Counter-Terrorism and Border Security Bill (First sitting)

Nicholas Dakin Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 26th June 2018 Public Bill Committees

[Nick Thomas-Symonds]

Q I have one more question, still on clause 3. Obviously, there is the concept of three viewings, which you referred to specifically in your opening statement, Mr Basu, but there is no time limit in the Act as it stands for viewing three times over a specified period of time. In prosecuting the offence in practice, would the Crown Prosecution Service consider the period over which the three viewings had been made?

Gregor McGill: The CPS prosecutor, in looking at the case, would consider all aspects and look at the particular circumstances and timings of the access. If they were close together, that could tell a story; if they were apart, that could tell a story. We work closely with our investigative colleagues and find out from them exactly what the evidence shows and, if it has been put to the suspect in interview, precisely what they have said about that. But as a prosecutor, you have to look at the evidence in the round and consider all the evidence, including the circumstances in which the contact has happened. Depending on the circumstances of the case, the particular type of contact may tell a particular story.

[Nic Dakin (Scunthorpe) (Lab)]

Q You have drawn attention to a number of areas where these new powers would assist in addressing issues that cannot be addressed at the moment. Are there any other areas that you would like to draw attention to? Are there any other powers that we should be considering in order to make progress against counter-terrorism?

Assistant Commissioner Basu: I did not want to get off clause 3 without making some really important comments about it from the policing perspective, if that is possible, Chair. To answer your question directly, we are very fortunate in this country, with the support of the Government over many decades, to have pretty robust legislation in terms of counter-terrorism.

What we are looking to do—and most of these clauses do it—is close some loopholes, because of the changing nature of the threat and the change in technology. There is very little that was left in the first debates that took place in terms of what would be best to counteract terrorism. One of the major partners that I am looking to involve much more in the counter-terrorism fight is the business sector—and the public sector. We have a Prevent duty that has gone a long way towards getting statutory partners more engaged in the battle, but we do not currently have any licensing, regulation or regime for the business sector to improve its ability to protect its employees, customers and management of events. We do not have that; it is a conversation we are still having.

I think—and you may want to get on to this—that the Australians have a “designated area” offence for people who wish to travel to war zones and fight. Although that would not be retrospective, and therefore would not have great utility in respect of the Syrian conflict, I think it would have utility for the future. If we were dealing with a similar situation in the future, stopping people from going to fight or enabling the prosecution of people fighting in theatre when they return would have great utility to us. Those are probably the two things that I would consider at the moment.

Gregor McGill: The Australians have such a power and they consider it a useful addition to their armament. We do not have a power. As my colleague Mr Basu has said, it would not help us address some of the issues that have happened in the past, but it could help us address some of the issues in the future.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

Q Can I turn back to recklessness for a second? Recklessness is a common test in relation to physical acts against the person, but it is not usually used in speech offences. A report from the Joint Committee on Human Rights said 12 years ago, in 2006, that

“recklessness is normally applied to actions that are themselves within the realm of criminality…if you hit someone or deceive them then it is absolutely appropriate for a jury to be able to convict you of an offence even if you did not intend the consequences of your actions. The same nexus between action and consequence should not exist for speech offences. Speech does not naturally reside in the realm of criminality. This is why the element of intention should always be attached to speech offences.”

Could both of you comment on that quote from the JCHR report? Can you determine the difference between speech offences and physical acts?

Gregor McGill: I appreciate what you say. Recklessness is not an unknown principle in criminal law. It is right that I should say, as well, that it is a particular principle that has caused criminal law some issues over the years, particularly in the field of whether such recklessness should be subjective—that is, you understand its nature—or objective, in that it is more from an objective test. As the court, the prosecutors and the investigators are used to dealing with the question of recklessness, these issues can be properly managed through the proceedings. The difficulty as well is that that quote, I understand, was from 2006. The world in 2018 is very different from the world in 2006, and Mr Basu will no doubt tell you that the threat facing us now is very different. That is one matter.

This is often portrayed as a thought crime, but I would say it is not that. The clause is seeking to address someone who is actively supporting a proscribed organisation and doing it in circumstances where they are reckless—by saying what they are saying and by giving that support—as to the consequences of what is happening.

I endorse what Mr Basu said. The threat that we are trying to address here is the threat of radicalisation, which is one of the big threats facing us at the moment. That is the purpose of this and that is the purpose of the recklessness clause.

Assistant Commissioner Basu: I cannot stress strongly enough the effect that charismatic, radicalising speakers, who profess to support proscribed organisations and encourage violence, are having on a section of our society. Despite the defeat of the caliphate and despite the fact that we have an extreme right-wing threat that is growing, those speakers are still capable of galvanising, mobilising and energising individuals.

If I look at the evidence for that, I would say the proscribed group that is al-Muhajiroun. We had five successful attacks last year, including one extreme right-wing attack. We also had 12 disruptions of international counter-terrorism: Islamist, jihadist plots. If you track back across the past four or five years and look at the pernicious influence of a group such as ALM, it is dramatic. They have a footprint in almost every crime. So to say that radicalisation is the biggest scourge of our time in terms of terrorism is probably an understatement. It is making a significant difference. For me as a police officer, anything that helps me mitigate that threat has got to be a good thing.

