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.

Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

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

[The Lord Speaker (Lord Fowler)]

I should notify the Committee that, if Amendment 31 is agreed to, I cannot call Amendment 32 by reason of pre-emption.

[Lord Rosser (Lab)]

My Lords, as the noble Baroness, Lady Hamwee, said, Amendment 33, to which both my noble friend Lord Kennedy of Southwark and I have added our names, reflects a recommendation of the Joint Committee on Human Rights—a committee whose recommendations are not always music to the ears of this Government, and indeed have not been to previous Governments. I imagine that the committee would take the view that that is just about the highest compliment any Government could pay it.

The Government have also expressed a fairly trenchant view on the extent to which the JCHR, in connection with the Bill, should have taken evidence from the police, intelligence agencies and victims. The noble Baroness, Lady Hamwee, has previously responded to the Government’s comments, but, whatever the Government’s view on that specific point, the committee’s recommendations should be considered and responded to purely on their merits, rather than on the basis of whose evidence has or has not been given.

As the noble Baroness, Lady Hamwee, and the JCHR have said, Clause 6 extends extraterritorial jurisdiction to Section 13 of the Terrorism Act 2000. Section 13 criminalises wearing an item of clothing or wearing, carrying or displaying an article in a public place so as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. The JCHR has expressed concerns over the extension of extraterritorial jurisdiction to certain offences where there is no equivalent offence in the country concerned, which could certainly apply in respect of the offences covered by Section 13 of the Terrorism Act. In such a situation, we could end up in a position under the Bill as it stands where a foreign national with no or very limited links to the UK is prosecuted for conduct that, both in fact and as far as they were concerned, was lawful at the time and in the place it occurred. That surely would not be British justice in action.

The views of the Joint Committee on Human Rights on this issue are shared by the Constitution Committee—whether, in the latter case, that was with or without having heard evidence from the police and intelligence agencies I do not know. The Constitution Committee states that the extraterritorial extension of the offences concerned,

“breaches the requirement, deriving from the principle of legal certainty, that people should have a fair opportunity to know the laws (particularly criminal laws which on conviction carry criminal penalties) which apply to them. We agree with the JCHR’s proposed amendment that extra-territorial jurisdiction should apply only where the relevant conduct is criminal in the country concerned or where the individual has sufficient links to the UK”.

Amendment 33 is designed to address the issue to which both the JCHR and the Constitution Committee have drawn attention by providing that an offence is committed under Section 13 only if the relevant acts were an offence in the country where the acts took place, or the individual was a British national or had been present in the United Kingdom for a continuous period of at least six months in the last 10 years.

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[Lord Anderson of Ipswich (CB)]

My Lords, I oppose this amendment and, in doing so, I will seek to explain why the issues are rather different from those considered under the previous group. If Amendment 32 is passed then Section 12 of the Terrorism Act 2000, as supercharged by Clause 1, will apply to any person anywhere in the world who expresses an opinion or belief that is supportive of an organisation proscribed in the UK and who is reckless as to the consequences. The deficiencies of our deproscription regime, with which I have already wearied your Lordships, are multiplied when coupled with the indiscriminate grant of extraterritorial jurisdiction in this context.

To illustrate the point, I invite your Lordships to look to the Republic of Ireland, whose citizens would be criminalised by a law of this Parliament for expressing supportive opinions about organisations now committed to peace but in which their grandfathers or grandmothers once fought for freedom. I shall give one example: Cumann na mBan, the Irish republican women’s organisation. It was once aligned with the IRA and is still proscribed in this country, despite no evidence of which I am aware that it has been concerned in terrorism during this century at least. The commemoration of its centenary in 2014 in Dublin was a significant national event. The speakers included President Higgins of Ireland, who spoke stirringly and approvingly of the vision that animated the women of Cumann na mBan. The Minister will of course assure us that no one is going to seek extradition of Irish citizens who expressed opinions supportive of this proscribed group but, as noble Lords have done in relation to other clauses of the Bill, I must question whether this repeated heavy reliance on the discretion of our authorities is an adequate substitute for crafting a properly defined law.

