Counter-Terrorism and Border Security Bill

Lord Judge Excerpts

Report: 1st sitting: House of Lords
Monday 3rd December 2018 Lords Chamber

[Lord Paddick]

I am grateful for the noble Lord’s intervention but, as I say, I am not going to address that point now but in the next group. However, we feel that it is necessary for one or other of these amendments to be adopted. Therefore, if the noble Baroness, Lady Jones, decides to divide the House, we will support her.

[Lord Judge (CB)]

My Lords, I cannot agree with everybody. The noble Lord, Lord Harris, made the crucial point that both these provisions have to be read together. This is a single policy decision. We have talked about 13 year-old boys but let us try a different example: the ANC when Mr Nelson Mandela, one of the heroic figures of the last century, was a member of that organisation. Undoubtedly it did, and was minded to, use what we would all call terrorism in the cause of defeating apartheid. There is no problem about arresting him. I consider it perfectly possible for an individual to say, “I entirely agree with the aims of the ANC—the idea that a man or woman should be distinguished against because of the colour of his or her skin is simply unacceptable. But I disagree with using bombs to achieve that objective”. They would therefore, using perfectly ordinary English language, not be supporting the ANC. But in saying, “I find that its objectives are entirely admirable and I agree with them”, they would be supportive of it. The distinction between these two words is rather significant and merits consideration. I respectfully suggest that we should go to either “supports” and “reckless”, or “supportive of” and “intent”. Either way, those alternatives would have identified a significant piece of conduct which ought to be criminalised.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendments 1 and 2, in the names of the noble Baroness, Lady Jones, and the noble Lord, Lord Paddick, concern issues that we discussed in Committee. I listened carefully to the debate then and have listened carefully to the debate this afternoon. I have great respect for the noble Baroness but I want to make it clear that if she puts her amendment to the vote today and divides the House, we will not be with her. For me, the crucial word is “and”, which links new subsections (1A)(a) and (1A)(b). My noble friend Lord Harris of Haringey made the point that we need to read and consider both paragraphs together.

In Committee, the noble Lord, Lord Carlile, put it much more eloquently and succinctly than I can and he has done so again today. In Committee, he said:

“First, it recognises that even in this relatively gun-free”,


society,

“if someone expresses support in a certain way for a proscribed organisation, it may put some of our fellow citizens in mortal danger of their lives.”.

He went on:

“It does not criminalise the expression of support, rather it forbids and criminalises the expression of support on certain terms as set out in proposed new Section 1A(b), and that is the test of recklessness. Recklessness requires awareness of the risk that is being taken by the speaker”.—[Official Report, 29/10/18; cols. 1130-31.]


I agree very much with that position and, on the basis of it and what I have heard today, we will not support the noble Baroness in the Lobbies today. I did not accept at all her point that you can be supportive of an organisation but not support it. I think that if you are supportive of it, you do support an organisation. The clause as drafted is reasonable and, for me, it strikes the right balance.

--- Later in debate ---

[Lord Paddick]

My Lords, I agree with both noble Lords. The amendment seems to be common sense. As the noble Lord, Lord Anderson of Ipswich, said, while Section 118(2) places the burden of proof on the prosecution to disprove the reasonable excuse, you have to hunt pretty far to find it. Currently it does appear, if one takes an ordinary, common-sense meaning from what the legislation says, that the burden is actually reversed.

[Lord Judge]

My Lords, Section 118 got somewhat lost in the discussions earlier. I support this amendment but I wonder whether, when the Minister comes to reflect on it, we would need the words,

“the court or jury shall assume that”.

It is a straightforward point of drafting but, with respect to the matter, “the defence is satisfied unless” would seem adequately to cover the amendment.

[Lord Carlile of Berriew]

My Lords, with great respect to my noble friend, and indeed to my noble and learned friend on my right, I wonder why one needs to say something twice in the same statute.

--- Later in debate ---

[Lord Judge]

My Lords, I support Amendment 19. I cannot think of anything I can say that would improve on what the noble Lord, Lord Anderson, has said, so I shall not say it. However, when the Government look at their own amendment and the very helpful way in which they have reconsidered this rather urgently introduced provision in the House of Commons, they should consider whether new subsections (1), (2) and (3) run in the right order. New Section 58B(1) sets out the offence; new subsection (3), or proposed new subsections (3A), (3B), (3C) and (3D) are not offences; and new subsection (2) sets out the defence. Logically, it might be better and easier—and it might deal with the sui generis point raised by the noble Baroness, Lady Hamwee—if the order ran new subsection (1), the current new subsection (3) and then new subsection (2).

[Lord Rosser]

I have two amendments in this group. One is Amendment 15 and I have added my name to Amendment 19 in the name of the noble Lord, Lord Anderson. As I am sure the noble Earl will remind me, if it is he who is to respond, in Committee we moved an amendment based on the Australian model that provided for a sunset clause after three years, so it would be wrong of me not to thank the Government for having taken heed of what we said.

