Counter-Terrorism and Border Security Bill

Lord Judge Excerpts

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

[Lord Tebbit (Con)]

Sitting here trying to cope with this extremely complex Bill and some very important issues, I find myself having to choose between the views of the noble Lords, Lord Paddick and Lord Carlile of Berriew. I, for one, have no hesitation whatever, looking at the records of the two men over the years, in knowing who I support. I support the Bill as it is and not as this amendment would propose.

[Lord Judge (CB)]

My Lords, before I address Amendment 33 let me go back to the debate on Monday when we were discussing Amendment 18 and new Section 58B(2). I fear that during the discussions I misunderstood something said by the noble Earl, Lord Howe. I understood him to be saying that the Act produced two different ways of approaching the burden of proof. I have reread Hansard and I misunderstood him—it is entirely my fault—and I objected to that. I would go on objecting to it if that was what he said, but it was not. I have studied the Bill and I find on page 83 that he is right and that the burden of proof in relation to any offence created by Section 58B(2) is in fact on the prosecution. I therefore apologise to the noble Earl—I am sorry that I misunderstood him—and to the extent that I misled the House, I apologise to the House. However, I just add that it would be so much more helpful if Acts of Parliament said what they meant, instead of telling us to look at whatever page it is to find the answer.

I want to add a word, in spite of the difference of view expressed here: we have to be careful about this provision. I am not going to take sides in relation to what may be a very serious offence or a very minor offence, but can we just reflect on this? Every citizen is presumed to know the law; every visitor to this country is presumed to know the law that applies in this country. Of course we do not: look at me, I got new Section 58B(2) wrong and I am supposed to know the law. The more serious point is that there is a basis and a quid pro quo for this. The quid pro quo is that the criminal law should be clear. I am expected to know the law and to obey the law: it should, at least, be clear what it is I am expected to obey.

We are all supposed to know the law here; every citizen of every country, applying the same presumption, is presumed to know the law in the country of which he is a citizen or to which he is a visitor. There will be occasions—perhaps I need to be less emphatic: there may be occasions—when something is not unlawful in a different country to our own. We have different rules. Bullfighting is unlawful in this country, but would we prosecute a Spanish toreador coming here for breaking what we would regard as our law which is not unlawful under their law? The Bill risks criminalising a citizen of another country for doing something that is not unlawful in that country.

Of course terrorism is unlawful—it is unlawful everywhere, you do not need a book of law to tell you that—but there may be minor matters, in relative terms, which we criminalise here but are not unlawful by the laws of a different country. We need to be careful not to extend the criminal law further than it should go.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, as we have heard Clause 6 adds a number of further offences to the existing list at Section 17 of the Terrorism Act 2006, which extends extraterritorial jurisdiction over those offences. This will ensure that UK courts are able to prosecute foreign terrorist fighters who travel to the UK, having joined terrorist groups and become involved in conflicts or other terrorist activity overseas. It will also ensure that we are able to prosecute people who base themselves overseas and seek to radicalise people—the general public or targeted individuals—in the UK. It is this latter category of radicalisers, and propagandists on behalf of terrorist organisations, that the noble Baroness’s amendments deal with.

Section 13(1) of the Terrorism Act 2000 contains the offence of displaying in a public place an item of clothing or other article such as a flag, in circumstances which,

“arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”.

As a result of Clause 2, it will also contain, at new subsection (1A), the offence of publishing an image of such an article in the same circumstances.

Extraterritorial jurisdiction is most relevant to Section 13, and in particular to the offence the Bill will add at new subsection (1A), in a case where a person located overseas publishes images of flags or logos associated with a proscribed terrorist organisation. We have seen in the Syrian conflict that Daesh has run a slick and effective online propaganda operation, which has included exactly this type of activity—publishing images on social media and other online platforms, aimed at promoting the group, its ideology and its methods, to individuals around the world, including in the UK. Other terrorist groups, in other parts of the world, do the same.

It has been a recurring theme of the debates on the Bill that this is a downside of the rapid development of online technologies in recent years. Although people have been connected and brought together in myriad positive ways, and the world has been opened up, those who would do us harm have been equally quick to exploit the opportunities of the digital age. Terrorists are no exception, and we need to update our laws to keep pace with the evolving threat. The online world simply does not respect national boundaries in the traditional sense, nor does it pay heed to geographical distance. Where this gifts radicalisers the opportunity to reach across the world to target vulnerable people in the UK, it is absolutely right that the UK Government respond by ensuring that our courts have the ability to deal with that. There is a clear operational case to justify this measure.

