Counter-Terrorism and Border Security Bill

Lord Carlile of Berriew Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I start by making it clear that I am completely opposed to people encouraging the membership and support of terrorist organisations. I did not need to say that but I felt that I should.

However, Clause 1 casts the net far too wide and risks criminalising perfectly innocent behaviour. There is widespread concern in this House about the fact that it is far too wide. Therefore, my Amendments 2 and 4, alongside the other amendments in the group, seek to make this new offence a reasonable one. Without making significant changes to the clause it will be in clear breach of the European Convention on Human Rights. As currently drafted, the offence is too vague to be “in accordance with the law” and too broad to be a proportionate way of achieving a legitimate aim.

From the Government’s Explanatory Notes to the Bill it is clear that this clause is a response to the case of the Crown against Choudary, as we have heard, in which the Court of Appeal considered the existing Section 12 offences. The Explanatory Notes state:

“The Court of Appeal was clear that a central ingredient of the”,


existing,

“offence was inviting support from third parties for a proscribed organisation and that the offence ‘does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs’ ... This clause therefore provides for a new offence which criminalises the expression of an opinion or belief that is supportive of a proscribed organisation”.

It is therefore necessary for this House to consider Clause 1 in light of the Court of Appeal’s judgment in Choudary.

The focus in that case was on the meaning of “inviting support” in the existing Section 12(1) offence. There were additional questions of whether that offence was a breach of the European Convention on Human Rights. The answer to the first question meant that there was no breach, but using the court’s analysis is illuminating.

Without wanting to get into a legal wrangle, as we have done so often in the past, such as on the different between “agreement” and “consensus”, I have to explain the definition “inviting support”. The court used dictionary definitions. Inviting was taken to mean making a request; support was taken to include the provision of assistance, encouragement, advocacy and endorsement—a mix of practical, tangible and intangible support. On that basis, the court held that there was not a breach of human rights. Although the right to freedom of expression was engaged, it was a legitimate aim to restrict that right when it comes to inviting support for proscribed organisations.

Next, in accordance with jurisprudence from the European Court of Human Rights, the court asked whether the Section 12(1) offence was a proportionate response to the legitimate aim. If it was, it was lawful; if not, it would be an unlawful breach of human rights. In paragraph 70 of its judgment, the court determined the following:

“When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation. To the extent that section 12(1)(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified”.


This is where it becomes obvious to me that Clause 1 would be an unlawful interference in human rights. In fact, it is so obvious that I am surprised the Government could bring a clause of this sort before the House. Making a statement in the Bill that it is compatible with the European Convention on Human Rights is plain wrong.

Clause 1 seeks to create a much broader offence than the existing statutory one but in doing so, it crosses all the red lines that were identified as making the existing offence lawful. The existing offence does not criminalise the expression of views and opinions—free speech—whereas Clause 1 does. The existing offence is limited to “support”, whereas Clause 1 uses the broader term “supportive”, and the existing offence applies only to people with the requisite intent—a guilty mind—whereas Clause 1 extends to anyone who is “reckless” whether they meant to support a terrorist group or not.

The Bill casts the net far too wide. It risks criminalising all sorts of opinions that are supportive of a proscribed organisation. The Oxford English Dictionary definition of “supportive” is something that,

“provides strength by assistance, belief, or tolerance; providing sustenance or resources; sustaining; that provides evidence or authority; confirmatory, corroborative”.

Even expressing an opinion of tolerance would fall foul of this new offence. I believe that the Government have deliberately used the broader wording, so my Amendment 2 seeks to retain the existing word “support”. I would welcome the Minister explaining the Government’s reasoning and what effect they intend by using “supportive” in its place.

My Amendment 4 aims to do the same as Amendment 3, tabled by the noble Baroness, Lady Hamwee, which I support and am supportive of. Casting the broad net of guilty intent in this offence over people who did not intend to encourage support will catch so many innocent people; it is just plain wrong. It would include any expression of tolerance where a person, perfectly innocently and sensibly, advocates a ceasefire and peace talks with a proscribed organisation, if that person identified the risk that someone might feel encouraged to support the organisation as a result. Put simply, Clause 1 criminalises the search for peace, makes innocent people guilty and is an unforgivable breach of our human rights. I will vote against its inclusion in the Bill.

[Lord Carlile of Berriew (CB)]

My Lords, with great respect to the noble Baroness, I think that we have just heard a gross exaggeration not only about the effect of this clause but also its intention. Judgments as to whether organisations should be proscribed are of course expressions of an opinion by a Minister. They are not perfect judgments, and to that extent I support Amendment 5 tabled by the noble Baroness, Lady Hamwee, and others. The Independent Reviewer of Terrorism Legislation—I think that there are two former independent reviewers in the Chamber today—might well suggest in reports that a proscribed organisation should be deproscribed on the basis, for example, that it is better to deal with the organisation openly in debate than by proscription. I recall during my now somewhat historic time as the independent reviewer that there were strong debates about whether certain organisations should be proscribed or not.

With that reservation, it seems that this clause would achieve the following. First, it recognises that even in this relatively gun-free country, if someone expresses support in a certain way for a proscribed organisation, it may put some of our fellow citizens in mortal danger of their lives. There are plenty of examples of that having happened, and indeed there are examples of the person who has already been mentioned, Mr Choudary, himself a former lawyer, of having possibly achieved exactly that. It does not criminalise the expression of support, rather it forbids and criminalises the expression of support on certain terms as set out in proposed new Section 1A(b), and that is the test of recklessness. Recklessness requires awareness of the risk that is being taken by the speaker. I can see absolutely no reason to allow people to take a risk of which they are aware that potentially will put other people in mortal danger.

[Viscount Hailsham (Con)]

I am grateful to the noble Lord for giving way. Does he agree that the test of recklessness is a less stringent one than that of specific intent?

[Lord Carlile of Berriew]

Of course I agree with that, but in my view, and as I thought I made clear, the test of recklessness is entirely appropriate in this situation. If, for example, somebody preaches a sermon while being aware of the risk that he knows or should expect may radicalise another into killing citizens such as Lee Rigby, that to me is a proper protection of our society and the responsibility of the Government. I do not see why that should not be criminalised. I know that the noble Lord, Lord Thomas of Gresford, is an expert on recklessness so I shall give way to him.

[Lord Thomas of Gresford (LD)]

I rise only to criticise the use of the term “should expect”. It seems to introduce an objective test when, as he said earlier, it is subjective.

[Lord Carlile of Berriew]

When I referred to the noble Lord as an expert on recklessness I was not making a personal slight. I believe that he appeared in the case of Caldwell, which for some years has been overruled, so he knows the law on this. But in my view, a person who makes a statement of that kind, knowing of the risk of it being taken up by a radicalised Islamist or right-wing extremist, should expect the force of the criminal law to fall upon them. That is all the Government are seeking to do. On this clause at least, in my view, the Government are meeting the legitimate expectation of citizens subject only to my reservation about Amendment 5, which I would suggest the Government should consider carefully.

[Baroness D'Souza]

Does the noble Lord agree that context is still a very important matter? If someone is preaching a sermon and is therefore in a position of authority, it is likely that they will actually persuade another person to commit a particular criminal act in a place and over time. However, expressing that view in a different context would not necessarily cause there to be violent action within the particular space and time. One therefore has to define the context.

[Lord Carlile of Berriew]

There may be a philosophical difference between my noble friend and myself: I take what those who remember him call the Selbornian view that, of course, we have our freedom to speak, but with that freedom of speech we owe certain responsibilities to our fellow citizens. In my judgment, for what it is worth, this clause actually creates that social contract on these issues.

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[Viscount Hailsham]

I shall respond to that intervention and then revert to Amendment 6. I have a lot of sympathy with what the noble Lord, Lord Davies, has said. I have always been on the fairly extreme end of libertarianism when it comes to free speech—and, indeed, in many other aspects of life. As a general proposition, it is much better to know what your enemies are saying, not to ensure that they say it covertly. I like to know who my enemies are and what they are saying: it is then much easier to combat them than if you create a context in which everything is done covertly. In principle, I agree with his position.

[Lord Carlile of Berriew]

Will the noble Lord give way?

[Viscount Hailsham]

I will, but I say for the avoidance of doubt that I have the misfortune to be deaf in one ear. Therefore, when people come up from behind, it is very difficult for me to know that they are there. I hope that I will be forgiven and not treated as discourteous.

[Lord Carlile of Berriew]

The noble Viscount is fortunate to be deaf in only one ear; I and many others here are rather deaf in both. Leaving that aside, does he agree, particularly having regard to what was said by my noble friend Lord Anderson about Clause 59, that it might be helpful to hear from the Minister something about how the Government review and examine the list of proscribed organisations, so that Parliament can be reassured that it is not simply a static list that never changes? I understand that there is a regular review process, but I may be out of date.

[Viscount Hailsham]

My Lords, the point made by the noble Lords, Lord Anderson and Lord Carlile, is entirely right. As I get the sense that the Committee wants to hear from the Minister fairly smartly, I shall now proceed to Amendment 6 and deal with it fairly swiftly. I hope my noble friend will forgive that I cannot accept Amendment 6, for this reason: the phrase used is “for the purposes of journalism”. There is no real distinction between the concepts of “in the course of journalism” and “for the purposes of journalism”: they are very close, if not the same. Many of the proponents of the cases of proscribed organisations, including Mr Choudary, often use newspapers to express their view. If you provide a specific defence to cover language in newspapers and people writing in newspapers—that is what the amendment does—you drive a coach and horses through the entirety of this part of the Bill.

The noble Lord, Lord Davies, also has a point here. I am very cautious about making distinctions between journalists and the ordinary citizen. I am very far from persuaded that, as a general proposition, a journalist should have a privileged position as contrasted with the ordinary citizen. I am not able to agree with my noble friend, but I will of course give way to him.

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[Lord Carlile of Berriew]

I apologise for interrupting the Minister. Can she reassure the Committee that the Home Secretary’s regular reviews are, first, regular in the sense that they take place at fixed periods and, secondly, that the reviews include looking at organisations—there may be some in Northern Ireland—which now have no members at all and have not engaged in any activity, so no one is going to apply for de-proscription and they are simply redundant? I certainly suspect that there may be some organisations of that kind.

[Baroness Williams of Trafford]

The point the noble Lord makes moves us very much into the territory of Amendment 59. However, I can confirm absolutely that the Home Secretary regularly reviews proscribed organisations. As noble Lords will probably remember, I have advised deproscription on a number of occasions. We will come to that point in due course.

Perhaps the noble Lord would remind me of his second query.

[Lord Carlile of Berriew]

It was simply about the deproscription of organisations that basically do not exist any more.

[Baroness Williams of Trafford]

I have probably answered that, but I know that we will have a full debate on Amendment 59.

