Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Paddick

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

[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—

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Paddick

Monday 17th December 2018 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, Schedule 3 to the Bill will confer a bristling armoury of powers on ports police: the power to detain travellers for up to six hours; a requirement that questions be answered and passcodes surrendered, on pain of prosecution and possible imprisonment; powers to take samples and strip search; and the power to download and retain the entire contents of laptops and mobile phones. In Committee, I expressed unease at the prospect of some 1,400 ports officers up and down the country being entrusted with these powers and the right to use them without any need for suspicion for the purpose of determining whether members of the travelling public appear to be engaged in activity that, while reprehensible, is perfectly lawful.

At that stage, three examples were given of activity that was said to be detrimental to national security without amounting to serious crime. Each of them fell squarely within the scope of the Official Secrets Acts 1911 and 1920 and could thus have quite legitimately been the subject of questioning under a law formulated according to these amendments. I continue to believe that strong coercive powers of this nature should, as a matter of principle, be available only in the context of criminality and that the best way to address any deficit is by amendment or addition to our national security legislation. However, since Committee, two further examples have been put to me on which the Minister may choose to elaborate that suggest at least one respect in which our existing law is inadequate to protect against threats to our national security. So until that gap has been filled, a pragmatic case, I accept, has been advanced for extending the Schedule 3 power beyond serious crime.

Furthermore, government Amendment 34C has addressed the most obviously objectionable feature of the clause, and that is its unqualified recourse to the nebulous—if I may use that word—notion of threats to,

“the economic well-being of the United Kingdom”.

I understand that further assurances are to be offered in the draft code of practice that will be laid before this House after the passage of this Bill.

Finally, I take comfort from paragraph 62 of Schedule 3, which the Minister mentioned in the previous debate, which requires the Investigatory Powers Commissioner—currently Sir Adrian Fulford, a serving Lord Justice of the Court of Appeal—to keep under review the operation of the relevant provisions, and provides for the publication of the commissioner’s annual review. Annual reviews over the many years of the equivalent power under Schedule 7 to the Terrorism Act have given rise to a number of changes to the code of practice and to legislation, and have been extensively relied on in the courts.

Will the Minister confirm that the necessary additional resources will be made available to the Investigatory Powers Commissioner for the performance of that task by him and his office? Will she confirm that that will be the case even if the number of stops should turn out greatly to exceed the current estimate of 100 per year? She will remember that, according to figures—provided to me by the Metropolitan Police and published in December 2016—on the intelligence reports filed after Schedule 7 stops between 2009 and 2015, an annual total of between 5% and 8% related to counterespionage and between 8% and 17% related to counterproliferation. That was despite the fact that at that stage no specific power existed for questioning travellers in order to determine whether they were spies or proliferators. It would seem that quite large numbers of people who might have fallen within those categories were stopped and questioned. If remotely accurate, those figures are suggestive of the possibility that the Schedule 3 power could be used up to a few thousand times a year rather than merely several dozen. I appreciate that the Minister does not have a crystal ball, but the need for proper resource to report on this extremely sensitive power is clear and I hope that she will acknowledge that.

On that basis, I support government Amendment 34C and do not propose to press Amendments 34A, 34B or 34D. I beg to move.

[Lord Paddick]

My Lords, I added my name to the amendments in the name of the noble Lord, Lord Anderson of Ipswich. As he said, the Schedule 3 powers are considerable and can be exercised against someone even if the activity they are suspected of being engaged in does not amount to a serious crime. Therefore, we certainly feel that the amendments are valid. However, we accept that the noble Lord has received reassurances from the Government, which I hope the Minister will elaborate on in her response. Clearly, following the comments that we made from these Benches about actions that affect “the economic well-being of the United Kingdom”, the amendments tabled by the Minister provide reassurance on that particular issue.

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Paddick

Report: 1st sitting: House of Lords
Monday 3rd December 2018 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, the burden of proof should be on the prosecution and should be seen to be on the prosecution. Lawyers who know where to find Section 118 of the Terrorism Act 2000 may be untroubled by the point made by the noble Lord, Lord Rosser. However, the existence of that section is not widely known. Indeed, only last week I found myself in that great deliberative assembly, Twitter, correcting the damaging and widespread misapprehension, advanced in good faith, that the Terrorism Acts reverse the burden of proof. I support the idea behind the amendment, although—as I am sure the noble Lord, Lord Rosser, would accept—if it is to produce clarity, it would have to be applied a little more widely to a variety of existing offences under the Terrorism Act, including Sections 57 and 58.

