Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

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

[Lord Rosser (Lab)]

We support the concerns that have been expressed by the noble Lord, Lord Paddick, that, under the wording of this Bill, a person could potentially be deemed to have committed an offence even though they were pursuing a legitimate business or activity, or, in the case of a designated area, simply by entering the area itself. That specific issue is addressed in Amendment 15, to which the noble Lord, Lord Paddick, referred. As I say, we support the concerns expressed about the extent to which people with legitimate business or activity could potentially find that they have committed an offence under the provisions of this Bill.

[Lord Judd (Lab)]

My Lords, I declare an interest because of my professional and voluntary past, as recorded in the register. We are touching on immensely significant issues. I have great respect for those responsible for the grouping of amendments, and have seen its effectiveness over many years, but there are occasions when the overlap between two different groups becomes particularly significant.

I note that the amendment from the noble Lord, Lord Paddick, which deals with the matter that I am about to raise in specific terms, is equally significant and perhaps more controversial in this area. I am talking about the invaluable and courageous contribution made by dedicated people to the long-term task of peacebuilding. They go into an area for a long period of time and become what might be referred to in other spheres as embedded—they become part of the local population by the very nature of their work. They are trying to build the reconciliation and understanding which is necessary for a long-term solution.

Unfortunately, we are limited by the grouping of the amendments. I have had a certain amount of discussion with those responsible and very much value, as I always do, their advice. However, it is fair to say that I am uneasy. It seems to me that by the very nature of the work of peacebuilding—sometimes having to get close to people who are not necessarily very attractive or who are controversial—people could give a police officer grounds for arrest on the basis that we have heard explained.

It is therefore absolutely essential that at every moment in our relevant discussion of this part of the Bill, the Minister is at pains to spell out that bona fide peacebuilders are exempt and protected. Otherwise, this could have terrible dumbing-down effects on those who would be anxious to do such work. It would put great strain on them in terms of what could happen to them and would therefore hamper their work considerably. If that were to happen, it would be a great loss. No matter how important the humanitarian dimensions—humanitarian aid and the rest, to which I will take second place to nobody in terms of my support—it is very often in this area of peacebuilding that the really significant work for the future is undertaken. I therefore hope that the Minister will take this point seriously and perhaps take the opportunity to pay tribute to those who sometimes undertake this work, and that we can be sure that exemptions in any other sphere, in all aspects of the operation of the Bill, apply in this case.

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Moved by

[Lord Rosser]

10: Clause 4, page 3, line 13, at end insert—
“( ) If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.”

[Lord Rosser]

Clause 4 inserts, in new Section 58B of the Terrorism Act 2000:

“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.


We have been told by the Government that the wording in this new section does not mean exactly what it says and that the burden of proof that they had a reasonable excuse will not rest with the person entering or remaining in the designated area. However, the Government have so far resisted the idea that, if that is the case, it would be better that this new section actually said what it apparently means—which, I understand from the Government, is that the person concerned would have to provide only some evidence that they had a legitimate reason for being in the designated area and it would then be for the prosecution to prove beyond reasonable doubt that that was not the case for the defence to fail.

Our amendment intends to set that out as the position and puts in the Bill wording used in the Terrorism Act 2000, which the Government say is what would apply, rather than the wording on its own in new Section 58B, which I quoted earlier. The amendment would add to new Section 58B the following words:

“If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.


The wording in our amendment clarifies what the proposed wording currently in the Bill actually means when it refers to the person charged having to prove that they had a reasonable excuse for entering or remaining in the designated area. I hope that the Government will feel able to accept the amendment—or, if they cannot, will agree to bring forward their own wording at Third Reading. Surely it is in everyone’s interests to make legislation as clear as possible to all in its meaning. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, the burden of proof should be on the prosecution and should be seen to be on the prosecution. Lawyers who know where to find Section 118 of the Terrorism Act 2000 may be untroubled by the point made by the noble Lord, Lord Rosser. However, the existence of that section is not widely known. Indeed, only last week I found myself in that great deliberative assembly, Twitter, correcting the damaging and widespread misapprehension, advanced in good faith, that the Terrorism Acts reverse the burden of proof. I support the idea behind the amendment, although—as I am sure the noble Lord, Lord Rosser, would accept—if it is to produce clarity, it would have to be applied a little more widely to a variety of existing offences under the Terrorism Act, including Sections 57 and 58.

