Counter-Terrorism and Border Security Bill

Lord Marks of Henley-on-Thames Excerpts

2nd reading (Hansard): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am grateful to the Minister for the clear and helpful way in which she opened the debate on this very difficult subject—and indeed I agree with much of what the noble Lord, Lord Rosser, said, and I join with him and the noble Baroness in paying tribute to the work of the police and security services in combating terrorism. I also look forward to the maiden speeches of my long-standing friend the noble and learned Lord, Lord Garnier, and of the noble Lord, Lord Tyrie.

On these Benches we agree with the Government in acknowledging the need for strong legislation to counter terrorism and to protect the public, so we accept the principles underlying many of the measures in the Bill. However, the approach we take to this legislation, as to all counterterrorist legislation, is that we must balance the security imperatives to protect the public and to combat terrorism against the liberal imperative to safeguard our freedoms as citizens in a democratic society. We assess each of the measures proposed with the following questions in mind. First, what is the purpose of the measure and what is the mischief it seeks to address? Secondly, is the measure necessary to achieve that purpose? Thirdly, is the measure a proportionate response to the mischief, having regard to the restrictions on liberty that it entails, and in particular would a more limited response achieve the purpose in a more proportionate way? Fourthly, will the measure be effective in achieving its purpose?

I also suggest that we should approach these new powers having in mind that we may in the future have not a Government with genuine respect for liberty and democratic values but a Government who are prepared to ride roughshod over our freedoms as citizens. If the tests I set out are not met in the context of such a Government, the powers proposed should be opposed or limited by Parliament. In a number of areas we believe that these tests are not met in this Bill. Some measures may be capable of amendment while others, we believe, are irredeemably bad.

Clause 1, creating a broad offence of expressing support for terrorist organisations, is drawn in very wide terms. We share the concerns of the Joint Committee on Human Rights that the offence must be restricted so as not to criminalise legitimate freedom of expression. As presently drafted the clause is demonstrably not proportionate or sufficiently limited. I would add at this stage that Parliament has every reason to be extremely grateful to the Joint Committee on Human Rights for its careful work on this Bill. Its existence and thoroughness help us to ensure that human rights are respected when we consider legislation and its reports deserve our closest attention.

Clause 2 would criminalise the publication of images of clothing or articles arousing reasonable suspicion of membership of a proscribed organisation. Again, this is insufficiently restricted and disproportionate. It could catch honest and fair reporting, cultural work and international and political study, and stifle genuine discussion. Clause 3, relating to use of the internet, is targeted at the legitimate objective of preventing the internet being used for terrorist purposes. But again, it is insufficiently limited. In spite of the reasonable excuse defence, there is a risk that the clause will operate to restrict innocent and harmless research and journalism.

As was pointed out by the noble Lord, Lord Rosser, Clause 4 was added late by an amendment in the House of Commons. It gives the Government power to designate areas outside the UK and prohibit travel to such areas by UK citizens—a radical restriction of individual liberty. Outside wartime, such a curtailment of citizens’ rights is very difficult to justify. I do not believe that the availability of a reasonable excuse defence adequately mitigates the violence that the creation of this offence would do to our liberties.

The provisions in Clause 6 on extraterritorial jurisdiction seem to risk injustice to both UK citizens returning to this country and foreign nationals travelling here. Much more thought needs to be given to the proper limits on the ability to prosecute here for offences committed abroad.

I turn next to the sentencing provisions, starting with Clause 7. I and many others in this House, in the senior judiciary and throughout the criminal justice system have pointed out many times the dangers of sentence inflation, yet elements of the populist press still urge their readers and politicians to push for longer sentences. No one would argue that prison is not the proper punishment for terrorist offences, but longer and longer sentences are not the answer. Our prisons are overcrowded, understaffed and violent. They do not function as places of reform and rehabilitation. Educational facilities are limited or non-existent. It is a fact that our prisons tend to radicalise their inmates. Sending those guilty of terrorist offences there for ever-longer terms is more likely to encourage others to commit such offences than to reduce the threat to the public. The Government will need to produce a stronger case before I will be prepared to support these provisions. We will look at the numerous other powers and requirements proposed in the Bill in the same spirit, seeking to ensure that any new powers meet the tests I outlined earlier. Where they do not, we will oppose or seek to amend them.

