Lord Taylor of Holbeach
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Serious Crime Bill [HL]
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Lord Rosser (Lab)
My Lords, I shall be brief. The noble and learned Baroness, Lady Butler-Sloss, has rightly set out in some detail a strong case for Amendment 40BZB, with which we are associated. I will not attempt to repeat the points that have already been so effectively and powerfully made. The need to recognise in the Bill that harm can be caused by emotional ill treatment and emotional neglect as well as physical ill treatment and neglect is important, as is the substitution of “serious harm”, which is consistent with other areas of criminal law, for “unnecessary suffering”, including the inference that there can be necessary suffering.
The amendment also defines “harm” and “wilfully”, with the latter definition stating that the person has to have the capacity to foresee that an act or omission would be likely to result in harm but none the less unnecessarily took that risk.
We also support the amendment moved in the name of my noble friend Lord Ponsonby of Shulbrede that it should be specific that the age of children to whom a child cruelty offence applies is “under 18”.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I am very grateful to my noble friend Lady Walmsley for moving her amendment, to the noble and learned Baroness, Lady Butler-Sloss—we are delighted to see her in her place, taking part in our debate—and to the noble Lord, Lord Ponsonby, for outlining their respective amendments. They have all brought extensive knowledge to this debate. We have missed my noble friend Lady Hamwee, who cannot be in her place this afternoon. I am sure the whole House wishes her well.
The amendments all relate to the scope of the offence of child cruelty in Section 1 of the Children and Young Persons Act 1933. Before I address the amendments, it may assist the Committee if I explain our approach in Clause 62. I am grateful for the general welcome which the clause has received. I am grateful, too, for the support of the noble Lord, Lord Rosser. Many of those welcoming the Bill spoke in support of the amendments. That I understand, and I will try to address their concerns.
The offence in Section 1 of the 1933 Act is committed when a person over the age of 16 who has responsibility for a child under that age wilfully assaults, ill treats, neglects, abandons or exposes that child in a manner likely to cause unnecessary suffering or injury to health, including any mental derangement. That is the law as it stands. The noble and learned Baroness, Lady Butler-Sloss, has been among those who have argued for some time—as she has pointed out, in her discussions with my right honourable friend Damian Green in his ministerial capacity and with me— that the offence of child cruelty in the 1933 Act lacks the necessary clarity when it comes to tackling psychological suffering or injury to children.
Lord Taylor of Holbeach
My Lords, I thank my noble friend Lady Brinton for bringing this important matter before the Committee. We all recognise that every child should be protected from sexual and other forms of abuse and neglect, and this Government are absolutely committed to doing everything that we can to ensure that they have the full protection they deserve. In recent years—I scarcely need to say this to noble Lords—we have seen appalling cases of organised and persistent child sex abuse. This includes abuse by celebrities as well as the systematic abuse of vulnerable girls in Rochdale, Oxford and other towns and cities. Some of these cases have exposed failures by public bodies to take their duty of care seriously, and some have shown that the organisations responsible for protecting children from abuse, including the police, social services and schools, have failed to work together properly.
That is why, in April 2013, the coalition Government established the national group on sexual violence against children and vulnerable people, which is led by the Minister for Crime Prevention, my right honourable friend Norman Baker. This cross-government group was established to learn the lessons from some of the cases that I have mentioned and the resulting reviews and inquiries. As a result of its work, we now have better guidance for the police and prosecutors and better identification of children at risk of exploitation through the use of local multiagency safeguarding hubs.
I assure my noble friend Lady Brinton and other Members of the Committee that we are aware that there is more to be done. Significantly, as I informed the House on Monday last week, the Government are establishing an independent inquiry panel of experts in the law and child protection to consider whether public bodies and other non-state institutions have taken seriously their duty of care to protect children from sexual abuse. It will begin its work as soon as possible after the appointment of all the members of the panel. I hope to be able to report back to the House with details of those members and the terms of reference for the inquiry panel very soon.
