Serious Crime Bill [HL]
Lord Harris of Haringey Excerpts(9 years, 8 months ago)
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Lord Bates
My Lords, I shall speak also to Amendments 16, 22, 23 and 28. Control and order is a fundamental foundation of prison life. Without it, safety cannot be guaranteed and the rehabilitation of prisoners cannot take place. It is known that the throwing of packages containing contraband, including psychoactive substances—often inappropriately referred to as “legal highs”—is a key method of supplying drugs into prisons. In some cases, it is co-ordinated by criminal gangs involved in a wide range of criminality. The presence of new psychoactive substances in prisons, now drugs of choice among many prisoners, is a significant and growing problem that we must address urgently. These drugs are having an increasingly destructive impact on prison security, order and the welfare of individual prisoners, with increasing evidence of links to mental health problems and violent behaviour.
While it is currently a criminal offence under the Prison Act to convey a number of items including controlled drugs into a prison, non-controlled substances are not covered by that legislation. As such, those caught trafficking a range of new psychoactive substances have been able to evade justice. This is not acceptable.
Commons Amendment 9 will create a new offence of throwing or otherwise projecting any article or substance into a prison without authorisation. The clause will criminalise the trafficking of new psychoactive substances into our prisons and also captures the throwing of other articles into prison that could pose a threat to prison staff and prisoners. We must not tolerate those who damage prison health and order by throwing items such as new psychoactive substances into prisons. This new offence will help to stop this harmful practice.
Commons Amendment 10 seeks to prevent the unauthorised use of mobile phones in prison. The unauthorised use of mobile phones presents serious risks to prison security. They have been used to plan escapes and support the commission of serious crimes by organised criminals. In January, we saw the sobering reports of the conviction of a prisoner in Wandsworth prison who had used his mobile phone to arrange the importation of machine guns into this country from Germany. I am sure that we all agree that such use of mobile phones in prison is completely unacceptable.
The National Offender Management Service uses a range of techniques to detect and seize phones in prisons. However, despite the success of these methods, as mobile phone technology advances and the size of handsets decreases, it is becoming easier for prisoners to conceal illicit phones in prison. Disconnecting phones would be a cost-effective and future-proofed method to prevent the unauthorised use of phones in prison. Mobile network operators have asked for a clear legal framework to support disconnection. Amendment 10 will therefore enable the Secretary of State—or, in Scotland, Scottish Ministers—to make regulations conferring a power on the civil court to make a telecommunications restriction order. Such an order will require a mobile network operator to disconnect those SIM cards and handsets that are found to be in use in prisons without authorisation, effectively putting those devices beyond normal operational use.
In the unlikely event that a genuine customer’s phone is disconnected in error, NOMS will advise the mobile network operator that the telecommunications restriction order no longer applies. This will allow the network operator to expedite the reconnection of the service. This will be done quickly, without the need to return to court to vary the order. The customer’s phone can still be used to call the emergency services, should that need arise. As an additional safeguard, NOMS will report annually to the Interception of Communications Commissioner, providing the details and frequency of any erroneous disconnections for scrutiny by the commissioner’s office.
It is unacceptable that prisoners should continue to use mobile phones to carry out criminal activity outside prison. Having the power to disconnect illicit phones in prison will help to tackle that flagrant disregard for the restraints of their incarceration. Our view is simple: we must constantly seek ways to improve prison security. These new offences will do exactly that. The other amendments in this group are consequential on these two new clauses. I commend these amendments to the House.
Lord Harris of Haringey (Lab)
My Lords, this is pure curiosity on my part but, in relation to Amendment 10, might I understand how it would be possible to tell the communications providers that they should apply a telecommunications restriction order to a specific SIM card unless said SIM card had already been seized and obtained by the prison authorities—in which case, why would it be needed? Also, what steps have been taken to look at technological systems that would jam the signals inside prisons?
Lord Bates
Those are very reasonable points to make. On general jamming in the prison compound, I recognise of course that some individuals working within that compound need to have mobile devices, which can be used to communicate. By that, I am referring to the staff prison officers.
On the specific issue of SIM cards, the National Offender Management Service currently uses a range of different techniques to detect and seize phones already in prisons, including the use of detection technology and regular cell and prisoner searches. However, despite the success of these approaches, as mobile phone technology advances and the size of handsets decreases it is becoming easier for prisoners to conceal illicit phones and move them around the prison estate. It is for the Crown Prosecution Service to decide whether to prosecute an individual for possessing a mobile phone in custody. Due to the way in which mobile phones are typically used in prisons, with multiple prisoners potentially sharing one phone, it is often not possible to attribute handsets and SIMS to specific individuals.
In many ways, I agree with the noble Lord that identifying the number on the SIM card is tremendously difficult when you are still searching for the device. However, in the light of experience, we are simply trying to make it as difficult as possible for the individuals concerned to do this. NOMS uses a range of measures to stop phones and SIM cards getting into prisons. However, due to the high number of deliveries, post items and individuals entering and leaving prisons each day, it is impossible entirely to prevent SIMs and handsets making their way on to the prison estate.
Those are the points that I have, which I hope have been some help. There might just be some communications data on their way to help me. The signal of an unauthorised phone or SIM card can be detected without physically seizing the phone SIM in question. Blocking has a role but can be expensive to use. The answer is therefore probably quite straightforward—it is now, anyway. Through the detection devices we can identify a SIM, even if we have not managed to locate it, and block it in the process. I hope that with that general reassurance, the House will accept these amendments.
Counter-Terrorism and Security Bill
Lord Harris of Haringey Excerpts(9 years, 9 months ago)
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Baroness Hussein-Ece (LD)
My Lords, I support the amendment and wish to address the comment made by my noble friend previously. It is quite a serious matter for a family, who may have spent a great deal of money purchasing tickets and planning a holiday, to arrive at a port or an airport to leave and then to have their passports, or one family member’s passport, seized. It seems to me quite reasonable to provide that person with a summary as to why their passport is being seized.
There is also the issue that there needs to be some accountability; otherwise, there is a danger of the whole system being seen as racially profiling people for whatever reason. We have learnt lessons from what happened with stop and search—there was not always sufficient intelligence or reasons given for people being stopped and searched. Further, a report published in 2013 by Her Majesty’s Inspectorate of Constabulary documented the poor training of officers who are exercising the power. It seems eminently sensible to have an extra layer which provides a safeguard and a degree of accountability around what is a no small matter of a passport being seized.
Recently I was travelling back from Paris with my son, who happens to have a Muslim name. He was questioned when we got to immigration control and we almost missed our Eurostar back home. He was asked whether he had been to Turkey recently. He does have family in Turkey and it would be entirely reasonable for him to go there, but he was singled out because of his name; there was no other reason. As it happens, he has not travelled to Turkey in the past year, but we were detained for some time and it was a worrying thing. His passport was not seized or anything like that, but the incident indicated to me that because of my son’s name, and for no other reason that I could see, he was questioned. My son is not a frequent traveller to Turkey and we had been on a day trip to Paris. He was questioned very seriously and we were within a minute of missing our train back. That showed me that this can be done quite randomly and with no proper intelligence.
Lord Harris of Haringey (Lab)
My Lords, this would be a safeguard without substance. What is required here is that a person is given a summary of the reasons for suspicion. The noble Baronesses who have spoken in support of the amendment have said that the summary obviously could not include the full intelligence, and quite rightly so. Presumably, the summary of the reasons will be, “There may be intelligence which suggests that”, which is hardly a reason that will satisfy anyone and seems essentially to be pointless. Surely the fact that someone is told that this is being done under Schedule 1 to the Counter-Terrorism and Security Act is all the summary of reasons that will ever be given. Dressing it up by saying, “You are being provided with a summary of the reasons: namely, that you are thought to be a person to whom Schedule 1 to the Counter-Terrorism and Security Act applies”, does not provide much of a safeguard. Is this not just gesture politics?
Lord Pannick (CB)
My Lords, this is not gesture politics. There are many areas of the law where an obligation to provide a gist of the reason is imposed precisely in order to try to achieve a compromise between the duty of fairness and the demands of security. In these areas of the law, providing a gist does give individuals the substance of the allegations against them. In this context, the constable can exercise the relevant power only if he or she has reasonable grounds to suspect. In general, the constable must be able to provide at the least a summary of the reasons why they have reasonable grounds.
I understand the point that there may be security reasons why the constable is either unable, or is concerned that he or she may be unable, to provide even a summary. I wonder whether the Minister might consider, prior to Third Reading next week, coming back with a revised amendment that would impose the obligation set out in the amendment moved by the noble Baroness, Lady Hamwee, but subject to an exception—if the constable believes that there are or may be security reasons not to provide the summary. In the context of the exercise of a power as serious in its implications as this—that is, seizing someone’s passport—surely there ought to be an obligation, at the time when the power is exercised, to tell the individual why it is being exercised.
Lord Hope of Craighead (CB)
My Lords, the noble Baroness mentioned my name in her speech in support of this amendment. I put my name down to support it for reasons which I shall go into very briefly. As I mentioned in Committee, my attention was drawn to this problem by evidence which we received in the Joint Committee on the Draft Protection of Charities Bill. That evidence came in part from the independent reviewer, David Anderson QC, and in part from Muslim organisations which are interested in providing assistance to people who need humanitarian aid in places like Somalia which are difficult to penetrate without the assistance of the people who effectively run the country.
I shall make two particular points, without repeating what I said in Committee. First, David Anderson was critical of the definition in the legislation which he described as “monstrously” broad. It was broad for a particular reason, which one can see from looking at Section 1(5) of the 2001 Act, which contains the definition put into this Bill for its purposes. It states:
“In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation”.
It is that kind of scenario that may give rise to problems for a reason which was explained to us by one of the charitable groups. It said that when you go to these difficult countries, in order to get anywhere within those areas, you have to encounter and deal with the gate-keepers. The chairman of the Muslim Charities Forum asked:
“How can we go through the gatekeepers to reach the neediest people in Syria, Somalia or different parts of the world”,
if doing so would be caught by the Section 1(5) definition?
One can see how the thing might build up. The police might have information that the individual passing in front of them has previously gone to these areas and has provided money, as we were led to believe is necessary, in order to get through the gate. The proscribed organisation says, “All right. We’ll let you through, but you have to pay us a certain amount of money to do that”. It is a real trap. Of course, to give money to a proscribed organisation is prima facie assisting the purposes of the organisation, but the real reason for giving such money is to penetrate through the gate to provide the assistance which would otherwise not be available. These are my two points: first, the breadth of the definition and, secondly, what the evidence suggested to us is a very real problem in dealing with these areas.