Finally, it is one of the ultimate contradictions of this extremely difficult period that while our Government struggle to improve domestic counterterrorist legislation, they nevertheless risk through Brexit abandoning most of the UK’s international work in this area over decades. With our active participation, the EU has painstakingly constructed the most comprehensive and effective international network ever devised, certainly in a democratic context, to combat terrorism and safeguard public security. It has achieved this with great sensitivity to protecting democratic freedoms, supported by the requirements that EU legislation have regard to the Charter of Fundamental Rights and that its implementation be monitored by the Court of Justice of the European Union.

The Government prepared Part 2 of the Bill in response to the poisoning of Sergei and Yulia Skripal, as the Minister pointed out. We should remember the co-operation of our friends and neighbours across Europe in resisting Russian aggression in the wake of the Salisbury poisoning. Is it not ironic that on 5 September the Prime Minister pointed out in the House of Commons that although Russia resisted any extradition, we obtained a European arrest warrant to ensure that, if the two suspects ever travelled to Europe, we would be able to secure their arrest and bring them swiftly to justice in the United Kingdom?

We hope that the Government will get a deal to retain the European arrest warrant system, but they are also planning for no deal. In those circumstances, it is not just the European arrest warrant system that is at risk. Access to the Prüm database, which was secured in 2016 just before the referendum, would also be at risk. An Interpol DNA search takes 143 days on average. Through Prüm, it takes 15 minutes, a fingerprint match comes back within 24 hours and car registration numbers are searched in just 10 seconds.

Europol, the European law enforcement agency, which was led until May by an energetic and effective British director, Rob Wainwright, and into which we opted back in December 2016, is also at risk. So is Eurojust, the network for co-operation between judges and prosecutors across the EU to combat serious cross-border crime. Then there is the Schengen Information System, which enables enforcement agencies to exchange information about risks presented by serious criminals and suspected terrorists. Although the UK is not part of the Schengen agreement, under the treaty of Amsterdam it has access to the Schengen Information System for law enforcement purposes.

By this Bill the Government seek to introduce new measures to protect the security of the UK public. Yet by risking our co-operation with the EU on terrorism and cross-border security through the imposition of arbitrary and indefensible red lines—for example, on the role of the European Court of Justice—the Government threaten to undermine the very security they seek to protect.

Counter-Terrorism and Border Security Bill

Lord Marks of Henley-on-Thames Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Carlile of Berriew]

My Lords, in my view it is very important that photographs which may have a dramatic effect on the opinion of those who view them should be dealt with in the way described in this clause. They may, for example, include photographs derived from execution scenes which are both disturbing and, unfortunately, very influential.

In general terms I support this clause. I have a reservation about the Northern Ireland situation, and ask the Minister to reflect on this before Report and possibly consult more widely. I have travelled extensively in Northern Ireland, both when I was Independent Reviewer of Terrorism Legislation and subsequently. I have been taken to scenes where there is imagery which is now internationally regarded as works of art. I have been taken to scenes where there is imagery which may on the face of it be very distasteful, but plays an extremely important part in the history of the community concerned and in the extraordinary settlement that has taken place in Northern Ireland as a result of the Good Friday agreement, and I would not wish anything to be done that might disrupt that. It seems that the Secretary of State for Northern Ireland and the Police Service of Northern Ireland should be consulted to determine the issues raised in those amendments, before we become too dogmatic about them.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, my noble friend Lord Thomas of Gresford and I oppose this clause standing part of this Bill. I agree with my noble friend Lady Hamwee that it goes well beyond what is necessary for the protection of the public against terrorism. While I quite understand the point just made by the noble Lord, Lord Carlile, that imagery is in many circumstances unacceptable, I disagree with him that this provision meets that problem. We have seen no evidence from the Government that persuades me that the terms of this proposed new section would reduce terrorism or make terrorists easier to catch. I believe that it departs from the sensitive balance between the protection and the security of the public, and the public’s civil liberties, in a way that is irredeemably bad.

