Counter-Terrorism and Border Security Bill

Lord Paddick Excerpts

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

[Lord Judge (CB)]

I suspect that the discussion about journalism and journalists focuses the Committee’s attention on these provisions. I share the views expressed in the House that there should be no special position for journalists. When they exercise their rights to freedom of expression they are simply exercising our rights to that freedom and to looking at other people’s expression. Does the current provision in the Bill run a serious—or any—risk that a genuine, bona fide journalist, examining the issues without any criminal intent at all, may be caught? If so, the provisions need to be re-examined; if not, not.

[Lord Paddick (LD)]

My Lords, I am reminded of the words of the noble Lord, Lord King of Bridgwater, at Second Reading. He said that the provisions of the Bill must be “necessary” and “proportionate” but that we may not agree on what that means. The debate so far has reflected that.

I support all but one of the amendments in this group. I apologise to the noble Earl, Lord Attlee, for having some reservations about his amendment. Amendment 1 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, highlights the fact that this offence should be part of a pattern of behaviour—and not a single instance that could well be inadvertent, as the noble Lord, Lord Harris of Haringey, has just suggested.

4.30 pm

Amendment 2 in the name of the noble Baroness, Lady Jones of Moulsecoomb, necessarily tightens up the very loose term “is supportive of” by substituting “supports”. I am grateful to Liberty for its briefings on this group of amendments, on which I intend, in part, to rely. As my noble friend Lady Hamwee has explained, and as the Joint Committee on Human Rights concluded in 2006:

“Speech does not naturally reside in the realm of criminality. This is why the element of intention should always be attached to speech offences”.


A reference has already been made—by the noble Baroness, Lady Jones of Moulsecoomb, for example—to the Court of Appeal case R v Choudary and Rahman, which concluded that,

“the criminality … lies in inviting support”.

It continued that,

“the expression of views and opinions, no matter how offensive”,

should not be criminalised,

“but only the knowing invitation of support from others for the proscribed organisation”,

as this would otherwise amount to interference with Article 10 of the European Convention on Human Rights, which provides the right to freedom of expression.

As my noble friend Lady Hamwee has said on Amendment 3, to which I have added my name, this amendment restores what we consider to be the vital element of knowingly encouraging support for a proscribed organisation by inserting an intention to encourage support. Amendment 4, in the name of the noble Baroness, Lady Jones, has a similar effect.

Amendment 5, in the names of my noble friend Lady Hamwee and the noble Earl, Lord Attlee, to which I have added my name, provides an exception where a person is arguing that an organisation should not be proscribed. We have just heard from the noble Lord, Lord Anderson of Ipswich, that there are currently proscribed organisations that should not be proscribed. The noble Lord seeks to bring forward an amendment that he has already referred to, later in the Bill, to ensure that proscription decisions are regularly and proactively reviewed. It cannot be right that the noble Lord—or the noble Lord, Lord Hylton, or anybody else—should be committing an offence if they argue that an organisation is wrongly proscribed.

As I have suggested, I am slightly nervous about Amendment 6 in the name of the noble Earl, Lord Attlee, and the noble Lords, Lord Rosser and Lord Kennedy. I can see their objective, but claiming that an opinion or belief was published or broadcast for the purposes of journalism could allow those deliberately expressing or encouraging support for a proscribed organisation to claim this exemption.

This clause criminalises expression of opinion or belief, contrary to the fundamental human right of free expression, despite what the noble Lord, Lord Carlile of Berriew, has said. The existing offence, under Section 12 of the Terrorism Act, is comprehensive. It covers somebody who invites any kind of support for a proscribed organisation, or arranges, or assists in arranging, a meeting in support of a proscribed organisation, or a meeting addressed by someone who belongs to, or says they belong to, a proscribed organisation.

I appreciate that the Government want to be seen to be taking further action, and I accept what the former independent reviewers of terrorism legislation have said about the gap in the legislation. But I believe that this section strays beyond a necessary and proportionate interference with freedom of speech, even where balancing the public’s right to life. I therefore agree with my noble friend Lady Hamwee that Clause 1 should not stand part of the Bill.

