Counter-Terrorism and Border Security Bill

Lord Harris of Haringey Excerpts

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

[Lord Brown of Eaton-under-Heywood (CB)]

Just before the Minister responds, can I add a word, I hope not too tiresomely, on Amendment 5? If you suggest that it would be a good idea to deproscribe a particular organisation, can you do so only on the basis that it is better to deal with it in the open, as suggested by the noble Lord, Lord Carlile, and indeed, by the noble Earl, Lord Attlee, so as to discourage recruitment, or can you say that it is because you regard the organisation’s aims as essentially innocuous or perhaps even beneficial overall? If the latter, surely that would risk destroying much of the effect of Clause 1 as a whole. You would simply couple your remarks with a suggestion for deproscription. If the former, surely the amendment, if it is to be incorporated in this legislation, had better build in the need to make it plain that at the same time as promoting deproscription, you continue to condemn the aims of the organisation.

[Lord Harris of Haringey (Lab)]

My Lords, I apologise for not having spoken on Second Reading, but I came to this debate on the basis that I had one point to make. Having heard such a range of views, I am afraid that I now have three or four.

To keep the flow going, I shall pick up on Amendment 5 and the argument that there should be an exemption for organisations that cease to be proscribed. I start from the same position as the noble Viscount, Lord Hailsham, that by and large it is better not to proscribe organisations, but to have them out in the open. When they are proscribed, they tend to reformulate and call themselves something else, and it all becomes a bit silly.

Amendment 5 could create a rather large hole through which those who wish to circumvent the purpose of these clauses would get through. People could say, “I am not arguing for what they want; I am simply saying that it is wrong for them to be proscribed because they are rather excellent people whose objectives are entirely understandable, which any sensible person in that part of the world would think is a good thing”. We could run the risk of providing a defence for people and allowing them to do things that we are trying to prevent them doing.

Moving on to Amendment 6, the question of who is a journalist is wider than has already been suggested. We are all citizen journalists now. We all have the option of putting stuff out on the web; we can blog and tweet; we can put things on Facebook, YouTube or whatever we want. Increasingly, people now define themselves as citizen journalists. Unless we go back to something very old-fashioned such as saying that journalism is a controlled profession and you are a journalist only if you have a card issued by the National Union of Journalists, which is probably unlikely, then anyone can say, “I’m doing this for the purposes of journalism, or to further journalism”—whatever it might be—“because I am a journalist; I am a citizen journalist and I am putting this material forward”. While I do not want to undermine what we would all regard as legitimate—we are all rooted in the past and think of journalism as being about newspapers and producing seriously researched articles and investigations—the word no longer means what it used to mean. Therefore, if we are going to say that there should be some sort of exemption for journalism, we need to define it much more closely than it is in Amendment 6.

I pity the Minister who has to pull all these threads together. I understand the concerns about freedom of speech; we all share them, in principle. This is all about proportionality: balancing that freedom against the harm that may be being done. It is apparent that, as the law stands, it has been impossible to pursue people who are palpably causing a great deal of damage. That is why the Government are seeking to amend it. I assume that they have not gone down the route of saying that someone must have the “intent” to do this because proving intent is rather difficult. Under those circumstances, if we put proving intent in we will be back where we started and not able to pursue some of the individuals who do so much harm.

This is why I rather like the phraseology of my noble friend Lord Rosser, who talked about a “pattern of behaviour”. This exempts people who just express an opinion on one occasion and suddenly find they have fallen foul of the law. However, somebody who has a systematic approach to pushing people in a certain direction would fall foul of it. For that reason, I hope that the Government will carefully consider Amendment 1, or something akin to it, which indicates that what should be prosecuted is not a simple isolated act—a mere expression of an idle opinion—but somebody pursuing a course of action which is designed to have this effect.

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[Baroness Williams of Trafford]

My Lords, we are dealing with many difficult issues here. I thank the noble Baroness. We will, of course, have further discussions.

Amendment 1 would raise the threshold for commission of the offence from a single instance of the prohibited behaviour to a pattern of behaviour. Given the seriousness of this type of behaviour and the potential harm that can be caused, I cannot agree that the amendment is appropriate. I point out that there is no requirement for there to be a pattern of behaviour in the existing Section 12(1) offence. I therefore do not see a case for adopting a different approach for the new Section 12(1)(a) offence.

