Counter-Terrorism and Border Security Bill

Lord Faulks Excerpts

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

[Baroness Hamwee (LD)]

My Lords, I have various amendments in this group, but I start with a general point: all the amendments in the Marshalled List where mine is the first name were proposed by the Joint Committee on Human Rights, of which I am a member, and I have been tasked by the committee to raise them with your Lordships. I take this opportunity to thank not only the committee but its officials, who have done a huge amount of work on the Bill, particularly Samantha Godec. Having said that, I have no doubt that my noble friends will agree with much that I have to say, but I leave that to them. I suspect that I will not be able to refrain from commenting on some other amendments.

The committee has put forward amendments that seek to ensure that the Bill restricts rights only to the extent necessary and proportionate—terms with which noble Lords will be very familiar. I make it clear, though I hope it does not need saying, that this is by no means wholesale opposition to the Bill. We recognise that the Government need powers to defend national security, but when powers engage human rights or interfere with them, they must be clearly prescribed, necessary in pursuit of a legitimate aim and proportionate to that aim. The committee was concerned that the Bill legislates close to the line and sometimes crosses it, taking the criminal law further into private spaces. It looked, as noble Lords would expect, for the right balance between liberty and security.

Among the evidence that we received was a long paper from Professor Clive Walker, adviser to successive Independent Reviewers of Terrorism Legislation, who commented:

“It can readily be demonstrated that the United Kingdom already has the most extensive counter terrorism code in Europe if not the world”.


That was a point made by Max Hill before he became the independent reviewer; he has said several times that we have sufficient offences, we do not need any more. The obligation on us is obviously to identify whether there are gaps that need to be filled, and whether we agree with the Government about that. Professor Walker also made the point, which I think is worth repeating at this point—I am not seeking to make a Second Reading speech—that,

“criticism should be made of the failure on the part of Home Office to issue any consultation paper prior to the CT&BS Bill”.

He wrote about the value of a pre-legislation phase, allowing not only for public scrutiny but for other independent proposals, and said how well that worked in the case of the Sanctions and Anti-Money Laundering Act.

My name is attached to Amendments 3 and 5 in this group and I have also given notice that I oppose Clause 1 standing part of the Bill.

[Lord Faulks (Con)]

The noble Baroness has indicated to the House that she speaks, in effect, on behalf of the Joint Committee on Human Rights, and we are all grateful for its report. Can she help the House in that context with one thing? The Joint Committee on Human Rights, of course, has particular reference to the provisions of the Human Rights Act and the articles of the European Convention on Human Rights. Does she and her committee consider it important also to consider the rights of citizens affected by, or potentially affected by, acts of terrorism or encouragement to terrorism, whether it be their rights under Article 2 or Article 8 of the convention? These are, of course, also human rights.

[Baroness Hamwee]

Indeed they are, my Lords, and that was why I very deliberately mentioned security as well as liberty in my opening words. It would be wrong to give the noble Lord an assurance that we specifically discussed those rights in the same way or at the same length as other rights, but I have been in enough meetings of the committee to know that that is a backdrop to the other rights we address. I hope that reassures him. It may not, but I did say that we were not opposing this Bill in any wholesale way.

Amendment 3 would leave out paragraph (b) and instead insert a reference to intention,

“to encourage support for a proscribed organisation”.

Other noble Lords have referred to that at some length. I agree with the point about context made by the noble Baroness, Lady D’Souza—whether this is the point at which to agree with her or not, I do not know. But I do think context assists one to understand what is in the mind of a person making a statement or undertaking an act.

Regarding Amendment 5, I am grateful for the support of the noble Lord, Lord Carlile. His point about open discussion is an important one. I know that he balances the importance of transparency and free debate on these matters. I agree with the noble Baroness, Lady Jones, about “support” and “supportive”. In debate and correspondence, the Government have relied on Section 4 of the 2000 Act as providing a route to apply to the Home Secretary for de-proscription. I do not challenge that, but do not think it is by any means a complete answer to this. The defence in the 2000 Act only protects statements of support related to a de-proscription application. It is not a defence for those taking part in debate outside those proceedings.

The clause creates a new offence, and the Minister in the Public Bill Committee in the Commons said:

“Dealing effectively with the power of inspiration or incitement is not new”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 28/6/18; col. 71.]


I do not read this clause as being about incitement or inspiration. Recklessness is lesser than that.

I have a specific question for the Minister about new subsection 1A(b), which refers to a person to whom a statement, or whatever, is directed. I would like to understand the term “directed”. Are you directing something if it is not addressed to a named person or an identifiable/identified group? If you tweet or post something on Facebook, accessible to the world, are you directing that? The Minister in the Commons made a point similar to the one made by the noble Lord, Lord Carlile. He gave the example of walking down a high street swinging a baseball bat. Are the people who might see a tweet equivalent to the pedestrians in the high street?

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[Viscount Hailsham]

My Lords, I shall speak briefly to Amendments 3, 4, 5 and 6. I accept that there may well be a need to further criminalise the overt support of proscribed organisations; I do not dissent from that view. However, we have to accept that what we are proposing in the Bill is an infringement of human rights—the right to free speech. The noble Baroness, Lady Hamwee, is entirely right about that. We therefore need to apply the test of proportionality: to weigh up the evil in one hand and then look at the consequences of what is proposed in the other. It is in that context that I would be very much happier—I now speak directly to my noble friend on the Front Bench—if we were to look again at the concept of specific intent. I would be very much happier if what we were providing for was that the offence was establishable only on proof of specific intent. I find myself very much in support of Amendments 3 and 4 because they seem to satisfy the test of proportionality.