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[Lord Paddick]

My Lords, I support all the amendments in this group. Amendment 7, in the name of my noble friend Lady Hamwee, to which I have added my name, removes the publication of images from this section and the new offence of publishing an image.

The existing offence under Section 13 of the Terrorism Act 2000 already outlaws the wearing of an item of clothing and the wearing, carrying or displaying of an article,

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

As I understand it, the Government want this new offence to cover photographs taken in a private place. As Liberty has pointed out in its briefing, this increases the risk that in so doing law enforcement may,

“mistake reference for endorsement, irony for sincerity, and childish misdirection for genuine threat”.

I gave the example at Second Reading of an innocent Facebook post of a selfie in a friend’s bedroom, with the subject not realising that there was an ISIS flag on the wall behind them.

Both the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights have expressed their unease with the new offence, which, like Clause 1, risks disproportionate interference with Article 10 of the European Convention on Human Rights. There is a general point here that covers both Clause 1 and Clause 2. I accept what the Minister has said—that these offences are designed to address a gap in the ability of the authorities to prosecute some people—but this runs the risk of creating a chasm into which innocent people are going to fall. Regrettably, we have seen time and again—I speak as a former police officer with more than 30 years’ experience—legislation that is too loosely drawn being abused by the police to arrest and detain people who should not be arrested or detained.

Amendment 8, in the name of my noble friend Lady Hamwee and the noble Baroness, Lady Lawrence of Clarendon, to which I have added my name, seeks to exclude those circumstances identified by the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights of,

“historical research, academic research or family photographs”,

and any publication that,

“was not intended to support or further the activities of a proscribed organisation”.

I appreciate that I have not heard from the Labour Front Bench in support of Amendment 9, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark—that has a similar intention to Amendment 8 but specifically includes journalism.

Taken together with the requirement that the publication was not intended to support, encourage support for or further the activities of a proscribed organisation, my concerns about universally exempting journalism, as in Amendment 6, do not apply to this amendment and therefore I support it.

This extension of the law risks criminalising those who have no intention of carrying out acts of terrorism or encouraging others to do so. As such, I agree with my noble friends Lord Marks of Henley-on-Thames and Lord Thomas of Gresford that Clause 2 should not stand part of the Bill.

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

My Lords, the amendments in this group seek to provide clarity on the issues in question before the Committee on this clause. They seek to put into the Bill the recommendations of the Joint Committee on Human Rights, which has looked at the Bill in detail. The committee has set out the position clearly. This clause is intended to criminalise the online publication of an image depicting clothing or other articles which arouse reasonable suspicion that a person is a member or supporter of a proscribed organisation. The committee has taken the view that the arousal of reasonable suspicion of support for a proscribed organisation is a low threshold under which to make an offence. I agree very much with the committee in that respect, as I do with the noble Baroness, Lady Hamwee—it may be too low a threshold.

The noble Baroness and the noble Lord, Lord Paddick, have put forward Amendments 7 and 8 in this group, as the Joint Committee suggested. Amendment 9, as proposed by myself and my noble friend Lord Rosser, is similar in effect to Amendment 8 but, as we heard from the noble Lord, Lord Paddick, we also make reference to journalism and academic research. All the amendments in this group are reasonable and proportionate. The new offence of publication of an image would be retained but through them we have created a proper defence of reasonable excuse in the Bill, which is important. The noble Lord, Lord Marks of Henley-on-Thames, has opposed Clause 2 standing part of the Bill. That gives the Minister the opportunity to justify this afternoon what is proposed in the clause.

The noble Lord, Lord Carlile, made an extremely important point in respect of images in Northern Ireland. Like the noble Lord, I have travelled extensively in the Province, where you can now visit areas with murals all over the place. Some of them can still look quite aggressive but they are also very much part of the tourist trail in certain parts of Belfast. We need to look at this issue and be careful about whether what we do here has unintended consequences. If the Minister does not accept the amendments before the Committee, can she set out how we can be satisfied that there is adequate protection in place within the clause as drafted?