Meanwhile, the work of the national group continues apace. As part of this work, the group has considered the issue of mandatory reporting and whether there is a need for some form of more targeted statutory reporting regime to deliver better protection for children and vulnerable adults. However, the picture here is, by definition, a very complex one. Some evidence suggests that, in the USA, Australia and Canada, mandatory reporting legislation has been accompanied by significant increases in the number of referrals of suspected child abuse and neglect made to the authorities, a large percentage of which in the end were not substantiated. As the noble Baroness, Lady Howarth of Breckland, pointed out, there is a risk that child protection services can be diverted from the task of increasing the safety of our most vulnerable children to evidence gathering and investigation of cases that are eventually unsubstantiated and which often lead to significant disruption of family life. Those words from the noble Baroness, Lady Howarth, are important to bear in mind.
Having said that, there is an emerging consensus that action must be taken to address the clear failures in public protection in the past. Indeed, noble Lords may have seen remarks just last week by Peter Wanless, chief executive of the NSPCC—an organisation which has the protection of children at its heart—which supported the introduction of a criminal offence making covering up and hiding child abuse within institutions illegal. Those and other views are an important contribution to the debate, and I would like to assure the Committee that this issue is being actively and carefully considered. The primary concern from all involved is the uncertainty about the number of reports that would result and, if there were large numbers, how those reports would be triaged to ensure that the most serious cases were identified. It is hugely important that, if we are to propose changes of this kind, we make absolutely sure that we get it right.
It is against this background that I now turn to the detail of Amendments 40BZD and 40BZE. Those would place a requirement on police, when investigating a child cruelty offence under Section 1 of the Children and Young Persons Act 1933, to inform the local safeguarding children and adults board of the investigation. Subsequently, the local authority would be placed under a duty to liaise with relevant officials, such as those at the child’s school, social services or the police. My noble friend seems to be addressing concerns that relevant children’s services are not sufficiently joined up in their response to child safeguarding. That concern has of course been borne out by several recent serious case reviews. I concur absolutely with the intention behind these amendments. As I have indicated, the Government are already committed to considering these issues. However, as I have also said, there is no easy solution. While we accept that this is a pressing issue, such consideration will necessarily take some time. In advocating a change in the law, Peter Wanless has acknowledged the need for further discussions as to the form of any new reporting duty and to whom it should apply.
It is right that the Government take the time to consider this important issue fully, in the light of all the evidence and having considered the views of the many experts and stakeholders, who rightly hold strong views. My noble friend Lady Neville-Rolfe and the noble Baroness, Lady Howarth of Breckland, pointed out that there are other factors that have to be borne in mind. The noble Earl, Lord Listowel, pointed out that the issue is far from simple and there are also funding questions to be considered. I say to noble Lords that their views will be very welcome in this context. I know that a number of Members of this House have already been involved in this important debate. I encourage others to be involved in providing us with views and information on which we can base a decision that achieves the objective of safeguarding children.
The Government recognise concerns about our current safeguarding system and understand the public’s anxiety about the reporting of child abuse. They are taking this issue very seriously and want to make sure that any action they take achieves the desired outcome of improving safeguarding for all our children and vulnerable adults. Given the complexities involved, it is right that we look carefully at this matter. The new independent inquiry panel is also relevant here. For these reasons, I cannot offer my noble friend an assurance that the Government will legislate in line with her specific proposals. I can, however, give an assurance that the Government take this issue very seriously and, should there be a need for further legislative change and action, we will bring forward measures to deliver this as soon as possible.
My noble friend highlighted the need for all involved in child protection to work together more effectively. I cannot agree more. All the evidence suggests that the best protection and results happen when agencies work together and when not just a single agency considers the protective needs of the child. That is why the Government have undertaken significant work to improve our understanding of the different multiagency models in place to support information sharing around safeguarding responses for vulnerable people.
I hope that my noble friend will be reassured by this. There is already guidance requiring social workers to convene a strategy discussion—the noble Baroness, Lady Howarth, will know all about this—with all relevant professionals who are known to the child and the family if they suspect a child may be suffering significant harm. Our guidance is also clear that support should be given to a child as soon as need is identified. Early help services can be delivered by teachers, youth workers and health workers to support children. It is important to bear in mind that that work can be invaluable in dealing with these matters promptly. In the light of what I have said about what the Government are doing and the invitation to noble Lords to be involved in that process, I ask my noble friend to withdraw her amendment.