Section 10 intentionally does not extend a blanket immunity to situations where a person makes a statement that may generate support for a proscribed terrorist organisation and which is not connected to an application for de-proscription, but is made in the course of a debate about whether in principle the organisation ought to remain proscribed. Such statements may well be entirely legitimate and may address matters of fact and of law in neutral terms, in which case they would not be caught by Clause 1, but they may also be reckless as to whether they will encourage others to support the organisation. They may not only suggest that the proscription should be lifted but argue that this should be done because the terrorist aims and activities of the organisation are a good thing, potentially giving rise to the serious harms I have described. One noble Lord has given examples of both of those scenarios. To provide a blanket exemption for any and all such statements would undermine the fundamental purpose of the offence and would risk preventing its use in exactly the situations for which it is intended.

Finally, I turn to Amendment 6 in the name of my noble friend Lord Attlee. This would introduce a blanket exemption from the offence for any expression or belief that would otherwise be unlawful which is published or broadcast for the purposes of journalism. It is of course beyond doubt that the freedom of journalistic expression, within the law, should be sacrosanct. Given the importance of this public interest, I expect the police, the CPS and the courts to tread very carefully indeed in any case where a journalist is suspected of an offence under Clause 1, in line with the normal safeguards and tests for prosecution. However, just as the noble and learned Lord, Lord Judge, argued so succinctly, I cannot agree that there should be an absolute exception for any person engaging in journalism.

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[Baroness Hamwee]

My Lords, I shall also speak to Amendment 8 in this group. Clause 2 amends Section 13 of the 2000 Act to criminalise the online publication of an image depicting clothing or other articles which,

“arouse reasonable suspicion that the person is a member or supporter of”—

maybe even supportive of—“a proscribed organisation”. At least we are not taxed with whether that is directed at anyone.

In their response to the Joint Committee’s report the Government told us that they do not believe that legitimate publications will be caught, as the offence bites only where the publication arouses reasonable suspicion of membership or support. However, in our view the arousal of reasonable suspicion is a low threshold to make out an offence. We are concerned that the clause risks catching a lot of conduct that, in common-sense terms, should not be caught. The amendments are, of course, alternatives: they would either leave out subsections (2) and (3) or, in Amendment 8, amend subsection (3) rather than omitting it, to provide that there is no offence,

“if there is a reasonable excuse for the publication of that image, such as”—

whether this is the best way to give examples or not I do not know—

“historical research, academic research or family photographs”.

In other words, those are not exclusive. Amendment 8 also specifies that there be no intention,

“to support or further the activities of a proscribed organisation”.

In other words, it would create a defence of reasonable excuse.

The Minister in the Public Bill Committee relied on the “reasonable suspicion” provision. I do not think that is the whole point. He also relied on there having been no prosecutions of journalists or researchers under the existing provisions which use similar wording. Of course that is of some comfort but, as I said at Second Reading, I do not think we should rely on the public interest test for prosecutions: I hope that the collective brainpower of this House can get us to a point where the wording is correct without our having to look at the public interest test. I beg to move.

[Lord Carlile of Berriew]

My Lords, in my view it is very important that photographs which may have a dramatic effect on the opinion of those who view them should be dealt with in the way described in this clause. They may, for example, include photographs derived from execution scenes which are both disturbing and, unfortunately, very influential.

In general terms I support this clause. I have a reservation about the Northern Ireland situation, and ask the Minister to reflect on this before Report and possibly consult more widely. I have travelled extensively in Northern Ireland, both when I was Independent Reviewer of Terrorism Legislation and subsequently. I have been taken to scenes where there is imagery which is now internationally regarded as works of art. I have been taken to scenes where there is imagery which may on the face of it be very distasteful, but plays an extremely important part in the history of the community concerned and in the extraordinary settlement that has taken place in Northern Ireland as a result of the Good Friday agreement, and I would not wish anything to be done that might disrupt that. It seems that the Secretary of State for Northern Ireland and the Police Service of Northern Ireland should be consulted to determine the issues raised in those amendments, before we become too dogmatic about them.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, my noble friend Lord Thomas of Gresford and I oppose this clause standing part of this Bill. I agree with my noble friend Lady Hamwee that it goes well beyond what is necessary for the protection of the public against terrorism. While I quite understand the point just made by the noble Lord, Lord Carlile, that imagery is in many circumstances unacceptable, I disagree with him that this provision meets that problem. We have seen no evidence from the Government that persuades me that the terms of this proposed new section would reduce terrorism or make terrorists easier to catch. I believe that it departs from the sensitive balance between the protection and the security of the public, and the public’s civil liberties, in a way that is irredeemably bad.

The Government seek to define an objective—deterrence of displays encouraging terrorist groups—but offer no evidence as to why the new offence in these terms is needed. That is the first reason why it should be opposed. In other words, if we apply the first test I suggested at Second Reading for considering these measures—what is the purpose of this provision, which is a measure criminalising publication only; and what is the mischief it seeks to address—the Government leave both questions unanswered. Because the purpose is left undefined, it is not possible even to move to the second test of whether the measure is necessary to achieve that purpose.

The second reason why this clause should be opposed is that a person might be convicted of an offence under proposed new Section 1A, even if no mens rea of any kind is proved. To introduce a new offence criminalising behaviour where the prosecution is not required to establish any mental state on the part of the alleged offender is a very serious matter, and needs compelling justification. No such justification has been advanced in support of this clause. This is an absolute offence of publication, the only indicator of a guilty mind being that publication takes place,

“in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation”.

No requirement is proposed that the person charged should have deliberately, or even recklessly, given rise to such suspicion; no requirement that that person should be a member or supporter of a proscribed organisation; or even that the person should in fact have done anything to make anybody think that he or she was such a member or supporter. There is not even a requirement that the publication itself should be deliberate. A person who accidentally captures an offending image and unwittingly publishes it might be committing the offence merely because other reasonable people might regard the publication as casting suspicion on the person who publishes it. As for the images published that may be caught by this clause, the range is very wide. It follows, applying the test of proportionate response, that this measure is disproportionate, and it is no surprise that this term was used frequently in the first report on the Bill by the Joint Committee on Human Rights.

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[Lord Carlile of Berriew]

My Lords, I understand that this clause is one of several in the Bill intended to deal with the speedy march of technology. The previous legislation particularly had in mind the downloading of material. There is now no need to download material at all. This is intended to deal with the practice of streaming, which not only has become ubiquitous but can now be done at lightning speed. My own internet system was uprated a couple of days ago and I am almost blinded by the speed at which, in the morning, I can get on my telephone whatever I wish to view on my exercise bike. That gives more detail than is probably welcome in this House, but it happens in moments. It is important to tackle the issue of streaming by updating the legislation.

With deference to the Opposition Front Bench, the phrase “pattern of behaviour” is breathtakingly vague and would never pass muster in any court of law as something which could be judged with any certainty. I urge the Minister to reject that phrase. I cite an example which I have seen of legitimate use being made of the kind of material the Committee is looking at. I do not want to embarrass the university concerned by naming it, but I took part in a seminar in the very good law faculty of a very good university in which second-year undergraduates had been asked to look at material online in order to assess the effect that they thought it would have on people who were looking at it out of curiosity, rather than as part of their study. The professor who was supervising this had, of course, informed the local counterterrorism unit that it was going to be done, because he wished to avoid difficulty. That unit welcomed what he was doing, because it was interested in the reaction of 18, 19 and 20 year-olds to material that is usually judged by people with PhDs, police officers or the security service. It gave a new viewpoint on this material and I was privileged to take part. However, it is an absurd notion that something like that would be prosecuted.

This clause extends the existing reasonable excuse defence under Section 58(3) to the new type of material which is available and which the Committee is considering now. As a result of the decision of your Lordships’ House in R v J and R v G in 2009, it has been made absolutely clear that,

“the defence of reasonable excuse must be an objectively verifiable reasonable excuse to be determined by the jury in the light of the particular facts and circumstances”,

of the case. Also, where the evidential burden is raised by the defence—in other words, the defendant says, “I have a reasonable excuse”—the defendant does not have to prove it. The prosecution then has to make the jury sure that the excuse that the defendant has offered is not reasonable. That in itself is a sufficient existing protection, without these amendments.

Further, and with great respect to as experienced a police officer as the noble Lord, Lord Paddick, I appeal to noble Lords who are looking for theoretical cases in which an arrest or prosecution may take place. The police do occasionally exercise their common sense and not arrest someone where it would be patently absurd to do so. Most of the time they do just that. A two-code test has just been reaffirmed in the publication—by the outgoing DPP on the last day of her period of service—of a new Code for Crown Prosecutors. It emphasises the dual-code test which requires not only that there should be evidence that a jury might accept but also that it is in the public interest to prosecute. The discretion of prosecutors is an important part of our unwritten constitution that is often overlooked but should not be, as is the protection offered by juries, which are plainly not going to convict someone like my friend the university professor who engaged his students in the very valuable exercise that I described. This provision is entirely proportionate and simply updates a piece of law that sometimes causes difficulties because we do not always keep it up to date.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, these amendments seek, in various ways, to raise the threshold for the offence of viewing material over the internet provided for in new Section 58(1)(c) of the Terrorism Act 2000. Amendment 11, in the name of the noble Lord, Lord Rosser, seeks to restore the concept of a pattern of behaviour which was, as he pointed out, inherent in the so-called three clicks version of the offence as originally introduced in the House of Commons. Amendments 12 and 13, in the name of the noble Baroness, Lady Hamwee, would introduce a requirement to prove not just that the material being accessed is likely to be useful to a terrorist but that it was accessed by the individual with the intention of using it for terrorist purposes.

In responding to Amendment 11, it may assist the Committee if I explain that the intention behind the original three clicks provision was to ensure proportionality, and to provide a safeguard for those who might inadvertently access terrorist material by ensuring that there was a pattern of behaviour in accessing such material. However, we recognised the difficulties underlying that approach, and the uncertainty around how it would be implemented. Having reflected on the concerns that were raised about the three clicks provision, we believe that the reasonable excuse defence is the better way of proceeding. Introducing a pattern of behaviour test would recreate many of the same issues we faced with the three clicks provision. I agree with what the noble Lord, Lord Carlile, has just said on that issue. For example, it would beg questions such as how many viewings were required to constitute a pattern of behaviour and over what period such viewings would need to take place. Indeed, a pattern of behaviour test arguably introduces a greater degree of legal uncertainty than the three clicks test and, for that reason, I respectfully suggest that it is best avoided.

Amendments 12 and 13 would very significantly raise the threshold for the offence, and would alter its fundamental purpose. Section 58 of the Terrorism Act 2000, which Clause 3 amends, is a preparatory offence, rather than one aimed at the actual planning or commission of terrorist acts. It has a lower maximum sentence than other offences covering more developed terrorist activity, which can attract up to life imprisonment. I suggest to the noble Baroness that, in that sense, it is not comparable to the offence in Clause 2. The Section 58 offence, as amended by the Bill, is formulated so as to catch people who make a record of, or who view online, information likely to be useful to a terrorist, without requiring them to have actually used that information for a terrorist purpose or to intend to do so. This is in itself harmful behaviour, and such people can pose a very real threat to public safety. I do not agree with the example given by the noble Lord, Lord Paddick, of the changing of the guard. The noble Lord, Lord Carlile, hit the nail on the head again when he spoke about what is reasonable for the authorities to suppose in all the circumstances.

