Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

Report: 2nd sitting (Hansard - continued): House of Lords & Report: 2nd sitting (Hansard): House of Lords
Monday 17th December 2018 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, this is an issue that we debated in Committee when an independent review of Prevent was called for. The Prevent programme introduced by the Labour Government in 2003 has undoubtedly done much valuable work. My moving of this amendment should in no way be seen as not recognising that fact. As when we last debated this issue, I pay tribute to all those who work to keep us safe, to divert people away from a life of terrorism and to support people who contribute positively to the community. We should all recognise the good work that has been done. I am not aware of any specific problems that give rise to concern, but that does not in itself negate the fact that it is good practice to review matters.

The amendment does not specify who should carry out the review. I would be happy for it to be placed under the remit of the Independent Reviewer of Terrorism Legislation. It seems preferable to do that rather than appoint another person to carry out the review. Prevent has not been the subject of an independent review; I very much believe that the programme would benefit from that sort of oversight.

Clearly, questions have been raised over the programme’s operation and effectiveness. Some are justified, but other criticisms have been stirred up deliberately to undermine the programme. I see my amendment calling for review not as seeking to undermine the good work that has been done but as a sound, sensible, careful look at an area of policy and a programme that deals with matters of the utmost concern to the country as a whole and to individual communities.

In addition to the review, my amendment calls for a report to be laid before Parliament within 18 months of the Bill becoming an Act, and for the Secretary of State to produce a statement to accompany the report. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, we should have pride in the achievements of the many excellent people who work locally in Prevent, and in the increased transparency that has been a notable feature of the past few years. I have in mind not only the helpful publication of statistics but recent initiatives such as the staging in the West Midlands of simulated Channel panel meetings through which outsiders have been brought in to witness the process of decision-making.

As the noble Lord, Lord West, has indicated, triumphalism about the successes of Prevent would be quite out of place. In its report last month, the Intelligence and Security Committee noted that the failure to pick up attack planning by the Parsons Green tube bomber, Ahmed Hassan, despite him having been an active Channel case, highlighted what the committee called,

“deep-rooted issues in the administration”,

of Prevent. Assistant Commissioner Neil Basu described Prevent in an interview this February, when he was senior national co-ordinator for counterterrorism, as “hugely controversial”. He went on to say:

“Prevent, at the moment, is owned by the Government, but I think it should be outside central government altogether ... Rather than the Government handing over a sum of money and then it becoming state-sponsored with accusations of demonising communities, it should be locally generated. We have gotten all of that messaging the wrong way around, it should be grassroots up”.


I mention this to encourage noble Lords to avoid complacency on this subject and because the Minister quite rightly expressed in Committee her strong respect for Mr Basu’s views. Perhaps it shows that the best of us are not monolithic in our views; with great respect to my noble friend Lord Carlile, that is true also of the noble Baroness, Lady Warsi, whose recent book is both nuanced and constructive in its approach.

The legitimate questions raised by Mr Basu could be multiplied: how should Prevent relate to other safeguarding mechanisms on the one hand and to the Government’s Counter-Extremism Strategy on the other? How robust are the mechanisms for measuring success? To what extent should concerns derived from Prevent contacts be shared with counterterrorism police and others? Decisions as to the future direction of Prevent are of course for Ministers. It was encouraging to hear from my noble friend Lord Carlile that the Prevent oversight board might be showing signs of renewed life. But independent review of the operation of Prevent by a security-cleared person, based on the widest possible engagement with those affected, could help to inform those decisions. It could also provide much-needed public reassurance about an initiative which is so hotly debated that it has been described as “5% of the budget and 85% of the conversation”.

As Mr Basu said in February:

“Government will not thank me for saying this, but an independent reviewer of Prevent … would be a healthy thing”.


I agree, and I hope your Lordships will too.

[Lord Carlile of Berriew]

My Lords, I do not disagree with much of what has been said by my noble friend Lord Anderson. However, I have some concerns about a proliferation of independent reviewers. My suggestion to the Government is that, if there is to be an independent review of Prevent, it should be done by the new Independent Reviewer of Terrorism Legislation who I understand is about to be appointed. After all, Prevent is part of the four-strand counterterrorism policy; it seems logical that the independent reviewer should be able to consider all strands of that policy. My only reservation would be if there were serious national security implications of any such review. That said, all independent reviewers have had to be “subtle and nuanced”, to adopt a phrase from my noble friend, about national security issues. This has been taken into account in the production of all reviews.

Of course I accept that Prevent is not a perfect policy. All policies can be improved, particularly in counterterrorism. If it would give greater confidence to the public, or rather—as I suspect the public are not too worried about this—if it would give greater confidence to those who spend a lot of time in the Palace of Westminster and the couple of square miles around it, then I see no disadvantage in an independent review being carried out by somebody already vetted and expert on counterterrorism policy as a whole.