[Baroness Williams of Trafford]

My Lords, under Clause 2 it will be an offence to publish an image of an item of clothing or other article associated with a proscribed organisation,

“in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of”,

the organisation, as noble Lords have pointed out. This provision updates for the digital age the existing offence at Section 13 of the Terrorism Act 2000, which criminalises the display in a public place of such an item in such circumstances. That existing offence applies only partially in cases where a person publishes an image online. While it would be likely to catch a person who publishes an image of, for example, a Daesh flag displayed on the streets, it could be argued not to apply to publication of an image of the same flag displayed within a private home, even if both images are made available to the general public by publishing them online in the exact same way.

The purpose of Clause 2 is to put beyond doubt the application of Section 13 to any case where a person publishes an image of something which it would be unlawful to display in person. It does this by inserting a new offence into Section 13 as its new subsection (1A). This is important to ensure that the law applies properly to contemporary online activity. In the 18 years since the Section 13 offence was enacted, we have of course seen an exponential growth in the importance of the internet in day-to-day life, and sadly its role in radicalisation and the spreading of terrorist propaganda is no different. This includes publishing images of flags and logos associated with proscribed terrorist organisations. We therefore need to update our legislation to reflect these developments and to ensure that all public spaces, including those online, are properly covered by laws which prohibit the publication of such material. Amendment 7 would simply remove this provision in its entirety, rather than seeking to amend or improve it, leaving the gap I have just described and leaving our terrorism legislation out of date and incomplete.

Amendments 8 and 9 would add a reasonable excuse defence to the new Subsection (1A) offence I have outlined. Both specify certain examples of reasonable excuse. Amendment 6 includes instances where publication of the image was not intended to be in support of a proscribed organisation, whereas Amendment 7 makes this category an absolute exemption.

Noble Lords have indicated that their intention is to ensure that the offence does not catch those with a legitimate reason to publish images of items associated with proscribed terrorist organisations, in particular in the context of historical or academic research or family photographs, or who otherwise publish such images without nefarious intent. I am very happy to support both the sentiment and the intention behind these amendments. The Government have no desire to criminalise people for simply going about their legitimate professional activities or their normal family life, but these amendments are not needed to secure that outcome. In fact, the same outcome is already secured by Clause 2.

To explain why that is so, it is important to note that the mere publication of an image associated with a proscribed organisation is not enough on its own to constitute an offence under the existing Section 13 offence or the new offence that will be added to it by Clause 2. The offence will be made out only if the image is published in such circumstances as to arouse reasonable suspicion that the individual is a member or supporter of the proscribed organisation. This provides a clear and effective safeguard. For example, in a case where a journalist features an image of a Daesh flag in a news report on the activities of the group or an academic publishes such an image in a book or research paper, it would be clear from the circumstances that they are not a member or supporter of Daesh. Similarly, where a person publishes, say, an old family photo of an ancestor standing next to an IRA flag, the offence would not bite unless all the circumstances of the publication suggest that that person is a member or supporter of the IRA.

On the point made by the noble Lord, Lord Carlile, about the sensitivity of symbolism, pictures et cetera and Northern Ireland, if he will indulge me, I will move on to the specific Northern Ireland point on the next amendment.

This approach provides no less certainty to such individuals that they will not be caught by the new offence than would the proposed reasonable excuse defence, and it offers the advantage that the same formulation—

[Lord Paddick]

Will the Minister address the example I gave at Second Reading and again today of somebody who does not realise when taking a selfie that there is an ISIS flag behind them on their friend’s wall? In what way would it be clear that those circumstances are not intended to lead to a reasonable suspicion that the people in the photograph are supporters of ISIS?

[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.

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[Lord Rosser]

Clause 2(4) confers on the police power to seize clothing or any other article, including flags, associated with a proscribed organisation. The Bill would enable the officer in the circumstances to seize items such as flags, provided that the officer was satisfied that it was necessary to seize such an item to prevent the evidence being concealed, lost, altered or destroyed—evidence that could well be crucial in pursuing an investigation and bringing a successful prosecution.

When this matter was discussed during the passage of the Bill through the Commons, the Government were asked what engagement there had been with the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland about the terms of Clause 2 and the difficulties in pursuing such prosecutions. In response, the Government accepted that taking away a flag in certain parts of Northern Ireland had on occasions acted as something of a lightning rod for a riot or a breakdown in civil order, and that in Northern Ireland a flag does not necessarily, in the context of the provisions of this Bill, have pure terrorist content. The Commons Minister said he did not want to see,

“flag protests becoming more and more polarised than they were in the past”.—[Official Report, Commons, 11/9/18; col. 661.]