If there is evidence that the individual is preparing or committing an act of terrorism, or is assisting another person to do so, then they would be likely to meet the threshold for a more serious offence, such as Section 5 of the Terrorism Act 2006, which covers the preparation of terrorist acts, and for which the maximum sentence is life imprisonment. As such, a requirement to prove terrorist intent would effectively render unusable the new limb of the Section 58 offence that Clause 3 will insert. This is because the offence would be moved into territory that is already well covered by existing offences and could not be used for its intended purpose so that the police and courts would remain powerless to act against individuals accessing very serious terrorist material online.

The noble Baroness, Lady Hamwee, has suggested that her amendments are intended in part to address her concern that the offence will inappropriately criminalise those who seek out terrorist information through foolishness, inquisitiveness or curiosity, without intending to do harm. I have sympathy for that concern. The Government have been clear that this offence is aimed at those of a terrorist mindset and we do not wish to cast its net unnecessarily widely. However, I cannot agree with the noble Baroness’s suggestion that this is the best way to address the concern.

For the reasons that I have set out, these amendments would fundamentally undermine the purpose of the offence, and would go much further than I believe is intended in narrowing its application. We consider that the existing “reasonable excuse” approach is a better and more appropriate means of doing so, together with the normal CPS tests of whether there is evidence that would provide a reasonable prospect of conviction, and whether prosecution would be in the public interest, as the noble Lord, Lord Carlile, said. This is particularly so, because the question of whether it is legitimate for someone to intentionally seek out serious and potentially very harmful terrorist material, through foolishness or inquisitiveness, will be very fact-specific and particularly prone to grey areas. It needs to be considered on the basis of all the circumstances and all the evidence in any particular case.

While clearly there will be cases of this type, where prosecution will not be appropriate, it will certainly not be responsible to provide a blanket exemption for any person to access any quantity of terrorist information and be able to rely on such an exemption, whatever the potential harm associated with their activities. I hope, having heard my explanation, the noble Lord, Lord Rosser, will be content to withdraw his amendment, and that the noble Baroness, when it comes to her turn, will be content not to press hers.

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[Lord Carlile of Berriew]

My Lords, I rise to support the amendment moved by my noble friend Lord Anderson of Ipswich. It highlights a number of extremely important points, not least that there should be clarity and definition for people who may wish to visit a designated area. I have some reservations, but in relation to proposed new paragraph (c), perhaps I may give an example of the crucial need to attend court or another body exercising judicial power. It may well be that a relative would wish to obtain the custody of a child who is in danger in the designated area and would not be able to do so without entering that designated area. I agree with the noble and learned Lord, Lord Garnier, and the noble Earl, Lord Attlee, that the definition of “journalist” will need attention because it can all too easily be both a benign and a malign term.

I want to raise one other issue not directly connected to this amendment, but to avoid the duplication of speeches I shall refer to it now. I have been approached by some Jewish groups that have expressed concern that designation orders might be made in relation, for example, to the Golan Heights where quite a number of young people go on the Aliyah to kibbutzim or to Sderot, the town that is regularly the recipient of missiles fired from the nearby Gaza Strip. I have been bold enough to reassure those who have raised these issues that it is most unlikely that the Government of the United Kingdom would designate areas such as this because of the international political and diplomatic implications of doing so. However, at some point in the debate I would invite the Minister to reassure the Committee and the people who have made representations that the normal flow of people, albeit to sometimes quite dangerous places such as Israel, will not be interrupted as a result of these provisions because that would cause tremendous difficulties, particularly for families divided between the cities of England and Wales and Israel.

[Lord Faulks]

My Lords, I accept entirely that it is better, if at all possible, to clarify what constitutes not so much a defence but in which circumstances there will not be an offence, which I think is the way Amendment 17 is framed. If I understand it correctly, the answer to most of the objections lies in the word “solely” because, of course, if there is evidence of mixed reasons for someone being in an area, these provisions would not have a proper ambit at all. However, I share the reservations of my noble and learned friend Lord Garnier about visiting a dependent family member.

I want to raise a more general point about what Clause 4 intends to do. It is concerned with the designated area and the Government are not concerned primarily about protecting people visiting the area and ensuring their safety. Of course, journalists and those working for humanitarian purposes risk their own safety very considerably by going into such areas. The Government are concerned—perhaps my noble friend the Minister will confirm this—to prevent the risk of terrorism, as the Bill is headed. When looking at the risk of terrorism, the Explanatory Notes state:

“Such a risk may arise, in particular, if a conflict in a foreign country, potentially involving a proscribed terrorist organisation, acted as a draw to UK nationals or residents to travel to that country to take part in the conflict or otherwise support those engaged in the conflict”.


In other words, we want to stop people fighting against the United Kingdom. That, I suggest, is what this is really about, although my noble friend may disabuse me of that. If so, this is quite a convoluted way of achieving the aim of preventing an individual or individuals assisting or fighting against the United Kingdom. I shall raise this point again on Wednesday under my own amendment concerning the possible introduction of the offence of treason, because that is what it would be. Although this is a useful provision and I can see what it is driving at, I respectfully wonder whether it is really the answer to the evil it is aimed at in this case.

Counter-Terrorism and Border Security Bill

Lord Carlile of Berriew Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I am somewhat shocked by the implication that there is anything illiberal about the proposed extension of the law in this clause. In November 2017, the Secretary-General of the United Nations, speaking in London at the School of Oriental and African Studies, included in his speech the following sentence:

“While terrorism often starts in conflict zones, it reaches far beyond them, organizing and inspiring attacks and radicalizing people across borders and continents”.


The clause recognises exactly what the Secretary-General described. Those who have been interested in terrorism law for as long as the period since 9/11 will recall that the then Secretary-General of the United Nations, in a speech in Barcelona shortly after 9/11, made the point that the United Nations agrees in principle that terrorism should be prosecuted wherever the defendant is irrespective of where the terrorist act was committed.

If this Bill, as we are told by the Government, is intended at least in major part to modernise the law so that it faces up to the changes that have occurred at an exponential rate in electronic communications since 2001, this is exactly one of those measures that achieves just that. Let us imagine that somebody was in this country with impunity having committed an act somewhere else that is a terrorism offence in this country. We prosecute those who committed the act in this country, but not those who committed exactly the same act, which appeared on exactly the same postings on the internet and in exactly the same YouTube videos, in another country. That makes absolutely no sense.

I say to the noble Baroness—whom I much admire—who proposed the amendments that there is a danger of us losing touch also with the public view on these matters. A set of opinion polls appeared two days ago in which it was revealed that changes in the law of this kind are broadly supported by more than 80% the public. While I do not believe in legislating on the grounds of public opinion, in this instance I regard the public as being right and I urge your Lordships to reject the amendments and not to reject the principle in the clause.

[Lord Paddick (LD)]

My Lords, I support Amendments 31 and 33, which are in the name of my noble friend Lady Hamwee and to which I have added my name. I remind the Committee that my noble friend raises the amendments as a representative of the Joint Committee on Human Rights. I am putting forward the view of the Liberal Democrat Benches on these issues.

On Amendment 31, concerning extension of extraterritoriality to wearing a uniform and displaying an article in a country other than the UK, while I accept what the noble Lord, Lord Carlile of Berriew, said about an act of terrorism, such as blowing somebody up or that sort of serious offence, to expect somebody who lives in another country—let us say in Syria—to know that it is offence to carry an ISIS flag, and therefore that they would be prosecuted if they came to the UK for doing that in Syria, without having any connection with the UK prior to that occasion, makes, to use the noble Lord’s expression, absolutely no sense. There will be some things that are so clearly a terrorist offence that people should know that they are not acceptable.

[Lord Carlile of Berriew]

Can the noble Lord identify any individual in Syria who is not aware that supporting ISIS is regarded as a serious offence in most countries, including Syria?

[Lord Paddick]

I do not think that I can answer that question, and I do not think that the noble Lord can answer it either. This is about offences which if they were committed in the UK could lead to people being radicalised or encouraged to join a particular terrorism organisation. That cannot be said about an offence committed in another country. As for Amendment 33, surely it is only common sense that a person commits an offence overseas only if their actions are an offence in that country, or they have sufficient ties to the UK that they should know that their actions would amount to an offence if committed in the UK. I therefore support these amendments.

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Nothing has been put forward by the Government to justify the extension of these long extended sentences in this way. We are not persuaded that they have justified them. They need justification and we invite the Minister in closing this group, or at least by undertaking further research before Report, for the evidence on which he asks this House to approve that the clause should stand part of the Bill.

[Lord Carlile of Berriew]

My Lords, although I remain largely agnostic on the increase of maximum sentences which was discussed just now, in my view there is a much stronger and clearer argument for applying extended sentences to the offences to which we are referring. The noble Lord, Lord Marks, has just suggested that there should be more evidence from the judges. In my experience, and it includes some experience of sitting as a judge, judges are not in the habit of saying, “I would have passed a much heavier sentence if I had had the opportunity to do so”. Occasionally they do, but most judges feel a great sense of self-restraint from saying that, and I know of no methodological research that has ever existed that seeks to tease out of judges whether in certain specific cases they would have wished to pass longer sentences.

[Lord Marks of Henley-on-Thames]

I was not suggesting that we were looking for a public statement by judges that in particular cases they would have imposed longer sentences—although one has heard of that. However, surely the Government, in proposing this legislative change, should have sought out the views of the senior judiciary about the changes and whether their powers are sufficient or restricted. That sort of research is frequently done by government when considering changes that affect judicial powers.

[Lord Carlile of Berriew]

In fact, the Government have a working relationship with the senior judiciary, which is often conducted at a fairly subtle level. The Attorney-General, it is to be hoped, has reasonably frequent conversations with the senior judiciary, but one would not expect the content of those conversations to be published. I apprehend that this matter has been considered fairly carefully in the usual way, and I am sure that we can trust Ministers when they say that there is evidence in their view for extended sentences of this kind.

I was going to add that there seems quite a clear analogy between sexual offences and terrorist offences, save that the evidence for extended sentences in terrorism offences may be much clearer than in sexual offences. When a judge is sentencing someone for a sexual offence, he will often have a clear apprehension drawn, for example, from the probation officer’s pre-sentence report and from the evidence in the case that the person concerned, usually male, represents a serious risk to children for an unknown period. The person is then sent to prison and courses are offered which they may or may not follow. The judge will often have an indication at the time of sentence as to the likely willingness of the individual to follow such a course, and that may influence the judge’s decision on whether to impose an extended sentence, usually for the protection of children.