The Government seek to define an objective—deterrence of displays encouraging terrorist groups—but offer no evidence as to why the new offence in these terms is needed. That is the first reason why it should be opposed. In other words, if we apply the first test I suggested at Second Reading for considering these measures—what is the purpose of this provision, which is a measure criminalising publication only; and what is the mischief it seeks to address—the Government leave both questions unanswered. Because the purpose is left undefined, it is not possible even to move to the second test of whether the measure is necessary to achieve that purpose.

The second reason why this clause should be opposed is that a person might be convicted of an offence under proposed new Section 1A, even if no mens rea of any kind is proved. To introduce a new offence criminalising behaviour where the prosecution is not required to establish any mental state on the part of the alleged offender is a very serious matter, and needs compelling justification. No such justification has been advanced in support of this clause. This is an absolute offence of publication, the only indicator of a guilty mind being that publication takes place,

“in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation”.

No requirement is proposed that the person charged should have deliberately, or even recklessly, given rise to such suspicion; no requirement that that person should be a member or supporter of a proscribed organisation; or even that the person should in fact have done anything to make anybody think that he or she was such a member or supporter. There is not even a requirement that the publication itself should be deliberate. A person who accidentally captures an offending image and unwittingly publishes it might be committing the offence merely because other reasonable people might regard the publication as casting suspicion on the person who publishes it. As for the images published that may be caught by this clause, the range is very wide. It follows, applying the test of proportionate response, that this measure is disproportionate, and it is no surprise that this term was used frequently in the first report on the Bill by the Joint Committee on Human Rights.

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[Baroness Williams of Trafford]

I was going to explain it in my own words, but I think the notes agree with me. On the innocent selfie with the ISIS flag in the background, the offence is clear: it is committed only where all the circumstances in which an image is published give rise to reasonable suspicion that the person is a member or a supporter of a terrorist organisation. The picture in and of itself is not the offence. I hope I have explained that clearly to the noble Lord.

[Lord Marks of Henley-on-Thames]

I invite the Minister to consider that with her department, particularly in view of her concession that she does not wish to criminalise anyone who would be excused by the two amendments we have been discussing. The difficulty is that the drafting of the clause at the moment introduces an objective test of reasonable suspicion in the viewer of the image without any regard to the purpose in the mind of the person publishing the image. The offence is one of publication. The suspicion does not have to be in the mind of the publisher; the suspicion is in the mind of the observer. That is the difficulty that the Minister’s position does not grapple with.

Counter-Terrorism and Border Security Bill

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this group also includes the question as to whether Clause 7 should stand part of the Bill. I speak in favour of the proposition that it should not and in support of my noble friend Lady Hamwee’s amendment, to which she has just spoken.

At Second Reading I mentioned the dangers of sentence inflation. It is not just many of us in this House who, in the course of numerous debates on prisons, have talked about the dangers of overcrowding and the fact that it is caused to a very large extent by sentence inflation, both statutory and as demanded by public opinion and the press. Senior judges, including the Lord Chief Justice, the organisation Justice, the Howard League and many others have spoken about the dangers of a prison system in crisis—overcrowded, understaffed, violent beyond anything we have ever known before, with little opportunity for education and training or reform, and very little success in reforming offenders.