In view of the potentially sensitive nature of this issue in Northern Ireland, the amendment would ensure that Clause 2(4) on seizures could not come into force until the Secretary of State had consulted the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland on the introduction of the new provisions in the Bill in relation to the power to seize.

It would be helpful if the Minister could say how the Government envisage the power to seize working across the UK generally. Presumably, there will still be the same potential confrontation over seizing an item, whether on arrest or subsequently reporting the person for summons, with an indication of that course of action being given to the individual concerned at the time. On the basis of what evidence do the Government believe that the likelihood of confrontation will be reduced? Presumably, those on marches or demonstrations will soon know that court proceedings are still likely or possible under reporting a person for summons. Or is the purpose of this option of seizure—of, for example, a flag—in reality a reason to do it this way and then not pursue the matter any further through the courts?

Presumably, there will still be a need to obtain an individual’s name and address on the street at the march or demonstration before or after the seizure of the flag or other item in question, and that information may or may not be given. Both issues—namely, trying to seek such details and the seizure of the flag before or afterwards—might still provoke confrontation. It would be helpful if the Minister could address that point in her response, as well as the more specific issue of the application of the clause in Northern Ireland. I beg to move.

[Lord Paddick]

My Lords, briefly, I support the amendment. Judging from the Minister’s non-verbal reaction to it, the consultation proposed seems extremely sensible given the history in Northern Ireland. On whether or not the police will use these powers in a public order situation, the police are very experienced—I declare an interest as a former advanced public order trained police officer who dealt with such situations—and, clearly, a decision has to be made on the basis of the circumstances at the time whether items can be safely seized without escalating the situation. The police service is very well equipped in deploying professional photographers and others gathering video evidence which can be used instead of, or in addition to, seizing those items. So although I agree with the sentiment behind the amendment concerning Northern Ireland, I do not share the concerns of the noble Lord, Lord Rosser, about the seizure of items potentially escalating a situation.

[Baroness Williams of Trafford]

My Lords, as the noble Lord, Lord Rosser, has explained, the amendments relate to the new power to seize flags and other articles provided for in Clause 2(4). Under Section 13(1) of the 2000 Act, it is an offence to wear or display in a public place an item of clothing or other article in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. The seizure power in Clause 2 is intended to ensure that the police and the CPS have the best evidence to pursue a prosecution for a Section 13(1) offence.

Of course, the police already have powers to seize evidence following an arrest, but in some circumstances, particularly in the context of policing a march or demonstration, arresting an individual may not always be an option if the legal tests in the Police and Criminal Evidence Act 1984 for making an arrest are not satisfied; or arrest may not be the appropriate policing response at that time if, as the noble Lord, Lord Paddick, pointed out, it is judged that it would provoke further disorder. In such a case, if the police wish to take action against a person displaying an item such as a flag or banner, instead of arresting the individual, the officer may choose to report them for summons on suspicion of committing an offence under Section 13(1) of the 2000 Act.

The new power introduced by Clause 2(4) would enable the officer, in these circumstances, to seize an item such as a flag which they reasonably believe to be evidence of the Section 13(1) offence in the absence of an arrest. The officer must be satisfied that seizure is necessary to prevent the evidence being concealed, lost, altered or destroyed. By preventing the loss or destruction of such items, this power will better support investigations and will provide and better preserve more evidence to help take forward prosecutions.

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[Baroness Williams of Trafford]

After the debate, I shall go back and check, but those are the ones we have consulted on this aspect.

Of course, this will be a discretionary police power like any other, and its application in Northern Ireland will be an operational matter for the PSNI, but we will consult and update those partners further, as necessary, prior to the provision coming into force.

The change that Clause 2(4) makes to Section 13 of the 2000 Act is to confer a power on the police to seize flags or other articles associated with a proscribed terrorist organisation as evidence of an offence under Section 13(1). This is intended to ensure that the police and CPS have the best evidence to pursue a prosecution.