Noble Lords will remember that in Committee we discussed an amendment to the primary legislation and, in particular in view of the contribution of the noble Lord, Lord Harris, I see that that is a very difficult thing to do at the moment without a good deal of further study and, no doubt, this is not the proper place for it anyway, although I suggest it may have to be dealt with sometime. What the noble Baroness is suggesting in her amendment is that there should be something in the code of guidance for officers so that they are alerted to this problem. Therefore, if they have that kind of intelligence, although what individuals say will not be conclusive, at least they will be aware that these people may have good reason for whatever they are said to have done which prima facie might seem to conflict with the definition in the statute.
On reflection, it would seem that the code is a better way of dealing with this without getting into the difficulties of amending primary legislation, which would go right across the board and might have rather deeper effects than we can contemplate at the moment. I suggest that the noble Baroness’s amendment is quite carefully crafted and there is real merit in the proposal that she has made.
Lord Harris of Haringey
My Lords, I have enormous respect for the noble and learned Lord, Lord Hope of Craighead, who has identified and talked about an issue that potentially has problems for humanitarian organisations under certain circumstances. However, the amendment remains irrelevant to that. While it may be quite attractive to use a code of practice as a means to identify this issue and make sure that officials are more aware of the potential complications, this code of practice relates to circumstances in which there are reasonable grounds for suspecting that person of the intention of leaving Great Britain for the purpose of,
“involvement in terrorism-related activity”.
It would be to stretch that definition to suggest that there is a suspicion that you are personally involved in terrorism-related activity because your organisation may have paid a sum of money to a gate-keeper in one of these circumstances, because this is about involvement in terrorism-related activity. I am therefore not sure that this is the right mechanism for addressing what I suspect is a real and valid problem that we need to find some way to address. Perhaps we can do that next time we revisit terrorism legislation, which will probably be in about four months’ time.
Baroness Ludford
My Lords, I urge the merit of these amendments very briefly. First, there has been a slight tendency in our discussions in the first part of this afternoon to assume that the actions by the officer at port would almost invariably be on the basis of intelligence that had been supplied before the person reached the port. However, the code stressed that there are two possible scenarios, which appear to be put on an equal footing. One is that information is provided to the police before or when a person arrives at port; or it can take place at port, on the basis of observation of behaviour,
“information obtained from any other source; or a combination of these”.
Therefore, there is fully in the code the scenario where observation of behaviour leads to the reasonable suspicion. That is the context in which these amendments play a part.
The draft code also stresses, in paragraph 24, the obligations under the Equality Act 2010 which police officers must bear in mind when exercising these powers. However, there is not really any reference to specific training on the use of these powers in this context as opposed to rather broad Equality Act obligations.
Finally, can the Minister consider strongly the need for the monitoring of the individual exercise of the powers—not just to monitor them broadly but to record? There is a difference between monitoring in a broad sense and recording when and in what circumstances these powers are exercised.
Lord Armstrong of Ilminster (CB)
My Lords, at this stage there is no need for me to rehearse all the arguments in favour of this group of amendments. The terrorist threat has increased and is increasing, and those upon whom we rely to prevent and detect terrorist crime depend on access to the communications data of those intending and planning to commit terrorist crime. I will not go in detail into everything that the noble Lord, Lord Paddick, has said, although I do not think that the noble Lord, Lord Blencathra, or I could agree with all of it.
Those agencies have been increasingly conscious that the provisions in RIPA 2000, now nearly 15 years old, badly need updating to take account of technological changes. The agencies have enjoyed the voluntary co-operation of many of the service providers, but many of the companies concerned, as we heard in the committee chaired by the noble Lord, Lord Blencathra, would like to see that voluntary co-operation underpinned by statutory provision. There are no doubt some who are reluctant to co-operate without there being statutory provision.
The Bill provides us with an opportunity to put in place some of the statutory provisions which would have been provided by a revised—“Blencathrated”, if I may call it so—communications data Bill, for the introduction of which we shall now have to wait until the next Parliament. These amendments are designed to take advantage of that opportunity. Their scope has been reduced since similar amendments were proposed in Committee. We have been denied the possibility of Blencathrating these amendments because the Home Office is not willing to produce a revised communications data Bill or the relevant parts of it. Therefore, these amendments are no more than a stop-gap, as the noble Lord, Lord King, described them, and they are no more than temporary to fill a stop-gap because there is a sunset clause which ensures that they will disappear in their present form in December 2016. Most of this limited stuff is taken up with safeguards, and more than three pages are taken up with an interpretation clause of definitions.
We know that the police and the intelligence and security agencies feel the need for these provisions and would welcome these amendments, limited and imperfect though they are. As has already been said, in passing these amendments your Lordships would not be deciding that they would be part of the Bill before us when enacted; we would be giving the other place the opportunity to take that decision. Surely that is where the final decision should lie.
If the noble Lord, Lord King of Bridgwater, were to decide to press these amendments, I would support them because I would not wish to have on my conscience any sense of shared responsibility for what might ensue if failure to include these provisions in the Bill resulted in failure to prevent a terrorist attack which might have been prevented, as well as all the consequences which might result from such an outrage, as was vividly and notably referred to by the noble Lord, Lord Tebbit.
Lord Harris of Haringey
My Lords, this is something of a mess. I was certainly alerted—and I know that other noble Lords will have been alerted at the same sort of time—to the developing problem of a gap in terms of communications data eight or nine years ago. It was so long ago that I can no longer remember exactly when it was. The gap is occurring because of the nature of the way in which communications take place using the internet, and it is a gap which is worsening and getting bigger.
Communications data, as opposed to intercept, are used in virtually all major crime and terrorist cases. They are an essential component, concerning who was there, who was where and who was communicating with whom. That is nothing new; what has changed is the way in which those messages are transferred from one place to another. It is a fact that it is no longer easy, using conventional means and conventional mechanisms, to keep track of that information, and that is causing the problem. It is a problem and a gap which has been getting worse over the last few years.
Something urgently needs to be done to remedy that gap, but it has not happened. The previous Government and this Government have failed to do something about it. We are now moving inexorably towards a general election, which is a few weeks away, and it will be down to whichever Government are in place after that to deal with this. I share the concern of the noble Lord, Lord King, that, following the election, that may not be a rapid, simple or straightforward process.
What do we do now? The first thing is not to oversell the importance of either these amendments or the mythical Blencathra’d amendments that may or may not exist somewhere else. The amendments will not be a magic bullet. The mere passage of these proposed new clauses, or a version of them, does not mean that terrorism will be prevented or that serious crime will stop, but they would be an essential and necessary tool in trying to minimise the risk. Let us not pretend that the failure to include them will automatically mean that there will be a terrorist atrocity. However, it will mean that such an atrocity will be that bit more likely and that it will be that much more difficult to deal with it and stop it.
This is not just a question of the legislative provisions and the fact that we are being dilatory in getting round to dealing with this issue. I understand and have all sorts of sympathy for Ministers in the context of a coalition where one side of the coalition is less keen on such a provision than the other and starts to position itself in advance of a general election. I have lots of sympathy for all that, but the fact is that collectively Governments over the past eight to 10 years have failed to address and deal with this issue.
There is a second vital element, which is that there is a degree of public support for and public buy-in to the changes that have been made. That is why not pretending that this is a magic bullet is so important. In the past, security measures have been oversold as the one necessary thing that will stop all these atrocities, and every time that excuse is used it has bred public cynicism about these measures.
Part of what has to happen is a proper public debate about why these powers are needed, why they matter and why they do not constitute the infringement of civil liberties and personal liberty that some people assume. Failing to have that debate has been a wasted opportunity over the last few years. When the Joint Committee produced its report, the Government should have used that as the opportunity to say, “Let’s have that public debate”. Had they done so, we might now be in a position where there was a public understanding of these issues and a readiness to go forward.
The reality is that if the noble Lord, Lord King, presses his amendments, people will say that the parliamentary process has been abused, and we have no doubt already had dozens and dozens of emails and letters saying precisely that. It is an abuse of the process because it does not allow the normal times for debate, but we have failed to give ourselves the time for that, and that is why we are in such a mess.
Should we agree to these amendments? No, because they do not incorporate the views of the Joint Committee; no, because we have not had an opportunity for the public debate; and no, because we have not had the report of the Independent Reviewer of Terrorism Legislation. I do not want to get into why we have not had all those things but the fact is that we have not. It would therefore be wrong to press ahead with these amendments at this stage, much as I personally believe that something along these lines is necessary and much as I personally believe that we should have taken action much sooner. However, the reality is that those other things are not in place. I blame the Government—of course I would because I am on this side of the House—for failing to have those other elements in place and for failing to ensure that there has been the necessary public debate. However, to press today without public support and public debate, and in the absence of having the views of the independent reviewer, clearly would be a mistake, particularly in the context in which people would see that the legislation had been rushed through by some sort of legislative sleight of hand.
The noble Lord, Lord King, gave the Government a week’s opportunity to move forward. The Government have not taken that opportunity. For the very reasons I have given about not having public support or having built things up, I do not believe that they should have responded to the noble Lord’s amendment last week by bringing forward their own amendments to do all this overnight. But it would have been an enormous step forward, and still would be an enormous step forward, if before Third Reading the Government were to publish the revised versions of the legislation that they have, even if they are not the final product, so that that public debate can start. Some of the myths about communications data and what the Government are trying to do could be dispelled.
We are in a sorry mess. Frankly, I do not think that the amendments in the name of the noble Lord, Lord King, solve the problem. They could conceivably make it worse. But for goodness’ sake, we need to treat people like adults, not pretend that this is a magic bullet, and allow the public debate to take place.
Baroness Ludford
My Lords, I cannot resist the opportunity to add my ha’penny-worth, to respond to my noble friend Lord Howard of Lympne, and to acknowledge proudly the label of pesky Liberal Democrat. I also thank the noble Lord, Lord Blair, for saying that he at least does not disagree that the Liberal Democrats have a position of principle here. However, I disagree with him about the 2004 Spanish election. The Partido Popular did not lose the election because of the bombing being by Islamists. It lost because it tried to misrepresent those bombings as being by ETA, which was against the advice of its own intelligence services.
My noble friend Lord Paddick has put extremely well, and much better than I could, all the objections of principle. The storage of everyone’s web browsing for 12 months, even if it is only up to the first forward-slash, would blur the boundary between communications data and content. It could reveal an awful lot about people’s health, sexual characteristics, political views, marital problems and other potentially embarrassing personal information. This is simply too much power to give to the state. Yes, 12 months’ storage of everyone’s web browsing history is an objection of principle.