The noble Baroness, Lady Hamwee, has explained that her concern is that a person could find themselves prosecuted in the UK, having acted in support of an organisation that is not proscribed in the country where the conduct took place, and therefore having no awareness or expectation that they could be held criminally responsible. I respect the principled stance taken by the noble Baroness but, respectfully, I do not agree that it would be right to either simply remove this provision, as Amendment 31 would do, or limit its application, as Amendment 33 would do. The reality is that there is no universal and internationally agreed list of proscribed organisations, and there is no realistic prospect of one being implemented. Even if there were, the kinds of countries in which terrorist organisations are most likely to be based are those that are the least likely to sign up to and implement such an international rules-based system.

Despite this, terrorists are travelling and communicating across international boundaries, in a way which poses a direct threat to the safety of the public in the UK and elsewhere. Given this, we should not deny our courts the ability to act against such individuals if they return or travel to the UK, pending the adoption of such an international list, and we should ensure that the powers available are flexible and not unduly restricted. To proceed as the noble Baroness advocates would risk sacrificing public safety and justice in the pursuit of a frankly unrealistic ideal.

It is right that we should be able to prosecute those who travel overseas to join terrorist organisations, and who publish propaganda in support of those groups, seeking to radicalise others back in the UK or elsewhere. That is the nub of the matter. The noble Lord, Lord Carlile, was absolutely spot on in the way that he characterised these provisions. Such crimes are most likely to be committed in areas of conflict and instability, within failed states that may not have functioning systems of government with effective jurisdiction over their own territory, or in countries where there may not be clearly defined or well-developed terrorism laws equivalent to those in the UK, or which may simply take a different approach. Those are not good reasons to ignore the threat posed on UK soil by people who have published propaganda in support of terrorist groups while overseas. Simply put, foreign terrorist fighters should not be able to evade justice because the country that they travelled to, or hail from, does not have a proscription system equivalent to that of the UK.

--- Later in debate ---

[Baroness Williams of Trafford]

That is a very interesting history. I know that many Americans claim to be Irish but it is not every day that we get a chance to discuss a law that goes back to 1351. It has been an interesting debate.

[Lord Judge]

Perhaps I may ask a serious question. If we are debating an Act that was enacted in 1351, which has absolutely no application to today, through which, among other provisions, the Chancellor doing his job in his place of work is protected but not if he is slain at a party conference, would it not be a good idea for us to get rid of it altogether?

[Baroness Williams of Trafford]

If the noble and learned Lord will indulge me, I will come on to the point about hostile state activity and the place for this law in due course.

I share my noble friend’s belief that those who do harm to the United Kingdom and the people who live here should face justice. I am not entirely convinced that introducing a new offence of treason, as proposed by Amendment 34, is necessary. However, as my noble friend and the noble Lord, Lord Kennedy, have said, this country has a comprehensive range of terrorism offences and other powers that this Bill will update for the digital age—it is ironic that we are talking about the digital age and 1351 in the same debate—to reflect modern patterns of radicalisation and terrorist offending.

The updated legislation will provide the police and intelligence services with the powers they need to protect the public from terrorism, and we do not consider it necessary also to create a new treason offence for this purpose. For example, the activities covered by subsection 2(a) and (b) of the new clause are likely already to be offences under the Terrorism Acts of 2000 and 2006, in particular the offence of preparation for terrorism in Section 5 of the 2006 Act. This proposed new clause would therefore add little to the existing offences on the statute book. However, it is worth noting that the sentencing guidelines applicable to the Section 5 offence provide that where the conduct was with a view to engaging in combat with UK forces, this is to be treated as an aggravating factor when sentencing.

We are aware of the need to update legislation to keep it relevant for the contemporary and future challenges we face. I do not have to remind noble Lords of the phenomenon we have seen in recent years of people travelling overseas, most notably to Iraq and Syria, to engage in terrorist-related activity. That is why the Bill introduces a new offence of entering or remaining in a designated area: to prevent UK nationals and residents from travelling abroad to take part in or help sustain future foreign conflicts, and to protect the public from the risk of terrorism.

Furthermore, prosecuting terrorists for treason would risk giving their actions a credibility—my noble friend Lord Faulks referred to seeing them as martyrs—glamour and political status that they do not deserve. It would indicate that we recognised terrorists as being in some formal sense at war with the state, rather than merely regarding them as dangerous criminals.

As outlined by the Prime Minister on 14 March in her announcement in response to the Salisbury incident, the Home Office is currently leading a review of all legislation applicable to hostile state activity. It is considering the full scope of hostile state activity and, where relevant, treason offences may be considered as part of this work, which is currently ongoing. My noble friend will recognise the need to get the form of any new offences right. The policy exchange paper published in July was a useful contribution to the debate, but we should not rush it.

I hope that, having had the opportunity to debate this important and interesting issue, my noble friend will be content to withdraw his amendment, in the knowledge that there is ongoing work in the Home Office to examine whether there are further gaps in our law, and in order to help us counter hostile state activity.