A terrorism case may come before a court to defend someone like—he is not unique—Anjem Choudary. He has a clear intention, depicted on numerous occasions, to ignore those who criticise what he has been doing and to continue to attempt, in the subtle way that he follows, to radicalise others. There are other cases of a similar kind, but it is not very difficult for the judge to form the conclusion that the person is someone from whom the public needs to be protected by the special measure of an extended sentence. That is not only empirically defensible but meets public concern, which is reflected in the attempt to modernise these provisions in these clauses.

I urge noble Lords to support the spirit behind these clauses and to support the clauses in the knowledge that judges have never been lavish in their passing of extended sentences. In my experience and observation, when it happens it is usually done with great care and much concern by the judges, who start from an impartial standpoint before passing sentence.

[Earl Howe]

My Lords, Clause 9 amends provisions in the Criminal Justice Act 2003, which, among other things, enables a criminal court in England and Wales to impose extended sentences of imprisonment and sentences for offenders of particular concern. Clause 9 adds further terrorism offences to the list of offences for which the court can impose these sentences. Similarly, Clauses 10 and 11 make analogous changes to the equivalent extended sentences provided for in Scotland and Northern Ireland. I should point out, however, that neither jurisdiction has the equivalent of sentences for offenders of particular concern.

To put the provisions of these clauses in context, it may assist the Committee if I first explain, as briefly and clearly as I can, the nature of these extended sentences as they operate in England and Wales. There are two types of sentence relevant here. The first is the extended sentence of imprisonment, usually known as an extended determinate sentence. The second is a special custodial sentence for certain offenders of particular concern. Taking the extended determinate sentence first, these sentences are available in respect of the sexual and violent offences listed in Schedule 15 to the 2003 Act. The sentence can however be imposed only if certain statutory conditions are met. The court must consider the offender “dangerous”, under a test set out in the 2003 Act. That test requires the court to find that the offender presents a significant risk of causing serious harm to the public through committing further specified offences.

If the offender commits one of the specific offences and is considered dangerous, the court may impose an extended determinate sentence. An extended determinate sentence is a custodial term which has two parts. The first is the appropriate custodial term commensurate with the seriousness of the offence, and the second is an extended licence period on supervision in the community. Under current provisions of the 2003 Act, the court may impose this extended licence for up to five years for a violent offence and up to eight years for a sexual offence.

The 2003 Act also makes particular provision about the release on licence of offenders serving an extended determinate sentence. Offenders will be considered for release on licence by the Parole Board once the offender has served two-thirds of the appropriate custodial term. This should be compared with the automatic release at the halfway point in sentence for standard determinate sentences. The offender will be released automatically at the end of the appropriate custodial term if the Parole Board has not already directed release. On release, the offender will be subject to an extended period of supervision on licence.

If a court does not find that an offender is dangerous to the point where it imposes a life sentence or an extended determinate sentence, it must impose a sentence for offenders of particular concern. This sentence must be imposed if the offender is convicted of an offence listed in Schedule 18A to the 2003 Act. The list of offences in Schedule 18A reflects why sentences for offenders of particular concern were created: to remove automatic release for terrorism and child sex offences, which would have applied to a standard determinate sentence.

A sentence for an offender of particular concern, similar to an extended determinate sentence, has two parts: first, the appropriate custodial term, and secondly, the licence period. The effect of a sentence for an offender of particular concern is that the release point set at half way through the sentence is not automatic, but is at the discretion of the Parole Board. If not released at the halfway point, the offender may serve all of their sentence in custody, and on release must serve a minimum of 12 months on licence. That is a brief but—I hope noble Lords will agree—necessary summary of the current sentences.

I turn now to how Clause 9 amends those sentences. Currently, the list of relevant violent offences for which an extended determinate sentence can be imposed—set out in Part 1 of Schedule 15 to the 2003 Act—includes a number of terrorism offences. Clause 9(5) takes those offences from Part 1 of Schedule 15 to the 2003 Act and places them in a new Part 3, created to deal specifically with terrorism offences.

As well as shifting the existing terrorism offences into a new terrorism category, Clause 9 adds additional terrorism offences to the list. These are:

“membership of a proscribed organisation”,

covered by Section 11 of the 2000 Act;

“inviting support for a proscribed organisation”,

under Section 12 of the 2000 Act; wearing the uniform of or displaying an article associated with a proscribed organisation, under Section 13 of the 2000 Act; collection of information useful to a terrorist, under Section 58 of the 2000 Act;

“publishing information about members of the armed forces etc”,

under Section 58A of the 2000 Act; encouragement of terrorism, under Section 1 of the 2006 Act; dissemination of terrorist publications, under Section 2 of the 2006 Act; and,

“attendance at a place used for terrorist training”,

under Section 8 of the 2006 Act. Clause 9 also applies an eight-year maximum extended licence period for terrorism offences. This is an increase from the five-year maximum available for violent offences but is now in line with the eight-year maximum period for sexual offences.

In summary, for extended determinate sentences, Clause 9 creates a new specific list of applicable terrorism offences, adds new terrorism offences to that list, and increases the maximum extended licence period from five to eight years.

For the sentences of particular concern, Clause 9 adds the same eight additional terrorism offences to the list in Schedule 18A to the 2003 Act, meaning that the court, if it does not impose an extended determinate sentence, must impose a sentence for an offender of particular concern.

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[Lord Carlile of Berriew]

My Lords, I will say just a few words on this. I agree with what my noble friend Lord Anderson said to this extent: I am not convinced that the Government have got the proportionality of this right. I invite Ministers to reflect on what has been said—not so much on the words of the draft amendments but to try to achieve something that is more acceptably proportionate to those of us who have a reasonable amount of knowledge of these issues and are concerned that the law should not go too far.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I too support the noble Lord, Lord Anderson, in what he said about the wide nature of what is suggested in the clause. Unlike the two previous speakers, my experience in this field is by acting in cases. I have acted for family members such as wives on a number of different occasions, and it is important that we maintain the trust of families and communities. Drawing legislation too widely will in many ways reduce the effectiveness of the state in seeking to deal with terrorism.

The noble Lord, Lord Anderson, was absolutely right to say that we have to be mindful of the parameters of this. Academics who have analysed what has taken place in the past and what is and is not effective have been our advisers on what is likely to work. So I hope that the Government will listen, look again and agree that Amendment 39 might be an appropriate way of restricting these powers.

Counter-Terrorism and Border Security Bill

Lord Carlile of Berriew Excerpts

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

The Bill does not propose any solutions to minimise the risk posed by equipping local authorities with the power to refer and the power to assess. My amendment rises to that challenge by ensuring that those who refer an individual for assessment do not assess the individual. For all the reasons I have set out, this is a very important amendment and I hope that the Government will support it. I very much look forward to the Minister’s reply. I beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, first, I support the basic intention behind my noble friend’s amendment, but I will in a few moments try to put it into a much more contemporary context than, with respect, she did. In any event, I ask the Minister to advise the House whether such an amendment is necessary at all. If somebody makes a reference to a panel and then sits on the panel, to me as a lawyer with quite a lot of experience dealing with judicial review, that would be immediately judicially reviewable as a plain example of apparent bias, and the decision would likely be overturned and have to be reconsidered from the beginning. I hope that we will hear the Minister tell the House that that is indeed the way in which the situation is perceived, and that it is not the practice for people making the recommendation, if they are local authority employees, to sit on the panel, though of course their recommendation is part of the evidence—that is what we will call it—that the panel hears.

I turn to my point about context. I urge your Lordships to regard this as an important change that has taken place over the years. Both before 2011—when I ceased to be the Independent Reviewer of Terrorism Legislation and was succeeded by my noble friend Lord Anderson, who did such a wonderful job in that role—and since, I have visited many Channel projects around the country. In the early part of my time visiting those projects, they were run by the police and their involvement was deeply resented by some local communities. In some areas, the police were very sensitive; in some, they were less so; but they always were seen by many communities, particularly in the West Midlands, as threatening to prosecute people and going outside their role of dealing with reported or suspected crime, investigating it and charging people.

In the best local authorities, where there must be a Prevent co-ordinator, this work has been devolved to ward level. Birmingham, the largest local authority in Europe, I think, is a very good example—despite the Trojan horse issue—of that being done with great success. In Birmingham, local authority staff—often social workers but sometimes those involved in education and sometimes those given offices to act only with the Channel project—identify vulnerable individuals and refer them for consideration by panels. In such cases, the police do not have to be involved at all. Indeed, as I understand it, in the majority of cases they are never involved. This is dealt with as a problem to be handled before any question of crime is considered and, in most cases, there is no need for police involvement because there is no crime. The reference takes place before crime. That is a successful Channel reference, almost by definition.

In the areas I visited, the police have acquiesced in that approach, recognising that their role is to become involved only if a reference is, first, unsuccessful and, secondly, moves into the area of potential crime. I urge your Lordships to take the view that the changes set out in the Bill simply reflect changes in the context of Channel since the 2015 Act was brought into force.

We heard from my noble friend Lady Howe about “false positives”. I think we should be wary about that phrase. I say this with great respect to the noble Lord, Lord Paddick. He was a very distinguished operational police officer for decades. I am sure that during that time, he arrested or authorised the arrest of a fair number of people who were acquitted. That is normal in the world of policing. In the very difficult world of counterterrorism, it is also normal. It would not be right to be hung up on statistics about false positives when one bears in mind the clear evidence of the considerable success of the Channel project.

[Lord Stunell (LD)]

My Lords, first, I thank the noble Baroness, Lady Howe, for giving me such full attention in her speech: I appreciate that. According to paragraph 3.2 of the Prevent report that the Government published in March this year, the police made 1,946 referrals to the Prevent programme, which was 32% of the nominations made. The education service, by which I think they mean schools and colleges, made an almost identical number of referrals, 1,976, also described in the government publication as 32%. The question that I am happy to hear repeated by the noble Baroness, Lady Howe, is: are those figures appropriate? Is the net catching too many fish? I understand the point made by the noble Lord, Lord Carlile, which is perfectly fair, but the same paragraph of the same report says that 2,199 cases “required no further action”, which is 36% of those referred. The total of those referred to “other services” is 2,748, which is 45%. If one adds those two together, over 80% are referred or require no further action.

Where are they referred to? Thirty per cent are referred to education, 17% to the police, and 29% to local authorities. Exactly what all this means will come up in the debate on the following amendment, as will whether the reporting system is giving us the kind of information and insight that the noble Lord, Lord Carlile, just tried to throw on the subject. I await the Minister’s response with great interest. I certainly support the noble Baroness, Lady Howe, in moving the amendment today.

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[Baroness Hamwee]

My Lords, Amendment 57 is another amendment that I am moving on behalf of the Joint Committee on Human Rights. The noble Baroness, Lady Jones, my noble friend Lord Stunell and the noble Baroness, Lady Lawrence—who is also a member of the committee—have their names to it as well. This amendment calls for an independent review of Prevent. We are by no means the first to call for such a review.