Of course, the police already have powers to seize evidence following an arrest, but in the context of policing a march or demonstration, it might not always be an option if the legal tests in the PACE Act 1984 for making an arrest are not satisfied, or arrest may not be the appropriate policing response at that time.

In such a case, if the police wish to take action against a person displaying such a flag, instead of arresting the individual, the officer may choose to report them for summons on suspicion of committing an offence under Section 13(1) of the 2000 Act.

I think I may have been given papers which are forcing me to repeat what I just said.

[Lord Paddick]

They are.

[Baroness Williams of Trafford]

Ignoring what I just said—I am not sure how that happened—I hope that, with the explanation I have given, the noble Lord will feel happy to withdraw the amendment.

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[Baroness Hamwee]

My Lords, I have Amendments 12 and 13 in this group. The JCHR accepts that technology has moved on since 2000 but has expressed concern that viewing material online without any associated harm was an unjustified interference with the right to receive information. It was concerned too that the defence of reasonable excuse does not provide an explicit safeguard for legitimate activity. The noble Lord has rehearsed the history of this clause, and the Government’s current position, having excluded the three clicks provision, provides that a reasonable excuse includes but is not limited to situations where,

“the person did not know, and had no reason to believe”,

and so on. We are not reassured that there will be adequate protection for legitimate conduct, so we have proposed Amendment 12, on intention,

“to commit or encourage acts of terrorism”.

At the end of Committee, we will have to collate all the references to intention and recklessness to see whether each of us has been consistent in our arguments, which we may not have been. We want to insert a mens rea of intent.

Amendment 13 adds the phrase,

“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.

If that wording sounds familiar, we have just been through it in Clause 2, so I refer the Minister to my argument then in defence of adding these words.

[Lord Paddick]

My Lords, I rise to support the amendments in this group. Section 58 of the Terrorism Act 2000 already makes it an offence if a person collects or makes a record of information of the kind likely to be useful to someone committing or preparing an act of terrorism, or possesses a document or record containing such information. Some examples will be of obvious use to terrorist activity—instructions on how to make a bomb, say—but others are not so obvious.

I walk every morning from St James’s to the House around the time of the changing of the guard. It would be useful for me to know which days the ceremony is being mounted so that I could avoid the crowds, but it would also be useful to a person preparing a terrorist attack on the soldiers taking part in the ceremony. The difference between my actions and the terrorist’s actions are simply the purpose to which that information is being put.

Subsection (4) inserts a proposed new subsection (3A) after Clause 58(3) describing a reasonable excuse defence that at the time of the person’s actions, they did not know, or had no reason to believe, that the document or record in question contained or was likely to contain information of a kind likely to be useful to a person committing or preparing an act of terrorism.

I know that the days on which the changing of the guard takes place is information likely to be useful to a person planning a terrorist attack on soldiers taking part in the ceremony, and I know that when I look at it. A reasonable excuse defence would not necessarily stop police being able to arrest and detain me for looking up when the changing of the guard takes place, even if the CPS decided that it was not in the public interest to charge me.

It may be considered to be a trivial excuse but it shows the breadth of this original offence. Indeed, the Independent Reviewer of Terrorism Legislation warned against Clause 3, saying that it risked criminalising those who view material such as bomb-making instructions,

“in disgust, shock and disapproval”.

Amendment 11, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, seeks to ensure that the one click offence is mitigated by providing that it must be,

“part of a pattern of behaviour”.

While I support that amendment, for the reasons I have already given, it does not go far enough. I have therefore added my name to Amendments 12 and 13, in the name of my noble friend Lady Hamwee. The former refers to an intention,

“to commit or encourage acts of terrorism”,

and the latter includes the following phrase:

“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.

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

My Lords, these amendments seek, in various ways, to raise the threshold for the offence of viewing material over the internet provided for in new Section 58(1)(c) of the Terrorism Act 2000. Amendment 11, in the name of the noble Lord, Lord Rosser, seeks to restore the concept of a pattern of behaviour which was, as he pointed out, inherent in the so-called three clicks version of the offence as originally introduced in the House of Commons. Amendments 12 and 13, in the name of the noble Baroness, Lady Hamwee, would introduce a requirement to prove not just that the material being accessed is likely to be useful to a terrorist but that it was accessed by the individual with the intention of using it for terrorist purposes.