I also stress the practical difficulties of scooping up third-party data and setting up a transatlantic jurisdiction on a war which we are destined to lose. From my time as a Member of the European Parliament in the last few years, I have some experience of this in the wake of the Snowden revelations and the whole impact that had on the attempt to get data sharing across the Atlantic without the framework of a transatlantic data-protection agreement. The noble Lord, Lord Cashman, who is not in his place, will remember those debates. We need to work co-operatively with US-based companies rather than try to overreach ourselves in terms of jurisdiction. I fear that the reaction to that, which already has happened in the last few years, is that it could lead to fragmentation and balkanisation of the internet. The glory of the internet is that it is global. We in the West look askance at what is happening in China and Russia in trying to cut themselves off from the global internet. I foresee that that could happen transatlantically as well. Companies in the United States are under a great deal of pressure to comply with at least the safeguard provisions of US law, partly as a result of the lively public debate there in the last 18 months, which is unlike in this country where there has not been so intense a public debate. Of course, we know that they are going faster and faster down the route of encryption, with all the problems that my noble friend Lord Paddick mentioned.
Counter-Terrorism and Security Bill
Lord Harris of Haringey Excerpts(9 years, 9 months ago)
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Lord Judd (Lab)
My Lords, I am sure that a great many of your Lordships are involved in higher education and universities. I am a very committed member of court at Lancaster and Newcastle universities and an emeritus governor of LSE, having been a governor for 30 years.
This amendment obviously relates very closely to the next group. Therefore some of the things that I will say on this amendment will have application to the next group.
I beg the Minister and his colleagues to treat this matter very sensitively and not to come to any absolute conclusions before they have heard the existing reservations. The concept of the autonomy and freedom of the university is fundamental to our concept of higher education, and to the model of our university lives which is held out to the world and makes it so attractive to students, including postgraduate students, from all over the world. Whatever the Government’s intentions, they must be very careful that what is proposed will not be widely perceived as formalising matters to the point of turning the university into an agent of government. How can we have statutory responsibilities of this kind without beginning to suggest that universities must act for the Government in this respect?
Of course we want the co-operation and good will of the universities in this matter and of course there is a desperately dangerous situation in which we live, and I accept that those dangers are not diminishing. However, this makes the battle for hearts and minds more important than ever. It makes the winning of a real commitment to freedom and to the things that we stand for and are trying to defend in our society more important to leaders, not only in this country but across the world. Within a university, that is best achieved in the context of free discussion and debate. That is the whole point. This matters because unacceptable extremist ideas can be approached face on and argued out. Sensitive potential recruits for extremism can see that there is a better way. Do we feel that we are engaged in a battle for hearts and minds or do we not? If we see that that is the only lasting hope to win this battle, everything else that we do is just putting fingers in the dyke. The fundamental issue is to win the good will and the conviction of people across the world to a better way. That can happen very much—I will not say best, as that is a big claim—within our universities. This is a tremendously important issue that concerns the whole fundamental concept of the university, how it is seen and the atmosphere in which it operates.
When the noble Baroness introduced the amendment, she referred to the rush and to the failure to have proper consultation. I forget which American statesman said that the difference between an academic and a politician is that an academic argues for a conclusion while a politician has to argue for a decision. I see the potential hazards of this business of consultation in this sphere. However, if there are anxieties—they do seem widespread—there has not been adequate consultation, and that is a serious matter. Whatever is proposed, it will be strongest if it has the good will of the universities rather than all the reservations and anxieties that have been expressed by them.
For all these reasons, I commend the amendment of the noble Baroness and ask the Minister—I do not want to embarrass him but he is a thoughtful and considerate man, and I have great regard for him—to think very carefully with his colleagues before insisting upon their proposals exactly as they are.
Lord Harris of Haringey (Lab)
My Lords, I am slightly bemused by this grouping because it contains two very different amendments. Both seek clarity but the second amendment, spoken to by the noble Baroness, Lady Hamwee, raises the issue of whether the operation of the various duties can be delivered, given the resources that have been made available.
The material produced by London Councils highlights my concern that the Government are underfunding what they want to do regarding counterterrorism. The concerns of London Councils are simply that, given the duties being placed on those councils—which will be magnified across the country in other local authorities—the sums of money that the Government propose to put aside for counterterrorism are inadequate. I am also aware that the money being made available to the police service is considered by many to be inadequate.
In a Written Answer sent to me today, the Minister tells me that it would be completely inappropriate to say what sum of money has been made available for the counterterrorism police network. That is a slightly puzzling Answer because the reality is that the sums of money flowing to the counterterrorism network, in practice, go though the Metropolitan Police accounts and end up in papers put before the London Assembly. The figures are ultimately in the public domain, although they might take a while before they emerge.
My understanding is that the counterterrorism police network has suggested that implementing what the Government expected would—given the current stage of threat—require something like an additional £30 million a year. Again, my understanding is that the sum of money being made available—although I appreciate that the Minister can neither confirm nor deny this because of the position he has taken—is rather less than that. In fact, my understanding is that it is less than one-third of the sum required. Therefore, clarity about whether it is practicable to operate and bring these matters to fruition is important, which is presumably the purpose of the amendment of the noble Baroness, Lady Hamwee.
The amendment of the noble Baroness, Lady Sharp, also seeks clarity on what people are trying to prevent. I have a feeling that she is widening the definition of what authorities are required to prevent. Asking them to prevent people being drawn into terrorism is one thing; asking them to prevent people being drawn into,
“activities which may lead to”,
terrorism broadens the definition beyond all recognition.
Baroness Sharp of Guildford
I should point out to the noble Lord that I said that it was merely a probing amendment and that the wording was not appropriate.
Lord Harris of Haringey
I am not criticising the noble Baroness and I appreciate that all Liberal Democrat amendments are probing amendments, because that is the nature of their position.
The point that I am trying to make—it would be helpful if the Government could clarify this—is that although there is a definition of terrorism, I suspect that the definition of activities “leading to” terrorism is much broader. That could draw some things into the definition because people then have to make a subjective judgment as to whether something is an activity that under certain circumstances, not necessarily present, might lead to terrorism. Some clarity from the Minister on that would be useful.
However, that does not alter the general point that the noble Baroness, Lady Sharp, highlighted, which is the importance of public authorities having a clear understanding of what they are required to do and what they are supposed to be preventing.
Baroness Hamwee
My Lords, the world of local government, in its kaleidoscopic way, is changing at the moment with new groupings of authorities, such as the Association of Greater Manchester Authorities. Although the duty is expressed as a duty on each individual authority, will the Government be open to authorities seeking to find ways for neighbours to provide services to fulfil the duty? This has only just occurred to me, but it seems that one should be open to practical ways of dealing with this sort of thing.
Separately, I ask whether my noble friend is able to address my points about the contracting-out of services, which I raised in the first group of amendments. I do not know whether he has any notes on that. It is mentioned in Amendment 106 in the Minister’s name, which caused me to go on a hunt for Schedule 36A to the Education Act. That is only about education and there are many other services which are contracted out. I asked London Councils whether I was barking up the wrong tree in worrying about this. Its answer was that I was not and that this is something worth pursuing.
Lord Harris of Haringey
My Lords, I suspect that my noble friend’s amendment highlights the fact that this is a list which has been cobbled together with some speed and that perhaps, in trying to ensure that all the bases were covered, the normal diligence of the Home Office has fallen apart. As to the specific point about unitary authorities, my noble friend Lord Rosser suggested that perhaps a county council could act on behalf of a unitary authority. The very point about unitary authorities is that you cannot do that. That would raise some very interesting and wide issues so I assume that that is a simple omission. Regarding the list on criminal justice, while I assume that the duty is placed on the individual institutions, there is nothing said more generally about the role of headquarters bodies or contracting bodies like the National Offender Management Service.
There are a couple of other possible anomalies that the Minister might want to address. I note that community health councils, which still exist in Wales although they have been long abolished in England, are listed, but that the successor of the successor of the successor bodies for community health councils in England, Healthwatch organisations, are not included. Will community health councils in Wales have a Prevent duty that does not apply to the bodies which now fulfil many of those functions in England? Finally, I do not see the Ministry of Defence Police in the list of police organisations.
Lord Bates
My Lords, I can say in advance that I will probably be writing to both my noble friend and the noble Lord on their points. As extensive as the briefing is, I am afraid that it has not pre-empted those two points of contracting out or the Ministry of Defence Police.
I will move the government amendments in this group shortly but first I will respond to Amendment 105A in the names of the noble Lord, Lord Rosser, and the noble Baroness, Lady Smith—the Opposition Front Bench. This amendment would add a unitary authority to a list of specified authorities in Schedule 3 on page 47. This is an issue that I have discussed with her previously. I am pleased to assure her and others in your Lordships’ House that this amendment is unnecessary. Unitary authorities are already covered by virtue of a county or, more commonly, a district council. On that basis, I hope the noble Lord will feel able to withdraw the amendment. I can see a quizzical look from noble Lords on this but we say that whether it relates to a county or district council in England—that is, a person carrying out the function of an authority mentioned in Section 1(2) of the Local Government Act 1999, by virtue of a direction made under Section 15 of that Act—the provision would catch all. Noble Lords will have to take the word of our counsel on it. It would be a pretty easy amendment to make if we were wrong, and we would be happy to correct it; but we feel that unitary authorities are covered under the existing wording.
There are a number of government amendments in this group, regarding bodies listed in Schedules 3 and 4. Schedule 3 specifies the authorities subject to the duty to have due regard to the need to prevent people being drawn into terrorism. Schedule 4 specifies the persons who are subject to the duty to co-operate with panels established by local authorities to provide support for people vulnerable to being drawn into terrorism.
Amendments 106, 108, 111 and 116 to 118 will ensure that the appropriate authorities are subject to the duties, and that there are no gaps or inconsistencies. Amendments 106 and 116 add persons who are appointed by local authorities under certain delegated functions related to education functions. This ensures appropriate coverage of the duties. Amendments 108 and 117 add a person specified by Welsh Ministers in respect of a direction made in respect of a Welsh local authority’s education functions. This amendment ensures a consistent approach.