Baroness Brinton
My Lords, I thank noble Lords who have spoken in this debate. I absolutely agree with the noble Baroness, Lady Howarth, that time pressure, particularly on social workers, is a key and fundamental problem. It is one of those adages that Governments always produce legislation for statutory work but often, certainly in the current climate, do not fund the support required to deliver that effectively. I am sure that training is vital. However, I am mindful of the NSPCC survey of social work professionals. If only 7% believe that timely action is being taken in cases of emotional abuse, partly because of training and partly because of identification, there is an issue. Guidance may well be available, but there are still concerns.
I am very grateful to the noble Earl, Lord Listowel, for raising the issue of child and adolescent mental health services. I hope that it may be possible for the Minister and those of us who are interested in this issue to meet Norman Lamb to talk about the pressure on child and adolescent mental health services, particularly for this group of children who may not automatically be referred to those services. We are told that in some areas there is an 18-month waiting list for a child to be referred. For a child who is being emotionally abused, that is far too long.
Lord Taylor of Holbeach
I will do my utmost to try to arrange for noble Lords who have spoken—and, indeed, others who may be interested in this subject—to meet Norman Lamb and, indeed, Norman Baker, who, as noble Lords know, also has responsibilities in this area.
Baroness Brinton
I am very grateful to my noble friend the Minister for saying that.
I thank my noble friend Lady Neville-Rolfe for her contribution, with which I agreed. I was a county councillor for some years and I have concerns about the Minister’s comment regarding the priorities of triage when big issues are involved. In Cambridgeshire, we had a case where a family had two adopted children and anyone would have thought they were absolutely the apple of their parents’ eye. They were doted on completely. If they had been triaged, people would have said there was no reason at all to look any further. Yet these children were being quite severely emotionally abused. They had to be removed from their family and placed with foster parents. The foster parents’ reports about their next year with the children, as they unscrambled what had gone on, shows we have to understand that sometimes triage, which can be obvious in an accident and emergency sense, may be much more complex when looking at issues of emotional needs.
Regardless of that, I am grateful to the Minister and look forward to hearing more about the report back on the members of the inquiry panel and its remit. I beg leave to withdraw my amendment.
Lord Rosser
I will raise one question, to which I hope the Minister will be able to respond. The right reverend Prelate has referred to the indication given in the Commons last week by the Prime Minister that the Government were looking at whether we should change the law so that there will be a requirement to report abuse and it will be a criminal offence not to report it. Can the Minister be more specific than he appeared to be on the last group of amendments about the timescale within which the Government expect these deliberations to be concluded?
Lord Taylor of Holbeach
My Lords, this has been a very high-value debate whose contributions inform the Government. I will try to make sure that all colleagues in government with an interest in this matter are sent a copy of our debate.
I cannot give the noble Lord, Lord Rosser, any details of the timescale. If, in the course of time, I have more information, I will try to tell him in good time, but at the moment I cannot. In a way, this debate needs to be taken in conjunction with the one we had on my noble friend Lady Brinton’s debate; it covers very similar territory but it goes just that little bit further. I am grateful to my noble friend Lady Walmsley for tabling this amendment to enable us to look at this particular aspect.
There is a significant difference between the amendments. Amendment 40BZEA would place a duty on those working in regulated sectors who are in a position of trust in relation to children or vulnerable people to report suspicions of abuse to the appropriate local authority within 10 days. Breach of that duty would be a criminal offence punishable by up to three years in prison. This would mean essentially that anyone who works with children or vulnerable adults would commit a criminal offence if they did not report suspected abuse of any kind.
I hope that I can provide some reassurance to my noble friend Lady Walmsley and the right reverend Prelate the Bishop of Durham about the current process of referrals to social services. The noble Baroness, Lady Howarth, referred to this. It is important to recognise that existing statutory guidance is already crystal clear that professionals should refer immediately to social care when they are concerned about a child or vulnerable adult. Many thousands of referrals are made to children’s social care each year. In the year ending March 2013, there were 593,500 referrals—that is nearly 600,000. I am grateful to my noble friend Lady Walmsley for offering to provide me with figures that she has available, but I think that we need to bear that figure in mind and appreciate the scale of the situation that we are seeking to engage in.