In responding to Amendment 11, it may assist the Committee if I explain that the intention behind the original three clicks provision was to ensure proportionality, and to provide a safeguard for those who might inadvertently access terrorist material by ensuring that there was a pattern of behaviour in accessing such material. However, we recognised the difficulties underlying that approach, and the uncertainty around how it would be implemented. Having reflected on the concerns that were raised about the three clicks provision, we believe that the reasonable excuse defence is the better way of proceeding. Introducing a pattern of behaviour test would recreate many of the same issues we faced with the three clicks provision. I agree with what the noble Lord, Lord Carlile, has just said on that issue. For example, it would beg questions such as how many viewings were required to constitute a pattern of behaviour and over what period such viewings would need to take place. Indeed, a pattern of behaviour test arguably introduces a greater degree of legal uncertainty than the three clicks test and, for that reason, I respectfully suggest that it is best avoided.

Amendments 12 and 13 would very significantly raise the threshold for the offence, and would alter its fundamental purpose. Section 58 of the Terrorism Act 2000, which Clause 3 amends, is a preparatory offence, rather than one aimed at the actual planning or commission of terrorist acts. It has a lower maximum sentence than other offences covering more developed terrorist activity, which can attract up to life imprisonment. I suggest to the noble Baroness that, in that sense, it is not comparable to the offence in Clause 2. The Section 58 offence, as amended by the Bill, is formulated so as to catch people who make a record of, or who view online, information likely to be useful to a terrorist, without requiring them to have actually used that information for a terrorist purpose or to intend to do so. This is in itself harmful behaviour, and such people can pose a very real threat to public safety. I do not agree with the example given by the noble Lord, Lord Paddick, of the changing of the guard. The noble Lord, Lord Carlile, hit the nail on the head again when he spoke about what is reasonable for the authorities to suppose in all the circumstances.

If there is evidence that the individual is preparing or committing an act of terrorism, or is assisting another person to do so, then they would be likely to meet the threshold for a more serious offence, such as Section 5 of the Terrorism Act 2006, which covers the preparation of terrorist acts, and for which the maximum sentence is life imprisonment. As such, a requirement to prove terrorist intent would effectively render unusable the new limb of the Section 58 offence that Clause 3 will insert. This is because the offence would be moved into territory that is already well covered by existing offences and could not be used for its intended purpose so that the police and courts would remain powerless to act against individuals accessing very serious terrorist material online.

The noble Baroness, Lady Hamwee, has suggested that her amendments are intended in part to address her concern that the offence will inappropriately criminalise those who seek out terrorist information through foolishness, inquisitiveness or curiosity, without intending to do harm. I have sympathy for that concern. The Government have been clear that this offence is aimed at those of a terrorist mindset and we do not wish to cast its net unnecessarily widely. However, I cannot agree with the noble Baroness’s suggestion that this is the best way to address the concern.

For the reasons that I have set out, these amendments would fundamentally undermine the purpose of the offence, and would go much further than I believe is intended in narrowing its application. We consider that the existing “reasonable excuse” approach is a better and more appropriate means of doing so, together with the normal CPS tests of whether there is evidence that would provide a reasonable prospect of conviction, and whether prosecution would be in the public interest, as the noble Lord, Lord Carlile, said. This is particularly so, because the question of whether it is legitimate for someone to intentionally seek out serious and potentially very harmful terrorist material, through foolishness or inquisitiveness, will be very fact-specific and particularly prone to grey areas. It needs to be considered on the basis of all the circumstances and all the evidence in any particular case.

While clearly there will be cases of this type, where prosecution will not be appropriate, it will certainly not be responsible to provide a blanket exemption for any person to access any quantity of terrorist information and be able to rely on such an exemption, whatever the potential harm associated with their activities. I hope, having heard my explanation, the noble Lord, Lord Rosser, will be content to withdraw his amendment, and that the noble Baroness, when it comes to her turn, will be content not to press hers.