I echo the point made by my noble friend that there is absolutely no evidence of a deterrent effect of longer sentences when long sentences are already passed. That is as true of terrorism as other areas. However, there is plenty of evidence of the effect of prison sentences and the experience of being in prison for terrorist offences in radicalising other prisoners. A collection of studies edited by Andrew Silke, published in 2014 under the title Prisons, Terrorism and Extremism: Critical Issues in Management, Radicalisation and Reform, contains considerable evidence on the risks of imprisonment in this area. The danger, without wishing to overdramatise it, is that our prisons become academies of terrorism.

The problem has been recognised by the Government. They have introduced two so-called separation centres, the first at Frankland, the second at HMP Full Sutton. A third is opening shortly. But there is limited evidence that these centres will do anything but encourage subversive prisoners to draw strength from each other in furthering terrorism elsewhere. The number of inmates involved in the separation centres will be very small; I understand that a figure of 28 is intended. There are very large numbers of those convicted of terrorist offences in prison and a very large population of prisoners who are liable to be converted to terrorism when they might not have those tendencies so far.

The Parole Board has raised particular concern about radicalisation in prisons. I quote the report of the House of Commons Justice Committee of 21 February this year:

“The Board also raises concerns about radicalisation in prisons, a problem that it suggests will remain regardless of whether the Government decides to segregate prisoners or continues to spread them around the prison estate. In the Board’s assessment, there are concerns that increasing the penalties for less serious offenders will result in them becoming more likely to commit terrorist acts when they are released. The Board goes on to observe:


‘Most of the rest of Europe is devising interventions in the community to deradicalise less serious offenders. These programmes are more likely to be successful in the community than in prison where the influence of extremist inmates is likely to be stronger’”.


Before this legislation is introduced one would expect some evidence from the Government to support the case for longer sentences; certainly before the legislation is passed we should look for that evidence. But there is none produced by the Government. Page 14 of the Explanatory Notes merely sets out the new sentences proposed, without a word of justification. I remind your Lordships what they are. For failure to disclose information about acts of terrorism, the maximum sentence would double from five years to 10; for collection of information of a kind likely to be useful to a person committing or preparing an act of terrorism, the increase would be from 10 years to 15; for eliciting, publishing or communicating information about members of the Armed Forces of a kind likely to be useful to a person committing or preparing an act of terrorism, there would be an increase from 10 years to 15; for encouragement of terrorism, an increase from seven years to 15, and for dissemination of terrorist publications, an increase from seven years to 15. The last two represent a more-than-doubling of the existing maximum sentences. As my noble friend Lady Hamwee pointed out, the Joint Committee on Human Rights said simply that,

“the increase in sentences does not appear to be supported by evidence to suggest why it is justified or proportionate. We recommend that the Home Office provide further evidence (if they have such evidence) as to why they consider the current maximum sentences to be insufficient and how this increase is necessary and proportionate”.

We have not had it.

However, there is evidence on this subject which tends the other way. The Sentencing Council produced a definitive guideline in April this year. It considered all these sentences. Perhaps I may take as an example the offence of the encouragement of terrorism. It looked at levels of culpability, which they rated A to C; for instance, if a person was in a position of trust and had intention to provide assistance to terrorism, that would be the highest rating. It rated harm factors from one to three, so that a category 1 example was where others had either acted on or been assisted by the encouragement to carry out activities endangering life, while the lowest, category 3, example was a statement or publication with non-specific content encouraging support for terrorism activity not endangering life. So the range went from a category 3, culpability C, level of sentencing proposed—of a high-level community order to two years’ imprisonment—to, at the top, a category 1, culpability A, sentence range of four to six years, which is well below the maximum allowable at the moment and does not justify any increase. The council listed in detail aggravating factors—it is clear that such factors are always to be taken into account, whether or not they are listed in the statute—as well as mitigating factors.

The definitive guideline followed a statutory consultation under the Coroners and Justice Act 2009 and was considered by the Justice Committee, which produced in February this year the report from which I earlier quoted. There was no suggestion by the Justice Committee of any increase in the level of sentences for the offences with which this clause is concerned. Only at the top of the statutory limits proposed was there even a suggestion that consideration be given to any increase. It stated that the Sentencing Council might consider an approach where the recommended range was up to nine years when the statutory maximum was 10, but of the offences with which this clause is concerned, only failure to disclose information had a guideline range that went up to the five-year limit.