This amendment comes in very late and, as the noble Baroness, Lady Hamwee, said, without the benefit of JCHR scrutiny. Whatever view noble Lords may take of Amendments 31 and 33, I strongly question the wisdom of extending extraterritorial jurisdiction unqualified by limitations of citizenship or residence to countries where conduct caught by the expanded Section 12 is not a crime. However it is applied in practice, this amendment might be thought to have a regrettably colonial flavour, not just in Ireland but in other parts of the world. I have no doubt that it is unintended, but it is no less unfortunate for that. This amendment seems to have been an afterthought. I suggest that this is one of those occasions where the first thoughts were the best. I invite the Minister to withdraw the amendment or, at the very least, to qualify it in the ways suggested in Amendment 33.

[Lord Rosser]

I shall be very brief. I await the Government’s response to the points made by the noble Lord, Lord Anderson of Ipswich, with interest.

I would like to pursue another point he raised in his contribution. Bearing in mind that this amendment, which adds offences, is coming in at a very late stage in proceedings, is this a result of a perceived oversight on the Government’s part or does it represent a significant rethink of policy?

[Earl Howe]

My Lords, I am grateful to noble Lords who have responded to this proposed amendment. We are very conscious that it is less than ideal to bring in an amendment of this kind at this stage of the Bill’s passage. If we had been able to do so at an earlier stage, it would have been much better.

Having said that, we felt that it was, on balance, right to introduce this change rather than not introduce it. I recognise the reservation expressed by the noble Lord, Lord Anderson, on that score. He also expressed the reservation that we heard on the previous group of amendments about applying extraterritorial jurisdiction to those who are not UK citizens or UK residents. I have already said that as a general rule I respect that point of principle. However, I put it to the noble Lord and the noble Baroness that what we are seeking to do here is not any different in concept from what we sought to do at the beginning of the Bill.

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[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?

[Lord Rosser]

This amendment, moved by the noble Lady Baroness, Lady Hamwee, and to which my name and that of my noble friend Lord Kennedy of Southwark are also attached, is another which reflects a recommendation from the Joint Committee on Human Rights. One of the key aspects of the Bill is the proposed increase in maximum sentences for a number of terrorist offences. This was one—but only one—of our reasons for raising concerns about the prospect of innocent parties falling foul of some offences.

The JCHR said that the increases in sentences do not appear to be supported by evidence to suggest that they are justified or proportionate. The committee was particularly concerned that a sentence of 15 years could be imposed for an offence of viewing terrorist material online—even more so in the light of amendments on Report in the Commons that might make a single viewing sufficient for such an offence to be deemed to have been committed. As has already been said, the committee asked the Home Office for the evidence on which it based its decision that the current maximum sentences were insufficient and why it considered the proposed higher maximum sentences to be necessary and proportionate.

The reply from the Home Office, as set out in the JCHR report, stated, among other things:

“The division between preliminary terrorist activity and attack planning is increasingly blurred”.


It did not, according to the committee, explain why existing sentencing powers were inadequate. I hope, like others, that the Government will address this point on existing sentencing powers in their response, as well as the specific terms of the amendment, reflecting the view of the JCHR, which deletes the increase in the maximum sentence from 10 years to 15 years for the “collection of information” offence provided for in Section 58 of the Terrorism Act 2000.

[Earl Howe]

My Lords, Clause 7 increases the maximum sentences for a number of terrorism offences to ensure that the available punishment properly reflects the seriousness of the crime. That is the point that I urge noble Lords to focus on in this debate. A key aspect of the review of our terrorism laws announced by the Prime Minister following last year’s attacks, of which the Bill is the product, was looking again at the courts’ sentencing powers to ensure that they are sufficient to respond to the threat and keep the public safe. The clear conclusion was that sentencing needs to be updated and strengthened, and the Bill contains a package of measures to deliver that, including Clause 7. However, I recognise that the noble Lord, Lord Marks, and the noble Baroness, Lady Hamwee, have queried whether these changes need to be made and have suggested that such changes are unnecessary and disproportionate. However, I sincerely hope that in responding to such concerns I can explain why the Government believe that Clause 7 as drafted is a necessary, proportionate and timely response to the contemporary terrorist threat.