--- Later in debate ---

[Dr Huq]

Q I am surprised nobody in this room has heard of that case, because it was on the TV news at the time. It was at the Old Bailey and was overturned by the Court of Appeal.

My question is about to what extent you think that clause 3 could risk criminalising thought without action—people may not have to do anything. That is what that case hinged on.

Richard Atkinson: If I am honest, I am not sure I have a view on that at the moment. I think that is the most honest answer I can give.

[Nic Dakin]

Q The provisions under clause 17 and schedule 2 will bring terrorism offences under the Police and Criminal Evidence Act 1984 in line with those under the Terrorism Act 2000, in relation to biometric data. To what extent do you think it is necessary and proportionate to retain biometric data for individuals who are arrested for terrorist offences but not charged?

Richard Atkinson: It is an area of concern for us because, clearly, it is right that individuals’ data is not routinely withheld, and we have looked at that in the past. I do not think I am qualified to answer on the need to extend the period, but your question very much enunciates our position, which is that any extension of time periods needs to be justified by objective evidence. I know the Committee were asking for examples of that from the two earlier witnesses. Before one could be satisfied of the need to extend periods of retention of biometric data, there would need to be a case made out. I certainly have not seen it. It was not something that could readily be articulated this morning, and great caution needs to be expressed before extending the periods of the retention of that data without an evidential base.

[Mr Wallace]

Q Can I just come back on the oversight of retained material? That is mainly paragraph 11 of schedule 3, on page 40 of the Bill. You have talked about an independent barrister or legal view about legally protected privilege. The Bill says that when a number of things are seized, including legally protected privileged material, but also broader material such as journalistic material and even health material, it has to go before the Investigatory Powers Commissioner. The Investigatory Powers Commissioner’s Office is an independent body, headed by Lord Justice Fulford. That body will then have to make the decision on whether that material could be examined or destroyed and so on. They are all judges. The Investigatory Powers Commissioner is Lord Justice Fulford, and his judicial commissioners are obviously former judges. What is the gap—what is missing—therefore between that oversight and the oversight that you think needs to be improved?

Richard Atkinson: First, the conflation of journalistic material and legally privileged material is unfortunate. I understand the importance of journalistic material, but I would respectfully submit that it is not in the same category as legally privileged material. It is a different category of material and should be treated differently. I may have misunderstood the process, but as I understand it, the investigator views the material, seizes it and then seeks power to retain it, which means that the privileged material has already been viewed and the privilege breached.

Counter-Terrorism and Border Security Bill (Second sitting)

Nicholas Dakin Excerpts

Committee Debate: 2nd sitting: House of Commons
Tuesday 26th June 2018 Public Bill Committees

[The Chair]

Thank you. I am conscious that we could have a Division very soon and I am conscious that the Minister and the shadow Minister also wish to ask questions. I hope Mr Doughty is happy that we swap places and put Mr Dakin next, and afterwards I will call the Minister?

[Nic Dakin (Scunthorpe) (Lab)]

Q Thank you, Mrs Main. Given your experience, Mr Hill, do you have any other misgivings about the Bill as drafted that you have not already raised?

Max Hill: I hope I have given appropriate credit for other matters that might have been brought forward in this Bill but have not been. What I would say, looking at the five offence-creating clauses in general, is that clause 4 is something against which there is no pushback—no adverse reaction from me. In other words, amending sections 1 and 2 of the 2006 Act to place the jury’s view at the heart of offence creation—the view of a reasonable person as to whether encouragement is actually what the defendant is about—strikes me as eminently sensible, so I agree with clause 4.

I agree with clause 5 as to the principle of extraterritorial jurisdiction and the extension of the remit of the Explosive Substances Act 1883 and sections 1 and 2 of the Terrorism Act 2006. There is no comment from me—I agree. However, I am worried about the extension of section 13 of the 2000 Act—the proscription offence—and affording extraterritorial jurisdiction to that, because of the dual criminality issue; forgive me for using lawyer’s shorthand. This country takes a robust and appropriate approach to proscription, which may be different from that taken by other countries. I suggest that clause 5, at the very least, needs reconsideration as to whether extraterritorial jurisdiction concerning section 13 should be limited to UK citizens, who are deemed to know how we deal with proscription here, as opposed to foreign nationals.

On clause 3, I have answered as far as can. Regarding clauses 1 and 2, recklessness as used in clause 1 is a term of art that I know caused discussion on Second Reading and may do so again. From a simple lawyer’s perspective, however, this is nothing new: subjective recklessness is a feature of the criminal law away from counter-terrorism legislation. It is defined with some precision in section 1(2)(b)(ii) of the 2006 Act, which defines recklessness for the purpose of encouragement of terrorism. Provided that the Government intend the same definition when they refer to recklessness under clause 1 of this Bill, I have nothing to add. My assumption is that that is the intention.