All that information was carefully considered by the Sentencing Council. It issued its definitive guideline in April and nothing has changed. There was no justification for increases in the ranges. The attacks with which we were concerned in considering the introduction of this legislation all happened before the sentencing guidelines were produced. We would be interested to hear any evidence from the Government to support these radically increased sentences in terms of better outcomes, deterrence, reform or the safety of the public. Without such evidence, we cannot support this clause.

[Lord Anderson of Ipswich]

My Lords, Ministers will know that the equivalent sentences in other European countries for the type of offences that we are talking about tend to be much lower than they are here. Perhaps that is no bad thing.

In light of these issues and the proposed very substantial increases to which the noble Lord has referred, will the Minister say what steps will be taken to address—or at any rate, given the sensitivities, to research—the disparities that have been observed by informed observers between sentencing levels for terrorism offences in England and those in Northern Ireland, where sentences imposed appear to be a great deal lower for conduct that on the face of it looks quite similar?

--- Later in debate ---

[Earl Howe]

My Lords, what I had better do is take advice on the timelines that were involved in all this and clarify that to noble Lords who have taken part in this debate; I would not wish to give the wrong impression about the sequence of events. What I am saying is that the Sentencing Council’s new guidelines, which came into force on 27 April, are capable of being updated, and we believe that that is not a difficult task for the council to do once the Bill is enacted. We will consult with the council to that end, as appropriate.

[Lord Marks of Henley-on-Thames]

I am sorry to keep the Minister on his feet for longer than I am sure he wants. I ask that when the exercise that he has promised is undertaken, he also investigates what evidence there was to justify the sentences. He has mentioned in particular the views of the police and the CPS. Was any evidence taken from any members of the judiciary responsible for sentencing in terrorist cases where they felt that their powers were insufficient under the existing sentences?

[Earl Howe]

My understanding is that the consultation that took place was a wide one, but I can clarify that point having taken advice on it. It is of course not for the Sentencing Council to comment on or recommend statutory maximums; it issues guidance on the application of currently existing maximums. That clarification is important.

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Debate on whether Clause 9 should stand part of the Bill.

[Lord Marks of Henley-on-Thames]

My Lords, I was not proposing to speak to Clause 8 but I do propose to speak to Clauses 9, 10 and 11. The effect of those clauses is, in brief, to introduce a provision for extended sentences for terrorism offences where previously extended sentences were applicable for specified violent or sexual offences. Clause 9 deals with England and Wales, Clause 10 with Scotland and Clause 11 with Northern Ireland.

The provision for extended sentences involves an extension of the conditions set out in the legislation of up to eight years in England, Wales and Northern Ireland and 10 years in Scotland. The sentences have serious consequences: they extend the time for release on licence from half way through the sentence to the two-thirds point. They mean that release on licence will not follow after two-thirds of the sentence has been served unless the Parole Board has in fact recommended release. The extended term will then be served on licence after the custodial period has been served.

This is a probing opposition to the clauses standing part, on the basis that before the Government secure support for extended sentences to be used in this way we say, much as we did in respect of Clause 7, that they need to demonstrate why these very substantial extensions are necessary. Once again the Explanatory Notes explain how the extension works and how the system works, but do not seek to provide any justification. Much as I heralded in my intervention at the end of the noble Earl’s speech on the last group, we would expect to see evidence of cases where judges felt constrained to impose terms that they believed were too short, where they believed their powers were insufficient adequately to protect the public, or where these very long extended terms on licence were necessary. Again, it is not simply enough to rely on the views of the police and the Crown Prosecution Service; one really needs the evidence of judges, to show why they believe they cannot do enough under the existing law. There has been no such evidence.