[Lord Paddick]

My Lords, I agree with both noble Lords. The amendment seems to be common sense. As the noble Lord, Lord Anderson of Ipswich, said, while Section 118(2) places the burden of proof on the prosecution to disprove the reasonable excuse, you have to hunt pretty far to find it. Currently it does appear, if one takes an ordinary, common-sense meaning from what the legislation says, that the burden is actually reversed.

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Paddick

2nd reading (Hansard - continued): House of Lords & 2nd reading (Minutes of Proceedings - continued): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Lord Paddick (LD)]

My Lords, this has been an interesting and well informed debate. We also had the joy of listening to two excellent maiden speeches. While listening to the noble and learned Lord, Lord Garnier, I wrote down the words, “Amusing and informative”. Unlike during his previous maiden speech, noble Lords were riveted by what he had to say. I am sure the noble and learned Lord will prove that he has his uses in this House. “Generous and thoughtful” is what I wrote while listening to the speech from the noble Lord, Lord Tyrie. His electoral record in Chichester speaks volumes about the esteem in which he is held generally. Judging by what he said this evening, I am in no doubt that he will be fearless in his future contributions in the House. I also thank the Minister for comprehensively introducing the Bill.

I pay tribute to the police and the security services. During consideration of previous legislation, I had the privilege of going both to GCHQ and to the security services headquarters. I was impressed not only by the capability of those working in the services but by their integrity. The noble Lord, Lord Hogan-Howe, and others talked about the numbers involved—the number of suspects and the number of operations going on—which just goes to prove how successful the police and the security services have been, despite the tragic events that we have seen in recent years.

I am not wrong in saying that there has been a general consensus, on all sides of the House, that the legislation—whatever it ends up as—needs to pass the test of being necessary and proportionate. The noble Lord, Lord King of Bridgwater, the noble Baroness, Lady Howe of Idlicote, and even the noble Baroness, Lady Manningham-Buller, all suggested that that was necessary. There were perhaps two notable exceptions to that consensus, as that was not something that the noble Lords, Lord Blair of Boughton and Lord Tebbit, would support.

I say to the noble Lord, Lord Tebbit, in particular that I was the police spokesman after the bombings on 7 July 2005. I was in this House when the terrorist incident happened in which one of our police colleagues was killed. I was at home, a 10-minute walk away from London Bridge, when that attack happened. That is not the first-hand, tragic experience that the noble Lord has had, and I completely understand that his experience has deeply affected him. We should not lose sight of the impact that these incidents have had on the victims.

So there is a consensus, generally. Clearly, as the noble Lord, Lord King, said, there may be some differences of opinion as to what is necessary and what is proportionate. Obviously, we accept that this legislation has already been through the other place. But, as the noble Lord, Lord McInnes of Kilwinning, said, some in the other place said that they agreed to the legislation being passed subject to it receiving scrutiny in this House, and that is clearly what we must do.

We on these Benches will support any necessary and proportionate measure that makes the United Kingdom safer or will help defeat terrorism, but we will not support measures that we consider to be disproportionate and counterproductive. Colleagues on these Benches, particularly my noble friend Lady Hamwee, highlighted evidence from the Joint Committee on Human Rights—concerns that not only we share but the current Independent Reviewer of Terrorism Legislation, Max Hill, also shares. We offer a similar view to his. There are some good, pragmatic measures in the Bill, but there are others that go too far.

As the noble Baroness, Lady Jones of Moulsecoomb, suggested, only in the most extreme cases should the police be given such wide discretion that they can arrest someone engaged in potentially completely innocent activity where the person arrested has to rely on a reasonable excuse defence. Having a reasonable excuse defence in legislation is no protection from an innocent person being arrested and potentially charged.

I echo the concerns of the noble Baroness, Lady Warsi, and the right reverend Prelate the Bishop of Newcastle. If I understand my noble friend Lord Thomas of Gresford correctly, with “reckless”, either it is an objective definition of reckless, in which case we are into the realms of people being arrested for what they think or simply for expressing their view, or we are looking at a subjective definition of reckless, which is what the current law says. In that case, the provision is superfluous to what is already in existing legislation. Clearly, we need to consider these issues carefully.

Similarly, in terms of other provisions in the Bill, it is not too difficult to think of circumstances where a teenager innocently takes a selfie in a mate’s bedroom not realising that there is an ISIS flag on the wall behind him and posts that photograph on Facebook. The next thing, that individual is in police custody—a completely innocent action that results in them being arrested.

Under this Bill, it would also be an offence to click on a page on the internet that has,

“information of a kind likely to be useful to a person committing or preparing an act of terrorism”.