Baroness Smith of Basildon
I think that the noble Lord is making a good fist of it but it is not very convincing. He thinks there might have been a case or there could be a case where a child might let slip in a packed nursery that someone is going to Syria and that he or she could be taken with them. What we have here is a duty being placed on the staff of that nursery. Unless it is clear-cut what that duty is going to be and how it is to be undertaken by the staff, I struggle to find a good explanation for why it is in there. I hope that the paper arriving for him is enlightenment, and I will give him an opportunity to read it, but so far his explanation is not really very convincing. It is quite an onerous duty to be placed on staff, involving training, costs and so on. If he is able to offer any further enlightenment on why and how, I would be very grateful.
Lord Harris of Haringey
My Lords, while the Minister takes the opportunity to read fully the piece of paper that has just arrived, it seems to me that the argument that he is putting forward is about essentially providing a duty to support the Pursue function rather than the Prevent function. Of course, in a nursery and various other places information may emerge that could actually be important in terms of pursuing, preventing or interdicting a particular terrorist act. That is slightly distinct from what we are talking about here, which is preventing people from going down the road of becoming terrorists. The examples that the Minister has given have been more about the Pursue end of the counterterrorism strategy rather than the Prevent end.
Lord Bates
In that case, it is probably the fault of the rather poor example that I gave rather than the actual guidance as it is. Essentially, it says to a responsible person within any nursery, “There is a general Prevent review where we are trying to prevent people from being drawn into terrorism”. The responsible person would want to know, “What does that mean for us? If we had a circumstance where that came to light, what would we actually do? Who would we report it to? If we had any concerns, what would we do?”. The fact that that procedure is written down and that somebody has actually thought about what that procedure would be complies with the guidelines. It is the duty to have due regard to the guidance.
The amendments in this group relate to a number of matters concerning the duty itself and the guidance to be issued under it. I begin with the amendments that deal with parliamentary scrutiny of the guidance, which were tabled by the Opposition and my noble friends. Amendments 112C and 112CA would require that the guidance may be issued only subject to parliamentary approval. The Bill already provides that the Secretary of State may consult before issuing guidance. That consultation has been running for six weeks and closes on 30 January.
This public consultation has provided ample opportunity for interested parties to scrutinise and influence the guidance. The final guidance will have benefited from extensive consultation and expert input, including contributions to debates in your Lordships’ House.
The approach that we have taken to this guidance is not uncommon. I note that the Delegated Powers and Regulatory Reform Committee did not recommend any additional parliamentary scrutiny of the guidance in its report on the Bill. I take this opportunity to thank the committee, and particularly my noble friend Lady Thomas of Winchester, for producing its report so efficiently in order to support your Lordships’ scrutiny of this legislation. In view of this, and although we of course value the importance of parliamentary scrutiny, the Government do not believe that it is crucial for the guidance to be subject to parliamentary approval.
Amendment 112BA would require the guidance to “deal with equalities issues”. I assure my noble friend Lady Hamwee that this is an issue that the Government take extremely seriously. In drawing up the final version of guidance, we will certainly consider any equalities issues that have arisen since we published the draft for consultation. Of course, many of the specified authorities will already be subject to the public sector equality duty in the Equality Act 2010. I hope she is reassured that her amendment is not necessary in the light of these considerations.
Amendments 112BB, 112BC and 112CB would further increase requirements to consult on the guidance. I assure your Lordships that the Secretary of State will of course consult specified authorities before issuing guidance that affects them. As I have said, we are just coming to the end of a full public consultation on the guidance. However, it will not always be necessary to consult all specified authorities in all cases. For example, there might be a case where part of the guidance relating to just one sector is to be revised and it would not be appropriate to consult all specified authorities on such revisions.
Amendment 112BC would require specified authorities to consult their local or relevant communities. This might be good practice in some cases. However, the duty is on the specified authority, not their relevant communities, and this consultation would impose additional costs. There might also be cases where it would not be appropriate to consult communities. For example, in making amendments to the guidance to the prisons sector, it might not be appropriate to consult the prison population. As such, we consider this to be a matter best left to specified authorities to consider and to decide.
Amendment 112CB would remove reference to the Secretary of State as being the person who should decide whether a revision to the guidance is insubstantial. The amendment accepts that insubstantial changes should not require consultation and that someone must make the decision on whether a change is insubstantial. It remains the Government’s view that the decision should fall to the Secretary of State, given her responsibilities to Parliament. This is consistent with standard practice on this type of issue.
I shall now respond to the amendments that relate to the Secretary of State’s power to issue directions. Amendment 112DA would make the power to issue a direction subject to the specified authorities having the opportunity to make representations. Amendments 112E and 112F would require the Secretary of State to issue a report to Parliament after making such a direction.
I reassure your Lordships that a number of safeguards are already built into this direction-making power that make these amendments unnecessary. The legislation makes clear that the power can be used only where a specified authority has failed to discharge its duty to have due regard to the need to prevent people being drawn into terrorism, in the assessment of the Secretary of State. This narrows the circumstances in which the power could be used. The decision to issue a direction to bring about compliance could then be judicially reviewed, following the normal principles of such reviews.
Further, the direction is enforceable only by application to a court for a mandatory order. The court would not exercise its discretion to issue an order if it felt that the direction had been issued unreasonably. Of course, court decisions stand to be appealed against.
The Government would consider using the power only where other efforts to address the failure had been exhausted. The decision to recommend that the Secretary of State issue a direction would have been considered in detail by the Prevent oversight board, on which, as I have already mentioned, my noble friend Lord Carlile sits as an independent member. There would also have been detailed discussions with the specified authority beforehand, including the opportunity to make representations at that stage.
This debate has been an insightful introduction to the consideration of the Prevent duty. I hope that my remarks, in which I have been able to expand on previous statements, may reassure noble Lords. In that regard, I invite them not to press their amendments at this stage.
Lord Harris of Haringey
Before the noble Baroness, Lady Hamwee, makes that decision, I revert to the question of what it is that is being required and one of the reasons why that might imply that it is better to have more consultation about it. One of the reasons why some of the previous Prevent programmes failed, and fell into disrepute with the communities concerned, was that they were not seen as about preventing people from going down the road to become dangerous, violent extremists. Rather, they were seen as being programmes that put a series of spies in the camp and were about reporting individuals to the authorities for action to be taken against them. Speaking personally, I am all for mechanisms that identify people who are a danger to the rest of us and make sure that appropriate steps are taken, but this was perceived as being the authorities intervening and getting the data. We are going to come to this subject in a minute, but when I questioned the Channel panels as to why the intelligence services were not specifically listed as an agency involved in that, the argument given at that stage was that it was because it would make it look as if the Channel panel process was part of a process of ratting on individuals to the authorities.
It is important to get this guidance in a form where the communities understand that it is not about pointing the finger at individuals in a way that might lead them into trouble with the authorities, but is a way of supporting individuals and preventing them going down that road. That is why this distinction of whether this is about “prevent” or “pursue” is so important, as is getting public and community buy-in to the way in which this is enforced.
Baroness Hamwee
My Lords, my noble friend might not be too pleased to know that I was scribbling quite a lot during his reply, but he will be pleased to know that I can hardly read what I have written. However, I am sure that this is something that we are going to want to come back to next week. It strikes me that a lot of this debate has been on the premise of what the situation is here and now. Even with the reassurance that my noble friend Lord Carlile is so heavily involved in this, I do not suppose that he is going to want that to be for ever and a day. There might come a time when he finds other things that he will apply his energy to.
Leaving that aside, I made the point earlier that what we are talking about here is not only the guidance that we will see fairly shortly. The noble Baroness said that we will not see it until after Committee; in fact we will not see it until after the end of the Bill or even, as far as I understand it, until after enactment. There is also the question of revisions to the guidance, which is surely going to have to be changed; it is very unlikely to be exactly what is required in its first incarnation. It is the sort of guidance that needs time for individual organisations to have their own internal discussions and for umbrella organisations to trickle down the consultation—
Asylum Seekers: Women
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Lord Bates
Certainly, as we have said, if the information is supplied to us, it will be investigated very thoroughly indeed. The circumstances there have been subject to regular investigations by Her Majesty’s Chief Inspector of Prisons. In relation to the UN rapporteur who asked to visit, that was a very last-minute request. We had set up a very detailed programme, including meetings with the Chief Inspector of Prisons and the Home Secretary, and had offered other meetings. We are open to further approaches in due course in the future.
Lord Harris of Haringey (Lab)
My Lords, is it not the case that in a number of instances the women who made these very serious complaints have been deported before they can speak properly to the investigators? Surely, that is not something that the Government condone.
Lord Bates
No, it is not, and that is why we want the information to be brought to our attention as soon as possible. We cannot act if it is not shared with us.
Counter-Terrorism and Security Bill
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Lord Harris of Haringey (Lab)
My Lords, a series of very important questions have been posed to the Minister. I want to add just a few more. It is important that there is clarity as to how this is going to work, for all the reasons that the Committee has touched on already about the possible blowback and the negative implications of this clearly not working or not working in the way that Ministers hope it will. There are some very serious and complicated issues.
I have still not fully understood—I appreciate what was gone through at Second Reading—why this is not, in practice, rendering an individual stateless. I am told that this is because it is just temporary. But the Bill contains the power to renew it for a further two years, and potentially indefinitely. First, what is the justification for having any power to renew a temporary exclusion order? Surely within two years it will have been possible to arrange this managed return, so why is it there? Surely it must imply that there is an expectation that some orders will be renewed and the thing will be continued and will go on and on. In which case, we need to understand why that is and why it does not in effect render the individual stateless.
Secondly, I want to hear from the Minister the implications in terms of how other nations will react to the fact that there is an individual in their country who has been labelled by this country as a suspicious person who has engaged in acts of terrorism, which is why a temporary exclusion order has been served on them. What are those countries going to do with the individual concerned? The noble Baroness, Lady Warsi, raised the issue of torture, and I do not think that is fanciful. These are individuals whom the British Government have labelled as people we are so concerned about that we want to put restrictions on what is going to come back with them. Other countries are not as squeamish or civil libertarian as perhaps we are in this country or some other European states and they will say, “Right, if the British Government say this individual is potentially dangerous, we must react as though they are potentially dangerous”. We know what happens in some of those countries to people whom they regard as potentially dangerous.
The cynical—those who are trying to manufacture trouble on this, trying to feed the narrative that leads to violent extremism and jihadism—will say that this is exactly what the Government want. They want people to be permanently excluded. They would be delighted if they are then tortured in another country. That is what cynical conspiracy theorists will say about this, so it is critical that we understand what the status in another country will be of people whom we have labelled in this way. What will be the level of consular protection and support? Will this be by agreement with the countries concerned? What will we do in cases where we do not have the sort of relationship with the countries concerned that will enable that to happen? What if the country says, “Okay, the British Government say this person is dangerous and that he cannot fly. We aren’t interested in that. We are deporting him to the United Kingdom”? Presumably, if such people turned up on the doorstep, they would immediately be subject to a TPIM. I assume so, but that would not be a managed return; they would have just arrived because they had been deported. What if they are deported somewhere else? What happens about the recipient country?