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[Lord Marks of Henley-on-Thames]

I was not suggesting that we were looking for a public statement by judges that in particular cases they would have imposed longer sentences—although one has heard of that. However, surely the Government, in proposing this legislative change, should have sought out the views of the senior judiciary about the changes and whether their powers are sufficient or restricted. That sort of research is frequently done by government when considering changes that affect judicial powers.

[Lord Carlile of Berriew]

In fact, the Government have a working relationship with the senior judiciary, which is often conducted at a fairly subtle level. The Attorney-General, it is to be hoped, has reasonably frequent conversations with the senior judiciary, but one would not expect the content of those conversations to be published. I apprehend that this matter has been considered fairly carefully in the usual way, and I am sure that we can trust Ministers when they say that there is evidence in their view for extended sentences of this kind.

I was going to add that there seems quite a clear analogy between sexual offences and terrorist offences, save that the evidence for extended sentences in terrorism offences may be much clearer than in sexual offences. When a judge is sentencing someone for a sexual offence, he will often have a clear apprehension drawn, for example, from the probation officer’s pre-sentence report and from the evidence in the case that the person concerned, usually male, represents a serious risk to children for an unknown period. The person is then sent to prison and courses are offered which they may or may not follow. The judge will often have an indication at the time of sentence as to the likely willingness of the individual to follow such a course, and that may influence the judge’s decision on whether to impose an extended sentence, usually for the protection of children.

A terrorism case may come before a court to defend someone like—he is not unique—Anjem Choudary. He has a clear intention, depicted on numerous occasions, to ignore those who criticise what he has been doing and to continue to attempt, in the subtle way that he follows, to radicalise others. There are other cases of a similar kind, but it is not very difficult for the judge to form the conclusion that the person is someone from whom the public needs to be protected by the special measure of an extended sentence. That is not only empirically defensible but meets public concern, which is reflected in the attempt to modernise these provisions in these clauses.

I urge noble Lords to support the spirit behind these clauses and to support the clauses in the knowledge that judges have never been lavish in their passing of extended sentences. In my experience and observation, when it happens it is usually done with great care and much concern by the judges, who start from an impartial standpoint before passing sentence.

Counter-Terrorism and Border Security Bill

Lord Marks of Henley-on-Thames Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

63: After Clause 21, insert the following new Clause—
“Access to a solicitor
(1) Schedule 8 to the Terrorism Act 2000 is amended as follows.(2) In paragraph 7(1) leave out “paragraphs 8 and 9” and insert “paragraph 8”.(3) In paragraph 7A—(a) leave out sub-paragraph (3);(b) in sub-paragraph (6) leave out from second “would” to the end and insert “create an immediate risk of physical injury to any person”;(c) in sub-paragraph (7) at the end insert “provided the consultation is in private”;(d) leave out sub-paragraph (8).(4) Leave out paragraph 9.”

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this amendment is also in the name of my noble friend Lord Paddick and the noble Lords, Lord Rosser and Lord Kennedy of Southwark. It would amend Schedule 8 to the Terrorism Act to protect the right of a person detained or questioned under Section 41—on suspicion of being a terrorist—or Schedule 7 of that Act, which is concerned with questioning at ports and borders, to consult a solicitor and to do so without delay and in private.

The first and third parts of our amendment, in proposed new subsections (2) and (4), would amend paragraph 7(1) and omit paragraph 9 of Schedule 8. Paragraph 7(1) presently provides, subject to two exceptions to which I will turn in a moment, that a person so detained,

“shall be entitled, if he so requests, to consult a solicitor as soon as is reasonably practicable, privately and at any time”.

The two exceptions to the entitlement under paragraph 7(1) are, first, the power to delay a consultation with a solicitor. Under paragraph 8, an officer of the rank of superintendent or higher may authorise a delay in permitting the detained person to consult a solicitor in certain prescribed circumstances; the second is a restriction on the right to consult in private, which we suggest is central to the right to confidential advice. Under paragraph 9(1), a direction by a police officer of the rank of commander or assistant chief constable or above may in certain circumstances provide that a detained person who wishes to consult a solicitor may only do so,

“in the sight and hearing of a qualified officer”.