If the Minister is wondering why I attached my name to the amendment of the noble Lord, Lord Anderson, reducing the three-year sunset period to two years, it was because we thought that his case for doing it every year, which he proposed in Committee, was quite powerful in relation to the quite exceptional powers that the Bill provides over travel for UK residents and citizens to designated countries. That power would rest with the Secretary of State. The noble Lord, Lord Anderson, has not come back with an amendment proposing a sunset period of one year but he has come back with a proposal to change the sunset provision to two years, and we have a lot of sympathy with that in the light of the arguments that he advanced in Committee in favour of one year.

I think that the noble Lord, Lord Anderson, ended up by saying that he hoped that the Government might reflect on his amendment if they did not feel able to agree to it, as well as reflecting on the frequency and reality of which Parliament should be required to give its approval if the Government wished to continue to exercise this power over the movement of UK citizens. I too hope that that is something that the Minister might feel able to reflect on further.

With regard to Amendment 15, to which a number of noble Lords have already made reference, the amended reasonable excuse defence, with its indicative list tabled by the Government, still does not really provide adequate protection either to those with a legitimate reason for being in a designated area or indeed, in some aspects, to some organisations that employ them. For example, an aid worker or news reporter can invoke the reasonable excuse defence only once they have been accused of or charged with an offence. The onus is then on the individual and organisation to provide evidence or proof to the authorities that they were in a designated area for a legitimate reason. Prior to being charged—if that is what happened—the individual could have been questioned by the police on their return from the designated area and they might conceivably have been placed under arrest. For a law-abiding citizen, that would potentially be an unnerving experience, and likewise for their employer or organisation, which could face a degree of reputational damage as a result.

It is correct that anyone returning from a country—for example, Syria—can already be questioned or investigated by police and asked for justification for their travel. However, at the moment, that person will not have committed an offence simply by having entered an area or country such as Syria. If the provisions of this Bill become law, the risk of investigation, and the perception of that risk faced by individuals and their employer, will be much higher. It is not clear either what will count as proof of a legitimate reason for being in a designated area. Would it be a letter on headed paper from an employer or more substantive evidence? Carrying such evidence in and out of a war zone could pose security risks for the individual and those in the conflict area. If the risks of going to a particular area are increased for UK nationals or residents, then their organisation, national or international, is less likely to want to send them. After all, those organisations have a duty of care towards their staff. Creating further potential threats and obstacles for UK nationals and residents to travel would put a greater onus on local staff or staff of other nationalities, and would add an extra provision to life-saving humanitarian support for those in a designated area and for work to address the root causes and drivers of conflict.

Further difficulties may arise as well. The legal position around entering designated areas, created by the new offence of simply being in such an area, may, as has already been said, further reduce the willingness of banks to provide financial services for activity, including humanitarian activity, in high-risk areas. That is a potential consequence that could also extend to the services provided by travel and insurance companies. If an organisation—one is talking here about primarily, but not solely, a humanitarian organisation—cannot get travel insurance for its employees or transfer funds into a designated area, it will be less able to deliver support in a safe and effective manner, even if it is prepared to take the risk of sending a UK national or resident to the designated area concerned, in the knowledge that just being in that area is an offence for which that UK national or resident could be charged.

The Government must surely be aware of the impact their intentions would have on travel to a designated area in the absence of clear exemptions from committing an offence simply by being in those areas for those on legitimate, and in some cases life-saving, business or activity. Amendment 15, in my name, minimises these potential difficulties and unintended consequences by stating that individuals undertaking the activities listed in the amendment, which are the same as the Government have set out in their amendment in respect of which a reasonable excuse defence can be argued, would not be committing an offence of being in a designated area without legitimate cause, and would not have to provide a defence after the fact.

As the noble Earl said, the Bill already contains an exemption for those working for or on behalf of the Crown. That would extend to the small number of NGO staff working on UK government contracts, but many more such staff will be working on projects supported by grants from other bilateral, multilateral or private donors, or by funds donated by the British public, who will not be covered by any exemption from the provisions of Clause 4.

As the noble Earl will know, our amendment goes down the road of the Australian model of providing exemptions. However, an alternative method operates in Denmark, providing for prior authorisation to be given for those with legitimate business to be in a designated area. There is obviously a need for a procedure that enables an application for an authorisation to be dealt with quickly under that alternative method, since clearly some of those with legitimate business in a designated area, such as humanitarian aid workers or news reporters, need to get out there at short notice. However, under this Bill, such a procedure would mean that those returning from a designated area without being able to show prior authorisation would potentially face investigation and action for an offence, as would those for whom there was a suspicion that they had not been to the designated area solely for the purpose claimed and for which they had been given prior authorisation.

The Government should surely accept that their proposals as they stand on designated areas, and the new offence of simply being there, risk having significant unintended consequences, which may result in individuals and organisations we would accept as having legitimate business in a designated area not going or being represented at all, to the detriment of potentially life-saving aid activity and of providing transparency over what is happening, as in the case of aid workers and news reporters respectively.

I hope that the Government will be prepared to at least reflect further on this issue prior to Third Reading or the matter being considered further in the Commons, and look at either exemptions from the new offence of being in a designated area as provided for in my amendment, or, if they prefer, at a system of prior authorisation for travelling to such a designated area, or a combination of both.