That only leaves clause 2, which amends section 13 of the 2006 Act—the flags and paraphernalia offence. As a legal historian, it is interesting to note that we are moving away from the public order origin of legislating in this space. The public order Acts of the 1930s were intended to deal with demonstrations on the streets; clause 2 now takes this out of a public space and into a private space, and, as the explanatory notes make clear, a particular flag on a bedroom wall is sufficient for the commission of the offence. I would suggest that evidence of what is on the bedroom wall of a perpetrator is already admissible and routinely referred to by prosecutors as supporting material for indictments for other offences; the only debate is whether it is the commission of an offence on its own.

Whatever the answer on that initial concern, the extra concern that I have about clause 2 is that, without more, it begs some serious questions about the display of historical images. There is no statute of limitations on clause 2. I wonder whether one is intended, whether there should be one, or what clause 2 unamended says about those who seek to display in private historical images of individuals working for organisations that were proscribed decades ago where it is a matter of historical interest and nothing more. It seems to me there is a vulnerability in clause 2. I understand where the Government are trying to get to, but some tighter definition might be of use.

[The Minister for Security and Economic Crime (Mr Ben Wallace)]

Q Can I go back to the clause pertaining to section 58 of the Terrorism Act 2000—the streaming clause or the three clicks provision? The original section of the Terrorism Act 2000 is very clear: it is about collecting material, which can include a record which is electronic. Back in 2000, broadband was pretty slow, if it worked at all, so most people watched things by down- loading; nowadays it is streamed, because, first, you do not want to use up your own data and secondly, that is how most of us live our lives. If you are going to watch iPlayer, you do not download each programme before you watch it. Streaming is a reality that is not reflected in the 2000 Act; that simply refers to the way that people look at records. In your experience of doing the job so far, is streaming now used quite broadly by terrorist suspects in learning things, spreading belief or radicalisation, or indeed training? Do you see a lot of that?

Max Hill: Let me answer you this way. I am with you on the digital fix, because I think that is what you are referring to. It is undoubtedly a new variant that, instead of downloading, there are some circumstances—although technically they are quite few—in which one goes no further than streaming and there is no download imprint that has been caused. I add that prosecutors are already alive to the risk of using as prosecution evidence cached material, within an internet cache, from which it does not follow that the perpetrator has ever actually read that which appears in the cache. I know that the clause is not designed to capture information of that sort, but we need to be very clear that a cache on a laptop or phone is not evidence of personal interest by the owner of the device in the material in question.

Streaming is a modern phenomenon and to that extent I am with you, but section 58 in its origin might be looked at as an “anti-proliferation offence”—my phrase and nobody else’s. I would suggest that one of the reasons Parliament originally looked to section 58 is to stop the proliferation and perpetuation of material that we deem to be extreme terrorist propaganda, which should not go to other places. This does not deal in the same way with that. This is not anti-proliferation, because, by definition, somebody who streams and does not go any further is not bringing to the attention of third parties—still less is he or she storing for dissemination later on—material that is already online.

So there are some very strict limitations to what somebody is actually doing by streaming without more. They are not straying into the section 2 of the 2006 Act dissemination territory, which they might with section 58 in its current form. Download might be issue number one, and then issue number 2 might be later proliferation, perhaps with additions or amendments to whatever was originally downloaded. That is not what we are talking about here. We are talking about merely online streaming in—as I am afraid I have described it—rather imprecise circumstances as to time and circumstance, and that is why I am concerned.

--- Later in debate ---

[Mr Wallace]

Q But would not using reasonable grounds or grounds of suspicion be doing that?

Peter Carter: You would do, because if you were able to identify that it was coming from a particular place and was of a particular kind, in reality, you would not search everything and everyone. As I say, it is a question of proportionality. If there was a really major threat to the security of this nation, I would hope that appropriate powers would be available to ensure that it never came to pass. If that meant an extensive number of searches, that would be proportionate and reasonable.

[Nic Dakin]

Q Looking at the powers of detention at the border, I see that there is no access to a solicitor for an hour, and there is a power for someone to have to speak to their solicitor within the hearing of an officer. Does that concern you?

Abigail Bright: The first part certainly does—having no access to a lawyer, on the face of it for no good reason. If there is a good reason, of course that will present itself—it will be case-specific or fact-specific—but I do not see why the hands of law enforcement officers should be tied to one hour, or why the rights of a suspect, who is potentially an accused person, should be diminished with reference to that. That would be my observation about that first part.

Peter Carter: I agree.

[Nic Dakin]

Q And on the second part—about the conversation with the solicitor being in the presence of someone else?

Abigail Bright: That is deeply concerning and wholly new. “Radical” is a well-chosen word here; it is a radical departure from anything known to English law. My view, and the view of the specialist Bar associations, is that it is unnecessary and undue, and that it would not in any way be a serious improvement on the powers available to law enforcement agents. It is makeweight, and I would submit that it is just a gloss.

Peter Carter: At the moment, existing laws allow a police officer, a superintendent, to require an interview to take place in the sight of an officer. That is appropriate. Sometimes it is a protection to lawyers, if there are reasonable grounds to suspect that the person being interviewed might try to pass something, damage the lawyer concerned, hold them hostage or something. Those are existing powers used in exceptional circumstances that are always diligently reviewed ex post facto.

[Nic Dakin]

Q But “in the sight of” is different from “in the hearing of”.

