innocent individuals.

It has also been mentioned to me that Prevent is perhaps a toxic brand. Not everyone in the community is convinced that the strategy is right, and the concept is difficult to sell to them. It has also been said that only self-appointed community leaders have been involved rather than members of groups which represent the community. The community therefore feels that it needs to be a part of the strategy in whatever form it may be constructed.

I said earlier that Islam is a religion of peace and that any form of terrorism is unacceptable in it. It is therefore imperative that Muslim leaders and imams guide people who may have been misled and are confused about Islamic values. The community therefore has a role to play.

At one of its annual conferences, the National Union of Teachers asked the Government to withdraw the Prevent strategy with regard to schools and colleges and to develop an alternative scheme to safeguard children and identify risks posed to young people. Teachers have said that the strategy causes,

“suspicion in the classroom and confusion in the staffroom”.

It has also been mentioned that Prevent is affecting education and undermining trust between teachers and pupils. It appears that about 65% of a total of some 5,000 Prevent referrals are Muslims. Muslims have a one-in-500 chance of being referred, hence the chances are 40 times greater than for someone who is not a Muslim. Furthermore, a very small number of referrals are acted on. These figures indicate that there is perhaps over-referral of Muslims, which needs to be looked into thoroughly. I have been made aware of some unpleasant incidents in schools where it was proven that Muslim children had been picked on for no good reason. This has led to anguish and anger. School authorities may have acted in good faith, but their actions were wrong.

It appears that the total cost of the Prevent strategy is more than £40 million. One needs to examine whether the money is spent effectively and we are getting proper value for our expenditure. The amount spent may be excessive and perhaps lucrative for some people. Furthermore, it is important that we apply suitable criteria before an organisation receives a contract for undertaking the work. We should ensure that proper checks and balances are applied to organisations granted contracts.

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Of course, we must continue to explore how we can do things better and, in the normal way, the fifth anniversary of the passage of the Counter-Terrorism and Security Act 2015 affords us the opportunity to undertake a post-legislative review of the provisions in Part 5 of that Act, which provides the legislative framework for Prevent. I hope my explanation of some of the positive impact that Prevent has will assuage any lingering concerns and that the noble Baroness will feel free to withdraw her amendment.

[Lord Anderson of Ipswich]

Since the Minister mentioned Assistant Commissioner Basu and what he had to say about the Prevent strategy, is she familiar with the interview he gave, I think to an American periodical, a few weeks before he was appointed to his current role in relation to counterterrorism in which he made a number of constructive suggestions for changing the Prevent strategy, in particular to make it more, as he put it, community focused and less top down?

[Baroness Williams of Trafford]

I shall read it with interest.

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Moved by

[Lord Anderson of Ipswich]

59: After Clause 20, insert the following new Clause—
“Review of proscription
(1) Section 3 of the Terrorism Act 2000 is amended as follows.(2) After subsection (6), insert—“(6A) In respect of each organisation listed in Schedule 2, the Secretary of State must at least once in every calendar year, starting in the calendar year following its listing—(a) review the activities of that organisation,(b) determine whether that organisation satisfies the conditions for proscription in subsections (5) to (6),(c) decide whether to vary or revoke the listing or to take no action with respect to it,(d) publish each such decision, and(e) lay a record of such decision before Parliament.””

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[Lord Anderson of Ipswich]

My Lords, I am sure that all noble Lords will agree that it is unjust to expose a person to prosecution for supporting a proscribed organisation when that organisation does not meet the statutory condition for proscription. That condition is being “concerned in terrorism”, a phrase defined in the Terrorism Act 2000 and elucidated by the Court of Appeal in the PMOI case—the only case on deproscription to have reached a final judgment. The Bill does not seek to amend that condition. Yet precisely such an injustice exists today and will be worsened by the Bill, and in particular by Clauses 1 and 2, which extend the substantive reach of the proscription offences, and by Clause 6, which extends their geographical reach.

No sensible person would deny that the likes of al-Qaeda, Daesh or indeed National Action, three of whose adherents were convicted this morning, are concerned in terrorism. However, our ever-lengthening list of terrorist groups features quite a few that, to put it bluntly, simply should not be there. In June 2013, as independent reviewer, I reported publicly that a preliminary analysis by the Home Office itself had identified 14 groups, some of them already removed from equivalent lists in other countries, that no longer met—or appeared no longer to meet—the statutory test.

Some of them had not done so before the Terrorism Act 2000 came into force. To the 14 should no doubt be added some Northern Irish groups. I cited the example of the women’s group, Cumann na mBan—any involvement in violence far in the past and its centenary celebrations recently attended by the Irish President—in debate on Amendment 32.

Confronted with this evidence and recognising that there was no track record of deproscription by the Home Office, even in those rare cases when someone was brave enough to ask for it, the then Home Secretary, the current Prime Minister, came up with a principled solution: a programme of deproscription to be completed during the first part of 2014 and to be informed by the internal reviews that were, at the time, still conducted every year, and which a High Court judge had described as,

“certainly a practice that the Secretary of State should continue to adopt”.

But principles were not enough. The solution failed, despite the best efforts of the Home Office, because proscription of international organisations, particularly separatist organisations, is seen in some quarters as a cost-free way to please foreign Governments—although I suggest that it could not be described as cost free for members of the relevant communities in the UK, who are liable to find themselves under enhanced suspicion when an organisation claiming to represent their community is deemed to be a terrorist group. I reported also on that.

Furthermore, in Northern Ireland, where, as far as I know, there has never been a system of annual review, the non-statutory solution was never even attempted. Embarrassed by its failure, the Home Office discontinued even its former practice of annual review, because it was apparent that reviews determining that the statutory condition was not met were simply never acted on.