The most important thing is that people understand how to spot abuse and neglect and the impact that it has on children and vulnerable adults. While we are continuing to review the evidence for the specific case of reporting in regulated settings, we are also continuing to take action to improve the knowledge and skills of professionals working with children and other vulnerable people.
As I indicated in my response to the previous group of amendments, the Government fully understand the public’s anxiety about the potential underreporting of abuse, particularly sexual abuse. I can wholeheartedly support my noble friend’s objective with this amendment; we all want to see improved safeguarding for all children and vulnerable adults. As I have said, we are actively considering the case for a mandatory reporting duty, but the issues are complex, as the noble Baroness, Lady Howarth of Breckland, pointed out. As the noble and learned Baroness, Lady Butler-Sloss, said, we need to consider what form such a duty might take, to whom it would apply and in what circumstances, and what the sanction for failure to comply should be. This amendment offers one approach, but we have just debated an alternative, more focused proposal, and the NSPCC has suggested a third model. Other organisations working to safeguard children and vulnerable adults will have ideas of their own as to how a mandatory reporting regime should be structured, as will other noble Lords. I have sought to encourage noble Lords to make sure that those conducting such investigations are aware of their views.
I can only again seek to reassure my noble friend and the right reverend Prelate the Bishop of Durham that we are actively examining the options and treating the matter with the urgency that it deserves. While I cannot undertake to bring forward government amendments on this issue on Report, I certainly expect that, by then, I will have more to say on where we have reached in our consideration of this important matter. Having put the issue firmly on the table as my noble friend has done, I hope that she will now be content to withdraw her amendment.
Baroness Walmsley
My Lords, I thank all those who have taken part in this debate. I thank the Minister for his reply and the right reverend Prelate for his support.
There has been some discussion about terminology. Noble Lords might have detected that I did not use the phrase “mandatory reporting” in my introduction because I know that it causes some people some difficulty. I have also avoided using the word “professionals” in my amendment. We may not want to call a school secretary or a dinner lady a professional, yet they would need to have a CRB check to work in a school and they are specified in Schedule 4 to the Safeguarding Vulnerable Groups Act 2006, which is in my amendment. When my noble friend asks to whom the duty should apply, my reply is that it is those people. So it is already in law.
I agree that the issues are complex and that we should approach the whole thing with a great deal of caution. I agree that there are different systems across the world and we need to find out which system suits this country best. I also agree that we need a culture change; I am pretty sure that I said so. We need training not just for the professionals but for the children so that they understand how to protect themselves. We probably need more resources as well because, as I said, there is an awful lot of undetected child abuse out there which has never been treated, and it never goes away. There is no such thing as historic child abuse; it is always current in the lives of the victims, who never lose it.
With that, I have done my very best to persuade all noble Lords. I will have to leave it at that for the moment, but I suspect that I may come back to it at the next stage of the Bill. We shall see. I shall watch with great interest what happens with the terms of reference of the new inquiry committee, the personnel and how they go about their job. In the mean time, I beg leave to withdraw the amendment.
Lord Rosser
My Lords, we are associated with these amendments and support them. I do not intend to go through the points already so eloquently made by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Walmsley, except simply to repeat that the current system of non-statutory notices does not encourage confidence in the system from victims and their families in the ability of the police to protect them when the provisions are breached. The notice leads to no action being taken unless the thresholds of an abduction threat have been met, which is not always the case. As has been said, the threshold means that the adult must have taken or detained the child.
Creating an offence of breach of a proposed child abduction warning order is likely to strengthen victims’ confidence in seeking help and protection, since it will lead to action being taken against the perpetrator if they breach the order. Once again, I hope that the Minister will be able to give a positive response.
Lord Taylor of Holbeach
Again, this has been an interesting debate, and I thank all noble Lords who have spoken in it. Child exploitation is an abhorrent crime and we are determined to tackle it in whatever form it takes. The findings of a recent parliamentary inquiry, of which noble Lords will be aware, chaired by Sarah Champion MP and supported by Barnardo’s, have been very helpful in contributing to the ongoing work being done by the Government to tackle child sexual exploitation. The recommendations of that inquiry will be crucial in helping to inform our policy and improve our understanding of this form of offending and, indeed, what more we should be doing about it. Specifically, the inquiry received significant evidence relating to child abduction warning notices and, as a result, this issue featured prominently in their report and is now the subject of these two amendments.
