Counter-Terrorism and Border Security Bill

Lord Hogan-Howe Excerpts

2nd reading (Hansard - continued): House of Lords & 2nd reading (Minutes of Proceedings - continued): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords, I support the intentions of the Bill. I will say a little about the context that has not already been covered by the many speeches we have heard today, and will then say little about three of the clauses that have been mentioned. Before that, I will respond to the excellent speeches of the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Tyrie, both of which were informed and entertaining. The noble Lord, Lord Tyrie, who is not here at the moment, referred at the end of his speech to extradition cases. Although he talked about three of the inquiries that have taken place, he did not refer to one police investigation which delayed the conclusion of the first inquiry. Should there ever be a judge-led inquiry, as he would prefer, I hope that the Belhaj case that the Crown Prosecution Service decided not to pursue will be made available to that inquiry, as it would provide vital information that would help inform any future decisions in that area.

Secondly, the noble Baroness, Lady Warsi, has concerns about Prevent. I do not particularly share those, but I agree with her that cohesion and integration are a vital element in preventing terrorism in the future. Usually we see two elements where we get radicalisation: a lack of integration and Middle East foreign policy. Those two things tend to repeat time and time again. This is not necessarily my view of Prevent, but minority communities have become so concerned about it, and it is a strong thing, not a weak thing, to review something. The time has come to at least look at it and perhaps move on. It has achieved a lot but may yet achieve more if we are able to be flexible.

We are still reaping the effects of two civil wars which started more than seven years ago: one in Syria in 2011 and the other in Iraq a few years later. At least 12,000 people travelled from Europe to fight, particularly in Syria but also in Iraq. We know that at least 15% of the 900 UK people who went died, and that about 55% of them have returned. Some went for humanitarian purposes and some to fight. We have seen the effects of that terrorism on the streets of Brussels, Nice, Paris and, sadly and more recently, London. The next phase of our fight against terrorism is now evolving. I suggest that the Bill is a good time for us to reflect on our preparations for that future.

It will have three distinct elements that we need to plan to combat. The first is the potential for those foreign fighters to return. They are brutalised, and dangerous because of their training and their motives but also because they are now in contact with a network of other terrorists, and they may still perpetuate conspiracies. The second is the release in the coming years, and even now, of the first wave of prisoners convicted of terrorist offences during the last five to seven years. Sometimes they were convicted of other criminal offences, because, although we believed that they had a terrorist motive, we could convict them only of a criminal offence.

In prison they met people called criminals. Many of the people who we are suspicious of and worried about do not have a criminal background. That is of great benefit, because it means that they do not have access to organised criminals, who are the means by which criminals generally get hold of firearms. They have now met a lot of people in prison, and on their release they will still have those associations, along with the people they met in prison who may have become radicalised.

Finally, the terrorists will have learned from the first series of prosecutions, because the prosecutor reveals the tactics by which they were caught, and that means that they will adapt. We see that with various generations of terrorists, who adapt their tactics to meet their failures, as they see them, when successful prosecutions occur.

I will not repeat the numbers we have already heard for what I always think of as the pyramid of doom: the 20,000 subjects of interest, the 3,000 subjects of current interest, and, as we heard from the noble Baroness, Lady Manningham-Buller, the 500 security service operations. There are a further 600 counterterrorist police operations, so that is over 1,000 live operations dealing with this threat.

The point I am supporting is that it is clearly fair to say that we have a serious threat now, as described in the threat assessment, but the numbers alone are concerning. It is a real threat that we must all think about. It is, of course, evolving, and the vectors through which the threat operates are evolving too. We need to respond in a proportionate and incremental way; I would argue that, in legislative terms, the UK has responded incrementally. We have not seen the mistakes that, sadly, those with more experience of terrorism in Northern Ireland saw, when general internment caused more problems than it solved. We should approach the problem incrementally and see whether we can adapt; then, if we need to legislate, let us legislate to the problem, not use generic legislation. We need always to keep a majority in our society—and our minority communities in particular—on side.

The question is: if the threat has evolved in a way that requires new legislation, what is it that we are trying to address? The simplicity and volatility of the threat require us to intervene earlier to protect the public, individuals and groups. We need to make sure that a process that goes from planning to attack in a matter of hours is interrupted quickly. Also, offences previously considered peripheral and minor are now seen as indicative of a volatile, unpredictable actor. We do not want to wait for high-level offences before taking action, given how rapidly that threat can escalate; we need lasting disruptive impact and control of offenders, which is where lengthier prison sentences can have an impact.

The noble Lord, Lord Marks, is not in his place, but I agreed with a lot of what he said; the tests he applied were sensible. I agreed with an awful lot, but one of the reasons he gave for not extending sentences, if I understood him correctly, was that our prisons are already full and therefore we cannot get more prisoners in. If that is the case, we none the less ought always to find room for terrorists, even if that means excluding other people. In fact, the prison population is starting to drop now—albeit, I would argue, not enough, but we must always find space for terrorists if we consider that they are committing serious offences.