These are important questions. The way in which we treat individuals about whom we have suspicion is extremely important because other countries will assume that because we are treating them as suspicious, there is something that they, too, should be concerned about, and they may take steps accordingly.
I hope the Minister will make the best of the very large number of notes that he has now received on all these points. These are important issues that we need to clarify. While we as a nation must do what needs to be done in respect of individuals who have been in a war zone and come back radicalised and potentially very dangerous, we need to understand how that process will work, and it is not clear to me that this is the most effective and least potentially counterproductive way of handing those cases.
Baroness Warsi
I have another question because we may not come back to this after today. It may well be that there are details out there in relation to what the managed programme will look like, including the potential deradicalisation programme and the Prevent work that would be done. Other than what is already available, for example though Channel, are there any programmes which the Government will present as options for people when they return? If there are, will the Minister supply me with details of them before the next day in Committee?
Lord Bates
On the point raised by the noble Lord, Lord Judd, we are seeking to bring them back but in a safe way. We recognise that they are our responsibility. At the moment it is not quite—I have to be careful about saying this—a revolving door with people being able to come and go as they will but there needs to be structure, security and some action to seek to prevent people going and, where that has failed, a managed return. The situation is very dynamic, which the noble Baroness, Lady Hamwee, I am sure appreciates and the terms of the permit of return will change over time. We are in the process of beginning to engage with countries to work with them on these problems and to say how the process should work. If we become too prescriptive in putting down in primary or secondary legislation what that process should be, it does not allow us to be more flexible in the case of the individual or the country concerned. That is why we are asking for a bit of flexibility but we are mindful that that requires judicial oversight. People are not stranded out there. They are given a permit to return. They are able to have a judicial review of the process and the actual permit or order has gone through an element of judicial scrutiny before it is made, so elements are there.
I was asked about the independent reviewer’s criteria and I have just got a note on that. His discretion is not constrained in the other areas and we believe that he would not want it to be constrained in this area. That is, I suppose, the point made about the Independent Reviewer of Terrorism Legislation overseeing this aspect of the order.
Lord Harris of Haringey
This follows on from the point that my noble friend Lord Judd has just made. This is a very serious step that is being taken. The Minister says, “We are simply managing the return and it is intended to be temporary”. What, then, is the purpose of Clause 3(8), which says:
“The imposition of a temporary exclusion order does not prevent a further temporary exclusion order from being imposed … (including in a case where an order ceases to be in force at the expiry of its two year duration)”?
What are the circumstances that require a provision for going beyond two years? Are we really saying that the managed return is going to take longer than two years? It seems to open up the possibility that this is in effect about permanent exclusion.
Lord Bates
The circumstances are not that the managed return is going to take more than two years; they are that the individual may be out there for longer than two years. The original order might lapse before he or she seeks to return to the UK and, in those circumstances, we would seek to renew it. We have talked about two separate elements. One is when the person arrives, and that relates to safe return. There are then the in-country elements of the temporary exclusion order, which would come into effect only once the person arrived back in the UK. That is the argument for it. We are seeking a degree of flexibility with a review process—
Lord Harris of Haringey
I am sorry; I am trying to follow the Minister’s argument. He is saying that two years might elapse before the individual comes back to one’s attention. Perhaps I am misreading it but Clause 3 states that the Secretary of State must give notice of the imposition of the order and that:
“A temporary exclusion order … comes into force when notice of its imposition is given”.
How can you give it if you cannot find the person? Therefore, what is the argument? Is it that the individual will disappear for two years, as you will not have been able to impose the order because you do not know where they are?
Lord Bates
I hope that I can help the noble Lord here. Perhaps the problem is my poor explanation of this issue. We are saying that of course notice is deemed to have been given but the person may well not present at a port seeking return to the UK until after a period of two years. At that point the order could be renewed so that their travel documents would be invalidated and they would have to seek a permit. That is the intention. I am aware that there will be other issues and I will look at this matter very carefully. I think that it has been helpful to hear the Committee’s views on this and to hear the questions that have been raised.
Lord Bates
We are not talking about throwing people out here. The context is that we are talking about people who went out to be involved in terrorist activity, potentially with an organisation that is seeking to plot and motivate those individuals to commit terrorist acts back in the UK. In the very helpful example given by the noble Baroness, somebody—let us call them Mr or Miss R, R standing for “Reasonable” —recognises that there is a temporary exclusion order. Their family has alerted them to that and they are concerned about it. They do not particularly want to initiate the judicial review when they are out there, although they would be entitled to. They just want to get back as quickly as possible and sort the whole thing out because they think a terrible mistake has been made. They arrive in Istanbul; flights are not an issue as there are several each day from there to London. There is also a consulate there so they would have access to consular services. For the reasonable person, their return could be managed in a matter of days. I do not need to carry on with Mr U —Mr Unreasonable—who seeks to challenge through judicial review, which he is entitled to do from outside the process, and seeks to dispute having any restrictions on his return. Clearly, that may take longer but our desire is that it should happen as quickly, smoothly and safely as possible.
Lord Harris of Haringey
This will be my last hypothetical. As a nation, we take the position that there are certain countries to which we will not deport people, particularly if they have a label around their neck, because it is assumed that they will be tortured. If an individual on whom a temporary exclusion order sits is in one of those countries and we have labelled them as somebody whom the Secretary of State reasonably suspects of being involved in terrorism-related activity and reasonably considers a danger to the people of this country, is it not likely that that country—one to which we would not deport people—will arrest them and potentially, because on our say-so this person is extremely dangerous, torture them? Where does that stand in terms of our normal position on human rights?
Lord Bates
It stands in the same position I gave in my earlier answer. If the Secretary of State had a reasonable expectation that imposing a temporary exclusion order on an individual in a particular country might give rise to torture, then that order would not be issued in those circumstances because of the impact it would have on their human rights. I hope that offers reassurance on that element.
Counter-Terrorism and Security Bill
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Lord Harris of Haringey (Lab)
My Lords, I, too, want to say a word about Amendment 7. I have some difficulty with the arguments being presented in favour of it. I accept that there is clearly a potential issue about humanitarian assistance in terms of other terrorist legislation, but Schedule 1 relates to, “Seizure of passports etc from persons suspected of involvement in terrorism”. The paragraph is referring to an individual at a port in Great Britain where a constable has reasonable grounds to suspect that person of being involved in terrorism. To amend in terms of humanitarian support seems completely unnecessary. Surely, it is palpably obvious to a constable making this decision that this is not someone engaged in terrorist activity if what they are doing is humanitarian activities.
If, however, an exception is put in, which says that you except people who might be engaged in humanitarian activities, a situation would be created in which people will purport to have been providing humanitarian assistance rather than anything else. It seems to me that, although there is a genuine debate to be had about humanitarian activities and the extent to which crossing into various areas might be deemed to apply, this is a circumstance in which a constable is exercising a judgment about whether the individual in front of him is engaged in terrorist activities. If they are palpably humanitarian, there is no suspicion. If, however, they are given the option of pretending to be humanitarian so as to avoid the constable having the right, it seems to me that an additional problem is being created.
Lord Ashton of Hyde
My Lords, I am grateful to my noble friends for tabling more probing amendments. The Minister and I will be well and truly probed by the end of the Committee stage.
We have had an interesting debate, with arguments expressed on both sides. The definition of “involvement in terrorism-related activity” used in Schedule 1 is the same throughout the Bill. It may be helpful to explain to the Committee that this definition has already been changed from that which exists in previous legislation in line with the recommendation of the Independent Reviewer of Terrorism Legislation that the definition of terrorism-related activity in the TPIMs Act should be narrowed.
The effect on the current Bill is that involvement in terrorism-related activity does not include conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct which facilitates or gives encouragement to acts of terrorism, or which is intended to do so. David Anderson described these individuals as those who are at three stages removed from actually committing a terrorist act: the giving of support to someone who gives encouragement to someone who prepares an act of terrorism. This change in definition is consistent with the public protection to which the legislation is directed.
Amendments 6 and 7 would amend the definition of involvement in terrorism-related activity as it currently appears in the Bill. The provision to which Amendment 6 relates refers to,
“conduct that gives encouragement to the commission, preparation or instigation”,
of acts of terrorism, whether or not the conduct is intended to do so. The amendment would amend the definition to conduct that gives intentional or reckless encouragement. To answer my noble friend Lady Hamwee, we believe that reckless encouragement is included in the current definition and we believe that accidental or reckless encouragement should be captured when its consequence is to encourage the commission, preparation or instigation of acts of terrorism.
The provision to which Amendment 7 relates refers to,
“conduct that gives support or assistance to individuals who are known or believed by the person concerned to be involved in”,
the commission, preparation or instigation of acts of terrorism. It is clear that the support or assistance which falls within that definition is that which supports or assists individuals with acts of terror. We do not want to specify explicitly—this point was well made by the noble Lord, Lord Harris of Haringey—that those providing humanitarian assistance, however defined, are excluded from the definition of involvement in terrorism-related activity. For example, as the noble Lord mentioned, it is possible that a person acting in a humanitarian capacity can also give support or assistance that would enable others to engage in terrorism.
My noble friend Lady Hamwee asked whether we have consulted NGOs or charities on this, and the noble and learned Lord, Lord Hope, mentioned its possible chilling effect on charities. We have not specifically consulted, but such organisations are capable of referring to the consultation. We would encourage them to do so and to reply to it.
I want to reassure your Lordships that support or assistance is, in this legislation, quite clearly that which supports or assists individuals with acts of terror and not any other legitimate activity.
Baroness Hamwee
My Lords, with no such authority —neither mine nor anyone else’s—I wrote, against Amendment 8, “If it is reliable intelligence is it not already covered?”. Intelligence may be less than reasonable; evidence may be more than is reasonable. I am not clear what standard would be required by the provision as amended. The noble and learned Lord has made my point much more clearly and authoritatively.
I have a number of amendments in this group. Amendments 10, 12, 13 and 21 all provide for the giving of reasons for the suspicion and for allowing the person the opportunity to make representations at the different stages of the process. I hope that both those items are self-explanatory: there should be an explanation, at the very start and at each stage, and the person concerned should be able to make representations—make representations is about the right level; I am not quite saying make a case—and to state their position.