It might help if I updated noble Lords on government thinking in this area as at present. This Government have already taken clear action to tackle child sexual exploitation. As the Committee will recall, as part of the Anti-social Behaviour, Crime and Policing Act 2014, we are introducing a number of new police powers. First, we are providing for more effective civil prevention orders, namely the new sexual harm prevention order and the sexual risk order. Secondly, new powers will allow the police to require hotels and similar establishments to provide information about guests whom they believe may be involved in sexual exploitation. Thirdly, we are bringing in strengthened powers for police to close premises associated with child sexual exploitation, a provision championed by the noble Baroness, Lady Smith, who cannot be in her place today but for whose support on this matter I am very grateful.
With regard to child abduction warning notices, I am grateful to the noble Lord, Lord Rosser, for articulating the case for putting these notices on a statutory footing. The Government note that proposals to strengthen the impact of these orders have the support of the police, legal experts, representatives of local agencies, young people who have been affected by sexual exploitation, children’s charities and others. As part of the work of the National Group on Sexual Violence against Children and Vulnerable People, my ministerial colleagues have given assurances that the Home Office would look at the effectiveness of the existing child abduction warning notices and, in liaison with police colleagues, examine how best this tool can be used in future. In doing so, we will consider carefully the operational benefits of putting these notices on a statutory footing and how such a statutory scheme might operate. We are currently consulting carefully with policing colleagues to seek their views on the potential use of a statutory notice and whether, in their view, further changes are required to better protect children.
Amendment 40CC is an important contribution to this debate. The existing non-statutory child abduction warning notices are issued by the police. That is entirely appropriate where breach of a notice is not, of itself, a criminal offence. But it would be an unusual step for the police themselves to impose what amounts to a restraint order or injunction, breach of which is a criminal offence. If we made it statutory, we would have to consider that. Compare, for example, restraint orders under the Protection from Harassment Act 1997 which are granted by the courts. Other civil preventive orders, such as serious crime prevention orders and gang injunctions which are dealt with elsewhere in this Bill, are also subject to judicial oversight. We would need to see how that played in with the current arrangements of non-statutory warning notices.
Other issues that we need to consider are the test for the grant of an order, the prohibitions or restrictions that may be attached to an order and the penalty for breach. I note, too, that the amendment requires a child to have been found two or more times in the company of the person to be made the subject of an order. Elsewhere, the inquiry proposed amending the grooming offence in Section 15 of the Sexual Offences Act 2003 to remove the requirement for a second contact with the child. The Government have now tabled an amendment to the Criminal Justice and Courts Bill to that end, as my noble friend Lady Walmsley said. We need to consider whether the approach taken in child abduction warning notices should mirror that in the amended grooming offence.
Amendment 40CB seeks to raise the age threshold from 16 to 18 years for the child abduction offence in Section 2 of the Child Abduction Act 1984, bringing it into line with the summary offence in Section 49 of the Children Act 1989 of abducting a child in care. Children in care are particularly vulnerable and that is why the Children Act 1989 makes it an offence to take any child who is in care, including a 16 or 17 year-old, away from the person responsible for them without lawful authority or reasonable excuse. However, while we recognise the arguments made for consistency, there are contrary arguments and difficult issues raised. Young people aged 16 and 17 can live independently of their parents and, in many respects, are able to make their own decisions about how they live their life, including their sexual relationships. It is in recognition of this that the Child Abduction Act 1984 applies only where the child is under 16 and the 1980 Hague Convention on the Civil Aspects of International Child Abduction ceases to operate when the child reaches the age of 16 years.
However, we are committed to examining the case for placing child abduction warning notices on a statutory footing. The noble Lord, Lord Rosser, has made a reasoned case for doing so and it deserves serious consideration. All speakers tended to favour the idea that statutory footing for the child abduction warning notices should be considered. While Report stage is some three months off, I cannot say to noble Lords that we will have completed our review by that point. I can undertake to update the House on progress and, of course, noble Lords are free to bring back the amendment, or a variation of it, at the next stage. I hope that I will be able to update noble Lords on how the Government have progressed arguments. Clearly, the debate we have had today will be helpful.