Just one attempt to look at the document could result in that individual being arrested, with a potential term of imprisonment not exceeding 15 years. The Minister said that previous legislation covered only situations where documents were downloaded and now we have a situation where people are streaming or simply just looking at documents. Not too long ago, we in this House considered at length internet connection records. Surely that sort of thing will provide the necessary evidence, even if people are looking at or streaming information rather than downloading documents. There is a lot to be considered here in terms of whether the legislation is necessary or whether it goes too far. Of course, it was only at the last minute that that particular provision about looking at things on the internet was changed from being one where someone looks at a page on the internet, goes back to it and goes back to it again before they can be convicted to being a one-click offence.

The other last-minute provision that we have serious concerns about is the Secretary of State designating areas overseas as being illegal for UK citizens or residents to travel to. It could become illegal for a Syrian refugee who is resident in the UK but whose family still lives in Syria to visit them, even though his mother or father could be dying. Again, the Government will say that there is the “reasonable excuse” defence, but how sick does your mother have to be before it is considered reasonable for you to travel to a designated area? There would be no reason in law why you should not be arrested and charged, whatever the circumstances. The Government will say that the police are not going to arrest innocent people, but the history of policing is littered with cases of innocent people being wrongly arrested where legislation has been drawn too broadly. Sometimes they have even been charged and wrongly imprisoned.

Surely there must be a way for academic researchers to get permission in advance in order to look at offending pages on the internet, or that grieving family members or humanitarian workers can get permission to visit these areas in advance. As my noble friends Lady Hamwee and Lord Thomas of Gresford said, should there not be an opportunity to get the “reasonable excuse” defence in first?

Clearly, offences should carry a penalty that both deters and keeps innocent people safe, but sentence inflation, as suggested in this Bill, will simply add to the crisis in the Prison Service, as my noble friend Lord Marks said. Contrary to what the noble Lord, Lord Hogan-Howe, said, this is not about the fact that prisons are full and therefore we should not put terrorists in prison. This is about the difference between prisons being a place where people with extremist views can be rehabilitated and prisons being a place where radicalisation can become endemic because of overcrowding and the lack of ability of prison staff to carry out any sort of rehabilitation. Surely a smaller prison population would be better, in that we know that prisons are places where people, being at their most vulnerable, are more easily radicalised. Keeping people in prison for longer periods of time surely gives more opportunity for that to take place.

As many noble Lords have said, in some communities there is deep suspicion about Prevent, and along with Independent Reviewers of Terrorism Legislation, the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Warsi, we support not only an independent review of Prevent but a recasting of the programme with a much more community-based approach that is incorporated into other safeguarding functions. Those at risk of being radicalised are also in danger of being exploited sexually or being drawn into criminal gangs. Prevent should be part of a broader safeguarding process rather than people being potentially stigmatised as a result.

I have to say that there was a bit of conflict between what my noble friend said and what the noble Baroness, Lady Barran, said in terms of the statistics around referrals to Channel panels. On one reading, it would seem that only a small proportion of people who are referred are actually considered to be at risk of being radicalised, while on another reading it seems to be a rather higher proportion. Again, we need to consider those issues very carefully.

Finally, there is the extension of Schedule 7. We agree with the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson of Ipswich, that Schedule 7 powers and the powers in this Bill should be limited to those who are reasonably suspected of being involved in the commission, preparation and instigation of acts of terrorism.

[Lord Anderson of Ipswich]

On a point of order, I have always accepted that the Schedule 7 power to stop should be exercisable without the need for reasonable suspicion. I said that some higher threshold should perhaps be required for some ancillary powers, for example those to detain and examine electronic devices.

[Lord Paddick]

I am grateful to the noble Lord, but the fact is that at the moment, if you are crossing the UK border, you can have your mobile device or computer seized and examined even without any reasonable suspicion. Extending that to those who are now engaged in hostile activity would seem to make this issue potentially worse.

I understand that the Bill is a response to the Prime Minister promising to harden the country’s defences against all forms of hostile state activity following the attempted assassination of the Skripals, but can the Minister confirm whether that was an act of terrorism covered by the existing Schedule 7?

As I have said, we on these Benches will support any reasonable and proportionate response that makes this country of ours safer. However, we believe that large parts of the Bill are unreasonable, disproportionate and could potentially make us less safe, although we look forward to being convinced otherwise.

Finally, I completely agree with the noble Baroness, Lady Warsi, on the Government’s disengagement with Muslim organisations. Individual members of those communities may have said things that they now regret, but as a result the Government refuse to engage at all with those communities. At the end of the day, a former head of police counterterrorism said that the police and security services alone will not combat terrorism, but organisations working closely with communities will defeat terrorism. If communities are to work with us to defeat terrorism, we need to engage with them.