Since the offences in question were first introduced, in some cases 12 years ago and in others 18 years ago, the terrorist threat has evolved significantly. Its source has shifted and diversified, its methods have developed and it has been quick to exploit modern online technology. Both its extent and its severity have maintained an upwards trajectory, and the intelligence services consider that in recent years there has been an enduring shift in the nature of the threat, rather than just a spike. We can be under no illusion: the scale of the threat we face today is unprecedented and, sadly, more attacks are likely.

In particular, we have seen increases in the scale of radicalisation and changes in its methodology and patterns. The growth of the internet has brought new and powerful ways for people to connect with each other, and to share ideas and information, which have brought great benefits to the vast majority of the public. But they have also brought new opportunities to those who would do us harm, increasing the ability of terrorists both to access and to disseminate unlawful terrorist information and training material, propaganda, and incitement to hatred and violence—and to do so, potentially, to a wide audience. Indeed, those who seek to recruit and to inspire or direct individuals to carry out attacks have never found it easier to identify and connect with would-be terrorists, often across international borders, and those who are embarking on the path of radicalisation have never found it easier to access material, to communicate with terrorist individuals and organisations, and to receive encouragement or direction which will move them further and more quickly along that path.

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[Earl Howe]

My Lords, the Sentencing Council’s new guidelines for terrorism offences came into force, as the noble Lord rightly says, on 27 April. In its consultation on the draft guidelines, the council was able to anticipate the proposed increases. Consequently, we believe it will not be a difficult task for the council to modify the guidelines once the Bill is enacted, and the Government will of course work with the council on those increases. Any changes to sentencing will only be made following parliamentary debate and approval.

[Lord Rosser]

Unless I am getting confused, which is quite possible, as I understand it the Security Minister, when the Bill was in the Commons, said,

“we have kept the Sentencing Council apprised of the provisions in the Bill, and the chairman has indicated that the council plans to revisit the guidelines once the Bill has completed its parliamentary passage”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 3/7/18; col. 105.]

Is that still the Government’s position?

[Earl Howe]

That is exactly the position. I sense no resistance from the Sentencing Council to that approach and I think it is eminently practicable. To answer the question from the noble Lord, Lord Thomas, about the review, it was announced by my right honourable friend the Prime Minister in June 2017. It is an internal government review and as such was not published, but I have informed the Committee today of some of the conclusions that it reached.

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[Lord Paddick]

My Lords, as I have added my name to this amendment, I should like to say briefly that we support the principle that there should be the possibility of a review to ensure that these provisions are necessary and proportionate. The appeal process appears to get round any possible issues with matters that cannot be placed in the public domain.

[Lord Rosser]

My Lords, I shall be very brief. My name and that of my noble friend Lord Kennedy are also attached to this amendment. As has been said, it reflects a recommendation from the Joint Committee on Human Rights. I simply comment that circumstances can change and therefore ask whether it is unreasonable that an individual covered by the enhanced notification requirements should be able to seek a review of the necessity and proportionality of those requirements, as recommended by the JCHR.

[Baroness Williams of Trafford]

My Lords, as noble Lords have said, Clause 12 strengthens the notification requirements under the Counter-Terrorism Act 2008 which apply to individuals convicted of terrorism offences, or offences with a terrorism connection, to enable the police to better manage the risk posed by such individuals. It does so by increasing the amount of information that registered terrorist offenders must notify to the police, in many respects bringing the requirements into line with those already in place for registered sex offenders.