The Government have said that, in the Bill, extending to local authorities the power to refer to the Prevent programme individuals regarded as vulnerable to being drawn into terrorism is not an expansion of the scope of Prevent but just a sensible measure to streamline the process of referrals. As the Minister may point out again, I proposed that in 2015. It seemed to me then—and in some ways does now—that it is odd that local authorities, which through social services and other services are at the heart of prevention and safeguarding, should be excluded from that part of the process. As I have said before, and will go on saying, the important word here is “safeguarding”. Other important words are “trust” or “mistrust”, “perception” and “independent”.

The committee took evidence earlier in the year on the issue of Prevent. Again perhaps to pre-empt it being pointed out, we reported—because we wanted to report fully on the evidence—that although a number of stakeholders had reiterated the call for an independent review there were concerns. A doctor and academic expressed concerns about local authority involvement. She said that healthcare professionals and local authority processes can mean that people go down the track into,

“incidences of dissent and illiberal political beliefs–rather than vulnerability to abuse in persons with formal care needs … People have a right to their beliefs without them being interpreted and medicalized as ‘vulnerabilities’”.

I agree that beliefs should not be medicalised, but what she describes is not what should be the catalyst for safeguarding.

The noble Lord, Lord Carlile, who I am sure will intervene in this discussion, conducted a one-off independent review of the Prevent strategy in 2011. However, unlike many aspects of counterterrorism law or terrorism law, this is not subject to continuous review or oversight. I hope that the noble Lord, Lord Anderson—I am sure he will—may refer to his work. It is inevitable that I will trail his comments and pray him in aid, but I hope not to pre-empt him. In a submission to the Home Affairs Select Committee of the Commons two years ago, he said that he thought that,

“Prevent could benefit from independent review. It is perverse that Prevent has become a more significant source of grievance in affected communities than the police and ministerial powers”.

Two years ago, the Joint Committee picked up the subject when we expected there to be a counterextremism Bill. The noble Lord, Lord Carlile, said then,

“reviewers can help the Government by challenging them … I cannot see anything being lost by reviewing the Prevent policy”.

I take that as at least not opposition. It may be support. I hope that it was not damning with faint praise.

[Lord Carlile of Berriew]

The noble Baroness has managed successfully to provoke me on to my feet. Could she give her view on the following? There is about to be appointed a new Independent Reviewer of Terrorism Legislation—the advertisement was on the Cabinet Office job site last week. Can she see any reason why the review, which I and she share the opinion would be sensible, cannot be carried out by the same Independent Reviewer of Terrorism Legislation as is appointed as a result of that advertisement? Does she see any utility in having another reviewer with overlapping responsibility? Also, given that she has taken a great interest and shows great expertise in these matters, can she cite to the Committee by identity any Prevent projects that have given rise to the mistrust—that was the word she used—and can she tell us whether she has visited them in order to make her own assessment?

[Baroness Hamwee]

I would have denied the expertise in any event. I shall not go into what I have visited but I have not visited any of the projects that would fall into that category. If the people affected tell us—not only me—that they are unhappy and mistrustful, that answers the question in itself.

[Lord Carlile of Berriew]

I promise to intervene only once more. Has the noble Baroness had cited to her projects—and will she tell us which ones if that is the case—that fall into the mistrust category? I have a sense that Prevent is being demonised as a campaigning route and not on an evidential basis.

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[Baroness Jones of Moulsecoomb]

My Lords, I have attached my name to this amendment because it is an issue that goes to the heart of civil liberties in this country. The Prevent strategy is of great concern to me and to tens of thousands of others, particularly campaigners and those from ethnic minorities. As a Member of the London Assembly and the Metropolitan Police Authority, I visited Prevent projects and heard from local people and the practitioners themselves. I can assure noble Lords that there is mistrust, and even distrust, of Prevent in many places. One project I saw appeared to work well, but many did not.

A person is referred for political re-education through the Prevent strategy for opposition to so-called “fundamental British values”. I think it is the Government who are undermining fundamental British values and I should be referring them to Prevent. The Government are challenging informed debate and transparent government. They cannot continue to justify Prevent with their internal Home Office reviews; it is time to shine the light of public scrutiny on the whole process.

I must ask: why would the Government say no to this amendment? If the Prevent strategy is a success, if it does not discriminate against Muslims, ethnic minorities and campaigners of all sorts, and if it does not infringe too far our rights and freedoms, what is the problem with holding a proper review and what is there to hide? An independent review would surely prove the Government’s case and force all doubters, like me, to back down. The Government would be celebrating Prevent in all its glory, not trying to cover up the facts.

In the absence of reliable assessments of the Prevent strategy, we are forced to conclude the exact opposite. The fears expressed by the Muslim Council of Britain—that Muslims are being disproportionately targeted and are increasingly fearful of unjustified state intrusion in their lives—must therefore be accurate. The concerns of social workers, teachers and academics that they have been conscripted as oppressive counterterrorism officers must be taken seriously, and the idea that the Government are wasting money and scarce police resources on chasing people who pose absolutely no threat of harm must be assumed to be true.

The Prevent definition of “extremism” is,

“vocal or active opposition to fundamental British values”.

Such a broad and meaningless definition means that too many people are getting caught in a trap. I urge the Minister to adopt this amendment and prove to us sceptics that Prevent is operating lawfully and effectively. As is often said in support of the Government whenever they want to curtail our rights, “You have nothing to fear unless you have something to hide”. I therefore have to ask: what are the Government hiding?

[Lord Carlile of Berriew]

My Lords, with great respect to the noble Baroness who has just spoken, we should put the record straight about what happened in the London Assembly. Its report, Preventing Extremism in London, published in December 2015, at which time I was chairman of the London Policing Ethics Panel, was broadly very supportive of Prevent. I gave evidence to the panel, including to the noble Baroness, who was its deputy chairman at the time. I gave my opinions and the panel took evidence from various sources. The noble Baroness produced a dissenting report, which is to be found on page 38 of the document. It excoriated Prevent, but she was in a minority of one. Since then the new Mayor of London—new since 2015—has produced statements broadly very supportive of Prevent, albeit of course seeking to secure improvements.

My second point concerns something I raised when I interrupted the noble Baroness, Lady Hamwee. I have been involved in many debates in which it has been said as a general proposition that Prevent is dangerous, that it is alienating communities and so on. If you say it often enough, people will start to believe it. But every single time I have challenged in such a setting, as I have this evening—I say this with great respect to the noble Baroness, Lady Hamwee—with the argument that Prevent programmes should be named so as to provide evidence for such criticism, evidence there is none.

I heard the reference to the Muslim Council of Britain; I respect it greatly, although not on this subject, I am afraid, where it generalises as badly as anyone else. If individual programmes in Prevent cause real concern, I urge those who have identified them to take their evidence to the Prevent group at the Home Office, which will deal with their concerns. The Home Office does not want to waste its precious money on Prevent programmes that prove not only unproductive but counterproductive. It is an absurdity to suggest that the Government, or anyone involved in this complicated field, wish to see money wasted in that way.

As somebody who has followed Prevent since it started—as was said, I wrote the review of the coalition Government’s policy on Prevent in 2010-11—I have been approached by people from government sources all over the world saying, “How do you do this? We wish to adopt this kind of policy”. Indeed, at one stage the United States placed in its embassy in London a very distinguished legal academic, Quintan Wiktorowicz, who worked with Waltham Forest London Borough Council in particular on its Prevent strategy. On a couple of occasions, I was present at discussions in Waltham Forest founded on the work done by Professor Wiktorowicz, who was placed in the London embassy to try to create a Prevent policy for the United States of America; he was sent there by the Obama Government. The reason he failed—if he will forgive my using that word—when he went back to America had nothing to do with what he found out in the UK; it was because of the extremely devolved nature of US government, which made it impossible to produce the sort of Prevent policy that exists in Great Britain.

I am not saying that Prevent is perfect, of course. Constructive criticism is always welcome. Those of us who spent our time buried in Prevent and going to see Prevent programmes all over the country—some of which were unbelievably successful—are always prepared to listen to criticism and lobby the Government to change some of the Prevent strategy. However, in this debate, as in many others, I have heard no evidence for that so far. We need to ensure that there is a proper review of Prevent. In my view, the Independent Reviewer of Terrorism Legislation is perfectly capable of spending a few extra days, for which he or she will be paid, carrying out such a review. That would make it part of a holistic review process, which would certainly meet the concerns of the noble Baroness, Lady Hamwee, and most other noble Lords who have put their names to these amendments.

[Baroness Manningham-Buller (CB)]

My Lords, I will comment briefly on this important subject. I was the director-general of MI5 in 2003 when we produced the terrorism strategy. At that stage, it was not public. Of the four Ps—Prevent, Pursue, Protect and Prepare—Prevent was the one on which we spent the most time. We did not feel qualified to be very helpful on it, although we had established a behavioural science unit in the service to look at why people were drawn into this course.

Whatever the criticism, it seemed noble to go back to what was causing some of this, to stop young people in particular being groomed into the profession of terrorism. If through this channel we have saved a number of young people from that route and diverted them into other, productive lives, that is a very valuable achievement. I note that a substantial number of people who are now in this process are being seduced and drawn into extreme right-wing activity. Again, if we can divert some of those—largely young—people from that course, it is right.

That is not to say that all these things cannot be done better. I do not know about that; I do not have the insight of my noble friend Lord Carlile. However, I know that of the four Ps, Prevent is the most difficult one. It is challenging but, since it was initiated in 2003, a great deal of progress has been made in refining and improving it.

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[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.

[Lord Carlile of Berriew]

I have been listening with great care to what the noble Lord has said—he obviously has great knowledge. Can he give the Committee some examples, first, of Prevent projects which have given rise specifically to the kinds of mistrust and poor reputation that he has referred to; and, secondly, of Prevent projects which have been, as he describes them, a waste of money?

[Lord Sheikh]

These comments have been made to me in general. What I am trying to say to your Lordships’ House is what I have been told. When I go up and down the country and talk to people, I find disquiet and unhappiness about the strategy, so I feel that we need to undertake a review of it.

There is to some extent a lack of transparency about the strategy which has led to mistrust and is affecting its effectiveness.

I have identified a number of issues which are relevant and believe that there are good reasons for an independent review to be undertaken. The review must be a thorough examination and it must be undertaken after discussions with everyone involved, including relevant organisations and members of the community. The review must arrive at a conclusion which I hope will have the agreement of everyone, as much as possible. I end by emphasising, as I said at the outset, that I agree with the strategy in principle but it needs to be reviewed and an alternative must be found after appropriate consultation and discussion.

--- Later in debate ---

[Lord Paddick]

My Lords, briefly, I support the amendment. If, as other noble Lords have suggested, organisations are proscribed for other than legal reasons but to do with foreign policy, the Government should at least be honest enough to say that that is why organisations that meet the legal criteria are still being proscribed.