This sorry state of affairs persists today. I described it in my final report of December 2016—I am sorry if the phrase is strong, but it is the strongest phrase I ever used in six years as independent reviewer—as an,

“affront to the rule of law”.

Fortunately, there is a solution—and by no means a radical one. The amendment would reinstate the internal reviews that the Home Office always used to operate and extend them to Northern Ireland. By placing the Home Secretary and the Northern Ireland Secretary under a statutory duty to publish and act on the conclusions of their reviews, it would allow them to resist those who, for reasons of foreign policy or because the topic is simply too difficult, would frustrate the clear application of the law.

The amendment will do nothing to endanger us. On the contrary, it will preserve us from the unfortunate tendency, born of misplaced expedience, to use anti-terrorism powers in circumstances where Parliament itself has decided that they should not apply. I beg to move.

[Lord Judge (CB)]

My Lords, it is very simple really, is it not? We spent time in Committee rightly debating the problems of trying to criminalise expressions of opinion or belief and identifying that a proscribed organisation should be one that none of us should support or encourage. Fine. The essence of the problem, however, is this. We should be allowed to express opinions and beliefs about organisations which are not proscribed. That is elementary, and this House will not need a disquisition from me about the importance of being able to do so. The problem is this. We are not in a position to express opinions about organisations which are currently proscribed which should no longer be proscribed or whose proscription should have been removed years ago. That is an affront to the rule of law, and I therefore support the amendment.

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[Baroness Williams of Trafford]

My Lords, I am not entirely sure. They are different procedures. I shall write to the noble Lord on the difference because he makes a valid point.

[Lord Anderson of Ipswich]

I am grateful to the Minister. While she is writing to the noble Lord, Lord Pannick, could she perhaps answer my question? Even if she is correct that the ability to apply to have an organisation deproscribed is a substitute for my amendment—the track record very much suggests that it is not—and assuming that in her favour, could the Minister explain in the letter, or in person if she prefers, what consolation that could be to the innocent member of the community in London who comes under suspicion for alleged links with a proscribed organisation but who has no connection with it and could not in 100 years have been expected to be the person who makes that application?

I am trying to avoid naming specific communities, although I have spent plenty of time in London with Tamils, for example. For them, the fact that the LTTE remains a proscribed organisation—rightly or wrongly; I have no judgment on that—can be a significant impediment on how they go about their everyday life. What consolation could it be for the Tamil greengrocer in London to know that, had they wished to do so, the top brass of the LTTE, or others intimately connected with it, might have made an application for deproscription?

[Baroness Williams of Trafford]

They could have done. I do not know whether or not it is a consolation, but they could have done.

The point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, does not conflict with Clause 1 because there is no offence to suggest that a group should be deproscribed under Clause 1. Is that what he was referring to?

[Baroness Williams of Trafford]

The first part of that would not conflict with Clause 1, but the second part of that statement would, as you are then promoting it as an organisation. Perhaps we can talk about that subsequently.

I move on to Northern Ireland, because I want to talk about the amendment in that context. Any change to the current regime must be carefully considered, paying particular regard to the unique historical and current security context and challenges in that part of the United Kingdom. Paramilitary activity has a greater impact in Northern Ireland than in any other part of the UK. Because of this complex environment, proscription remains an essential tool in the wider, strategic approach to tackling the continued and widespread existence and impact of paramilitary groups in Northern Ireland.

Terrorism legislation, including the proscription regime, is of course an excepted matter in Northern Ireland—it is reserved to the UK Government—but the impact of this amendment cannot be divorced from what is happening at the devolved level. Any change to the proscription regime would have a significant impact on wider efforts to tackle paramilitary activity currently being undertaken at a devolved level and supported by the UK Government and multiple agencies and bodies through the Tackling Paramilitarism programme. A decision to change the proscription regime in Northern Ireland could not, and should not, be taken in isolation from these other initiatives and without detailed prior consultation with the devolved Administration and security partners.

Given the current suspension of the Northern Ireland Assembly and Executive, the opportunity to undertake such consultation does not present itself at this time. We simply cannot ignore the operational, policy, resourcing and wider political ramifications of this amendment. These implications arise in relation to the proscription of international terrorist organisations, but are particularly acute in relation to Northern Ireland-related terrorist organisations. I know that this is a sensitive area, and that this House is rightly concerned to ensure that we strike the right balance, both in relation to the proposed new clause and to the other clauses in the Bill which amend proscription offences.

Finally, I suggest that noble Lords proceed with great caution in this area, given the considerations which I have just outlined. The learned position which the noble Lord has set out needs to be balanced against the reality that these are serious and, in some cases, unpleasant terrorist groups. They have been proscribed with good reason and the Government are anxious to ensure that they do not pose a resurgent threat to the public. I hope that, at this stage, the noble Lord will be content to withdraw the amendment.

[Lord Anderson of Ipswich]

My Lords, I am grateful for the flattering words with which the Minister began and overwhelmed by the distinguished support for the amendment from so many noble Lords. With great respect to the noble Lord, Lord Carlile, I hope that the Minister will not only carefully consider the amendment—as improved by the noble Lord, Lord Pannick—but see the benefits to the Government of having it enshrined in law and not just in an undertaking, so that there can be no doubt who wins in any future conflict within the Government of the sort that the noble Baroness, Lady Manningham-Buller, and I have experienced in our different capacities.

In case it was in any doubt, I clarify that the amendment seeks not to change the proscription regime in Northern Ireland but simply to ensure that the existing regime, as written very plainly in law, is applied. I beg leave to withdraw the amendment, but fully expect to return to it on Report.

Amendment 59 withdrawn.