The length of time that a terrorist offender is subject to the notification requirements varies depending on the length of sentence they receive, up to a maximum of 30 years for a person sentenced to 10 years’ or more imprisonment. The notification requirements are not onerous and do not place restrictions on an offender’s activities, but they do provide a proportionate means for the police to monitor the ongoing risk posed by a person who has been convicted of a terrorism offence and, where appropriate, to take action to mitigate any increased risk that they might pose.

The noble Baroness, Lady Hamwee, has explained that her amendment is motivated by a concern that it is not appropriate for a convicted terrorist to be subject to the requirements for this length of time without the ongoing necessity and proportionality of this being reviewed. I understand the sentiment behind her amendment but I disagree. As I have said, the notification requirements are not disproportionately onerous, and they flow as a direct consequence of a conviction for a terrorism offence—a category of offence which is of a particular level of seriousness. The notification measures provide a real benefit to the police in providing a quite light-touch but effective means of monitoring the ongoing risk posed by such a person over an extended period of time.

There is benefit in this, as individuals who are of a sufficiently terrorist mindset that they have been convicted of a terrorism offence, particularly one serious enough to merit a lengthy sentence of 10 or more years, can retain that mindset and can disengage and then re-engage over such an extended period of time. As such, the notification requirements in their current duration are, I suggest, clearly both necessary and proportionate.

The noble Baroness has suggested that, to ensure proportionality, we should follow the approach taken for registered sex offenders, which, following the Supreme Court’s judgment in the case of R (F) v Secretary of State for the Home Department, includes a review scheme along the lines that she has proposed. However, it is crucial to note that the Supreme Court ruled only that a review scheme was necessary in order to comply with Article 8 of the ECHR for registered sex offenders who are subject to the requirements indefinitely.

Of course, the terrorism notification requirements can apply only for a finite period. The Supreme Court did not find that the sex offender notification scheme, as it applied to individuals subject to the requirements for a finite period, was incompatible with Article 8. As a result, for registered sex offenders subject to the notification requirements for a fixed period, there is no review scheme. Furthermore, and in any event, we should also note that the Court of Appeal found in the case of Irfan that terrorism offending is in a different category to sex offending in terms of ongoing risk. Notwithstanding the particularly serious nature of sex offending, terrorism offences have, in the words of the Court of Appeal,

“unique features which compound concern. A single act can cause untold damage, including loss of life, to a large number of people, by someone motivated by extreme political or religious fanaticism”.

A failed or foiled plot can also still serve to inspire many. If anything calls for a precautionary approach, it is terrorism. I hope that, in the light of this explanation, the noble Baroness feels that she can withdraw her amendment.

--- Later in debate ---

[Lord Pannick]

My Lords, perhaps I may add my name to the long list of noble Lords concerned about the width of the provision in the Bill. I too hope that the Minister will say to the Committee that she and the Government will take this matter away, think about it and come back to it on Report.

[Lord Rosser]

My name and that of my noble friend Lord Kennedy of Southwark are attached to these three amendments. All that needs to be said has already been said and I just wish to indicate my support for the views that have been expressed. I hope that the Government will either accept these amendments or, alternatively, accept the spirit of what has been said, go away and come back with their own proposals on Report.

[Baroness Williams of Trafford]

I thank all noble Lords who have spoken. On the comments of the noble Lord, Lord Carlile, about reflecting on what the Committee said, I should make the point that the Government do reflect on what is said—that is the importance of the legislative process—and that, as the noble Lord, Lord Judd, said, we always have to balance these matters.

I shall deal with the amendments and explain why, for the moment, the Government do not support them.

Clause 13 confers on the police the power to enter and search the home address of a registered terrorist offender under the authority of a warrant issued by a justice for the purpose of assessing the risk that the offender poses. We have already debated the underlying purpose of the terrorism notification requirements and their importance in helping the police to manage the risk posed by those convicted of serious terrorism offences, so I will not go over that ground again.