The specified circumstances for the application of both exceptions are—I paraphrase—where the lack of such a direction may lead to any of a number of risks. They include damage to evidence of a serious offence, interference with or physical injury to any person, alerting other suspects, hindering the recovery of property obtained as a result of a serious offence, hindering information gathering or investigation, alerting someone to an investigation so as to make it more difficult to prevent an act of terrorism, and alerting someone so as to make it more difficult to apprehend, prosecute or convict a person of the commission, preparation or instigation of an act of terrorism.

Our amendment would, significantly, leave the exception under paragraph 8 relating to the power to delay a consultation in the specified circumstances but would remove the exception under paragraph 9—that is, the denial of the right to a consultation in private. We are clear in our view that it is fundamental to the right to consult a solicitor that the consultation should indeed be in private. The Joint Committee on Human Rights considered this question in its second report. It said in the section on access to a lawyer, in respect of Schedule 3 to this Bill, at paragraph 55 and 56:

“In some cases, the detainee may only consult a solicitor in the sight and hearing of a ‘qualified officer’. The Government explains that this restriction exists to disrupt and deter a detainee who seeks to use their legal privilege to pass on instructions to a third party, either through intimidating their solicitor or passing on a coded message … We recognise these concerns, but consider that there are more proportionate ways of mitigating these risks, such as pre-approval of vetted panels of lawyers. We suggest further consideration be given to alternative options so that timely and confidential legal advice can be given to all persons stopped and detained under these powers”.

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[Baroness Williams of Trafford]

I was going to use the word “shove”, but I will give them a push instead, which is probably more in keeping with your Lordships’ House.

Perhaps I may move on finally to Amendments 83 and 87. I draw the attention of the Committee to the draft Schedule 3 code of practice, which I have already circulated to noble Lords. Like its equivalent for Schedule 7, the draft code is clear that a person detained under either power must be provided with a notice of detention that clarifies their rights and obligations. The examining officer must also explain these rights and obligations to the detainee before continuing with the examination. In addition, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.

The Government are in complete agreement that any person detained under Schedule 3 should be informed of their rights before any further questioning takes place. It has always been the case through the exercise of Schedule 7 powers and it is why we have made it explicit in the equivalent draft code of practice for Schedule 3. While the Government are clear that the intention behind these amendments has already been satisfied through the provision of the draft code, I am now ready to consider further the merits of writing such a requirement into Schedule 3 and Schedule 8 to the Terrorism Act.

With those remarks, I hope that the noble Lord, Lord Marks, will be content to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

I am grateful to the Minister for the points that she has said she will consider. We will wait to hear the results of that consideration. I also thank all noble Lords who have spoken in the debate. Although I do not necessarily come from the same position as the noble Lord, Lord Anderson, on these amendments, he made an important point about the recording of incidents when the right of consultation with a solicitor is either delayed or restricted. Whether it is a push or a shove that is needed, it would be helpful if that could be clearly achieved.

I also make the point that while it is helpful that, in the vast majority of cases, the Government intend to ensure that the right to consult a solicitor in private in a timely and confidential manner is preserved, they should not underestimate the importance of the confidentiality of advice—a point made eloquently by the noble Lord, Lord Pannick. That is of course particularly relevant in circumstances where answering questions under these powers is compulsory. I therefore invite the Government to consider carefully, over and above the matters that the Minister has said she will consider, how far more proportionate ways of ensuring that detainees do not disrupt the purposes of their examination can be achieved without compromising confidentiality or the fundamental right to consult a solicitor. If we have that assurance—I note that the Minister is nodding in assent—I am happy to withdraw my amendment. However, it is a matter that we may well return to on Report.

Amendment 63 withdrawn.