I also fear that the amendment would run into similar issues with definition and certainty to those which were raised in the House of Commons in relation to the three clicks element of Clause 3, and which ultimately led to the Government’s removing that provision. For example, how many instances constitute a pattern of behaviour and how far apart can they be?

[Lord Harris of Haringey]

The noble Baroness says it is difficult to define. Presumably, the court would then have to interpret it and would say that this is clearly a pattern which is designed to have this effect.

[Baroness Williams of Trafford]

The court might also say that it is evidence, along with other types of evidence, which leads it to a certain conclusion. Just as the three clicks approach was seen as arbitrary in debate in the House of Commons, this is probably similar in the sense that downloading, together with other types of evidence, would lead a court to come to its conclusions, as it would here.

I want to talk about the concept of recklessness. It involves a person being aware of the risk that what they plan to say will have the effect of encouraging support but none the less going on to say it. In such circumstances, a reasonable person would not have gone on to make that statement.

On Amendment 2, the noble Baroness, Lady Jones, explained her concerns both at Second Reading and today that statements supporting an independent Kurdistan may fall foul of the new offence on the basis that it is a political objective held also by the proscribed group the PKK. I hope I can provide some assurance. On the noble Baroness’s example, I suggest that our hypothetical person could have a very high level of confidence that they would not fall foul of the Clause 1 offence. Support for an independent Kurdistan is a view held widely across a far broader range of people than just PKK members. To put it another way, while all members and supporters of the PKK are likely to support an independent Kurdistan, it is certainly not the case that all supporters of an independent Kurdistan are members or supporters of the PKK. It certainly could not be inferred from a statement in the terms described by the noble Baroness that the speaker supports the PKK or another such organisation; rather, they support an independent Kurdistan.

Noble Lords can take further assurance from the fact that in addition to not referencing any particular organisation, our hypothetical speaker has not said anything of the methods by which they would wish to see an independent Kurdistan brought about. Were they to suggest that this should be through means of terrorist violence, a reasonable person might anticipate that such a statement might influence the listener to support a terrorist organisation, such as the PKK, which supports the same political cause. Such a statement may well be reckless and may fall foul of the new Clause 1 offence. I hope we can agree that such a statement of support for terrorist violence would be unacceptable in any event. But in this example, there is no such suggestion of support for terrorist methods to achieve a legitimate political aim.

The same would apply to a statement in support of the withdrawal of Israeli troops from Palestine that does not voice support for violent methods or any proscribed terrorist organisation. There would be no basis on which a reasonable person might equate such a statement with support for Hamas or Hezbollah or anticipate that a listener would be influenced to support those organisations. As such, the statement would not meet the recklessness test and would not be caught by Clause 1. I make it clear that none of this analysis would be any different if “is supportive of” were replaced with “supports”.

Amendment 5, in the name of the noble Baroness, Lady Hamwee, would provide an exemption from the offence for those who make statements to the effect that a particular terrorist organisation should cease to be proscribed. We will have a wider debate on deproscription when we reach Amendment 59 in the name of the noble Lord, Lord Anderson. In that context, the noble Lord, Lord Carlile, is correct in saying that the Home Secretary regularly reviews proscribed organisations.

Perhaps I may make a few observations in the context of Amendment 5. I am happy to agree that those who make neutral statements along these lines should not be caught by the criminal law. However, I am clear that this will be the position under Clause 1 as currently drafted. The amendment, while well intended, is not needed to secure this result and would risk introducing unintended consequences. It has been a long-standing feature of the proscription system that individuals and organisations will question the proscription of certain organisations. It may be suggested, for example, that a group is not really terrorist in nature but is engaged in legitimate activism in the form of resistance or freedom fighting, or that its proscription inhibits a peace process or some other form of positive engagement and should therefore be lifted as a matter of discretion. The law already provides a clear route for people who hold such views to apply to the Home Secretary for the deproscription of any organisation. Three groups have been deproscribed following such applications.

The law also provides at Section 10 of the Terrorism Act 2000 clear and unambiguous immunity from prosecution under proscription offences for anything done in relation to such an application, including any statements made in support of the organisation.