I cannot say the same in connection with Amendment 40CB. That amendment would have significant wider implications and for the reasons I have given I am not persuaded of the case for that particular change. However, given what I have said, I hope that the noble and learned Baroness, Lady Butler-Sloss, in proposing the amendment at the beginning of this debate, will feel free to withdraw the amendments tabled in her name and that I will have the opportunity when we return to this subject of updating noble Lords accordingly.
Baroness Butler-Sloss
My Lords, first, I thank everyone who has spoken in this short debate. It has been extremely helpful. Perhaps I might ask the Minister whether he thinks my contribution on warning notices was as helpful as that of the noble Lord, Lord Rosser—because it was actually my amendment. Not to worry, but I could not resist saying that.
Secondly, on the warning notice, I am well aware that it would be extremely unlikely that the police would have the power to issue a criminal notice of that sort—although in other circumstances, of course, they issue cautions, which have a very significant effect without ever going through a court. However, if an offender does not accept a police notice and continues to groom, I could see the advantages of a very speedy application to the magistrates’ court. That seems to me to be the answer to that particular problem. The magistrates could then issue the appropriate order, which the offender would have to comply with. That might be the right way round—I did not go in to all that.
As for the age of 18, having spent many years on the Hague Convention, I am well aware that on international abductions the age of 16 applies right across the world. Nearly 200 countries have signed up to that, including of course ourselves. However, this is abduction of a rather different sort, within the United Kingdom. It is just as dangerous and just as worrying as international abduction. We only have to look at the press reports of the cases in Rotherham and Rochdale, without going into Luton or Oxford or other places where there was grooming of girls, to know that a considerable number of those girls were not in care. Some of the girls and some of the parents were seeking help; and some of the girls probably were over 16. Therefore the vulnerability of the young is not limited to those within the care system.
I can see very well that it would be quite wrong to change the 1984 Act to include international abduction. However, I ask the Minister to reflect on whether that would not meet some of the really shocking issues that have occurred across not only the north of England but the Midlands and, relatively, the south of England. The vulnerable children there may need help beyond the age of 16. It is not beyond the wit of parliamentary draftsmen to put in an amendment to the 1984 Act dealing with grooming in England and Wales that may lead to abduction and not going across the international child abduction arrangements, which of course we follow in exactly the same way as every other country. Having made those points, I beg leave to withdraw the amendment.
Lord Rosser
My Lords, Section 5 of the Terrorism Act 2006 makes it an offence to engage in any conduct in preparation for giving effect to an intention to commit or assist another to commit one or more acts of terrorism. It also makes it an offence under Section 6 to provide or receive training for terrorism. The Act also provides for extraterritorial jurisdiction so that an offence may be tried in this country in respect of acts committed abroad. However, this is limited or non-existent in respect of the Section 5 and Section 6 offences to which I have referred.
Clause 65 would provide for extraterritorial jurisdiction for the Section 5 offence and extend the existing extraterritorial jurisdiction for the Section 6 offence. Such extraterritorial jurisdiction is considered appropriate for Section 5 and Section 6 offences because the places where training or preparation for terrorism are taking place are increasingly likely to be located abroad and will enable prosecutions in this country of people preparing or training more generally for terrorism who have, in the current circumstances, travelled from the UK to fight in Syria, where various groups are involved in the conflict.
We do not oppose this clause being in the Bill but have some points to raise about what the impact of the provision is expected to be—hence this debate on whether the clause should stand part of the Bill. I appreciate that the Minister may not be in a position to be too specific in his response, but can he give some examples of the kind of prosecutions which it will be possible to pursue under Clause 65 which it has not been possible until now to pursue under the existing legislation, and which would have been pursued had Clause 65 been effective? If prosecutions have already taken place for the offence of preparing for terrorist activities, what does Clause 65 add in reality to the legislative armoury? Has there been consultation with the Director of Public Prosecutions on the need for Clause 65? If a loophole in the current legislation has been identified which constitutes a potential threat to our security, does the Director of Public Prosecutions believe that the provisions of Clause 65 constitute the best way of addressing that loophole?