Peter Carter: “In the hearing of” means that private, privileged communication is effectively frustrated, and that is very worrying.

[Julia Lopez (Hornchurch and Upminster) (Con)]

Q I wanted to raise this when we were debating the three clicks issue, but it seems to me that there are parallels between viewing terror material and viewing child pornography content. I am keen to understand your positions on the issue of establishing a pattern of behaviour and when is an appropriate time to prosecute somebody for viewing material.

Does Liberty believe that you should never be prosecuted simply for viewing material? Or are you arguing that, in the case of terror, viewing the material is not sufficiently serious, in comparison with something such as child pornography, that you should be able to convict somebody for it?

Corey Stoughton: Child pornography is a different case, because it is inherently criminal. The harm is done in the viewing and in the production of those—

Counter-Terrorism and Border Security Bill (Third sitting)

Nicholas Dakin Excerpts

Committee Debate: 3rd sitting: House of Commons
Thursday 28th June 2018 Public Bill Committees

[The Minister for Security and Economic Crime (Mr Ben Wallace)]

I am delighted to serve under your chairmanship, Ms Ryan, on this hot Thursday morning. At the beginning, I want to refer to the importance of the Bill. As we sat listening to Liberty give evidence on Tuesday, the jury returned a verdict of guilty on Mr Khalid Ali. He was convicted for being about to mount an attack on Whitehall last year. What is interesting is that his conviction was based on biometrics collected in Afghanistan four years ago and a schedule 7 stop at a point of entry to the UK that allowed us to collect those biometrics. If there was ever an ironic or coincidental time to show the importance of biometrics and schedule 7 in combating such deliberate, planned crime, this is it. That individual has since admitted to making 300 improvised explosive devices in Afghanistan. He was en route, we think, to pose a threat to either this House or the Downing Street-Whitehall area. That is a pertinent example, and we should reflect on it as we progress through the Bill.

I am grateful to the hon. Member for Torfaen for raising his points. I fully recognise the spirit in which all Members have contributed to the Bill, which is to try to improve it. We want to deliver a Bill that will work and that does not impinge on freedom of speech or tackle the values we hold. It is about striking the balance between that necessity and keeping us safe and secure. The Bill is also about adapting to the moving threat, which is exactly what terrorists do. Good terrorists spot the flaws in our legislation and move to exploit them. Here I evoke Mr Choudary, who is currently at Her Majesty’s pleasure. For well over 10 years, he managed to skilfully exploit that bit about encouragement versus inspiration to send hundreds of people to their deaths—no doubt a number of them at their own hands. There were the young girls from north London—sometimes deluded, sometimes seduced or groomed—who I suspect did not really know what they were getting themselves into. That is why the Government think it important to try to address the gap.

Dealing effectively with the power of inspiration or incitement is not new. We have it in both the Public Order Act 1986 and the Racial and Religious Hatred Act 2006, which the last Labour Government brought in to try to deal with inspiration. Effectively, that meant that if someone incites the hatred of a race, they are guilty of an offence. They do not necessarily have to directly direct people to go out and attack Jewish or Muslim people; they can be found guilty of incitement. It is not a new concept in our law, and we are trying to reflect it in terms of those being inspired to join a proscribed terrorist organisation or take action. That at its heart is what clause 1 is trying to do.

A valid point was made about the issue of recklessness and that people must have regard to whether their comments are reckless. My hon. Friend the Member for Cheltenham (Alex Chalk), who is a practising criminal barrister, pointed out that recklessness is a well-established concept. He used an example, although in the physical assault space, of someone walking down a high street with a baseball bat and whanging it round someone’s head. It would not need to be proved that they went out to break someone’s jaw with a baseball bat. A direct motive or intent would not need to be proved; recklessness would be recognised and that person would probably be found guilty of assault, grievous bodily harm or actual bodily harm, depending on the severity of the hit with the baseball bat.

Recklessness is therefore well established, and I recognise what the hon. Member for Torfaen is trying to achieve. Amendment 1 would remove the recklessness element of the new subsection (1A) offence, which clause 1 inserts into section 12 of the Terrorism Act 2000, and replace that with a mens rea requirement to prove that a person expressing an opinion or belief in support of a proscribed activity intended to influence another person to support the organisation rather than that they had been reckless as to whether that would be the result.

Amendment 2 would add a recklessness limb to the existing offence of inviting support for a proscribed organisation at section 12(1) of the 2000 Act. I am alive to the concerns raised about the case and agree that it is a sensitive area in which we must tread carefully to ensure that the laws we pass are proportionate and go no further than necessary.

As the Security Minister, I am acutely aware of the need to ensure that those tasked with keeping us safe from a very real and serious terrorist threat have the powers they need. Those two imperatives are not mutually exclusive, and it is not an either/or question. However, measures such as this, which come closer than most laws to delicate issues such as the right to freedom of expression, can none the less bring the intersection between the two into sharp focus.