However, as the noble Baroness, Lady Hamwee, said, these amendments would have a number of effects. Amendment 39 would narrow the purpose for which the power of entry and search may be operated and confine it to assessing whether the offender is in breach of the notification requirements rather than, as is currently drafted, to assess the risk that they pose.

Amendment 40 would introduce a requirement for the grant of a warrant so that the justice must be satisfied that there are reasonable grounds to believe that the registered offender is in breach of his or her notification requirements. Amendment 41 would provide, in addition to the current requirement, that the justice must be satisfied that it is “necessary” for the officer to enter and search the premises for the purpose of assessing the risk posed by the offender. The justice must also be satisfied that entry and search is “proportionate” to that purpose.

It may assist your Lordships if I begin by setting out the purpose of this power and why it is needed in its current form. The purpose of the power is to assess the risk posed by the offender. The police consider that home visits are an important tool in managing and risk-assessing registered terrorist offenders during their time, subject to the notification regime. This power allows them to ascertain whether the offender does in fact reside at the address they have notified to the police and to check their compliance with other aspects of the notification regime. This is, of course, the purpose that the noble Baroness, Lady Hamwee, envisages in Amendment 39.

However, home visits are also helpful as they allow a broader assessment of risk to be made beyond monitoring compliance with the notification obligations. They allow the police to identify any other factors that might contribute to the overall risk an offender poses to themselves or their community and their risk of reoffending. This might include their general living conditions, as well as any signs of mental health decline or drug or alcohol misuse. They can also allow the police to identify any potential risk that the offender may cease to comply with the notification requirements and, in particular, that they may abscond from their registered address.

It is not an inappropriate purpose for the police to wish to keep in touch with a registered terrorist offender. That actually strikes me as quite responsible, given that the police are charged with protecting us all from such serious offenders. Amendment 39 would mean that the new power could not be used for that purpose, so the police may become aware of an increase in risk and potentially harmful activity only at a later stage when the opportunity to take mitigated action may have been missed.

Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

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

Moved by

[Lord Rosser]

18: Clause 4, page 3, line 10, leave out “prove” and insert “state”

[Lord Rosser (Lab)]

In Clause 4, new Section 58B, entitled “Entering or remaining in a designated area”, states that:

“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”.


Under Clause 4, the burden of proof would appear to be clearly on the person charged with the offence, not on the prosecution to prove the guilt of the individual charged. The Government have said that that is not the case and that once the reasonable excuse defence has been raised, the burden of proof is on the prosecution, as laid down in existing legislation—Section 118 of the Terrorism Act 2000, which would still apply.

Even with that being the case, it nevertheless appears odd that a new section should say something incorrect: that the person charged with the offence of entering or remaining in a designated area has to prove that they had a reasonable excuse for being there, rather than the prosecution having to prove that they did not have a reasonable excuse. Our amendment would rectify this apparent anomaly by removing the Bill’s requirement for the person charged to prove they had a reasonable excuse as their defence, and instead make it a defence for the person charged simply to state that they had a reasonable excuse for entering, or remaining in, the designated area.

If the wording of the amendment does not find favour with the Government, I hope that its intention does and that the Government will agree to come back with an amendment of their own to new Section 58B at Report. We surely cannot agree to a clause which says the opposite of what is intended and is in apparent conflict with the terms of the legislation. I beg to move.

[Baroness Hamwee (LD)]

Perhaps I can ask both the noble Lord and the Minister a question: first, one to the Minister. Is the requirement for proof found in any other provision for reasonable excuse? I have been looking during the past few minutes; I could not find an example, but I did not get my iPad out to start reading through the whole of the Terrorism Act.

Secondly, I see the attraction of the term “state”. On who has to show what and in what order, we have been referred to Section 118 of the Terrorism Act. The terminology of that is “adducing evidence”. I am not sure whether the term “state” used by the noble Lord, Lord Rosser, is intended to be the equivalent of “adduce evidence”.