As I understand it, prosecutions under Clause 65 would need to be in open court and any evidence brought would have to be evidence acceptable in open court and disclosable in open court. If I am right in saying that, presumably intercept evidence and the evidence of informers, for example, will not be usable. In respect of people coming back from Syria, how is it envisaged that it will in practical terms be possible to gather evidence for a prosecution which relates to what the individual has done in Syria that can be pursued in open court? If the evidence to pursue a prosecution under Clause 65 cannot be used in open court, will a terrorism prevention and investigation measures order be sought, which would enable, for example, intercept evidence and the evidence of informers to be used, albeit it would be to obtain the appropriate order rather than to seek a conviction? Or are the Government claiming that Clause 65 will remove the need for TPIMs in a situation where no one on a TPIM has ever been prosecuted and when, in his last report, the Independent Reviewer of Terrorism Legislation said that TPIMs continued to be needed?
I hope that the Minister will be able to address these points in his reply. Bearing in mind that Clause 65 relates to an extension of extraterritorial jurisdiction to enable offences to be tried in this country in respect of acts committed abroad under Sections 5 and 6 of the Terrorism Act 2006, it is not clear what the actual impact of Clause 65 will be as much of the evidence that becomes available is, if I have understood the situation correctly, unlikely to be able to be presented in open court and could be used only in seeking a TPIM order.
Lord Taylor of Holbeach
My Lords, I am grateful to the noble Lord, Lord Rosser, for affording the Committee an opportunity to debate this issue. I am sure that the noble Lord and, for that matter, the Committee as a whole will be in no doubt about the significant threat posed by foreign fighters, particularly in relation to Syria, and the importance the Government place on protecting the public from those who may seek to harm the UK or UK interests.
The nature of the threat from terrorism has evolved since the passing of the Terrorism Act 2006. Many of the threats we face today have significant overseas connections and the places where UK-linked individuals, and those seeking to harm UK interests, may now be training, or otherwise preparing for terrorism, are increasingly likely to be located abroad. Syria, in particular, has become the number one destination for jihadists in the world today, posing a threat to the region and beyond. However, the issue of individuals from the UK seeking to engage in combat and conflicts abroad is not new, nor is it specific to Syria. As my noble friend Lady Warsi, who is sitting next to me preparing to respond to the debate following this Committee stage, will be aware, the recent events in Iraq further demonstrate the fluidity of movement of foreign fighters and we are concerned that groups such as the al-Nusra Front and the Islamic State of Iraq and the Levant—or ISIL, as it is known—are now able to operate in the large areas of ungoverned space that have been created by the conflict. ISIL’s advances in Iraq in particular demonstrate the serious threat that that group poses to both countries, so it is right that we respond to this threat.
In support of wider government efforts to ensure that the full range of operational responses under the Contest strategy are being applied to counter this threat, Clause 65 amends Section 17 of the Terrorism Act 2006. This extends fully the jurisdiction of the UK courts over the offence of preparation of terrorist acts under Section 5 and the offence of training for terrorism under Section 6 of that Act so that preparation and training that take place abroad can be prosecuted. This measure will enable prosecution, on their return to the UK, of individuals who have travelled overseas to prepare or train for terrorism as though their actions had taken place in this country. Any prosecution under this measure will require the express consent of the Attorney-General, in addition to satisfying the Crown Prosecution Service that there is sufficient evidence and that prosecution is in the public interest. Our priority is to dissuade people from travelling to participate in conflicts abroad in the first place, but it is vital that our legislation is as robust as it can be against those who may seek to harm the UK in particular, and leaves no doubt in the minds of individuals engaging in preparatory acts of terrorism, or training for terrorism overseas, of the action we are prepared to take to protect the public.
The noble Lord asked whether it would enable us to prosecute cases which were not prosecutable at present. Recent cases show that these offences can be operationally useful. Mashudur Choudhury was recently convicted under Section 5 of preparing for terrorism in the UK. If, for example, he had undertaken these preparations outside the UK, he could not have been prosecuted. This measure seeks to address this anomaly.
How will this measure have an impact on foreign fighters? We assess that by extending UK territorial jurisdiction for this offence and bringing evidence of activities overseas within its scope, we will potentially strengthen the evidential case that can be made and enhance the prospects of a successful prosecution in some cases. In cases where there is only evidence of activity abroad, it will enable a prosecution to be brought where it is not currently possible.