The Committee’s role is to consider whether the Bill strikes the right balance. I respect the contributions of the hon. Members for Torfaen and for Paisley and Renfrewshire North, which were made in the spirit of improving the Bill. However, I must respectfully disagree with the hon. Member for Torfaen. His amendments would not merely moderate the clause or tip its balance in one direction or another; rather, they would entirely negate its intended effect such that it would have little—if any—impact on the current operation of section 12. As a result, a gap that has been clearly highlighted by the police, MI5 and the CPS in their ability to act against individuals who mean us harm would not be closed.

While the hon. Gentleman’s amendments are well intentioned, they would continue to leave a gap in the law and therefore put the public at unnecessary risk. I hope that the Committee will be persuaded of that if I explain in more detail the background to this measure, why it is necessary and how it will operate. Since 2000, it has been illegal to invite another person to support a proscribed terrorist organisation such as Daesh or the neo-Nazi group National Action, whether an invitation is explicit or implicit. What matters is that there is an invitation, which is to say a deliberate encouragement to someone to support the group.

I will not refer to the cases that the hon. Gentleman mentioned in pointing out the necessity of trying to close that gap. It is not always possible to prosecute individuals who make public speeches or otherwise express views in support of proscribed organisations if it cannot be proved that those statements amounted to deliberate invitations to others to support an organisation. That is the case even if a speech or statement is clearly inflammatory, clear about the individual’s support for the terrorist organisation and, on any reasonable assessment, likely to cause the audience to be influenced to support the organisation such that it would be reckless for the person to make such a statement.

As I have said, the police, MI5 and the CPS have been very clear that that represents a gap in our ability to prosecute people who may be engaged in radicalisation. That was clear in Tuesday’s evidence from Assistant Commissioner Neil Basu and Greg McGill from the Crown Prosecution Service. The clause will close that gap by amending section 12 of the 2000 Act so that it will be an offence for an individual to express support for a proscribed organisation if, in doing so, they are reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation.

In recent years, the police and intelligence services have seen individuals progress—very quickly in some cases—from the initial stages of radicalisation to actual planning or carrying out of attacks. Such activities covered by this provision can have a powerful and a very harmful effect in initiating or moving along that process. It is therefore imperative that the police have the powers they need to intervene to stop such radicalisation from taking place. In that, they will not only protect potentially vulnerable individuals who are the target of the radicalisation from further harm, but possibly stop terrorist activity that stems from an individual who has been radicalised and indoctrinated, which could cause immense harm to the public.

We have discussed the case of Anjem Choudary. Numerous people who have appeared before the courts on trial for the most serious terrorism offences have been his associates or contacts and have been members of al-Muhajiroun. They have also attended meetings and lectures at which he has spoken or have otherwise been influenced by him. I could equally mention other preachers, such as Abu Qatada and Abu Hamza. I cannot give the Committee an absolute assurance that these individuals would have been prosecuted sooner had clause 1 been in force—that would be a matter for the independent CPS upon careful consideration of all the available evidence—but clause 1 would have given the police and the CPS a very important and potentially much more fruitful option to pursue.

I will mention the two more recent examples provided by Neil Basu in his evidence where this provision might have made a difference. First, Mohammed Shamsuddin, who appeared in Channel 4’s “The Jihadis Next Door”, had an extensive history of involvement in radicalisation and the spreading of extremist propaganda. In one instance, he gave an inflammatory public speech that was clearly supportive of Daesh. He mocked a sheikh who had spoken against the killing of Lee Rigby.

Secondly, Omar Brooks was convicted in 2008 of terrorist fundraising and inciting terrorism overseas, and again in 2016 of breaching travel restrictions imposed under notification requirements that clauses 11 and 12 of the Bill deal with. A prolific preacher of hate, in a public speech following the 2015 Kuwait mosque bombing and the Sousse attack in Tunisia, Brooks shouted anti-kufr rhetoric in relation to the attacks and said, “The spark was lit”. It was clear from the tone and content of the speech that he supported Daesh and what it was doing.

Of course, in a free society, we should not seek to criminalise individuals just because what they say is offensive or shocking, but there comes a point where such speeches cross a line, because in this instance they incite support for terrorist groups. I do not raise those examples simply to drag the names of the individuals through the mud. Rather, I want to illustrate to the Committee the type of case we are dealing with, which this clause is intended to capture.

[Nic Dakin (Scunthorpe) (Lab)]

It is a delight to serve under your chairship, Ms Ryan. For my sake—I may be being a bit slow—could the Minister be precise about why the amendments would prevent action being taken against the sort of individuals that he describes, who, rightly, we want action to be taken against? That would be very helpful.

[Mr Wallace]

I will get to it technically, but in summary, if recklessness is added to someone already inviting support, support is already being invited. The recklessness bit is secondary, because the person has invited the support. The problem with one of those amendments is that it tacks on recklessness to something that is already an offence, but it will not change that offence, because the person has already done the inviting.

[Nic Dakin]

Is the argument that it is unnecessary rather than restrictive?

[Mr Wallace]

I will get to that. These amendments would prevent clause 1 from having effect. If the reckless element were removed from the proposed new offence and replaced with a mens rea requirement, it would have to be proven that the person invited it. If that can be proven, it would be the existing offence. It is unnecessary and it would narrow back to the original, existing statute, rather than broaden to deal with recklessness where the person is using themselves to incite or inspire.

