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.