Amendments 17, 18 and 19—
Lord Harris of Haringey
Before the noble Baroness moves on, she said that she felt the arguments to be self-explanatory. Perhaps, for the assistance of the Committee, she could talk a little about what she means by the reasons. If you present an individual with the reasons, are you in fact asking that all the material that has led to that reasonable view being taken be presented? That could require the provision of intelligence material, which could have an implication for government. It would be helpful, therefore, to understand what the noble Baroness thinks would be sufficient to meet the requirement to provide reasons.
Baroness Hamwee
My Lords, I had intended to say a word about Amendment 11. Given that this is Committee, I may do so. I am sympathetic to the questions that the noble Lord has asked, although—as I suspect he may agree—12 hours is too long. However, the point that has been exercising me is whether it is a good idea to have a maximum period, or whether that might become the standard and efforts to deal with the matter as soon as possible will not be made. Perhaps the individuals will think, “I’ve got so long to deal with it and will therefore take that long”.
Lord Harris of Haringey
My Lords, I wish to comment on Amendments 42 and 43 in this group. I have to say that the grouping is slightly odd because it relates to a whole range of different issues. I assume that the purpose of the amendments of the noble Baroness, Lady Hamwee, is to ensure, first, that the way in which the action of removing someone’s passport is carried out is mindful of equalities issues and the background of the people concerned; and, secondly, that a proper record is kept of what is done, so that any subsequent look at how the powers had been applied can show that they had been applied proportionately. I have no objection to that; indeed, it goes to the essence of the point about this power and the subsequent powers—the extent to which they will be exercised in such a way as to achieve their purpose but avoid a situation in which they alienate a particular community by reinforcing the narrative that suggests that that community is being oppressed or whatever.
In that context, it would be helpful if the Minister could indicate how frequently it is anticipated that these powers will be used? Are we talking about six, 600, 6,000 or 60,000 times a year? It makes a significant difference because if every time people from a particular community try to leave the country they have to go through these procedures—and these documents are held for a period, whether for six, 12 or even two hours—that will produce resentment. If the powers are to be used in a much smaller number of cases, it may be that the proportionality will seem to be more reasonable. It would be useful if the Government, in asking for these necessary powers, were to confirm how frequently the powers would be used. I am sure they have considered that. Perhaps the Government can say, having thought through the information and intelligence that has been available for, say, the past six months, how many times they think they would have sought to use these powers.
Baroness Ludford
My Lords, I, too, will speak to Amendments 42 and 43, which I strongly support and to which my name is also attached. The draft code of practice refers to the need for an objective basis for the constable’s state of mind and how such information must be specific to the personal conduct of the person and not formed on the basis of assumptions about attitudes, beliefs or behaviour of persons belonging to particular groups. Training in equalities would want specifically to address the danger of stereotyping or behavioural assumptions. There has been a great deal of concern in the last decade and a half about what might sometimes be called racial, ethnic or religious profiling. One of the things that distinguishes this country from, for instance, France is that we believe—and this also relates to the need to record statistics on the use of the powers—that it is a useful exercise to record statistics which include, as indeed does our census, a voluntary question on ethnic identity and religious practice because it helps inform social, economic and, in this case, legal lessons to be learnt. It is not helpful, as is sometimes done in other countries, to pretend that we are colour and identity blind, because that actually means that we are blind in terms of the policy conclusions drawn. The need for training to avoid discriminatory behaviour and stereotypical assumptions and to record how the constables and other qualified officers behave and perform their duties is a useful addition to the Bill.
Lord Harris of Haringey
That is more helpful than the noble Lord might have thought when he received that note. To put it in context, if 600 or so—different numbers have been bandied about—individuals have gone out to take part in activities overseas, are we talking about specifically targeting that sort of number or about a rather broader sweep? That is what I am trying to get at.
Lord Ashton of Hyde
We would obviously like to stop as many as we can from going, but I am reluctant to give the numbers, or even a broad indication of them, today. I will go back and find out how much we would be prepared to discuss numbers or even ranges but I would not like to commit myself now, if that is all right.
Lord Hylton
My Lords, when the noble Lord replies, will he deal with the specific issue of abortive travel costs—flights that have been booked and paid for—and accommodation, which probably means hotel rooms, because the journey cannot be continued?
Lord Harris of Haringey
My Lords, this comes back to the earlier point about whether the various powers in the Bill are proportionate and effective. What is being done to minimise the risk that they are going to exacerbate problems with particular communities? It is not simply a question of whether the powers have been issued improperly. In that case, I hope that compensation would be paid. It is more about when the powers may have been exercised entirely properly but are wrong in the sense that there was a reasonable suspicion, a passport was seized, investigation over a few hours demonstrated that this was completely wrong and the journey was permitted.
Under those circumstances, the person concerned, who had absolutely no malign intent, will have a real sense of grievance which will be reflected among all their friends, relatives and entire community, and which might be disproportionate to what was achieved. That is not the wrong use of the power: it is just the use of the power under circumstances in which it turned out that the intelligence or suspicion was wrong. That would then have a consequence. I appreciate that this could open up a whole mare’s nest of other circumstances in which this issue might arise. However, I hope that the Government have given this some thought because it is the sort of issue which could provoke a sizeable backlash in terms of people’s consideration of how these powers are being used—powers which otherwise people in that community might feel are reasonable.
Lord Pannick
The reason why the law does not award damages for the good-faith exercise of administrative powers in circumstances that turn out to be erroneous is because, if you confer a right to damages in those circumstances, you inevitably deter the authorities from taking action in the first place. I think that in this context we would wish to avoid deterring the security services from taking action for which they have at the time reasonable grounds.
Lord Harris of Haringey
I do not want to get into an extended dialogue. I understand exactly the point, but it is a fine balancing act and there is a real issue. If we are saying that one of the concerns is the extent to which these powers are exercised proportionately, given not only that it is extremely important for the entire community and entire society that these powers are exercised and that they exist but at the same time we are trying to avoid a situation in which there is a backlash, these matters need to be considered. I am sure that the Government have considered them and perhaps the Minister will give us an indication as to how they have tried to strike that balance, not in the circumstances where the powers have been used incorrectly or inappropriately but simply when this has happened.
I do not want to go back to the numbers question, but if for example we found that these powers were exercised quite widely because there was a real concern about people going overseas for terrorist purposes but necessarily because of those concerns there were a large number of false positives, the backlash in the communities concerned would be extremely great. It is just the same argument that arises about a very large number of stops and searches taking place—not that compensation arose there—simply to deter a small number of people.
Lord Thomas of Gresford
Accepting the view of the noble Lord, Lord Pannick, that we should not give a course of action to someone who has had their passport removed, if the Minister were to give an assurance that the state will be open to ex gratia payments in appropriate cases, the fears expressed by the noble Lord, Lord Harris of Haringey, would be met. Ex gratia payments are frequently made in circumstances where there has been a degree of injustice. One cannot imagine any greater sense of injustice than to have one’s flight removed and the cost of a hotel imposed without any possibility whatever of being recompensed.
Counter-Terrorism and Security Bill
Lord Harris of Haringey Excerpts(9 years, 10 months ago)
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Lord Harris of Haringey (Lab)
My Lords, I, too, admit to being delighted to follow the noble Lord, Lord Evans of Weardale, and his insightful maiden speech. He has served with distinction for 33 years in the Security Service and was until just over a year ago its director-general. His early years in MI5 are shrouded in the appropriate cloud of mystery. It is said that he served in Northern Ireland, where he went under the soubriquet “Bob”. If he sidled up to you in a bar in Belfast, his code phrase was allegedly “Call me Bob”. I do not know if that was true and I do not suppose that he will tell us. I first met him when I had some responsibility for overseeing the police counterterrorism network and he was deputy director-general. Indeed, I once encountered him on a bus—yes, deputy director-generals do travel by bus—and inadvertently I broke his cover. I think that his mission was in fact Christmas shopping. I greeted him by name. I realise now that perhaps I should have called him Bob. However, he will bring much to this House’s deliberations and we all look forward to hearing many more contributions from him in the years to come.
I declare my interest as an adviser to Lockheed Martin and UKBN, who have some involvement or potential involvement in underpinning our national security.
This debate follows the events of the past few days in Paris, which make it particularly timely. But it would have been timely anyway because of other recent events, such as what happened in the Canadian Parliament only a few weeks ago, the murder of Lee Rigby and the recent arrest carried out by the police counterterrorist network. Andrew Parker, the current director-general of MI5, talked in his lecture last Thursday about 20 terrorist plots directed or provoked by extremist groups in Syria since October 2013 in Europe, Canada and Australia. He said explicitly that the same intentions are being displayed towards the UK. There are 600 extremists among the many Britons who have travelled there. Many have joined ISIL, some—we do not really know how many—have already returned. He also spoke about three terrorist plots in the United Kingdom being stopped in recent months.
It is worth considering how, over the past 20 years, there has been a significant change in the nature of terrorist attack. Those who recall, as most of us do, the IRA atrocities of 30 years ago remember that there were usually warnings. There was usually the desire by those perpetrating the atrocities to live and continue their activities. There was also an explicit political agenda and a recognition that too many casualties might be counterproductive to that agenda—a recognition that was not always accepted and followed.
Subsequently, we have had the al-Qaeda spectaculars: 9/11, Bali, 7/7 and the airline plot, which, thankfully, failed. There, the objectives were clearly mass casualties and involved martyrdom. The target was to cut off the head of the snake, by which they meant western civilisation. That remains an aspiration for some groups around the world. The difficulty with those plots was that, because they involved the intention to create enormous numbers of casualties, there was a need to intervene very early to disrupt them, due to the risks of those casualties taking effect—perhaps before a full evidential picture had been built up. That explains some of the debates that we had a decade or so back not only on control orders but on the length of detention while investigations took place.
More recently, we have seen a growth in the activities of lone wolves, most notably Anders Breivik in Norway in 2011 or, closer to home, Roshonara Choudhry’s attack on my right honourable friend Stephen Timms in 2010. Often these attacks were quite low-tech, with an expectation of capture and/or martyrdom. We have then seen the IS-inspired attacks of the last few months. Again, these are quite often low-tech and do not require a great deal of advanced planning and organisation. They may involve hostages. Certainly one of the objectives is publicity and the use of social media—YouTube, perhaps—to spread the atrocity that they have committed. It is important that our capacity, and the legal framework to respond, can change with those changes—indeed, to reflect the changing nature of technology itself.
