Counter-Terrorism and Border Security Bill

Lord Garnier Excerpts

2nd reading (Hansard): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Lord Garnier (Con) (Maiden Speech)]

My Lords, I made my maiden speech in the other place 26 years ago. I was not entirely sure whether I would make the right, the wrong or any impression, but I need not have worried. My turn came to speak well after midnight, and we were debating the Maastricht legislation. It seems that the relationship between the European Union and the United Kingdom has dogged my political life like two squabbling passengers at the back of a bus—no matter where you sit, you can still hear them. However, on that occasion the hour and the subject worked to my advantage because I addressed an almost empty Chamber.

The few people present were, with one exception, there only because they had to be: the Deputy Speaker; the Clerk at the Table; the Government and Opposition Whips, playing some demented game of chicken to see who would give up and go home first; the junior Minister from the Foreign Office, who sensibly was concentrating on his correspondence; and a handful of Back-Benchers, who were waiting to speak and certainly not listening to me. The exception was Douglas Hurd, my noble friend Lord Hurd of Westwell, then the Foreign Secretary, who kindly came from his room to sit on the Front Bench as I mumbled at the back. Sadly, he has retired from this House but, to me, he represents so much of what is good in our public life.

On this occasion, I find myself speaking to a fuller House at a much earlier hour than last time, following speeches of great quality and great depth. However, I do not want to try anyone’s patience, not least because of the list of speakers due to speak after me, who have far greater expertise than I do, and because I want to hear my good friend, the noble Lord, Lord Tyrie, make his maiden speech as well.

However, I want to record that in the very short time that I have been a Member of your Lordships’ House I have been struck by the kindness, not least during today’s debate, that I have received from noble Lords on all sides of the House and from members of staff in every department. Despite the fact that my peerage was announced on the evening before Prince Harry’s wedding, and therefore the Harborough Mail had other things to report, I was delighted to find that one or two people were expecting me when I got here. I particularly want to thank my noble friends Lord Goodlad and Lord Young of Cookham for supporting me at my introduction. They were friends in the Commons and they have stood fast to that friendship here.

I have taken my territorial designation, Harborough, from the constituency in south-east Leicestershire which I represented for 25 years. Although I come from Norfolk, my wife’s family have lived in Rutland, Leicestershire and Lincolnshire for many years, so I was delighted to be adopted by a constituency that covers most of south-east Leicestershire between the city of Leicester and Northamptonshire.

Despite my 25 years in the other place and my experience there as a Back and Front-Bencher, both in opposition and in government, there is much that is new to me here. The lines of communication between the two Houses are not always well maintained. This is a very different place, with its own characteristics, procedures and traditions, but we should celebrate these differences. Let it not be thought that because our parliamentary system is old, it must therefore be bad. Our system is old because it is good, not bad because it is old.

One of the defining features of our country is a general respect for the rule of law, and today’s debate demonstrates that justice and the rule of law remain in the forefront of our public discourse. Freedom of expression—political and otherwise—has been protected by the common law and the vigilance of Parliament every bit as much as by the European convention. Parliament and the law should be vigilant to ensure that our right to comment freely and honestly, and even offensively and idiotically, is never cut down. But terrorism—and the threat of terrorism—tests our freedoms and our tolerance of others’ opinions. The first four clauses of this Bill, with suitable safeguards, adjust the limits of acceptable conduct—where freedom of expression ends and where crime begins—just as the increased sentences in Clauses 6 to 10 make it plain how unacceptable we find these criminal acts to be.

There is no one answer to the questions posed by terrorism, by those who commit terrorism offences and by those who persuade others—or who are persuaded by others—to commit these hideous crimes. Ironically, at a time when electronic communications and information technology have allowed for the creation of highly sophisticated weapons and remote triggering systems, there is, as my noble friend the Minister indicated at the outset, a greater use of simple weapons such as vehicles and kitchen knives. The attacks are planned in days, not over months, and it is remarkably easy to buy bomb parts and chemicals, and to research targets online. This makes it harder to detect terrorist crime in advance, but with greater information sharing between those tasked with our protection, things could improve.

