Counter-Terrorism and Border Security Bill

Lord Fowler Excerpts

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

[Baroness Hamwee (LD)]

My Lords, Amendment 31 is grouped with Amendment 33. Both are amendments to Clause 6, which extends the circumstances in which a terrorist offending abroad may be prosecuted in the UK, whether or not the offender is a UK citizen and whether or not the conduct is also an offence in the jurisdiction in which it took place. The overall effect of the amended provisions of the Terrorism Act is that an individual committing one of the offences within the relevant section would be liable under UK law in the same way as if he or she committed the offence in the UK. In practical terms, that person would be prosecuted only if he or she was present in the UK, though that presence could, of course, be achieved through extradition.

The offences which this Bill adds are: the dissemination of terrorist material; the wearing of clothing or displaying an item in public so as to arouse reasonable suspicion the person is a member or supporter of—in view of our debate on Monday, I have written down a query about whether that should be “supportive of”—a proscribed organisation; and making or possessing explosives under suspicious circumstances. Under these provisions, it would also no longer be a requirement that the offence be listed in the Council of Europe Convention on the Prevention of Terrorism.

I very much enjoyed the tutorials, from which we all benefited, from the very senior lawyers who took part on the debate in Monday. I am tempted to let them go first but the amendment is in my name, so that would not be entirely the thing to do. I move these amendments, as I did on Monday, on behalf of the Joint Committee on Human Rights. Our report of 4 July commented on some of the evidence we had received, including that from the Independent Reviewer of Terrorism Legislation Max Hill QC. He said:

“placing an individual … on trial in this jurisdiction in front of judge and jury means that you need to prove a level of awareness as to the offence at the time the person committed it. If there is no equivalent offence abroad it is difficult, at the point of proof, to demonstrate that the offence has been committed”.

We also reported on the evidence of Professor Clive Walker, who talked about creating,

“a potential clash between UK law and the law of the country where the activity occurred”.

He went on to say that,

“foreign law which has chosen not to incriminate or prosecute the display of support suggests that UK law should not intervene”.

Similar points were made about the removal of the requirement for equivalence with the convention.

The committee’s report expressed our concern:

“The extension of extraterritorial jurisdiction to certain offences such as support for a proscribed organisation may be problematic in situations where there is not an equivalent offence in the country concerned”.


We took the view that this would,

“offend the principles of natural justice and sufficient foreseeability of the effect of one’s actions. It would mean a foreign national, with few links to the UK, could be prosecuted in the UK if he/she attended a protest or waved a flag overseas, in support of an organisation that is lawful within that overseas jurisdiction … We recommend that further consideration is given as to whether it is justified to bring domestic prosecutions against those who have no (or very few) links to the UK at the relevant time for conduct overseas that was perfectly lawful in the jurisdiction where it occurred”.

The Government have argued that the oversight of the Director of Public Prosecutions or, in certain cases, the Attorney-General, is a safeguard and that prosecutions would have to be proportionate. We did not regard this as a sufficient answer, nor did we regard as sufficient the Government’s comment that we need to deal with conduct in failed states which do not have the rule of law. All this raises, among other things, the issue of how evidence is found in such a place for use in a prosecution here.

Amendment 31 would delete the extension to the Section 13 offence in respect of uniforms and flags. Amendment 33 would limit the extension to where the relevant conduct is criminal in the country concerned, or where the individual is a British national or has been present in the UK for six months or more over a period of 10 years. That was a way of expressing that the individual has significant links with the UK. I beg to move.

[The Lord Speaker (Lord Fowler)]

I should notify the Committee that, if Amendment 31 is agreed to, I cannot call Amendment 32 by reason of pre-emption.

[Lord Rosser (Lab)]

My Lords, as the noble Baroness, Lady Hamwee, said, Amendment 33, to which both my noble friend Lord Kennedy of Southwark and I have added our names, reflects a recommendation of the Joint Committee on Human Rights—a committee whose recommendations are not always music to the ears of this Government, and indeed have not been to previous Governments. I imagine that the committee would take the view that that is just about the highest compliment any Government could pay it.

The Government have also expressed a fairly trenchant view on the extent to which the JCHR, in connection with the Bill, should have taken evidence from the police, intelligence agencies and victims. The noble Baroness, Lady Hamwee, has previously responded to the Government’s comments, but, whatever the Government’s view on that specific point, the committee’s recommendations should be considered and responded to purely on their merits, rather than on the basis of whose evidence has or has not been given.

As the noble Baroness, Lady Hamwee, and the JCHR have said, Clause 6 extends extraterritorial jurisdiction to Section 13 of the Terrorism Act 2000. Section 13 criminalises wearing an item of clothing or wearing, carrying or displaying an article in a public place so as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. The JCHR has expressed concerns over the extension of extraterritorial jurisdiction to certain offences where there is no equivalent offence in the country concerned, which could certainly apply in respect of the offences covered by Section 13 of the Terrorism Act. In such a situation, we could end up in a position under the Bill as it stands where a foreign national with no or very limited links to the UK is prosecuted for conduct that, both in fact and as far as they were concerned, was lawful at the time and in the place it occurred. That surely would not be British justice in action.

The views of the Joint Committee on Human Rights on this issue are shared by the Constitution Committee—whether, in the latter case, that was with or without having heard evidence from the police and intelligence agencies I do not know. The Constitution Committee states that the extraterritorial extension of the offences concerned,

“breaches the requirement, deriving from the principle of legal certainty, that people should have a fair opportunity to know the laws (particularly criminal laws which on conviction carry criminal penalties) which apply to them. We agree with the JCHR’s proposed amendment that extra-territorial jurisdiction should apply only where the relevant conduct is criminal in the country concerned or where the individual has sufficient links to the UK”.

Amendment 33 is designed to address the issue to which both the JCHR and the Constitution Committee have drawn attention by providing that an offence is committed under Section 13 only if the relevant acts were an offence in the country where the acts took place, or the individual was a British national or had been present in the United Kingdom for a continuous period of at least six months in the last 10 years.