--- Later in debate ---

[Gavin Newlands]

Indeed.

[Nic Dakin]

You have woken him up.

[Gavin Newlands]

Yes, I know. I said it for that very reason.

--- Later in debate ---

[Mr Wallace]

Clause 2 makes it an offence to publish an image of an item of clothing or other article associated with a proscribed organisation in such circumstances as to arouse reasonable suspicion that that person is a member or supporter of that organisation. As the hon. Member for Torfaen explained, the amendment would add a reasonable excuse defence to the new subsection (3)(1A) offence. The hon. Gentleman indicated that his intention is to ensure that the offence does not bite on those who may have a legitimate reason to publish such images, such as journalists or academics.

I am happy to assure the hon. Gentleman that the Government share that intention, and that that outcome is in fact already secured by the current drafting of clause 2. The words “in such a way” will hopefully answer both the fears of the hon. Member for Paisley and Renfrewshire North about his T-shirt and the general issue of having not only to display such an image but to do so

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

It is important to recognise that the mere publication of an image associated with a proscribed organisation is not enough on its own to constitute an offence. The offence will only be made out if the image is published in such circumstances as to arouse reasonable suspicion that the individual is a member or supporter of the proscribed organisation. In cases of a journalist featuring an image of a flag in a news report or an academic publishing such an image in a book or research paper, it would be clear from the circumstances that they are not themselves a member or supporter of the organisation. This approach provides certainty to such individuals that they will not be caught by the offence. It also offers the advantage that the same formulation has been in force since 2000 with the existing section 13 offence in the 2000 Act of wearing or displaying such an article in a public place, and is therefore well understood by the courts.

For that reason, although I totally agree with the objectives behind the amendment, it is not necessary to add “reasonable excuse”. I therefore ask the hon. Member for Torfaen to withdraw the amendment.

On the point raised by the hon. Member for Cardiff South and Penarth, the existing offence of displaying a flag talks about doing so “in such a way” that inspires people. If there is evidence that someone is doing it in such a way as to commit that offence, they will be prosecuted.

As to the T-shirt, I will give the hon. Member for Paisley and Renfrewshire North an alternative. If I bought one with a statement on it such as “Scotland Forever”—the sentiment is shared by the vast majority of decent Scottish people and not just a few lunatics in the Scottish National Liberation Army or whatever they are called—I doubt that that would be as clearly synonymous with any terrorist organisation as a National Action one. Clearly, if someone had bought a National Action T-shirt—and they could fit into it, which would probably be a challenge for some of its supporters—and it then became proscribed, of course they should remove it, because I do not want people walking around with terrorist T-shirts once an organisation has been proscribed. However, I do not think that “Scotland Forever” would fall into the category of a symbol of a terrorist organisation. I hope that gives him some comfort that we will not arrest people who think that Scotland is forever.

[Nic Dakin]

The hon. Member for Paisley and Renfrewshire North pointed to Mr Hill’s evidence. He talked about the vulnerability in clause 2 and said:

“I understand where the Government are trying to get to, but some tighter definition might be of use.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 41, Q88.]

Has the Minister reflected on that? Can he deal with the point that Mr Hill, with all his experience, raised?

[Mr Wallace]

Yes, I can. The way I reflected on that was to seek to find out what happened with the existing offence, which has the same wording of “in such a way”, and how many failed prosecutions of people who are journalists or academics there had been under it. My understanding is that there have been no cases of prosecuting people who use the fair reason that they are a journalist or are researching something. The fact that it has been on the statute book for a long time already, and that it has not produced the failures that some people feared, suggests that the law has already accepted that wording in such offences. I do not fear that there will be a surge in wrong or failed prosecutions.

Counter-Terrorism and Border Security Bill (Fourth sitting)

Nicholas Dakin Excerpts

Committee Debate: 4th sitting: House of Commons
Tuesday 3rd July 2018 Public Bill Committees

[Mr Wallace]

I thank the hon. Member for Cardiff South and Penarth, who is right about that method. The tragedy is that we now see that in county lines and crime. Loaded 15-year-olds go off into the valleys—or the dales, in my part of the world—ensconce themselves there and are told, “We will treat you like a grown-up. Here are some free drugs, and here is something of value.” That grooming over a period allows some pretty nasty people to inflict county lines on our communities. The hon. Gentleman is right when he says that is a phenomenon of grooming.

It is important to note what clause 4 is really doing. Sections 1 and 2 on the encouragement of terrorism are already in the Terrorism Act 2006. At the moment, you have to prove both sides: that the people you are delivering the message to are willing and able to accept it, and that the message you are giving is encouraging terrorism. The offence is the encouragement of terrorism. As I said, this offence is often complemented, or a training-type offence is used instead. That is, effectively, where we see encouragement. Clearly, we have to prove that, and that is where the criminality starts and stops. For example, I am encouraging someone if I say, “This is great. Look at what ISIL is doing. Look at these beheadings. This is something we should get involved in.” That offence remains unchanged, and that, effectively, is the boundary of passive into active support.