If I was a cynical person—those who know me know that that is the last thing I ever am—I might be cynical about the fact that it has taken this coalition Government five years gradually to come to understand the threat. I resist the temptation to say that those on these Benches warned the Government, but the Government do now accept, in this Bill, that there needs to be the restoration of the power to relocate those subject to controls. Undesirable though that is and however difficult the individual circumstances, it is something that is, on occasion, necessary. Within government there is also now, at last, despite the extraordinary statements of the Deputy Prime Minister this morning, increasing recognition of the importance of communications data and the fact that our capacity to deal with that needs to reflect the way that communications data has changed.
The other lesson that we need to learn from the last few years is that there are no simple magic answers: they are not contained in the Bill and they have never been contained in any previous piece of anti-terrorism legislation. Each measure that such legislation contains must be assessed against a number of tests. The first is of effectiveness and necessity: does the measure proposed actually work and does it do what is necessary?
The second test is about proportionality in our framework of human rights and values. That includes who takes the decision and whether it is subject to review or appeal by an appropriate judicial authority. In my view, it remains right that the decision is taken by the Home Secretary, who is accountable to Parliament. However, for transparency, that decision should be—indeed, must be—subject to review and be seen to be subject to review by some independent judicial authority.
The third test—one which is very difficult to determine and measure—is the extent to which the measures being brought forward are likely to lead to potential alienation within individual communities and the likelihood that the measures may aid the narratives that lead to radicalisation. Will it reinforce the myth or story that is told that the West and western society are somehow out to get people with a particular religion or something else? Are the measures contained in this Bill or any other piece of legislation going to produce blow-back? Do the benefits outweigh the risks and can the measures be used sufficiently sparingly to remain proportionate?
The final test is not quite of the legislation but of the Government’s intent: crucially, is the infrastructure in place to use the measures effectively? Are MI5, MI6, GCHQ and the police service resourced adequately to do what is necessary to make use of these measures?
The question that your Lordships’ House has to consider is: how does the Bill meet these tests? Obviously we will look at the various elements in the Bill over the next few weeks. There certainly is not time in my contribution—noble Lords will be relieved to know—to consider all the measures in the Bill; I understand and fully support most of their objectives. I want to pick out just one to indicate how these tests should be used.
Clause 2 gives the Home Secretary the power to impose a temporary exclusion order on an individual where there is a reasonable suspicion that the person has been engaged in terrorist activity outside the UK and that the exclusion is reasonably considered necessary for protecting the public from the risk of terrorism. I am very clear that the Home Secretary needs to have suitable measures available to deal with returning individuals who are reasonably believed to be a threat to the public’s safety. The question is: will these measures work? As a non-lawyer, it seems to me that the measures have the effect of rendering the individual stateless, certainly for a period and potentially indefinitely, as the temporary exclusion order can be renewed time and time again. I leave it to others—I am sure that there will be others—to argue the international legitimacy of this and its relationship to the clause of Magna Carta that says:
“No free man shall be … outlawed or exiled”,
or otherwise destroyed. Instead, I want to focus on what it means and the practicalities.
So, an individual arrives at a point of entry and is served with a TEO. What happens then? Are they returned to the country from whence they came? What if that country says, “Her Britannic Majesty does not recognise these people as safe and does not see them as currently under her protection”, and sends them back to the UK? What happens then? Are they going to shuffle backwards and forwards? Incidentally—this is just pure curiosity—who pays for the air flights? I am sure that that is a minor detail.
Alternatively, the country from which they come takes them back in, but they are immediately arrested. They are clearly a threat because the United Kingdom Government say that they are a threat. Do those individuals then have consular protection? If they are tortured, does this make our Government complicit? We will not deport other countries’ nationals to their home countries if we think that there is such a risk, yet we are happy to do so if it is one of our nationals to whom a TEO applies. Maybe I have misunderstood how this proposal will work, but I would like that question answered.
What is their status in the country that they are in when the TEO takes effect? Do they have UK consular protection? This is in circumstances when they are stopped from boarding the plane. Is it not a reasonable assumption by the country concerned—which may not have our own respect for human rights, or whose understanding of what human rights amount to is subtly changed by the way that we treat our citizen in this particular case—to say that this person is now a threat to their national security? Can they take whatever measures they feel appropriate?
If that person does go somewhere else and is not arrested by that country, what happens then? Is it not more likely that the security agencies will lose track of them, enabling them to re-enter the UK by another route, perhaps under a false name? So, how well will these arrangements work in practice? Presumably the real problem is that we are admitting that we do not have the resources to manage them adequately.
That brings me to final point: are the resources adequate? On 25 November, the Prime Minister announced that an extra £130 million would be available to combat terrorist activity. This money is to be spread over two years, so £65 million per year. However, it was reported at the same time that the Metropolitan Police, for example, assessed that an additional £30 million was needed for the police counterterrorism network. I understand that the bulk of that £65 million is, in fact, going to the agencies and I do not begrudge that, but I am concerned that the police service needs to be adequately resourced for what it will need to do, particularly at a time when policing is generally being cut—affecting, for example, the policing presence in local neighbourhoods. My specific question to the Minister is: how much additional funding is being made available to the police counterterrorism network during 2014-15, and is that still regarded as adequate in the light of recent events? Incidentally, this figure is not secret because the accounts of police bodies have to be in the public domain.
I have a separate question about policing. Is the Minister satisfied that the level of police firearms capability is sufficient in terms of the current threats? Other areas, too, need to be adequately resourced. London Councils tells me—as it did the noble Baroness, Lady Hamwee—that there is a shortfall in the money being made available to set up the systems required under Clause 21. Are all the overall costs necessary to underpin this Bill really being met?
These measures will fall or amount to nothing unless they are appropriately resourced. This Bill seeks to address important questions and I am under no illusions about the scale of the terrorist threat, but if the measures it contains are to be effective and effective without further alienating that small minority who are already so far alienated from our society that they may contemplate taking part in terrorist activity, the tests of effectiveness, proportionality and consequence must be considered carefully. I am confident that that is what your Lordships’ House will do over the next few weeks.
Children’s Privacy
Lord Harris of Haringey Excerpts(9 years, 10 months ago)
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Lord Bates
This applies to everybody equally, and those with disabilities should come forward. Those guilty of abuse should be prosecuted. There is a straight line between what we are talking about, which may be general intrusion such as the publication of a photograph, and, of course, the publication of sexualised images of children, on which the full weight of the criminal law needs rightly to come down.
Lord Harris of Haringey (Lab)
My Lords, surely the examples that the Minister gave are very different. If there is a general crowd scene, and an individual child is not identified by name, that is distinct from circumstances where a child is identifiable and where consent has not been given. Under what circumstances does the public interest require that a child’s face should not be pixilated? Is there any case at all, in terms of journalistic integrity or the freedom of investigative journalism, that requires an identifiable child’s face to be published without consent?
Lord Bates
I acknowledge the work which the noble Baroness has done and her personal experience in this area, which I am aware of and which, obviously, we all understand. In the case of the protection of privacy, everybody—certainly every parent—understands the lengths to which we are all prepared to go to protect our children and our children’s safety. The question is about weighing the balance between that right to privacy and the right and privilege of free speech and freedom of the press, which is an underscored part of our democracy.
Lord Harris of Haringey
My Lords, the Minister has said that free speech is somehow undermined by publishing an identifiable child’s image. How is it undermined?
Lord Bates
I did not say that it was undermined. With respect to the noble Lord, what I actually said was that there is a balance, in a free society, between being able to produce and publish images and identifying those images—in other words between the human rights aspects of Article 6, which deal with protection and privacy, and of Article 8, which deals with free speech. The courts deal with that and the self-regulators deal with that. We can deal with it in a common-sense way without the need to criminalise everyone who produces an image of a child.
Children and the Police
Lord Harris of Haringey Excerpts(9 years, 12 months ago)
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Lord Bates
My noble friend is absolutely right, and I read that section of the report with great interest because it made a sound recommendation, which is that we should avoid looked-after children in care coming into contact with, and getting engaged in, the criminal justice system at too early an age. The police need to look at the range of options that are open to them in dealing with young offenders from such backgrounds—as they are available when dealing with other offenders in the wider community.
Lord Harris of Haringey (Lab)
My Lords, does the Minister accept the conclusion of the report that it is important that there are better relationships between children and the police, and the importance within that of safer school partnerships? If that is the case, does he understand that these are at risk because of the reductions in police budgets all over the country?
Lord Bates
We understand that police budgets are under pressure, and there is a reason why we have had to take that action. However, the number of police on the front line is increasing as a proportion. Safer school partnerships are an excellent idea but it is for governors and heads to make the decision to employ them. I should also add that there are encouraging statistics on the growth in the numbers of police cadets—up 24% in the first six months of this year. We anticipate that they will increase further. That level of engagement through police cadets in schools could be very powerful indeed.
Serious Crime Bill [HL]
Lord Harris of Haringey Excerpts(10 years ago)
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“Protection of children from sexual communications
After section 12 of the Sexual Offences Act 2003 (causing a child to watch a sexual act) insert—“12A Protection of children from sexual communications and from communications intended to elicit a sexual response
(1) A person (“A”) commits an offence where A intentionally communicates with another person (“B”) in the following circumstances—
(a) A is aged 18 or over,(b) either—(i) B is under 16 and A does not reasonably believe that B is 16 or over, or(ii) B is under 13,(c) the content of the communication is sexual or intended to elicit a response that is sexual, (d) subject to subsection (3) below, A’s purpose in sending the communication or seeking a response is sexual.(2) The communication may be in any form including verbal, written or pictorial (which may include still or moving images) and may be conveyed by any means whatever.
(3) A does not commit the offence in subsection (1) above where the purpose of the communication is for the protection of the child to which the communication is sent.
(4) For the purposes of subsection (3), a person acts for the protection of a child if he acts for the purpose of—
(a) protecting the child from sexually transmitted infection,(b) protecting the physical safety of the child,(c) preventing the child from becoming pregnant, or(d) promoting the child’s emotional well-being by the giving of advice and not for a sexual purpose.””
Lord Harris of Haringey (Lab)
My Lords, on Report I posed the question of whether it would be an offence for an adult to elicit from a child a sexual photograph or to send a sexual message to that child. I posed the example of a young girl in her bedroom on her smart phone, sending messages to her friends, one of whom was someone purporting to be a boy who was in love with her who was actually a man 30 years her senior. I asked whether, if she was encouraged, cajoled and coaxed into sending a sexual image of herself, that would be an offence committed by the older man. I posed that question because it was clear that it would be an offence in Scotland but much less clear that it would be an offence in England, Wales and Northern Ireland.