[Lord Carlile of Berriew]

My Lords, I too support the amendment moved by my noble friend Lord Anderson. There is no known system at the moment for reviewing the proscription list. The Peasants’ Revolt would still be proscribed under the current absence of a system, and that is just unacceptable. I could live with it if the Minister were to make a commitment from the Dispatch Box to introduce a system of review of the proscription list. Let us not forget that if a deproscription is found to be mistaken, there can be a reproscription of that organisation in any event, so almost nothing is lost by what is proposed.

[Lord Pannick]

My Lords, I, too, support the amendment. I find it shocking that the Home Office should be continuing the proscription of organisations which it recognises do not satisfy the statutory criteria. I have only one suggestion to those who tabled the amendment for their consideration for Report. In new paragraph (d), should it not require the Minister to publish not simply each such decision but the basic reasons for such a decision? That would add a further level of accountability and discipline of the Secretary of State in this context.

Counter-Terrorism and Border Security Bill

Lord Carlile of Berriew Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I think we went through this the other day. It is because officers may have fragmented information which does not amount to reasonable suspicion but may show a pattern emerging. That may not reach the “reasonable suspicion” threshold. As the noble Baroness said, we cannot just stop and search black people arbitrarily; there has to be some rationale for stopping that person. It would not be arbitrary but would not meet threshold of reasonable suspicion.

[Lord Carlile of Berriew (CB)]

I am grateful to the Minister for giving way. If somebody is coming through a port of entry and their passport is examined, and in the moment of examination it becomes apparent that there is something about the passport that does not look quite right—for example, there may be very few entries in it whereas the person concerned looks to be a sophisticated traveller—would not such a situation fall well short of being reasonable suspicion but be a proper exercise of the ability of good officers to use intelligence applied in the moment?

[Baroness Williams of Trafford]

The noble Lord provides a very good example. It might not amount to reasonable suspicion, but there would certainly be a pattern of activity or information which allowed that officer to stop the individual.

--- Later in debate ---

[Lord Anderson of Ipswich]

My Lords, for every person who is subject to a Schedule 7 examination, as I often used to report, some 10 to 20 others are asked light-touch screening questions on a consensual basis, as a result of which it is determined that a Schedule 7 examination is not necessary. The prevalence of screening questions may explain the discrepancy between the low and rapidly declining incidence of Schedule 7 examinations, on the one hand—I think they are running at around a quarter of the level they were when the noble Lord, Lord Carlile, handed over the post of independent reviewer to me—and, on the other hand, the perception of some people that they are stopped on a routine basis when they travel abroad. I reported in 2016 the example of a security-cleared government lawyer with a Muslim-sounding name who had been stopped by police on each of the last five occasions that he had left the country and on the majority of occasions when he re-entered it. On each occasion, as he acknowledged, he was stopped for screening questions only. Because screening questions are not recorded, there was of course no way of alerting ports officers of the previous fruitless stops.

I agree with the noble Lord, Lord Rosser, that the parameters applicable to screening questions need to be clearly set out under Schedule 3 to the Bill, as under Schedule 7. The draft code of practice, which I thank the Minister for providing well in advance, goes a long way towards doing that, although I am not sure that it cracks all the old chestnuts, one of them being how, if at all, one can administer screening questions to a coachload of people who are on their way to a possibly troubled part of the world.

As to whether screening questions should go into statute, the noble Lord is not alone in his provisional view. Senior ports officers have said to me—as I have recorded in the past—that if screening questions appeared in Schedule 7, we would all know where we stood. Against that, one thinks of the provisions in PACE Code C relating to “voluntary interviews”, which are not enshrined in the Police and Criminal Evidence Act 1984, no doubt because of the moral and social duty, as it has been described by the courts, that every citizen has to give voluntary assistance to the police. I approach this issue with an open mind and look forward to hearing what the Minister has to say. In particular, can she tell us whether she has consulted the Investigatory Powers Commissioner, who is to have oversight of Schedule 3 and, if so, what he had to say, because I suspect that his view may help to inform mine?

[Lord Carlile of Berriew]

My Lords, my noble friend Lord Anderson tempts me to say a few words on this matter. He is absolutely right that the number of Schedule 7 stops declined dramatically over the years, and there was a very good reason for it. When I became Independent Reviewer of Terrorism Legislation, a phrase commonly used with me was “copper’s nose”. I was extremely concerned, because—if the noble Lord, Lord Paddick, will forgive me—coppers do not always have the same-sized noses nor the same air throughput into them. Some officers started to develop them for themselves. The noble Lord, Lord Hogan-Howe, is no longer here, but some officers in Scotland Yard with what is now called SO16 demonstrated to me how they had refined copper’s nose into a series of behavioural analyses that led them to decide whether and how to ask screening questions. A whole behavioural science has built up around this; it is called behavioural analysis. It emanated from America, but it has been well used by police officers here—I have been to a number of lectures about it.

I regret that the formalisation of screening questions, as suggested in the amendment, is completely impractical. My noble friend Lord Anderson referred to a coachload of passengers. One place that I used to visit quite regularly was Dover port, where buses come through at speed. Officers go on to them and ask questions such as, “Where are you going?” or “When did you come to this country?”, usually based on a reason that they have derived from the methodology they use for the people they are questioning. Formalising this process would make it very slow and more oppressive in the minds of those asked simple screening questions. They do not mind being asked a simple question or two, but they would mind if it were done in a way that suggested that it was part of a formal police process.

The police generally do this very well. They should be left to do it as they do it. We should not over-formalise something which has evolved to a point where the people who are stopped, asked a series of questions and detained for a time, and whose attention is demanded for a time, are usually those of whom there are good reasons to ask more detailed questions.

[Lord Paddick]

My Lords, I accept what the noble Lord has just said, but in my reading of the amendment, which uses the phrase,

“may include, but is not limited to”,

it would not limit the sorts of questions that could be asked, but it would differentiate formally between a Schedule 7 situation and asking the simple questions as indicated in it.

[Lord Carlile of Berriew]

Does the noble Lord really think that an examining officer getting on to a bus at Dover should walk up to a passenger and say, “I am notifying you that an examination under Schedule 7 to the Terrorism Act has been commenced. You’re not obliged to answer any questions or engage with me during this screening process. It is not an offence to refuse to engage with me in any way during this screening process. Where are you going?”? It sounds an absurdity, and it would be obstructive to the normal work of police officers under Schedule 7. Does the noble Lord not agree that, although the number of Schedule 7 stops has been reduced dramatically, there remains effectiveness in Schedule 7, which was never shown, for example, in Section 44 stop and search, which he will remember well?

Counter-Terrorism and Border Security Bill

Lord Carlile of Berriew Excerpts

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

[Lord Blair of Boughton (CB)]

My Lords, I rise very briefly to say that it is a pleasure to follow the noble Lord, Lord Harris of Haringey, and that I completely agree with him.

[Lord Carlile of Berriew (CB)]

My Lords, I too agree with the noble Lord, Lord Harris. It seems to me that this clear provision provides four steps which have to be proved before somebody can be convicted of the crime set out in Clause 1. The first step is that they must say something deliberately, whether orally or in writing in some form, including on the internet. That requires them to act purposefully—it is a deliberate expression. Secondly, it must be supportive of something. Thirdly, it must be supportive not of anything at all but of a proscribed organisation—one that is forbidden by law to join in any event. Fourthly, they must consciously disregard the risks flowing from their action. That is the component of recklessness. So, with great respect to the noble Baroness who moved the amendment, I fear that she may have misunderstood what is provided by assuming that some vague general expression might be taken as committing the offence.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I will not go over the arguments again. The noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lady Hamwee made clear the points that the Supreme Court had concerns about in the case of Choudhary and that the Joint Committee on Human Rights expressed regarding the provisions in the Bill.

Of course, these are two separate amendments. They propose either something more definitive than “is supportive of”, or, if you keep “is supportive of”, that there should be a degree of intention. I saw the Minister nodding vigorously when the noble Baroness, Lady Jones, suggested that Amendment 2 would actually be no change from the status quo and therefore would in effect nullify the provision, and I have some sympathy with that, but these are two separate amendments and therefore can be taken separately.

In response to the noble Lord, Lord Harris of Haringey, yes, one can see how this is constructed so that an ingenious speaker might wheedle their way through and evade justice, but the problem that my noble friend has identified is that a naive 13 year-old who innocently makes a remark would be caught by this. I accept what the noble Lord, Lord Carlile of Berriew, says about the CPS code of charging but that would not stop that 13 year-old being arrested and detained by the police. I will come back to this theme when we debate the next group of amendments. I do not want to develop that argument now.

[Lord Carlile of Berriew]

I say this with great deference to a former senior police officer, but surely the arrest conditions would not apply to that 13 year-old and the arrest would therefore be unlawful. The police cannot arrest unless the arrest conditions apply, and one is necessity.

[Lord Paddick]

I am grateful for the noble Lord’s intervention but, as I say, I am not going to address that point now but in the next group. However, we feel that it is necessary for one or other of these amendments to be adopted. Therefore, if the noble Baroness, Lady Jones, decides to divide the House, we will support her.

--- Later in debate ---

[Lord Carlile of Berriew]

The noble Lord has read out only part of the grounds for arrest. There has to be a necessity for arrest. If he is going to read out the arrest conditions to your Lordships’ House, he should read them all, because necessity is essential.

[Lord Paddick]

I know that I am taking my life in my hands by arguing with a lawyer, but I believe that the noble Lord is referring to the Human Rights Act, which requires necessity and proportionality before the officer exercises the power of arrest. However, under the Police and Criminal Evidence Act, the constable can arrest somebody if they have reasonable cause to suspect that they may be about to commit an offence—which is what I have just said.

The advantage of legislating this way round, as proposed in the amendments, is that, if people are visiting sick or dying relatives, or are aid workers or journalists and have a genuine reason for travelling, they will not be committing an offence and will not be unreasonably deterred by the fear that they may be arrested, either on their way to or their return from a designated area.

[Lord Carlile of Berriew]

I am sorry; I cannot let this pass. If the noble Lord were to look at Section 110 of the Serious Organised Crime and Police Act 2005, he would find that one of the arrest conditions is that there has to be a necessity. Section 110(4) includes the words,

“exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question”.

That is why reasonable suspicion is not a sufficient ground for arrest—and we need to be clear about that.

[Lord Paddick]

Sadly, I do not have the legislation in front of me, so I cannot comment. No, I will not accept the noble Lord’s offer of taking his iPad to look at the legislation. I do not think that that is reasonable in all the circumstances.

If we accept that this is a reasonable way to approach the issue—that someone does not commit an offence if they have a reasonable excuse—what, then, is the difference between that and a journalist or academic being able to access material on the internet? They would be safe in the knowledge that, provided the purpose for visiting a website containing information that might be of use to a terrorist was reasonable and legitimate, they would not commit an offence.