--- Later in debate ---

[Lord Rosser]

I thank the Minister for his response, other noble Lords who have participated in this debate and, not least, the noble and learned Lord, Lord Judge, for his intervention. There is an inconsistency and I think the Minister knows that in his heart of hearts. The defence for continuing with it seems to be that it appears in other places and in other parts of the 2000 Act, which seems a pretty lousy way of trying to defend an inconsistency. It is surely time to seek to put it right. My amendment takes out the reference to “prove” and puts in the word “state”. However, I would have no objection to the Government taking this away and agreeing to come back on Report with an amendment of their own which reflects the intention of this amendment. If the wording was at least the same as in Section 118, with its reference to,

“adduces evidence which is sufficient to raise an issue”,

there would then be a degree of consistency—as has already been said—between what is in the Bill and what is in Section 118 of the Terrorism Act 2000.

The Minister has kindly agreed to reflect further on this matter. I accept this, without commitment, and will await the outcome of that reflection. I hope he accepts that it is not really a defence of a clear anomaly to say that we are going to continue with it because it is repeated on occasion elsewhere. I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Terrorist Attacks

Lord Rosser Excerpts

Tuesday 5th December 2017 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I thank the Minister for repeating the Statement made earlier in the House of Commons. We share the view expressed that responsibility for these awful incidents rests solely on the shoulders of the perpetrators. We all owe a debt of gratitude to our intelligence and security services and the police for the work they do seeking to protect us from acts of terrorism. Without their commitment and dedication, this country would not feel like a safe place to live. We know only too well from an act of terrorism here on our doorstep that their commitment and dedication can result in loss of life—in this instance, of a police officer doing his duty to the full. We should all be grateful to David Anderson QC for his report, although our first thoughts must be with the families and loved ones of those who died or suffered life-changing injuries in these awful incidents.

Those who have the burden of responsibility of protecting us are entitled to expect our full support. Her Majesty’s Inspectorate of Constabulary has recently reported that policing is under significant stress. Officer numbers have declined significantly since 2010 and further reductions in numbers of officers and police staff are on the way. A government claim that reserves totalling £1.6 billion are available to the police has been dismissed by Her Majesty’s Inspectorate, which said that not only was the figure £200 million less than the Government had claimed but also that two-thirds was already earmarked to be spent.

The chair of the National Police Chiefs Council has been quoted as saying, “We’ve made £1.6 billion efficiency savings in the last five years and predict we’ll save another £0.9 billion in the next five. This at a time when HMIC recognises policing is under significant stress from rising demand and reported crime that is increasingly complex with … budgets due to fall in real terms over the next three years”. The Metropolitan Police Commissioner has warned of cuts to officer numbers if her force has to make a further £400 million in savings because of budget pressures. The indicative profile of the counterterrorism police’s grant allocation over the next three years sees a reduction of 7.2% in its budgets. Can the Minister say what the Government now intend to do to address that situation in the light of the Anderson report and the continuing, indeed increased, terrorist threat?

The Anderson report refers to the work of M15 and counterterrorism police in improving their co-ordination and reliance on community policing, even though the Government have previously attempted to maintain, in the face of reductions in community and neighbourhood policing numbers, that counterterrorism and community policing are unrelated activities. What do the Government intend to do to bolster community policing, now that they have been told, not for the first time, that it is a vital part of counterterrorism activity, building confidence and trust among communities and securing crucial intelligence?

David Anderson has said that, in the case of the Manchester terrorist attack, MI5 and counterterrorism police,

“could have succeeded had the cards fallen differently”.

How do the Government interpret that? We know that the police and security and intelligence services have more people who should be monitored than they can properly cope with. Do the Government intend to increase the resources available to address that reality?

Another area that is important in countering terrorism is the effectiveness or otherwise of border controls. Currently, scarce resources are available to be spent on telling people who have lived in this country for over 50 years that they face deportation before bundling them off to an immigration detention centre. On the other hand, resources are not available to prevent 11 people in a lorry from apparently being smuggled into this country undetected by border controls and found in a layby in Wiltshire only when they start banging on the side of the vehicle—11 people who could have constituted a terrorist threat. Is it not time that the Government had a hard look at not only whether they are providing sufficient resources to our hard-pressed security and police services to counterterrorist threats but whether they have their priorities right in how the resources available should be used?