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Moved by

[Lord Anderson of Ipswich]

32A: After Clause 20, insert the following new Clause—
“Amendment to the criteria for proscription
For section 3(4) of the Terrorism Act 2000, substitute—“(4) The Secretary of State may exercise the power under subsection (3)(a) in respect of an organisation only if—(a) he or she is satisfied, on the balance of probabilities, that it is or has been concerned in terrorism; and(b) he or she reasonably believes that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for the organisation to be proscribed.(4A) For the purpose of subsection (4), the public includes the public of a country other than the United Kingdom.””

[Lord Anderson of Ipswich]

My Lords, the amendments in this group have their origins in a fact admitted by the Government, published in more than one of my reports as Independent Reviewer of Terrorism Legislation and, I am afraid, mentioned more than once to your Lordships: at least 14 of the 74 organisations proscribed under the Terrorism Act 2000, not including the 14 Northern Irish groups, are not concerned in terrorism and therefore do not meet the minimum statutory condition for proscription.

The question is: what do we do about that mismatch between law and practice? The pertinence of that question is greatly increased by the fact that a major theme of the Bill is to widen the scope, both substantive and geographical, of the proscription offences—membership, inviting support and so on.

Amendment 32B was designed to apply the law we have, by providing for an annual review of the activities of proscribed organisations—as happened routinely until four years ago—and the de-proscription of those lacking a statutory basis for continued listing. That principled course was chosen by Theresa May, as Home Secretary in 2013, when the irregularity was brought to her attention. With Amendment 32B, action on the conclusion of such reviews would be required by statute and could not be defeated by Foreign Office policy priorities, as was the case on that occasion, and indeed previous ones, judging from my noble friend Lady Manningham-Buller’s speech in Committee.

Since that seemed not to be enough, I tabled Amendment 32A in an attempt to make things easier. This would allow organisations to be proscribed if they are or have been concerned in terrorism, so long as the Secretary of State reasonably believes it necessary for purposes connected with protecting members of the public from a risk of terrorism.

That two-stage formulation is tried and tested. It was used in the Terrorist Asset-Freezing etc. Act 2010 and the Terrorism Prevention and Investigation Measures Act 2011. It would allow the continued proscription of groups which have a powerful history and terrorist brand, but in respect of which ongoing terrorist activity cannot be demonstrated. This could be particularly useful in Northern Ireland, where groups that have laid down their arms do not satisfy the current test but, depending on the Secretary of State’s assessment, could satisfy the new one. More fundamentally, it would have the merit of ensuring that the Government’s actions in relation to proscription are in accordance with the law; currently, they are not. This would be a useful example to set the rest of us.

I convey to the House the apologies of the noble and learned Lord, Lord Judge, who has had to leave his place and I beg to move.

[Lord Paddick (LD)]

My Lords, I rise to support the amendments in the name of the noble Lord, Lord Anderson of Ipswich, to which I have added my name. I really am intrigued to hear what the Minister will say about the fact raised by the noble Lord that at least 14 organisations still proscribed by the Government are not involved in terrorism and are therefore effectively proscribed illegally. The noble Lord’s amendments are designed to rectify that situation, requiring the Government to take action once a review has determined whether organisations currently proscribed should be proscribed or not.

It is not just a question of the organisations themselves; going back to previous measures in the Bill, anybody who supports these organisations could be convicted of a criminal offence, even though they are supporting an organisation that should not legally be proscribed. I am also very interested to hear from my colleagues on the Labour Front Bench why they would not support these amendments were the noble Lord to divide the House. We certainly would support him were he to test the opinion of the House.

[Lord Carlile of Berriew]

My Lords, the first thing to say is that organisations can apply to be de-proscribed; that should be on the record in this part of our debate. As I understand it, only one organisation has applied to be de-proscribed in recent years: the People’s Mujahedin of Iran. It was de-proscribed. The decision before the Proscribed Organisations Appeal Commission, or POAC, was contested on appeal by—

[Lord Anderson of Ipswich]

I did not mean to interrupt the noble Lord mid-sentence but, on a point of information, the Minister may like to confirm that at least two other organisations have applied to be de-proscribed: the International Sikh Youth Federation and the Red Hand Commando in Northern Ireland. De-proscription of the International Sikh Youth Federation was achieved when the Home Secretary failed to defend the legal proceedings. I know nothing about the progress of the application from the Red Hand Commando and it would be helpful if the Minister could enlighten us.

