Counter-Terrorism and Border Security Bill

Lord Kirkhope of Harrogate Excerpts

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

[Lord Kirkhope of Harrogate (Con)]

My Lords, in the same way that my noble friend Lady Barran indicated that she would be a form of warm-up act for the noble Lord, Lord Anderson, I suppose I serve the function of offering an anticlimactic effect following his excellent speech. I too congratulate my noble friend Lord Tyrie and my noble and learned friend Lord Garnier on their excellent maiden speeches. They are old friends in many ways and they are still operating as effectively as they ever did at the other end of the Corridor. They are very welcome indeed. I declare an interest in this debate as a lawyer, a former spokesman for justice and home affairs for many years in the European Parliament and a former Home Office Minister here responsible for, among other things, immigration and control of our borders.

I make it clear that I agree that terrorism, without doubt, is an evil that must be met with determination by democracies and by all those who value freedom. It is a matter of the greatest priority that that should be the case. But when I look at the nature of the legislation—indeed, I was interested to hear remarks by the noble Baroness, Lady Manningham-Buller, about the number of pieces of legislation; that was referred to by others, including by the noble Lord, Lord Anderson, a moment ago—it is interesting to note that we are by no means a country without a continuing concern and interest in legislation to keep us up-to-date with the challenges we meet. As far as I am concerned, it is vital that we keep abreast and catch up, if you like, with the changes in the approach of terrorists and major criminals. Andrew Parker, the director-general of MI5, said about a year ago that the ongoing threat was,

“multidimensional, evolving rapidly, and operating at a scale and pace we have not seen”.

It is quite clear from that that the terrorist seems always to have an advantage over democracy, justice and the way in which we operate our laws.

Our response in recent times has of course been to have independent reviews under the control and leadership of the noble Lord, Lord Anderson, and, until recently, Max Hill QC. While those reviews are very valuable as an ongoing consideration, it is still difficult to keep our legislative programme up to date. That rapid evolution has to be met. I have always thought that we need to review how we legislate to keep up to date. I had previously described the need for what I call “smart legislation”, where either the law itself is required to be examined at a set point and that is written into the legislation, or we have a more flexible system where we can make changes not to the principles that we have already agreed but to some of the practical elements that run alongside them.

When the French state of emergency ended last November following the Paris attacks, President Macron introduced new counterterror laws that some might say were more draconian than the provisions of the Bill before us—but at least they included very clear understandings that the law had to be not only continually monitored but revised or reviewed by Parliament within two years after that monitoring. That is an important element that we see very much in other countries. I saw it in my work in the European Parliament. Now written into almost all legislation are these necessary reviews or, in some cases, sunset clauses, depending on what sort of legislation it might be.

At the same time, President Macron looked carefully at the co-ordination between the domestic and the foreign intelligence agencies and the police forces in France, because one of the elements of difficulty after the Paris attacks—certainly in Belgium, where I was located—was that there were issues regarding co-ordination between the police services and the intelligence agencies. There was an element of confusion and concern that these were not properly co-ordinated and that there were competitive elements between them that were not in the interests of detecting and dealing with terrorism. That is something we always ought to consider.

In the same way, we ought to consider the issue of scrutiny. I know that to some people the word “scrutiny” is not particularly attractive. Sometimes it looks as though they cannot do what they think they must do because someone is always going to be looking over their shoulder. But if you want to get a balance between the security of the state and its citizens and the civil rights of those suspected of threatening it, you have to allow for scrutiny—not only scrutiny of an official nature, organised by government, but an understanding that we are now, inevitably, in this modern world, scrutinised constantly, whether we like it or not, by the media, by NGOs and by international partners and players. We need to be sure that whatever we do measures up to the sort of scrutiny and the balance I have referred to.

I will mention the need for something that has been referred to by several speakers: the criterion of necessity and proportionality has got to apply not only in terms of what we do about terrorism but in how we consider it. Noble Lords would be surprised if I did not mention international relations briefly. We have not really got anything here, because of course our legislation on terrorism is a national matter. However, it is necessary to refer again to the ongoing partnerships that have allowed us to deal with what is a worldwide phenomenon in an effective manner. In fact, there is plenty of evidence that we have been able to deter and detect terrorists on the basis of information we have received from our neighbours.

Of course, we have a trusted position, currently, with our EU neighbours, but also, through the Five Eyes arrangement with Australia, Canada, New Zealand and the United States, we have been able to obtain information and intelligence which has assisted us to protect our citizens. As one of the authors, or rapporteurs, involved in developments in the EU such as SIS II—the Schengen Information System that has been referred to—Prüm and PNR, passenger name records, I feel very strongly that whatever the Brexit process brings, it must ensure that there is no gap or uncertainty, even for one hour, in the ongoing full exchange of intelligence. That includes intelligence exchanges in real time, because the whole point of terrorism is that terrorists get away with it if we delay taking action and using information that we have. This is important—indeed, it is more than important, it is vital.

I dare not quote, perhaps, Sir Bill Cash, the Member of Parliament and chair of the House of Commons European Scrutiny Committee—not necessarily the greatest Europhile, I have to say—who said, when asking for clarity about the Government’s intentions in these measures:

“We can see no justification for this reticence. We expect the Government to be far more forthcoming about their intentions in relation to SIS II”—


and, I would add, all the other areas in which we have close co-operation with Europe.

My last area deals with legal issues. Very briefly, as a solicitor, as a lawyer, I have always believed in the right of an accused to have a lawyer to support them at the earliest possible opportunity. When we dealt with measures in a directive on access to lawyers in Europe, we made it clear that this access had to be without undue delay: I think it was quite clear what sort of thing that meant. I would like some reassurance on this because I think there is some confusion. It was referred to earlier. The confusion lies, of course, in our Schedule 3, where there is some contradiction. First, there is an issue regarding the privacy and confidentiality of lawyers with clients, where the presence of a “qualified officer” seems to be required even when a lawyer is present to take instructions. That is quite a serious matter. The Law Society and others are deeply concerned about it. Yet it is contradicted by Schedule 3(24)(2) which says, as has also been referred to:

“The examining officer may not question the detainee under paragraph 1 or 2 until the detainee has consulted a solicitor”.


So there is confusion—there is no certainty about this, and I think we need to clarify and make sure that the protection of the rights of the defendant are always in place.

Finally, on the issue of recklessness, I am a little curious. Other noble Lords here are far more distinguished lawyers than I am, and have been over many years—I concentrated on knowing Rylands v Fletcher and one or two other interesting cases—but it nevertheless seems to me rather odd that we have a new approach that makes recklessness in itself criminal in this context. In my understanding of what is required for a crime, there is mens rea, which is made up of intention or knowledge of wrongdoing. That is fairly clear, but it constitutes only part of the crime. The rest of it is action and conduct. Apart from strict liability, where no mens rea is required, I cannot find myself particularly sympathetic to the term “recklessness” as being conclusive in relation to somebody’s intention, and enough for criminal liability.

Having said all that, I support the Bill; I think it is important that we keep the legislation going. I would like to see it more mobile and more flexible. But, in the meantime, we rightly carry out our duties—the responsibilities we have to protect our citizens from crime and from terrorism at every opportunity.