At the moment, there is the double couple of that action plus the people having to be receptive. Our challenge is what to do when that is targeted at vulnerable people. That is why we have sought to close that gap. We do not expect this to be used in a major way. We have not seen much evidence yet of people using it as an excuse. We were worried about the offence that I quoted of the teacher being used, and we see a growth in unregulated space. I think my hon. Friend the Member for North Dorset was talking about this earlier. Unfortunately, we are seeing more and more people being diverted into home schooling or unregulated space, where I am afraid people can get their hands on people to effectively brainwash them.

[Nic Dakin (Scunthorpe) (Lab)]

I am concerned about the issues the Minister is raising in terms of unregulated schools and about whether this measure on its own can tackle that problem. What else is being done to address this? I recognise that this may well involve working with other agencies. As the Minister has highlighted this as a major area of concern, it is important that we check that nothing else needs to be done to address it.

[Mr Wallace]

The hon. Gentleman is right. All terrorist legislation always bumps into freedoms and liberties. Religious freedom is something we hold very dear to our hearts. In my constituency, most unregulated schooling space is perfectly fine and perfectly adequate. People receive their religious schooling there. There is a long tradition in this country of home schooling. From time to time, all of us will hear in our mailbags from the champions of home schooling.

The hon. Gentleman is right that, from my point of view as Security Minister, there is a genuine concern that safe spaces—which the next clause deals with—are where the modern terrorist operates. Whether that safe space is on the internet—streaming—or in unregulated or home schooling, it allows messages to be targeted at young people, and we have to be alert and explore what we can do.

On the hon. Gentleman’s specific point on unregulated schools, and in the light of the importance that we in this country attach to religious freedom, there are more than just straightforward primary legislation methods to address the problem. Those include working with regulators, other Departments and local authorities to make sure that they are alert to the issue. Working with religious leaders to make sure that they are alert to the quality of teaching in those settings is another way of dealing with it.

[Nic Dakin]

I am concerned about the rise in exclusions in some parts of the country, which is related to the rise in home schooling. This is creating a space in which, because of the greater fragmentation of the education service, intelligence is perhaps more likely to be lost. It is important that the work being done in this area tries to cohere things back together.

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[Nick Thomas-Symonds]

I rise to support amendment 13, and amendment 29 in my name. Although the amendments appear to differ, they are essentially meant to achieve the same thing. I would not dream of entering into a competition with the hon. Member for Paisley and Renfrewshire North about who has the better drafted version.

[Nic Dakin]

Scotland or Wales.

[Nick Thomas-Symonds]

Indeed. None the less, they are meant to achieve exactly the same thing.

I have little to add to what has already been set out. At the evidence session I asked Corey Stoughton of Liberty the question about this issue. It is, of course, an article 10 right, and I would not have thought that anybody on the Committee would wish to curtail the right to peaceful protest.

I support the underlying purpose of the clause. Anti-terror measures at events are extremely important, and I see no issue with that, but we have to strike a balance so that they do not restrict legitimate rights of protest. The right of assembly is rightly protected in the European convention on human rights and incorporated into our domestic law under the Human Rights Act 1998. We should protect it, and protect article 10. On that basis, I commend both amendments to the Committee.

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[Mr Wallace]

I was hoping that we would get to this moment, because I have good news: I shall now have to arbitrate on whether Scotland’s or Wales’s drafting is better.

[Nic Dakin]

Obviously Wales’s.

Counter-Terrorism and Border Security Bill (Fifth sitting)

Nicholas Dakin Excerpts

Committee Debate: 5th sitting: House of Commons
Tuesday 3rd July 2018 Public Bill Committees

[Mr Wallace]

The hon. Member for Paisley and Renfrewshire North referred to an example. I said at the time of hearing the evidence that it was remarkable that, as the witness was speaking, a verdict was returned in a trial of an individual who was arrested on Whitehall with three knives on him. It is our strong belief that he had been planning to carry out an attack and was en route to do so. The evidence that was used to help to convict that individual was based on biometrics taken from a number of improvised explosive devices in Afghanistan four or five years ago. In fact, he subsequently admitted that he had taken part in the manufacture of 300 IEDs in Afghanistan.

Those biometrics were taken from a schedule 7 stop and retained, and the consequence was that he was convicted. If we had not been able to hold some of those biometric data for longer than two or maybe three years, I am not sure that that individual would have been convicted last week. We should reflect on the fact that not only was that individual seriously dangerous, he was probably on his way to attack people around this building, Downing Street and Whitehall, right in the heart of our democracy and what we hold so dear.

Like it or not, DNA is a successful part of the process. It is often what we need to convict people. Terrorist offences are often highly complex—there are huge amounts of encryption. The ability for us to use communications alone to prosecute people is getting harder and harder. Forensics are very often the key, and DNA forensics are incredibly important.

[Nic Dakin (Scunthorpe) (Lab)]

If that individual was convicted and arrested under the current legislative framework, why do we need this further change?

[Mr Wallace]

First, if his DNA had been taken under a schedule 7 stop longer than three years ago, it would not have been available. Secondly, we were fortunate that the United States had taken the DNA swabs in Afghanistan because it had a longer retention policy and was therefore available for us to exchange.