To comment briefly on Amendment 5, I find myself entirely in agreement with the noble Lord, Lord Carlile. Anyone who advocates the de-proscription of a proscribed organisation seems to fall foul of the general language of this part of the Bill, and that should not be the case. It is perfectly proper as part of public debate to argue that a specific organisation should not be proscribed. I therefore hope—

[Lord Faulks]

My Lords—

[Viscount Hailsham]

May I just finish this point? Then of course I will give way to my noble friend. I hope the Government will look sympathetically at Amendment 5.

[Lord Faulks]

I understand what my noble friend says about Amendment 5 but I am little puzzled by why suggesting that a proscribed organisation should cease to be proscribed is supportive of a proscribed organisation. It is one thing to say that proscription should cease; it is another to be supportive of it.

[Viscount Hailsham]

I wondered that myself but came to the conclusion, having weighed up the language, that to argue that something should not be proscribed probably does constitute action supportive of the proscribed organisation. Even if I was wrong about that, though—in this context my views are shared by the noble Lord, Lord Carlile—it is certainly an arguable position, and I am in favour of clarity in law. That is why I would go with Amendment 5 in the name of my noble friend.

That brings me to Amendment 6, where I am afraid I part company with my noble friend.

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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.

[Baroness Hamwee]

My Lords, I tabled Amendments 21 and 22 in this group. I was not surprised, given the authors, to be more attracted to Amendment 17 than to my own amendment, but I have a couple of questions related to points already raised. I too wonder about the word “solely”. If, for one or more of the reasons listed, someone went for a reason authorised by the legislation or in regulations but did something outside them, might that cause a problem? Perhaps more importantly, I also have a question about the registered charity, regarding the jurisdiction in which it would have to be registered. It is important to address the position of charities, not just for charity workers but because the trustees will have a duty of care towards their staff. They will have an important interest in ensuring that what their staff are doing is appropriate within what the law allows.

I turn to the phrase,

“visiting a dependent family member”.

I wonder about the word “dependent”. A sick mother would be unlikely to be dependent if the son or daughter is not there supporting the family member. Perhaps one might look at extending that. However, I like the approach. I do not think it is an alternative to what is set out in Amendment 22. That would provide for regulations for authorisation—not just the grounds for applying for authorisation but also the “procedure for applying”, the “timescales for determining” it, which might be important in particular circumstances, and “rights of appeal”, which should be dealt with by some means or other. As I say, this is not an alternative; rather, there are procedural points in this that should be addressed.

I am grateful to the organisation Bond for briefing me about the position in Australia and Denmark, to which the noble Lord referred. It has put a note at the end of its briefing to remind me that the proposal for the restrictions was promoted at the exact time that nine people were arrested for travelling to Syria to become foreign fighters—proving that the existing legal provisions are “rather effective”, to use its words.

I am aware that in Australia there is an overarching exemption for the International Committee of the Red Cross, but I understand that it can be extended to other humanitarian organisations. I do not know whether any noble Lord taking part in this Committee knows how far that has been extended. I take the points about monitoring and, while putting forward these provisions, I am aware that we must balance that against the administrative burden, to which I suspect the Minister may refer. There will be an administrative burden but the benefits that could be achieved by amendments such as the ones we have been debating outweigh that. I simply wanted to anticipate that argument.

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[Lord Paddick]

My Lords, clearly all the amendments in this group have their merits, but we seem to be rallying to the flag of the noble Lord, Lord Anderson of Ipswich, for very good reason. As the noble and learned Lord, Lord Judge, explained, this appears to be, at least in essence, the way forward. As the noble Lord, Lord Anderson, said, it is based on a tried-and-tested system that operates under Australian law and gives a degree of certainty that the reasonable excuse defence does not give. It covers journalism as well, which could arguably make Amendment 20 unnecessary. On the definition of what journalism means, the noble Lord’s expression,

“working in a professional capacity as a journalist”,

might be an indication of the way forward as far as that definition is concerned. I have added my name to Amendments 21 and 22 in my noble friend Lady Hamwee’s name, but, as I said, perhaps Amendment 17 is a better way forward.

The noble Lord, Lord Faulks, is obviously trailing his amendment on treason, but in addition to what the noble Baroness, Lady Manningham-Buller, said, it is more than just fighting UK forces. It could be that people are going to engage in terrorist activity against allies of the UK, not necessarily against the UK itself. We would want to deter our nationals from travelling to areas for that purpose. People might travel to those areas for a legitimate purpose and then engage in terrorist activity, but there is no way that we could legislate for that. Clearly, they would then commit a substantive offence under different legislation.

[Lord Faulks]

Can the noble Lord help the Committee by saying what legislation they would be committing an offence under?

[Lord Paddick]

My understanding is that it is an offence to travel to an area to engage as a foreign fighter. I cannot remember what exactly the legislation is, but reference has been made to it by other noble Lords this evening.

[Lord Elystan-Morgan (CB)]

Is not the Foreign Enlistment Act 1870 still extant? I think it is.

[Lord Faulks]

I am not sure about that, and I am grateful to the noble Lord for assisting. There is, of course, a Treason Act of 1351, but that is not often relied on—or not at all relied upon. The noble Lord may be right, but I was genuinely inquiring what legislation the noble Lord was referring to.

[Lord Paddick]

I am very grateful to noble Lords for their interventions. At the end of the day, the principle that the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, have put forward in this amendment needs to be very seriously considered—and potentially not just for this offence, but perhaps for the other new offences in the Bill that we have already debated.