I understand—the Minister has indicated as much—that there are currently about 500 terrorist plots at various stages of development, and I think the noble Baroness, Lady Manningham-Buller, made the same point. I further understand there are about 3,000 people of interest, as the noble Baroness mentioned. Further, there are about 20,000 people on the fringes called closed suspects—the 2017 offenders were, I gather, in that category. We therefore need to provide the security services and the police with the resources to allow them to review everyone in that group.

As the shadow Attorney-General when my noble friend Lord Hague and David Cameron were leaders of the Opposition, and as Solicitor-General in the coalition Government when Mr Cameron was Prime Minister, I spent a good deal of time on matters to do with terrorism and the sometimes conflicting rights under the European convention. There are a number in your Lordships’ House who, like me, are members of the former law officers’ club. Forty years ago, I was led by Lord Rawlinson of Ewell, a former Solicitor-General and Attorney-General, for the Daily Mail, in a libel action brought by the Moonies. He told me that when he was appointed Solicitor-General in 1962, the Prime Minister, Harold Macmillan, gave him a learned seminar on the history and constitutional role of the law officers. It was made clear that as Solicitor-General, his first duty was to the rule of law, his second was to Parliament and only his third was to Macmillan’s Administration. Mr Cameron appointed me Solicitor-General in 2010 during a three-minute telephone call. Had he had the time to think about it, I am sure he would have agreed with Macmillan. I certainly tried to keep Harold Macmillan’s advice to Peter Rawlinson to the forefront of my mind when I was Solicitor-General.

To many Ministers, the law officers are—with the exception now of Geoffrey Cox— either mysterious, barely-known creatures, or an inconvenient reminder that the law of the land applies to them. Like lawyers in private practice, law officers cannot talk in detail about their work, which is confidential to their client: the Government. But nor should they only say “no”—they should try to be imaginative and help the Government navigate through their difficulties. Their power—if they have any at all—lies in speaking truth unto power and in resignation. The law officers are more like submarines than the ships of the line in the Cabinet: you know they are down there somewhere, unseen and unheard, quietly going about their business, but if they surface and their concerns or disagreements become known to the wider world, either the Government are in trouble or they are.

Shortly after my appointment in 2010, I was showing off to the then Lord Chief Justice, the noble and learned Lord, Lord Judge, that one of my ancestors, Sir William de Grey, had been successively Solicitor-General and Attorney-General from 1763 until 1771, under five Prime Ministers. After that, I told him, my ancestor became Lord Chief Justice of the Common Pleas. The noble and learned Lord smiled engagingly and gently reminded me that some apparent precedents are easily distinguished upon their facts.

After reading history at Oxford, I went to the Bar. In 1976, I joined a set of chambers in the Temple that specialised in media and information law—it still does. Leon Brittan, a Member of Parliament and a shadow Minister, was then the junior silk in Chambers. My friend Lord Brittan is sadly now dead, but he taught me that it is possible to be a practising barrister and a conscientious Member of Parliament and that, although lawyers are not everyone’s favourite, we have our uses. In response to my persistent questions about politics he said, “Stop talking about it; just go and do it”. He also demonstrated that it is possible to maintain one’s dignity in adversity. In the last months of his life, he was cruelly assailed by baseless allegations that would have broken healthy men. It is sad that he did not live to witness his own exoneration, but I hope it is of some comfort to his widow, Diana, that his reputation has, without question, been restored to its rightful place.

Somehow, I have arrived here among you all. I am honoured to be here and I hope to play my part in shaping the legislation that comes before us. Now is not the time for me to say much more about this Bill. Although it amends and adds to criminal law—a prospect that usually makes me worry for the judges and the lawyers who will have to apply it—for a modern statute, it is mercifully short. Its intentions are properly confined and the policy behind it is clear. I am not a fan of creating new offences, renaming existing offences or increasing sentences to send a message, when those who are hell-bent on killing police officers, soldiers and ordinary citizens, or encouraging others to do so, will pay no attention, seeing themselves as warriors for their hideous cause. Nor do I forget that, if the prison sentences set out in the Bill come to be used, we will have failed to educate, influence, inhibit or prevent those who have committed terrorist acts. However, I believe that this Bill is more than a message. It is part of a practical approach to countering terrorism and to protecting our borders; problems that we, but more acutely those whose job it is to protect us, face daily. I wish it well and I look forward to considering it further in due course.