[Lord Paddick]

I would like to explain my concerns to the Minister. In order for a police officer to make an arrest, all the police officer will need is a reasonable cause to suspect that the person is committing the offence. Therefore, the “reasonable excuse” defence provided in the Bill does not come into play. I accept that no Crown prosecutor would prosecute something that is clearly an innocent mistake, for example by someone clicking on to information. But my concern is that there is nothing to stop a police officer arresting a person, and the person being detained, until there is detailed consideration about whether this is a grey area, or whether it is reasonable or not.

Can the Minister give me any reassurance, other than what the noble Lord, Lord Carlile, has said about most police officers being reasonable? The particular offence that I am thinking of, which is no longer on the statute book—Section 4 of the Vagrancy Act 1824 —of being a suspected person,

“loitering with intent to commit an indictable offence”,

was routinely abused by the police in order to arrest people who were innocently going about their business. I am concerned that offences like this, which are very widely drawn and rely on a “reasonable excuse” defence, do not protect the innocent person from arrest and detention by the police.

[Earl Howe]

My Lords, I bring the noble Lord back to the issue that I flagged—that a judgment needs to be made in all the circumstances of the particular case. I turn the question back to the noble Lord. We are dealing with the viewing of material that must have a clear link to terrorism, and must be objectively capable of being useful to a person committing or preparing an act of terrorism.

One has also to bear in mind what the existing offence consists of. How does the noble Lord think the proposed new offence differs in its substance or its degree of seriousness from the offence already established in Section 58 of the Terrorism Act 2000? How does accessing this kind of harmful material by way of a streamed video differ from accessing it by way of a download or a book? Have we seen examples over the last 18 years of people being wrongfully hauled to the police station as a result of innocent activity? I am not aware that we have.

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[Lord Judge]

My Lords, I respectfully introduce a note of caution about Amendments 15 and 16. We are dealing with the creation or amplification of criminal offences. The issuing of guidance by the Secretary of State in legislation of this kind would be very unusual and it would not, in the end, add certainty to the situation. Guidance has no statutory force, and someone looking at guidance might nevertheless find himself being prosecuted. Alternatively, someone who could not bring themselves within guidance might be prosecuted.

The real point is this: guidance may be helpful but if it is not statutory, it has no legal effect. If we wish to introduce issues here, we should do as my noble friend Lord Anderson does in the next clause, where he seeks to define, in primary legislation, a number of situations in which an offence is not committed.

My final point—I find this extremely alarming—is the idea that a Secretary of State, using executive powers, should issue guidance about how the law should be implemented. Either the law is clear or it is not, and guidance does not make it any clearer. Such a measure would—I think probably for the first time in criminal justice legislation—give an enormous power to the Secretary of State to say, without any parliamentary control, “This may not come within the ambit of the offence but that may”, and so on. That should not happen.

[Lord Paddick]

My Lords, I support the amendments in this group, although I have some reservations about all of them now that the noble and learned Lord, Lord Judge, has spoken. However, I have concerns about Amendment 14, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, for the reasons I have expressed in previous groups about having a blanket exemption for journalism and academic research. A terrorist could access information with the intention of committing a terrorist act but could claim that it was for the purposes of journalism or academic research. Surely the acid test should be the intention of that person, not the content of the material.

I have added my name to Amendment 15, in the names of my noble friend Lady Hamwee and the noble Baroness, Lady Lawrence of Clarendon, although I accept what was said by the noble and learned Lord, Lord Judge, with his wisdom and legal background. Obviously the intention of the amendments is to suggest that the law is not clear here about what would amount to a reasonable excuse. Perhaps the mechanism suggested in the amendments is not the right one, and, as the noble and learned Lord, Lord Judge, has alluded to, maybe the approach outlined in amendments that we will consider shortly is the right one. However, there is concern about what would amount to a reasonable excuse under this clause.

[Earl Howe]

My Lords, there have been calls both in your Lordships’ House and in the House of Commons to place on the face of the Bill a definition of legitimate activity that would not be caught by the Section 58 offence as amended or to specify categories of reasonable excuse. The Government’s position on this issue is well rehearsed, including in our response to the Joint Committee on Human Rights. Noble Lords opposite have clearly been following this debate closely, because Amendment 15 proposes a slightly different approach, and Amendment 16, in the name of the noble Lord, Lord Rosser, follows a similar path.