I argue that the only difference is that here someone is entering into or remaining on a designated website rather than a designated area. Websites that contain information that might be of use to a terrorist are, if you will, designated areas of the internet, so entering or remaining on that website is an offence. Our Amendment 4 would ensure that it would be an offence only if a person collected, made a record of, possessed a document relating to, viewed or otherwise accessed by means of the internet information of use to a terrorist and they did not have a reasonable excuse for having or accessing that information.

Amendment 5 is consequential in that it would remove the “defence if charged” provision, which would be redundant were Amendment 4 accepted.

Turning to Amendment 3, similar arguments apply to the innocent or inadvertent publication of an image of a uniform or a flag. The ISIS flag on a friend’s bedroom wall that goes unnoticed when a selfie is posted on Facebook, which may well arouse reasonable suspicion that those in the picture support a proscribed organisation, could very well be an innocent or stupid mistake. Should the young person responsible be able to provide a simple and compelling excuse for his actions to the police officer on the doorstep rather than in an interview under caution, would that not be a better outcome?

There is nothing to be lost in having offences that are offences only if there is no reasonable excuse for the suspect’s actions. Police officers who fail to be convinced that the excuse is reasonable at the time they decide to make the arrest or who feel that the excuse might sound reasonable but needs to be verified would still have reasonable cause to suspect that the person might have committed an offence and arrest the person if it is necessary and proportionate to do so. However, it also provides the person accused of committing the offence with a legal remedy, and the police with a good reason to act reasonably, if there is clearly a reasonable excuse that is blatantly obvious and easily verifiable at the time of the arrest, yet the person is still deprived of their liberty.

I admit that the designated area offence and the obtaining or viewing of material offences have a more compelling claim for a “reasonable excuse means no offence” modification but there are circumstances where there might be a reasonable excuse for publishing an image in such a way or in such circumstances as to arouse suspicion that the person is a member or supporter of a proscribed organisation when they are neither of those things, and this will be immediately apparent to the officer sent to investigate. In my view, it is too late in the chain of events that could ensue for the reasonable excuse to be available only as a defence once charged.

No doubt the Government will say that the police can be trusted not to arrest in circumstances where a reasonable excuse is immediately apparent. With over 30 years of police experience and having witnessed at first hand the devastating consequences of innocent people being arrested and detained on the flimsiest of evidence, I am very concerned about the potential for abuse that this legislation as currently drafted provides.

Unless the Government can provide compelling reasons as to why the “reasonable excuse” defence should not engage at the beginning of the investigative process rather than at the end, I suggest that they might want to consider these arguments and undertake to discuss them further with interested Peers before Third Reading. If, however, when we come to debate his amendment in the fifth group, the noble Lord, Lord Rosser, decides that in the case of designated areas the arguments are compelling and the Minister’s response is inadequate, we will support him if he decides to divide the House on that issue. I beg to move.

--- Later in debate ---

[Lord Judge]

My Lords, Section 118 got somewhat lost in the discussions earlier. I support this amendment but I wonder whether, when the Minister comes to reflect on it, we would need the words,

“the court or jury shall assume that”.

It is a straightforward point of drafting but, with respect to the matter, “the defence is satisfied unless” would seem adequately to cover the amendment.

[Lord Carlile of Berriew]

My Lords, with great respect to my noble friend, and indeed to my noble and learned friend on my right, I wonder why one needs to say something twice in the same statute.

[Earl Howe]

My Lords, Amendment 10 returns us to an area on which we have previously had helpful and extensive debates: namely, the question of how much evidence is required to establish a reasonable excuse defence under Clause 4, on whom the burden of proof falls and how this is set out in the legislation. As the noble Lord, Lord Rosser, rightly said, these issues have previously caused some uncertainty as they require Clause 4 to be read in conjunction with Section 118 of the Terrorism Act 2000, which sets out how the burden of proof applies to a number of defences to criminal offences within the 2000 Act including, but not limited to, the new designated area offence. It may therefore be helpful if I remind your Lordships of how these provisions operate.

The approach taken in relation to proving a reasonable excuse defence under Clause 4, which inserts the designated area offence into the Terrorism Act 2000, is the exact same formulation that is used elsewhere in various defences to offences contained in the 2000 Act, including the defence to the Section 58 offence which is amended by Clause 3. Clause 4 refers to a defendant proving that they have “a reasonable excuse”. We must then turn to Section 118, which makes further provision on what is required to “prove” a defence in this context. The noble Lord, Lord Rosser, has previously raised a concern that the wording of the two provisions might be out of step, and that Clause 4 might place a greater burden on defendants to make out a reasonable excuse than is envisaged by Section 118. I have addressed this in previous debates and have written to him following our most recent debate in Committee. I hope that I have been able to reassure him that this is definitely not the case.

Section 118 provides that if a defendant,

“adduces evidence which is sufficient to raise an issue with respect to the matter”—

that is to say, the matter has to be proved under the wording of the defence—

“the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.

This, together with relevant case law, has the effect that if a defendant puts forward sufficient evidence to reasonably support a suggestion that he or she has a reasonable excuse, the burden of proof shifts to the prosecution to disprove that defence, which it must do to the normal criminal standard of “beyond reasonable doubt”. If the prosecution fails to do so, the jury must assume that the defence is made out.

Amendment 10 would insert this wording from Section 118 into Clause 4. The noble Lord has suggested that this would make the operation of Clause 4 clearer and would put beyond doubt what is required of a defendant to establish a reasonable excuse defence. I have every sympathy with the noble Lord’s desire for clarity. This is not the most straightforward of the Bill’s provisions, requiring as it does two different provisions in the 2000 Act to be read in conjunction, but I can assure him that there was a good reason for drafting it in this way. It is very simply that, as the noble Lord, Lord Anderson, said, Section 118 makes the same provision in relation to eight other provisions in the 2000 Act which include similar defences. Each of those defences points back to the same single place—Section 118—rather than including eight repetitions of the same wording in eight different places. This is a standard drafting practice where a common principle governs the operation of multiple provisions. It is considered to be the best way of providing clarity and consistency, and of not unnecessarily adding to the length and complexity of legislation.

In practice, the noble Lord’s amendment would have little or no impact on the operation of the reasonable excuse defence as it would simply duplicate the wording of Section 118, which already has effect. However, I must respectfully say that I am unable to support the amendment. As I have set out, the formulation used in the Bill as drafted, and in the 2000 Act, reflects normal drafting practice, and I do not see that there is sufficient reason to depart from this in relation to Clause 4. The courts have successfully operated Section 118 for 18 years in respect of the eight existing offences in the 2000 Act to which it also applies without anyone complaining that its effect is unclear or uncertain. There is clear case law and a settled and well-understood position.

Counter-Terrorism and Border Security Bill

Lord Carlile of Berriew Excerpts

Report stage (Hansard - continued): House of Lords
Monday 3rd December 2018 Lords Chamber

[Baroness Williams of Trafford]

From what I understand, a panel of approved solicitors is available to detainees—I am sure that the Box will fly over with a piece of paper if I am wrong about that. However, if, for whatever reason, the first solicitor from the panel is given to the detainee—

[Lord Carlile of Berriew (CB)]

May I make an effort to help out the noble Baroness? There was a time in my professional life when I used to be instructed by duty solicitors at London Heathrow Airport and London Gatwick Airport. The fact is that the duty solicitors at ports of entry are accustomed to dealing with all kinds of issues that arise there. Indeed, the quality of work that emanates from being a duty solicitor in significant ports of entry is high. Therefore, one can reasonably assume that one is getting not any old solicitor but a solicitor who has some understanding of the kind of work that can arise in that setting. There is also some training available, and it is usually done very co-operatively. Has that given the Minister enough time to be able to read the writing—or she may wish to just agree with me?

[Baroness Williams of Trafford]

I do agree with the noble Lord; that is absolutely brilliant. But I have just received another piece of information: if the detainee is still not satisfied, they can consult a solicitor by phone, so that is a third arm of the options for detainees. Between us, we have got there.

As for who approves the access to confidential material, it would be the Investigatory Powers Commissioner.

Counter-Terrorism and Border Security Bill

Lord Carlile of Berriew Excerpts

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

It is difficult to understand why the Government are resistant to such straightforward mechanisms, which would help to restore trust and to challenge the perceptions of minority communities that they are being unfairly targeted. It would also give the Government a good way of measuring whether Prevent was doing what they themselves believe it is. I hope the Minister will look favourably on Amendment 31. I beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, first, I draw the noble Lord’s attention to the existence of the Prevent oversight board, which last met a few days ago. It has not been meeting as often as it should, but I heard the Home Secretary personally giving an undertaking that it would meet again in six months’ time. The board was established during the coalition Government, and was accepted by the coalition Government, in response to the review that I conducted —on behalf of the coalition Government—of the Prevent strand of counterterrorism policy. Its purpose was to do exactly the sorts of things set out in this amendment, which I regard as unnecessary.

Secondly, the noble Lord referred, in what I suppose was an argumentum ad maiorem, to the noble Baroness, Lady Warsi. I note with regret that she is not here in her place; indeed, as I recall, she has not been in her place for any part of the Committee or Report stages of the Bill. I draw his attention to the fact that she is not a unifying force in dealing with extremism and Prevent. She has accused the excellent new counter- extremism commissioner, Sara Khan, of being,

“neither connected to, nor listened to, nor respected by, nor trusted by, nor considered independent by most British Muslims—so”,

the extremism commission,

“has no ability to influence and affect change in its ‘target audience’”,

despite Ms Khan’s efforts to deal with the problem of attaining a range for a definition of extremism. I say to the noble Baroness, who I now see approaching the Chamber for the first time in these Committee and Report debates, that I regret that she takes a somewhat monolithic view of Islam in this country, whereas Islam is—if I can use my Welsh experience from being a Member of the other place—as diverse as Christianity in Wales, which is about as diverse as it comes.

With great respect to the noble Lord, if he is to criticise Prevent then he should be specific about which of its programmes he is criticising. I have spent a great deal of time watching Prevent; going to programmes in its field, listening to those who conduct them and talking to people in the communities in which they operate. I have observed that Prevent is, on the whole, regarded pretty positively, as achieving a great deal. Above all, it achieves the deradicalisation of children who might otherwise spend most of their lives in prison if they were to fulfil the ideation which led them into Prevent.

I know that there are figures, which I accept completely, showing that many—even the majority—of those who are referred into Prevent are not, in the end, shown to be appropriate for its programmes. But what do the police do? They stop people in the street; they arrest them; they question them in an aggressive way; and they are often wrong in their suspicions. Finding the people who commit offences involves talking to an awful lot of other people. Prevent actually does achieve considerable success in finding those young people who are being radicalised, often in private, in their rooms, over the internet—a very difficult area in which to operate.