[Nic Dakin]

Going back to the evidence from Richard Atkinson, he said,

“any extension of time periods needs to be justified by objective evidence.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 32, Q76.]

Is the Minister saying that there is further objective evidence to support his argument?

[Mr Wallace]

The point is that if it is okay to hold it for three years—I did not get an answer from Liberty about whether it believed in holding any data—I do not see the justification for why it cannot be five years. If in principle retention of data is acceptable to people when someone is arrested for a terrorist offence but not charged or convicted, surely if three years are okay, why not four, and if four, why not five? Five years give us that extra time and some of these investigations take a lot of time.

I also refer the hon. Gentleman to the key quote by Paul Wiles, the Biometrics Commissioner. As I said on Second Reading, we have included lots of recommendations from the independent reviewers. The hon. Member for Paisley and Renfrewshire North himself says we should listen to the commissioner and the independent reviewers. The Biometrics Commissioner said in his annual report 2017: “NSDs”—that is when a police chief decides under the national security determination that biometric data of an individual is required—

“are being reviewed at two yearly intervals as Parliament intended. For some NSD cases…my judgment”—

not ours—

“is that the evidence/intelligence against the relevant individuals is such that they could be granted for longer than two years.”

The Biometrics Commissioner is recommending extending the two or three years, not shutting it down to one year or whatever. We have listened to that and we have looked at our intelligence case load. We know there are people in Syria right now and we do not know when they are coming back. We would like to have the provision of potentially being able to match them to a crime. The first main flush of people going to fight for Daesh was in 2014. We do not know how long they may be out there. They do not come back in bus loads, they come back in trickles, and this mechanism is an important tool for us. I am afraid that the amendments would prevent us from doing that and the Government cannot support them. For that reason, I ask the hon. Gentleman to withdraw his amendment.

[Nic Dakin]

The Minister is making a strong case for extending the period. It is not clear why it is five years, rather than, as he says, six years, four years or three years. He also recognises that it should be a limited period and that the time should run out at some point, which is welcome. Will he deal with the issue of retaining biometrics from people who have not been charged or found guilty of committing any offence?

[Mr Wallace]

TACT—Terrorism Act 2000—offenders’ data can be retained if a national security determination is made by a police chief irrespective of whether or not they have been convicted. If someone is convicted of any offence—certainly a serious offence or terrorist offence; I will seek guidance as to whether this applies to a minor offence—their DNA data can be detained for a much longer period, if not indefinitely. This mainly concerns people who have been arrested but not convicted. That is why this measure is important. It is specifically aimed at the more serious offences of terrorism. One of the other challenges in the law is that if someone is arrested under PACE, it may be for terrorism, but it might not be for a terrorist offence. What someone is arrested for defines the subsequent powers that we have. We would like to match that to allow a PACE arrest to lead into us retaining that data.

To give the hon. Member for Scunthorpe some reassurance, the Biometrics Commissioner will review this. If he feels next year or the year after that we are holding data for too long or for too little time, no doubt the Government of the day, as the hon. Member for Paisley and Renfrewshire North says, would be wise to listen to those recommendations, return to the House and do something about it. That is why we have these independent reviewers, tribunals or whatever they are making a judgment on us. Any responsible Government will listen to their advice.

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[Afzal Khan]

I will try to be brief. I echo much of what colleagues have said. I was involved with the 7/7 taskforce and served in the European Parliament as a vice-president of security and defence, so I know there are many aspects involved, but I urge the Minister seriously to consider a review.

People have different perspectives on Prevent, from feeling picked on to feeling under siege. Some talk about preventing Prevent. Others say it is toxic. At the heart of it, the trust of communities is key. Some mainstream groups have taken issue with Prevent—the Muslim Women’s Network UK is the largest to have done so. The Muslim Council of Britain, another large organisation with more than 500 affiliates, also thinks there needs to be a review.

The journey we have been on in the past 12 years or so has clearly had positive elements, and elements that we need to learn from to improve. A review would help us all. The emphasis on the far right, which has clearly become an aspect of Prevent in the past few years, is welcome.

If the Minister wants expansion, it is vital that there is sufficient funding both for training, so that we do not end up with prejudices pushing the agenda, and for local authorities. We have seen the cuts to local authorities in the past eight years—they will need sufficient resources to take the strategy forward.

[Nic Dakin]

It is a pleasure to serve under your chairmanship, Mrs Main. I appreciate the comments by my hon. Friends, who drew on rich experience. As my hon. Friend the Member for Bermondsey and Old Southwark said, there is a clear role for Prevent, which has done a lot of good work. However, as my hon. Friends the Members for Manchester, Gorton and for Ealing Central and Acton pointed out, there are areas where it does not command the trust of communities. It is therefore important that we have a proper review. As my hon. Friend the Member for Manchester, Gorton said, that would rebuild trust and strength, which would benefit everyone.

I go back to what Assistant Commissioner Basu said at our evidence session. The strongest piece of evidence I heard was when he said:

“The biggest problem we have in counter-terrorism, without a doubt, which is making this a generational challenge, is radicalisation.”—[Official Report, Counter-Terrorism and Border Security Bill Committee, 26 June 2018; c. 6, Q3.]