Counter-Terrorism and Border Security Bill

Lord Garnier Excerpts

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

[Earl Attlee]

My Lords, Amendment 20 in the group is in my name. The Committee has looked already at why journalism is vital so there is no need to repeat those arguments in detail. I accept that the amendment moved by the noble Lord, Lord Anderson, may be a better solution than mine, which would create an explicit exemption for journalists travelling to or remaining in a designated area.

Since the new offence does not require a person to have any harmful intent, it risks capturing those who mean no harm at all and are acting in the public interest, even if the Government of the day do not think so. Journalists travelling to an area to cover events and inform the public are one obvious such group. Following our debate on the first amendment, I accept that I will have to go away and consider carefully what I mean by journalism and journalistic purposes, but the same problem arises with the amendment of the noble Lord, Lord Anderson.

Ministers have stated that journalists are not the target of the offence and would qualify for the broad defence of reasonable excuse. I listened very carefully to what my noble friend Lord Howe said about that. However, the same problem that I described when speaking to my Amendment 6 arises, namely that journalists may be unjustly interfered with or arrested. It needs to be clear in the Bill that journalism is exempt. Amendments 21 and 22 would provide for prior authorisation from the Secretary of State. Although that may have its merits for certain sectors, it would be highly undesirable for press freedom as it would allow the Government to whitelist or blacklist journalists and could operate as a de facto licensing system which the press has, rightly, always resisted.

Although there are good reasons for an open-ended reasonable excuse defence, as my noble friend has outlined already, the amendment does not circumscribe it. Given the scope of the offence, the Bill should anticipate the most obvious scenarios where people will have good cause to travel to or remain in a designated country and provide certainty to those people. That is exactly what would be done by the amendment of the noble Lord, Lord Anderson.

The combination of the lack of an intent requirement and the vagueness of the reasonable excuse defence means that whether an offence is committed becomes a matter of prosecutorial discretion entirely. That is undesirable for legal certainty and the rule of law. In practical terms it would delay, even deter, correspondents from travelling to an area where events are unfolding. Civilians suffering humanitarian catastrophes will not be able to tell their stories to the wider world and the British public will not be able to hear them and do whatever they can to help.

Ministers and other noble Lords may push back against my arguments by pointing out how hard it is to define “journalist” or arguing that terrorists might try to pass themselves off as journalists. I argue that where there is doubt over an individual claiming to be a journalist, the police, prosecutors and the courts can test their bona fides. Some people will wrongly claim the defence; that does not mean that it should not exist. The same argument applies to Amendment 17, moved by the noble Lord, Lord Anderson.

Amendment 17 may well meet my concerns but I am slightly worried about its proposed new subsection (2)(d), which would provide an exemption for a “registered charity”. It might be worth considering restricting the exemption to either a UK registered charity or one that is accredited by the United Nations in some way, because I have been aware of some charities in an operational area being rather less than pure.

[Lord Garnier (Con)]

My Lords, I briefly return to our discussion to Amendment 17, moved so well by the noble Lord, Lord Anderson of Ipswich. He made no claims of infallibility. When we are discussing this sort of subject, he probably comes the closest in this Chamber to infallibility, at least for the moment. I understand his reasons for moving the amendment; I can see that the reasonable excuse provision in the Bill he seeks to amend is somewhat vague. None the less, I want to ask one or two questions relating to the amendment.