The Statement refers to the fact that the Government will shortly be announcing the budgets for policing for 2018-19. The Home Secretary has said that she is clear that we must ensure that counterterrorism policing has the resources needed to deal with the threats that we face. In the Statement, the Home Secretary also said:

“I would like to remind honourable Members of the context. Andrew Parker, the director-general of MI5 recently said that we are facing ‘a dramatic upshift’ in terrorist threats”.


If the Home Secretary is to deliver on what she has said, and the Government with her, about the need to ensure that counterterrorism policing has the resources needed to deal with the threats that we face, it has to be very clear in announcing the budgets for policing for 2018-19 that no one will have any grounds for saying that the police and counterterrorism activity are being left underresourced.

[Lord Paddick (LD)]

My Lords, I too thank the Minister for repeating the Statement and associate these Benches with the Home Secretary’s sentiments concerning those affected by the terrorist outrages. As the noble Lord, Lord Rosser, has just reiterated, there is no doubt that the blame for the suffering that was inflicted remains with those who carried out these criminal acts and those who supported them. As far as I am concerned, we have the best intelligence and policing services in the world.

It is important to explain what a “dramatic upshift” in terrorist threats actually means. Having been briefed by those at the highest level, my understanding is that the number of people being influenced by extremist propaganda, particularly online, who are then tempted to conduct unsophisticated attacks such as those at Westminster, London Bridge and Finsbury Park, is increasing. Can the Minister confirm that it is the volume rather than the degree of sophistication, the amount of strategic planning or the co-ordination that is seeing a “dramatic upshift” in the threat?

In the case of the Westminster, Manchester and Finsbury Park attacks, which were apparently carried out by so-called “lone wolf” attackers, can the Minister explain how end-to-end encryption mentioned by the Home Secretary would have made any difference to the likelihood of those attacks being prevented? Bearing in mind that in all these attacks, except the London Bridge attack, none of the murderers was under active investigation, how would their communications have been monitored, whether end-to-end encrypted or not? In the case of the one attacker who was an active subject of interest, can the Minister confirm that the investigative means that were deployed against him could have overcome end-to-end encryption? Is it not the fact that end-to-end encryption is a global issue that cannot be banned, and that we should be focused on what we can do something about, rather than on what we can do nothing about?

Can the noble Earl confirm that David Anderson agrees with MI5 and Counter Terrorism Policing’s conclusion that they could not,

“find any key moments where different decisions would have made it likely that they could have stopped any of the attacks”?

The Home Secretary reflects David Anderson’s conclusion that intelligence is imperfect and investigators are making tough judgments based on incomplete information, and she promises to deliver the resources Counter Terrorism Policing needs to deal with the threats we face. Does the Minister agree that a vital part of the intelligence picture is provided by community policing, to which the noble Lord, Lord Rosser, alluded? The day after the London Bridge attack, a neighbour of one of the attackers told journalists how he thought that the man was being overfriendly and was asking about hiring a van without using a credit card on the day of the attack. Despite, as the Home Secretary said, a “number of” investigative means being deployed against him, this intelligence, which might have been discovered by a community policing team to whom the neighbour may have had links, did not surface until afterwards.

Her Majesty’s Inspectorate of Constabulary and the Commissioner of the Metropolitan Police, among many others, have warned about the erosion of police resources and the demise of community policing. Despite assurances from Ministers to the contrary, the facts are that police budgets continue to fall in real terms. For example, the Metropolitan Police has already had to make savings of £600 million, with £400 million of cuts in the pipeline. Does the Minister agree that effective community policing is as important, if not more important, against the current unsophisticated threat, as Counter Terrorism Policing, and that community policing must also have the resources needed to deal with these threats?