It is unfair to criticise Prevent in the way in which the noble Lord, Lord Stunell, did. It has been suggested that it could be replaced by something else, but that would look awfully like Prevent, whatever you called it. If you called it “Cuddles” it would still receive exactly the criticisms which are made of it as Prevent. It would achieve nothing. If we abandoned Prevent, then terrorist acts which we have been able to avoid as a result of that policy would happen. I admit I played a part in it, so I may be somewhat biased towards it. Noble Lords have been talking about bias this afternoon and I accept the accusation of apparent bias as a possibility. However, I believe that Prevent has demonstrated that it has been successful, since it was adopted by the Government in which the noble Lord was a Minister. If it had not been, why did they not abandon it before 2015?

[Lord West of Spithead (Lab)]

My Lords, I have been involved in the Prevent programme since 2007. It is like the curate’s egg: some parts of it have been successful, some not. It is almost impossible to imagine that we would not have had such a programme. It was absolutely necessary to do it because, in the final analysis, terrorism is a generational thing and the only way to defeat it is by attacking those areas of belief and behaviour. It is, therefore, probably the most important strand, but we found it the most difficult one and there is no doubt that some areas of it failed and did not do well. We therefore need to improve it. The amendment is unnecessary because, as the noble Lord, Lord Carlile, said, if the Prevent oversight board is doing its job it should do these things. However, we need to look at how we can make Prevent better.

--- Later in debate ---

[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.

[Lord Harris of Haringey (Lab)]

My Lords, it is a pleasure to follow two distinguished reviewers of counterterrorism legislation, who more or less agreed with each other. My first realisation of how pivotal the Prevent strand is came when I chaired a focus group with mothers who were concerned that their children were being lured into radicalised behaviour. They were pleading for there to be somewhere where their children, mainly male in that group, could be referred to be helped through the process and not end up as radicalised and potential terrorists. They had huge concerns that if they raised their fears about their sons with the police, the next thing that would happen is that their doors would be kicked in at four in the morning and the young person would be taken away and interrogated, and goodness only knows what would happen after that. Those mothers were also concerned about whether there were routes within their own communities for dealing with such cases and they felt quite strongly that there were none. They did not have a solution: they simply pleaded for something to be found to help them in that situation. That is one of the strongest cases that I have heard as to why this work is so important.

Having said that, there was a desire for alliteration to have four Ps when the Contest strategy was created and, in hindsight, that the Prevent strand was included was not entirely helpful. The core of Prevent is safeguarding. We have no qualms about safeguarding young people from sexual abuse, about safeguarding those who are vulnerable or have mental health issues, nor of finding ways to steer young people away from gang-related activities—we do not necessarily know how to do it but we know that it is a good thing to do—and we have no qualms about trying to steer people away from becoming addicted to dangerous drugs. Why should we have any qualms about steering young people—or indeed anyone—away from engagement in radicalisation and in terrorism? The problem has been that it is seen as too closely linked to the counterterrorism policy and the alliteration of the four Ps.

We should be quite clear that counterterrorism is important. It has to be addressed in this way and the Prevent programme has not always been as effective as it might have been in individual cases. Again, I remember 12 years ago—I cannot recall exactly when: I would have to check my diary—visiting two Prevent projects in London in adjacent London boroughs. They had similar mixes but took completely different approaches, for no obvious reason. In one, it appeared that if someone was referred to the programme, a large, burly police officer would go around and try to talk them out of it, which, frankly, will not produce the most effective results. There was an issue, particularly at the beginning and perhaps less so now, of quality control in the way in which some Prevent activities have been taking place.

We should also recognise that the fact that Prevent has such a difficult reputation is not entirely accidental. It is not entirely the consequence of that variability in the style but because some organisations and individuals have desperately tried to traduce it and make it appear more sinister than it is—for whatever reasons we can only speculate, but that is what has happened.

My noble friend’s amendment is important not necessarily because we will end up with something very different, but we need to look at those quality control issues, to establish that it is being done as well as possible, and we need to emphasise that the mission is safeguarding and protection of the individual rather than being part of the counterterrorism machinery which necessarily leads people to conviction and imprisonment.

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[Baroness Warsi (Con)]

My Lords, with the leave of the House—and I have spoken to both our Front Bench and the clerk—I will refer slightly to the last amendment, which does actually refer to the current amendment. I was in the Chamber when this amendment was called.

I want to put a couple of things on record—first, my views on Prevent. I have written about this extensively. I will not plug the book, but it is available on Amazon. In that book, I talk about Prevent in detail. I talk about how, when the policy was started in 2003 and first published in this iteration in 2006, I supported it. It was effectively an upstream intervention into areas where we felt we could intervene, predominantly with young people and British Muslims at that time, although we are increasingly dealing with far-right extremism now. We were predominantly intervening with young people who may be attracted into terrorism. How could anybody disagree with that principle?

In my book—and this is the issue that I raised with the noble Lord, Lord Carlile—I work through the various iterations of Prevent. It has changed from what it was in 2003 to what it is now in 2018. It started as a policy specifically designed to be run as an internal discussion within communities of what could be considered to be extremist views. It was supposed to be a genuine, non-criminalised safe space and a battle of ideas—something I fundamentally supported—but it became a policy that was done not by the community but to the community. This is an issue I have consistently raised: what the policy became and the way it was then implemented; the level and quality of training, the material being used, the way it was implemented in different schools and differently across different communities. All of this—with 100 pages of citations if that helps the noble Lord—is detailed in the book, because it was important to say clearly that a principle of policy that I supported has, over time, become fundamentally flawed in its implementation and lost the trust of the communities we were trying to influence.

As a British Muslim parent whose children are likely to be vulnerable and to be approached by those who want to lead them astray, whether into extremism, terrorism or elsewhere, I would be the first in line to say this policy needs to be supported. But I do not want a policy on our books, which has statutory basis, which is badly implemented.

[Lord Carlile of Berriew]

I read the noble Baroness’s book with great interest and I am glad to see that she is now taking part in our debate. Does she not agree that the iterations she describes in her book show the progress from a Prevent strategy run by the police to one now not run by the police? All the best examples of Prevent are run by NGOs, private sector groups or local authorities. The police are involved in Prevent only when there is evidence of an offence having been committed. Is that not real progress, which we ought to laud and welcome, in the changes to Prevent? I expect to agree with the noble Baroness on this point.

[Baroness Warsi]

As the noble Lord is aware, I took part in the Bill’s Second Reading debate and made my views clear to the Minister and to many colleagues in the House, publicly and privately. My views on this are on record and, when we vote, I will make them clear.

As I have said, it is not so much a question of who delivers Prevent—the police or third-sector organisations —but that it is delivered so that the communities trust the policy. It is clear that, as it stands, British Muslim communities do not trust Prevent. Therefore, as somebody who supports the principles behind it, I feel it is appropriate and entirely right to have an independent review. We are not asking for Prevent to be forgone completely. Many Members of this House are saying we should keep the good bits.

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[Baroness Williams of Trafford]

I am not, but I suspect the noble Lord, Lord Carlile, can.

[Lord Carlile of Berriew]

I can. The previous meeting—and the noble Lord is making a fair point—took place 18 months previously. During that period, I for one requested meetings take place on a regular basis. At least two meetings were cancelled during that time, dates having been set and put in diaries. I happen to be a member of the Prevent oversight board, so I am aware of the calendar. One of the points made at the most recent meeting was that, if the board is to be effective, it must meet more frequently. One of the reasons why there was such a long delay—and the noble Baroness may confirm this—was because it had been established that the Prevent oversight board should be chaired by the Home Secretary. That has been a difficulty, but on the most recent occasion, if I remember rightly, the Home Secretary and the Lord Chancellor were present, along with a number of other Ministers.

[Baroness Williams of Trafford]

I thank the noble Lord, Lord Carlile, and I think that is right. If this debate has done nothing else, it has probably given the impetus to ensure the oversight board meets more regularly, and I shall take that back.

There needs to be evidence of systemic failures to justify a review. I will take back the point about the oversight board meeting more often. Prevent should be subject to proper scrutiny, but I hope I have already outlined a number of mechanisms for this. It is also open to the Home Affairs Select Committee to conduct an inquiry into Prevent, should it wish to do so. Furthermore, the fifth anniversary of the passage of the Counter-Terrorism and Security Act 2015 does offer the opportunity to undertake the normal pre-legislative review of the provisions in Part 5 of that Act, providing the legislative framework for Prevent.

I hope my explanation has provided some comfort to noble Lords. I suspect by the gathering crowds it has not.

[Lord Carlile of Berriew]

I am sorry to interrupt again, but can the Minister also deal with the point made by the noble Lord, Lord Marlesford? It was suggested that the Home Office contains officials who do not really focus on Prevent. Could she confirm there is a strong Prevent group within the Home Office, chaired by an experienced and competent person who does a great deal of conceptual thinking in this area and is open to discussion with any Member of your Lordships’ House who shows some understanding of this issue and cares to discuss it with him or his team, which is now frighteningly large?

[Baroness Williams of Trafford]

The noble Lord is absolutely right, and that team is growing. I think my noble friend Lord Marlesford is concerned about the Home Office in general, but I can confirm what the noble Lord, Lord Carlile, says.

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[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.

[Lord Harris of Haringey]

I may have misunderstood the noble Lord and I am grateful to him for giving way. If he is objecting to the idea that the decision should not be published, how will somebody know whether an organisation is proscribed or not?

[Lord Carlile of Berriew]

The last paragraph would remain: a record would have to be placed before Parliament. What I am concerned about is the giving of reasons.

[Lord Harris of Haringey]

It does not say that.

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[Lord Carlile of Berriew]

In my view, it is implicit in the publication of each such decision that decisions have to be reasonable and therefore subject to reasons. I would not want issues that might affect national security to be included. That is the point I am seeking to make.

I conclude by suggesting that the whole problem raised by Amendments 32A and 32B could be resolved if we were to hear from whichever Minister replies to the debate—I think the noble Baroness, Lady Williams—that the Government accept the principles set out in these amendments and that there is a need for them to be more methodical than they have been in reviewing proscription, and undertake that Ministers will be more methodical and apply the principles broadly set out in these amendments, which in principle I see as unexceptionable.

[Lord Garnier (Con)]

My Lords, it might encourage my noble friends on the Front Bench to do as the noble Lord, Lord Carlile, has indicated. I find the principles behind the amendments in the name of the noble Lord, Lord Anderson, very attractive. No doubt some practical points need to be sorted out. I am much encouraged by the wording,

“it is or has been”,

in proposed new subsection (4)(a) in Amendment 32A. I fully take on board the concerns a Government might have relating to the publication of the reasons for making a decision under the review of proscription provisions in Amendment 32B. That said, there seems to be, at least as a matter of theory, a lot to commend the amendments from the noble Lord, Lord Anderson. I encourage the Government to see whether something can be crafted that will enable something similar to this to come on to the statute book, not least for the reasons of departmental policy squabbles that those of us who have been in government know so much about.