I can accept that the genesis of at least some of the new provision comes from other countries’ and jurisdictions’ legislation; the noble Lord mentioned Australia in particular. A few things about the amendment trouble me slightly. I can see that proposed new paragraphs (a) to (e) provide a reason for making a visit to the designated area, but I am a little troubled by the fact that proposed new paragraph (f) states simply that,

“visiting a dependent family member”,

may provide a reasonable excuse. The reason for the visit to the dependent family member needs to be explored fully. The amendment could lead us into difficulty. The purpose of the visit may be to see a bed-ridden grandparent, but it may be to see a rather ill-motivated teenager with terrorist sympathies. As long as that is not made clear, the problem I see in proposed new paragraph (f) remains.

To some extent, although not as greatly, I am troubled by proposed new paragraph (c), which gives the reason of,

“satisfying an obligation to appear before a court or other body exercising judicial power”.

I can see that in an organised state with an organised court system, complying with an obligation to appear in court to give evidence, or whatever it may be, provides one with a reasonable excuse. However, going to a designated area suggests that there may not be such an organised system there. Although one may be under some obligation to appear before it, I hesitate to suggest that in all circumstances one is likely to find in a designated area a recognisable court or other body exercising judicial power in a way that we would find acceptable in this country and this jurisdiction.

Perhaps these are quibbles. The noble Lord, Lord Anderson, expressly stated that he did not claim his amendment to be perfect. I understand where the amendment comes from and where it intends to go. I simply ask my noble friend on the Front Bench not to dismiss the amendment out of hand but perhaps to go away and rewrite it in such a way that it would be acceptable as a government amendment that would pass muster in both this House and the other place.

Counter-Terrorism and Border Security Bill

Lord Garnier Excerpts

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

[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.

[Lord Kennedy of Southwark]

My Lords, this issue was also looked at in detail in Committee. The noble Lord, Lord Anderson of Ipswich, raises an important issue concerning groups that have been added to the list of proscribed organisations and that have, to all intents and purposes, stopped engaging in the activity or activities that led to them being added to the list in the first place and the risk to individuals getting caught up in that.

I have listened carefully to the issues raised in that previous debate and in today’s debate and reflected on them, but I have come to the conclusion that I am not persuaded that the change proposed by these amendments is necessary or right at this time. The first duty of government is to protect the public. As we have heard, the 2000 Act already provides a mechanism for an organisation to seek deproscription: there is detailed in Section 4 and further in Section 5 an appeals process to the Proscribed Organisations Appeals Commission. Further, on a point of law, organisations can go to the Court of Appeal.

I say in response to the noble Lord, Lord Paddick, that there is a process already in place and further, on the points that the noble Lord, Lord Carlile, made regarding Northern Ireland, I am not persuaded that these amendments are right today. That is not to say that the points raised by the noble Lord, Lord Anderson, could not be considered to be introduced at some point in the future, but I am not convinced on the merits of the case at this time.

Counter-Terrorism and Border Security Bill

Lord Garnier Excerpts

3rd reading (Hansard): House of Lords
Tuesday 15th January 2019 Lords Chamber

[Earl Howe]

I entirely agree with the noble Baroness, but I hope too that she will recognise that the wording of the first purpose set out in this amendment,

“providing aid of a humanitarian nature”,

is quite broad. So humanitarian agencies of any kind could feel secure in going out for almost any humanitarian purpose one can devise.

[Lord Garnier (Con)]

Before my noble friend sits down, I caution that sometimes lists can become exclusive and that some good things are easier to recognise than to define. He ought to stick to the way the Bill is currently drafted and allow himself the freedom to consider rather more carefully, despite the charming way in which the noble Baroness has advanced her case.

[Lord Judd]

My Lords, the Minister has been very helpful in the comments he has made and I most genuinely thank him for that. I just wonder whether it is possible for the Government and the Minister, when this legislation is given final consideration, to say some encouraging and positive things about the recognition of the courage and value of such work, so as to in no way whatsoever inhibit organisations that are able to make a positive contribution of this kind. Having been through this kind of situation, the trustees and leaders of the agencies concerned obviously give a great deal of deliberation to what they do and what is involved. To feel they are doing it in a climate of good will and not just acceptance is very important.