[Lord Carlile of Berriew]

I am very grateful to my noble friend, who is more up to date than I am. My understanding is that the only fully contested application was from the People’s Mujahedin of Iran, which won in front of POAC. The Government appealed and the Court of Appeal issued a judgment comprehensively disagreeing with the Government. The People’s Mujahedin of Iran—or the NCRI, which includes the PMOI—now functions openly throughout Europe, although its leader, Mrs Rajavi, is not allowed by the Home Office to enter the United Kingdom. My noble friend Lord Pannick and I remember this to our cost, because we were involved in a Supreme Court case on that very subject.

There is a method of seeking de-proscription. It is expensive and quite clunky, it has to be accepted. Secondly, I absolutely agree with my noble friend that there may be some organisations that have almost no membership, which do not have the resources to apply for de-proscription, and which individuals would not wish to expose themselves as being interested in by applying for de-proscription on their behalf.

However, there is another point I wanted to mention. This is a very subtle matter, particularly in Northern Ireland. It is very difficult to read the minds of some former paramilitaries, both big and small. For all we know, they may have reasons for wishing to remain proscribed. My concern about Amendments 32A and 32B relates to the wording of proposed new subsection (6A)(d), which requires the Government to “publish each such decision”. Having been involved from time to time in the area we are talking about, I believe that would potentially raise compromises for national security and undermine the stability of Northern Ireland, if that part of the amendment was required. That said, the addition of the words,

“that it is or has been concerned in terrorism”,

in Amendment 32A, which I understand from my noble friend was tabled in the last fortnight or so, provides some welcome clarity. I will give way, and then I will continue briefly.

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I have set out the Government’s position at length on these issues. I have given a clear commitment today that the Government do not regard proscriptions as fixed, and that if the Government become aware of fresh information which casts serious doubt on whether proscription remains appropriate for a given group, this information will be given serious consideration. On that note, I hope that the noble Lord feels able to withdraw his amendment.

[Lord Anderson of Ipswich]

I am grateful to the noble Lords, Lord Paddick, Lord Carlile, and Lord Kennedy of Southwark, and the noble and learned Lord, Lord Garnier, for their interventions, and to the Minister for her response, although its content was disappointing. I will respond briefly to the principal points that she made.

The Minister undertook or indicated that, if it came to light through fresh information that a proscription was inappropriate, then it would be reviewed. She said a lot about balance, discretion and appropriateness, but this really is not the area we are in. We are in the area of a hard legal requirement only if an organisation is concerned in terrorism. Is there even any question of getting into that area of discretion, balance and appropriateness? What these amendments seek to address is the mismatch between what the law requires and what the Government do.

The Minister raised the prospect of organisations that might engage, disengage and then re-engage, and I am sympathetic to that. It is precisely the difficulty I was seeking to address with Amendment 32A. That is the one which, by making it a condition to be concerned or to have been concerned in terrorism, elides and removes that difficulty. I would think it was helpful in addressing the problem to which the Minister referred.

The Minister said that annual review is not needed to ensure justice. I say with great respect to her that the evidence during the past 15 years is that nothing else has a hope of ensuring justice. It is not enough to rely just on the ability to apply for deproscription, because, as we have all heard, very few organisations over those years have applied to be deproscribed and one can understand why. It is very expensive. The PMOI case to which the noble Lord, Lord Carlile, referred cost some £300,000—perhaps that is lawyers for you. Someone has to put their head above the parapet and say that they want to apply. Some organisations for their own reasons might not want to apply. In any event, what comfort is that to the individual who is disrupted or investigated by police for possibly being connected with a terrorist organisation and who would never have been the person who would have applied for deproscription?

The Minister insisted particularly on Northern Ireland, where, like my noble friend Lord Carlile, I have had the privilege of spending a good deal of time over recent years with the security services. Surely at the root of the Northern Ireland settlement is respect for the rule of law. Continuing to ignore the law, which is what the Government are doing and propose to continue to do, is no substitute for enforcing and, if necessary, changing it, as the amendments propose.

The injustice about the law as it applies is that it exposes people in Northern Ireland, Great Britain and, after Clause 6 becomes law, in other countries as well to a range of police and prosecutorial powers in relation to activities that Parliament never intended should be criminal. The names of the groups that do not meet the statutory condition for proscription are not known to me, and I very much doubt that a secret list of them has been provided to police or prosecutors in the United Kingdom or that such a list would be provided to police or prosecutors in other countries. In those circumstances, there can be no reassurance that the law will be properly applied in practice.

I would have liked to divide the House on these amendments, not least because they concern the whole insecure basis on which much of the Bill is constructed—I am thinking particularly of Clauses 1, 2 and 6—but having heard from the respective Front Benches, I suspect that that could be a futile exercise. I shall not press my amendments and hope that, as the noble Lord, Lord Kennedy, and the noble and learned Lord, Lord Garnier, have constructively suggested, they may find favour in another form or on another day.

Amendment 32A withdrawn.