We must also think about technological changes; a significant amount of our coverage of people involved in terrorism concerns their online persona and methods of communication. As we have heard, it is 20 years since legislation set out the various ways in which we can monitor that technology. Particularly in the streaming area, this is a good time to make sure that we can monitor in the way that we need to, and prove offences. We know that radicalisation is happening in a very powerful and influential way by streaming video. It seems to be an incredibly useful way for people to get over quickly some very dangerous methods of implementing terrorist attacks.

There have been some criticisms of the Bill already and we have heard more of them today; I do not necessarily support them all. In the debates to come, I am sure that improvements will be made forensically to the eventual Act when it is concluded. There is a concern that the Bill will capture innocent or accidental online activity, but none of the proposed offences is absolute, as they are in child sexual exploitation offences. Intent has to be proved. In any event, all cases must pass three tests, including sufficiency of evidence and public interest. I know the noble Baroness, Lady Hamwee, was not convinced by the public interest test, but I am; I think it is a thorough test, supplied by an independent prosecutor, with good lawyers in the CPS, and my experience is that they are quite hard to persuade of something I might find blindingly obvious.

[Baroness Hamwee]

Perhaps I could explain that my concern about the public interest test is that we should not be forced to rely on it; we should get the legislation certain and reliable rather than look to public interest as the mechanism to catch what we have not been able to solve in the legislation.

[Lord Hogan-Howe]

The noble Baroness did make that point, and I accept it. My third point is that the prosecution has to overcome any reasonable excuse defence. That is the third measure which I think is helpful in reassuring those who might not be persuaded by the first two tests. Only rarely will a single action or statement be a basis for a charge, as we have seen on many occasions. We heard of the Choudary case, which I shall come back to. In that case, it took an awfully long time to prove a criminal offence, and I think that this strikes the right balance between protecting society and protecting the rights of the suspect.

I will mention a couple of clauses which I particularly support. The first is Clause 4. I argued for this measure about two or three years ago and it relates to the concerns of the investigators. I argued that having a designated area is particularly helpful. Investigating an offence that has occurred within a failed state, such as Syria or Iraq, can be particularly difficult. There is no one at the border keeping a clear register of people who have travelled across it, and there is no easy state mechanism for gathering evidence, particularly from number plate recognition, CCTV, hotel records or anything else that you might want to access. That is particularly difficult in a failed state. So saying “Please give me all the evidence to prove that offence” when people return is a particular challenge for investigators.

I accept that we have intelligence, but the distinction between intelligence and evidence is that we can use intelligence to gain evidence but only evidence can be put before a court. So this is an important change. I understand that some amendment might be needed in relation to humanitarian cases, which I do not think anyone is seeking to stop in any way, but I think that it is a particularly helpful development, and certainly I support it. In my view, it should have happened quite some time ago. Of course, it will not capture the people who are presently in Syria or Iraq, but that is not the intention here, and there is a cooling-off period of, I think, one month for future offences.

The second thing is that putting a responsibility on the traveller to explain why they went to a certain place would not be unreasonable. The Foreign Office will usually have issued a travel advice warning and a designated area warning—and finally there is the reasonable excuse defence. Given the threat that we face, these are not unreasonable things to ask of someone who chooses to travel to a war zone and is acting in a potentially treasonable way, as has been suggested in the past.

I also support Clause 1. I will not say a lot more about it, as others have covered it better, but I think that we have to capture the Choudary-type offence. Clever interlocutors or demagogues will adapt to the latest movement of the law and we have to adapt with them. They will always be clever and try to find a new way round it, so that we have to adapt. Although not the only one, Choudary was an example of where, no matter how hard the security services tried, they could not persuade the prosecutor that they had a case. I do not think that there was a lack of evidence; the law was not helpful and did not allow something that we all agreed was wrong to be prosecuted.

My final points are small ones. The noble Lord, Lord Rosser, mentioned the legislation relating to flags and the fact that removing a flag could cause tension. That is a fair point, but most police officers use discretion when making an arrest or an intervention. The display of a flag can cause tension too. People might remember an incident about four years ago in Parliament Square. When I was in charge of it, the Met was criticised for not taking from someone what appeared to be an ISIS flag. The officers were quite right to decide not to do so. First, the person involved was a seven year-old child and, secondly, the officers could not be absolutely sure that the flag they saw with Arabic writing on it was in fact a proscribed flag. They made a perfectly reasonable decision based on discretion. We expect that of officers and I do not see this as a particular problem.

I hesitate to make my final point because it concerns resources—although the noble Lord, Lord West, raises these points, so I do not see any reason why I cannot. I entirely accept that the Government have supported the police and the security services by maintaining resourcing for counterterrorism policing. That is a fair point and there is no argument about it. However, when you lose 20,000 police officers and probably 10,000 police community support officers, it is a real challenge. There are other things as well, but two-thirds of Security Service leads come from community contacts. That comes through neighbourhood policing, and that is the first thing to go when you lose 20,000 cops. So it is an important point and it needs to be considered.

Finally, I remind the House that the threat remains severe and is evolving. The society that we live in has progressed since the Terrorism Act 2000 and this Bill is a reasonable response. It should command the support of the majority and minority communities and, I argue, of this House.