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I am grateful to the noble Lord for his suggestion, and I appreciate the spirit in which it is intended. However, on the basis of my assurance that it is not needed to achieve its intended effect and of the concerns that I have raised that it could reduce rather than increase the clarity and certainty of this aspect of Clause 4, I hope that he will be content to withdraw it.

[Lord Rosser]

I am obviously disappointed by the Government’s response, although it would be wrong of me to suggest that I am entirely surprised by it, since they have defended the position stoutly ever since we started discussing it. I probably do the noble Earl a disservice, but it seems to me that the Government’s argument is that we have made this error eight times and now we are going to make it a ninth, because apparently it is too big a problem to rectify the previous eight.

I do not intend to push this to a vote, but I will conclude by saying once again that surely we need legislation to be clear not just to lawyers but to all. I think somebody who reads this will not put the interpretation on it that they have to turn to another piece of legislation to find out that what new Section 58B says is not meant but that there was another intention and that the burden of proof in reality rests with the prosecution. I shall not pursue the matter any further. I am just sorry that the Government have not been prepared to take the bull by the horns and rectify it on this occasion—even if it means rectifying it in relation to the other eight instances at the same time. I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

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[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.

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Moved by

[Lord Rosser]

15: Clause 4, page 3, line 19, at end insert—
“(3A) A person does not commit an offence under this section of entering, or remaining in, a designated area where—(a) the person enters, or remains in, a designated area involuntarily, or(b) the person enters, or remains in, a designated area for or in connection with one or more of the purposes mentioned in subsection (3B).(3B) The purposes are—(a) providing aid of a humanitarian nature;(b) satisfying an obligation to appear before a court or other body exercising judicial power;(c) carrying out work for the government of a country other than the United Kingdom (including service in or with the country’s armed forces);(d) carrying out work for the United Nations or an agency of the United Nations;(e) carrying out work as a journalist;(f) attending the funeral of a relative or visiting a relative who is terminally ill;(g) providing care for a relative who is unable to care for themselves without such assistance.(3C) But a person does not commit an offence of entering or remaining in a designated area by virtue of subsection (3A)(b) only if—(a) the person enters or remains in the area exclusively for or in connection with one or more of the purposes mentioned in subsection (3B), or(b) in a case where the person enters or remains in the area for or in connection with any other purpose or purposes (in addition to one or more of the purposes mentioned in subsection (3B)), the other purpose or purposes provide a reasonable excuse for doing so under subsection (2).(3D) The Secretary of State may by regulations add a purpose to or remove a purpose from subsection (3B).(3E) Regulations under subsection (3D) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(3F) For the purposes of subsection (3B)—(a) the reference to the provision of aid of a humanitarian nature does not include the provision of aid in contravention of internationally recognised principles and standards applicable to the provision of humanitarian aid;(b) references to the carrying out of work do not include the carrying out of any act which constitutes an offence in a part of the United Kingdom or would do so if the act occurred in a part of the United Kingdom.”

[Lord Rosser]

I thank the Minister for his response, but obviously there is a difference of opinion. We feel that there should be certain situations in which an individual who goes to an area designated by the Secretary of State should not by that very act of going there commit an offence. They would commit an offence for which they would have to provide evidence of a reasonable excuse if charged on their return to this country. I think I heard him say that one of the Government’s arguments for their stance with their indicative list was that it fits better with the grain of the Terrorism Act 2000. Perhaps if I was a lawyer I would be moved by that argument, but I am not.

I think that this was a comment made earlier by the noble Lord, Lord Anderson of Ipswich, but if I am misrepresenting him I hope that he will correct me. He said basically that we should have reasons for travelling to designated areas which mean that you do not commit an offence, rather than excuses—that is what we have, reasonable excuses—under the Government’s proposal. I therefore wish to test the opinion of the House.