Rather than seek to write exemptions or examples of reasonable excuses into the Bill, as Amendment 14 seeks to do, Amendments 15 and 16 instead seek to place a requirement on the Government to publish guidance on the same matters. I commend noble Lords for their constructive approach in seeking alternative solutions, and I hope that they will find my response to their suggestions similarly constructive, even if I am not able to support these amendments.

The Government’s starting point on this issue is that Section 58 of the Terrorism Act 2000 already contains a well-established safeguard, in the form of a reasonable excuse defence, for those with a legitimate reason to access terrorist material. As a result of Section 118 of the 2000 Act, if a person raises this defence, the court must assume that it is satisfied unless the prosecution can disprove it beyond reasonable doubt. We will debate the operation of Section 118 when we come to Amendment 18 in a later group.

Where a person has a reasonable excuse, a prosecution should not in fact commence, because the case would not pass the Crown Prosecution Service threshold tests of being in the public interest and of there being a realistic prospect of conviction. This safeguard has operated successfully in relation to Section 58 since that offence was first created in 2000, and it reflects the approach taken across the criminal law, where many other offences with a similar defence also do not list specific categories of reasonable excuse. As such, it is well understood by the police, the CPS and the courts. It will continue to apply equally to the offence as amended by Clause 3, and it will not be narrowed or reduced in any way.

This is an important safeguard, and I understand the intention of the noble Lord and the noble Baroness in seeking to put its effect even further beyond doubt, whether through the amendment of Clause 3 or through guidance to be published under it. However, it is my view that, whichever route is taken, it is simply not necessary. Furthermore, such an approach could in fact have the unintended and unhelpful consequence of unsettling the current position, and of reducing rather than increasing clarity. I hope the Committee will indulge me while I explain why this could be the case.

--- Later in debate ---

I hope that the Government will indicate support at least for the thrust of Amendment 17, and hopefully even for our Amendment 23, even if they want to consider further the exact wording they would consider appropriate.

[Lord Paddick]

My Lords, clearly all the amendments in this group have their merits, but we seem to be rallying to the flag of the noble Lord, Lord Anderson of Ipswich, for very good reason. As the noble and learned Lord, Lord Judge, explained, this appears to be, at least in essence, the way forward. As the noble Lord, Lord Anderson, said, it is based on a tried-and-tested system that operates under Australian law and gives a degree of certainty that the reasonable excuse defence does not give. It covers journalism as well, which could arguably make Amendment 20 unnecessary. On the definition of what journalism means, the noble Lord’s expression,

“working in a professional capacity as a journalist”,

might be an indication of the way forward as far as that definition is concerned. I have added my name to Amendments 21 and 22 in my noble friend Lady Hamwee’s name, but, as I said, perhaps Amendment 17 is a better way forward.

The noble Lord, Lord Faulks, is obviously trailing his amendment on treason, but in addition to what the noble Baroness, Lady Manningham-Buller, said, it is more than just fighting UK forces. It could be that people are going to engage in terrorist activity against allies of the UK, not necessarily against the UK itself. We would want to deter our nationals from travelling to areas for that purpose. People might travel to those areas for a legitimate purpose and then engage in terrorist activity, but there is no way that we could legislate for that. Clearly, they would then commit a substantive offence under different legislation.

[Lord Faulks]

Can the noble Lord help the Committee by saying what legislation they would be committing an offence under?

[Lord Paddick]

My understanding is that it is an offence to travel to an area to engage as a foreign fighter. I cannot remember what exactly the legislation is, but reference has been made to it by other noble Lords this evening.

[Lord Elystan-Morgan (CB)]

Is not the Foreign Enlistment Act 1870 still extant? I think it is.

[Lord Faulks]

I am not sure about that, and I am grateful to the noble Lord for assisting. There is, of course, a Treason Act of 1351, but that is not often relied on—or not at all relied upon. The noble Lord may be right, but I was genuinely inquiring what legislation the noble Lord was referring to.

[Lord Paddick]

I am very grateful to noble Lords for their interventions. At the end of the day, the principle that the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, have put forward in this amendment needs to be very seriously considered—and potentially not just for this offence, but perhaps for the other new offences in the Bill that we have already debated.