The noble Lord asked whether we had consulted the Director of Public Prosecutions. We have worked closely with law enforcement partners, including the Crown Prosecution Service, in developing this measure. They fully support it and have suggested that this will be operationally useful. As for the question about gathering evidence and how law enforcement agencies will obtain the evidence required for a prosecution, particularly as it involves evidence gathering abroad, law enforcement agencies are accustomed to working with the relevant authorities in other countries for the purpose of gathering evidence for prosecutions. We fully expect that this established arrangement will continue to be employed for future prosecutions.
We recognise that any evidence gathering which involves other countries is inherently more challenging than if it were confined to the UK, but this does not mean that prosecution is impossible. That is the purpose of introducing these measures in Clause 65. These changes will ensure that UK linked individuals and those who seek to harm UK interests and travel overseas to prepare or train for terrorism can be prosecuted as if their actions had taken place in the UK and that they are not beyond the reach of the law. It is essential that our law enforcement partners are equipped with the right powers to counter the threat posed by foreign fighters who travel overseas to undertake terrorist activities and may go on to carry out terrorist attacks.
I hope that with those explanations the noble Lord will be prepared to accept that Clause 65 should form part of the Bill.
“25A In section 99 of that Act (postponement), after paragraph (c) of subsection (11) insert—
“(d) made a restitution order;(e) ordered the accused under section 253F(2) of the Procedure Act to pay a victim surcharge.”25B (1) Section 100 of that Act (effect of postponement) is amended as follows.
(2) In subsection (3)—
(a) at the end of paragraph (b) omit “or”;(b) after paragraph (c) insert—“(d) make a restitution order, or(e) order the accused under section 253F(2) of the Procedure Act to pay a victim surcharge.”(3) In subsection (4)—
(a) at the end of paragraph (b) omit “or”;(b) after paragraph (c) insert—“(d) making a restitution order, or(e) ordering the accused under section 253F(2) of the Procedure Act to pay a victim surcharge.”25C (1) Section 104 of that Act (no order made: reconsideration of case) is amended as follows.
(2) In subsection (7), after paragraph (d) insert—
“(e) any restitution order which has been made against the accused in respect of the offence (or any of the offences) concerned;“(f) any order under section 253F(2) of the Procedure Act requiring the accused to pay a victim surcharge in respect of the offence (or any of the offences) concerned.”(3) After subsection (8) insert—
“(8A) If a restitution order or an order under section 253F(2) of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97A(2) and (4) does not apply.”
25D (1) Section 105 of that Act (no order made: reconsideration of benefit) is amended as follows.
(2) In subsection (10), after paragraph (d) insert—
“(e) any restitution order which has been made against the accused in respect of the offence (or any of the offences) concerned;“(f) any order under section 253F(2) of the Procedure Act requiring the accused to pay a victim surcharge in respect of the offence (or any of the offences) concerned.”(3) After subsection (11) insert—
“(11A) If a restitution order or an order under section 253F(2) of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97A(2) and (4) does not apply.”
25E (1) Section 106 of that Act (order made: reconsideration of benefit) is amended as follows.
(2) In subsection (8), after paragraph (c) insert—
“(d) any restitution order which has been made against the accused in respect of the offence (or any of the offences) concerned;“(e) any order under section 253F(2) of the Procedure Act requiring the accused to pay a victim surcharge in respect of the offence (or any of the offences) concerned.” (3) In subsection (9)—
(a) for “the court must not” substitute “the court—(a) must not”;(b) at the end insert—“(b) must not have regard to an order falling within subsection (8)(d) or (e) if a court has made a direction under section 97A(2) or (4).”25F In section 118 of that Act (application of provisions about fine enforcement), in subsection (2) omit paragraph (k).
25G In section 131 of that Act (sums received by clerk of court)—
(a) in subsection (6), after “97(6)” insert “or 97A(4)”;(b) after that subsection insert—“(6A) If a direction was made under section 97A(2) or (4) for an amount payable under a restitution order or a victim surcharge under section 253F(2) of the Procedure Act to be paid out of sums recovered under the confiscation order, the clerk of court must next apply the sums in payment of that amount.”25H In section 153 of that Act (satisfaction of confiscation orders), in subsection (1) omit paragraph (b).”