We had a useful and helpful discussion during Report. The Minister made several points during that debate when he stated that he believed that the offence of an adult sending a sexual message to a child was already covered by existing legislation. He stated, for example, that those convicted of an offence under Section 127 of the Communications Act,
“can be made subject to a sexual offences prevention order”.—[Official Report, 28/10/14; col. 1117.]
In reality, it is a little bit more complicated than that. If someone was convicted under the Malicious Communications Act or the Communications Act, the sexual offences prevention order would have to be applied for as a separate process. To apply for it, the prosecution would have to prove that the defendant posed a significant risk of serious harm. The Court of Appeal has had several cases in the past year in which it has criticised the use of sexual offences prevention orders in a number of sexual cases because the threshold of significant risk was not met.
It is not difficult to foresee a situation in which an adult is communicating sexually with a child and that threshold of serious harm has not yet been met. In the early stages of grooming—for example, when an adult may send a sexual message to a child—it is unlikely that he has actually met that threshold of serious harm. That is what the new clause that I propose today is all about. It is about trying to prevent harm before it is caused to the child.
The Minister made reference to the Obscene Publications Act 1959. The hint is in the title—it is the 1959 Act, which would potentially fail to cover a great deal of verbal communications through systems such as telephone, mobile telephone or Skype. Additionally, as new technology advances, new forms of electronic communication will no doubt further supersede what is dealt with in the Act. Reliance on the Obscene Publications Act would result in a person sending a text being potentially guilty but a person talking over the internet not committing the offence.
The Minister asserted that, under Section 10 of the Sexual Offences Act, it is an offence for a person over the age of 18 to cause or incite a child to engage in sexual activity. However, there are many cases where a charge of incitement may not be met. The question is: what is sexual activity and what is being incited?
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I thank the noble Lord, Lord Harris, for the way in which he introduced this amendment and, too, noble Lords for their contributions to this debate. In many ways, I thought that this characterised many of the debates we have had, in that—as I am sure my noble friend Lady Benjamin would accept—there is genuine willingness and desire to make sure that all possible loopholes are tightened, and that we take this opportunity to afford every possible protection to the most vulnerable in our society, by sharing information and evidence. I have read the NSPCC’s report and we have talked to the Crown Prosecution Service and to the national policing lead about cases being brought. We will seek to move things forward. If I can, I will comment for the record in response to the very helpful meeting that we had last night with the noble Lord, Lord Harris, and the noble Baroness, Lady Howe. As I am doing so, I will try to touch on some of the points that have been raised.
As the noble Lord, Lord Harris, knows, there is no difference between us in that we agree wholeheartedly that we need to ensure that we have a robust body of criminal law to tackle predatory sexual behaviour by adults against vulnerable children. As I said on Report, this House rightly remains united in its condemnation of the sexual abuse of children. What is more, it is determined to do something about it. I also paid tribute on Report to the National Society for the Prevention of Cruelty to Children, which has proposed this new offence and brought its concerns to this debate.
I shall not repeat the description that I gave last time of all the offences that might be relevant in dealing with this type of behaviour. The House would not thank me for that, because the point is understood. There is a clearer point that the noble Lord, Lord Harris, raised today. However, it may be helpful if I address more specifically a couple of concerns raised on Report by the noble Lord, Lord Harris, and the noble Baroness, Lady Howe.
The noble Lord was keen that anyone seeking to persuade a child to send a naked image of himself or herself should commit an offence. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, this issue affects both male and female children. He was concerned that naked photographs of children might not be caught by the definition of “indecent”. I now have had the chance to look into that particular matter and am pleased to say that the noble Lord’s concerns may be misplaced. Section 10 of the Sexual Offences Act 2003 provides that it is an offence to cause or incite a child to engage in a sexual activity. The noble Lord quoted Section 78 of that Act and that telling word in law, about which, as a non-lawyer, I am trying to get up to speed, although it is a well known test: what could be considered in the eyes of a “reasonable” person, or what people could reasonably conceive of, as sexual intent. Clearly, by any stretch of the imagination, a request to send a photograph of a child would fall within that category of reasonableness. The noble Baroness, Lady Hamwee, also referred to that.
The definition of “sexual” is contained in Section 78 of the 2003 Act. That provides that an act is sexual if,
“it is because of its nature sexual, or … because of its nature it may be sexual and because of its circumstances”,
in which it takes place,
“or the purpose of any person in relation to it … it is sexual”.
In other words, the context is crucially important. Therefore, it is entirely open to the court to conclude that, if a middle-aged man is sitting in front of a computer urging a child to send him a naked photograph—which was an example that the noble Baroness, Lady Smith, gave—or to pose naked before a webcam, his purpose makes the sending of that image by the child sexual, even if the child is not pictured undertaking any overtly sexual activity. The offence can be committed whether or not the victim complies with the request. The courts have convicted on that very basis and imposed substantial sentences of imprisonment; we discussed one case, which was actually a sentencing appeal, where the individual had been sentenced to three years in prison for precisely that offence under the order. In the process, the offender may also commit offences relating to the taking or making of indecent photographs of children.
I repeat my undertaking that the Government are going to take this very seriously. Despite all the legislation that we already have in place, none the less a gap needs to be filled. In particular, we need to explore further how best to deal with contact between a predatory individual and his victim where the messages are sexual in nature but where the victim is not being asked to respond in any particular way. Again, I want to get that wording precisely on the record because I think that is something that we all recognise.
I was particularly interested in the contribution of the noble Baroness, Lady Howarth, who of course through the Lucy Faithfull Foundation does tremendous work in this area. She pointed to the way in which paedophiles prey upon their victims and pass certain stages, and therefore how important it is to be able to tackle things as early as possible. Earlier in the Bill we discussed clauses relating to protection orders and the possession of a grooming manual being an offence. It shows that the direction of travel is recognising that we need to move further upstream in intervening at an earlier stage.
As part of that consideration, the noble Lord, Lord Harris, was kind enough to come to see me yesterday afternoon, together with the noble Baroness, Lady Howe. I was accompanied by my noble friend Lady Williams. I think they will agree that we had a useful discussion, and they have given us much food for thought as the Bill goes to another place. I agreed at that meeting, and I am happy to repeat it here on the Floor of the House, that officials would arrange a further early meeting with the NSPCC to discuss this issue further. The noble Lord is welcome to attend that meeting. We will also explore with the national policing lead and the CPS what additional guidance could be given to the police and prosecutors on the options open to them in tackling such predatory behaviours. My noble friend Lady Benjamin mentioned some scepticism, perhaps, about where the CPS was on this, but it will attend that meeting and I am very happy for her to attend as well. I accept the point that was made; an example was given where the police did not intervene as they could and perhaps should have done in the first instance, which then led to a more serious offence, which is precisely the type of circumstance that we are trying to prevent, and we are united in that. We are very aware of the need to look at this.
We are grateful to the NSPCC for the work it has done in bringing this to our attention. We will have that further meeting and of course there will be that other opportunity, as the Bill progresses through another place, for legislation to be introduced if needed. Of course, this is something that we will be coming back to time and again, particularly as the inquiry gets under way. Without in any way prejudging what it might recommend, it is clear that there is going to be some tightening of the law, probably, in the light of new technology and new evidence that comes to mind.
I say again that I am very grateful to the noble Lord, Lord Harris, for introducing the amendment. As this is possibly the last time I will speak on the Bill, I also pay tribute to all noble Lords who have contributed to its passage, particularly the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and, of course, the noble Baronesses, Lady Hamwee and Lady Walmsley, who contributed to a reshaping of the Bill.
The large number of government amendments which have been brought forward shows that we recognise the seriousness of this and we are united about it. We want to tackle the issues raised. We are listening and we are responding, and we will continue to do so in this very important area. With that, I wonder if the noble Lord might feel able to withdraw his amendment.
Lord Harris of Haringey
My Lords, I am grateful to all noble Lords who have contributed to this debate. I should express my gratitude to the noble Baroness, Lady Howe of Idlicote, who signed the amendment. She would have spoken to the amendment but she was, as we spoke, moving an amendment to the Consumer Rights Bill. We agreed that I would do this and she would do that, as we both have an interest in the same Bills. I am also grateful to the noble and learned Baroness, Lady Butler-Sloss, to the noble Baronesses, Lady Howarth of Breckland and Lady Benjamin, and even to the noble Baroness, Lady Hamwee, who—despite her desire always to go through the minutiae of an amendment—indicated quite clearly that she supported the principles behind this. I am of course also grateful to my noble friend Lady Smith of Basildon for her support.
I pay particular tribute to the Minister, to whom I am very grateful for the way in which he has approached this. He has shown courtesy, and willingness to listen and to have a dialogue. That bodes well not only for the Bill before us today, but also for other Bills which may come before us with—no doubt—great frequency, given that we are talking about the Home Office. The essence of his argument is that, given what we have at the moment, it is open to the courts to say that the sorts of things we have been talking about are in fact sexual. However, I still hope that some form of words can be found, because I am concerned that if we leave things as they are it will create some lack of clarity as to what is or is not permissible.
Under those circumstances, that may mean that the Crown Prosecution Service—or, perhaps, the police, before they even take it to the Crown Prosecution Service—may set themselves a higher threshold for deciding whether or not they should take action. The noble Baroness, Lady Benjamin, gave us the example of the police having clearly made a judgment that something had not passed the threshold, yet it was on an escalator which could lead to all sorts of other things. In my view, the wording which has been identified as possibly covering these circumstances is convoluted, and it is quite difficult to follow. I would have thought it better for all concerned if the law was clear—which is always a good principle—and made it always illegal to communicate with a child in a sexual fashion or in a sexual way, or to elicit such a sexual response.
However, I am grateful to the Minister for indicating that the Government will take this seriously, and for the commitment that before the Bill progresses through another place there will be further discussions with the NSPCC and the Crown Prosecution Service, involving Members of your Lordships’ House if we are available. I hope that there would also be some involvement of the police, because this may not be an issue only for the Crown Prosecution Service. It may be the issue that has been identified beforehand.
The objective should be clear. We need to be satisfied that the law is clear enough; that people are able to act on it; that they understand what it means; and that it shifts upstream the ability to intervene, so that it is possible to intervene before harm is caused to the child. On that basis and on the basis of the commitment made by the Minister, for which I am grateful, I beg leave to withdraw the amendment.