Counter-Terrorism and Border Security Bill

Nick Thomas-Symonds Excerpts

2nd reading: House of Commons & Money resolution: House of Commons
Monday 11th June 2018 Commons Chamber

[Nick Thomas-Symonds (Torfaen) (Lab)]

This has been a wide-ranging and thoughtful debate.

Two years ago, our late friend and parliamentary colleague Jo Cox was murdered, and between March and September last year there were five terror attacks. At the forefront of our minds are those who lost their lives in the incidents at Westminster Bridge, Manchester Arena, London Bridge and Borough Market, and Finsbury Park, and those who were injured at Parsons Green. We think of Jo and others who are no longer with us, and we think of the injured and their friends and families. We also think of our magnificent emergency services who, time and again, showed extraordinary bravery and courage in the most difficult circumstances.

I pay tribute to all the workers in our national health service who saved lives and treated the injured, and to all the services that were involved in the investigation and treatment of Sergei and Yulia Skripal—including Detective Sergeant Nick Bailey, who was rightly lauded by Members in all parts of the House during the debate. I also pay tribute to the work of our security services. We should think about what has not happened: since the terrible murder of Fusilier Lee Rigby in May 2013, 25 terrorist attacks have been foiled and numerous lives have been saved.

It is in the context of those events that the Bill is to be judged. We all want effective legislation in that context. Such legislation must always keep pace with technology and the times in which we live, and we support the Government in those aims. We also, of course, want to put public safety at the centre of policy in this area, and to make it as effective as possible. Aspects of the Bill build on the recommendations of the previous independent reviewer of counter-terrorism legislation, David Anderson QC. My right hon. Friend the Member for North Durham (Mr Jones) rightly highlighted the work that David Anderson has done in this area over a number of years.

We are anxious for the wider impact of terrorist incidents on surrounding communities and businesses to be taken into account, and clause 19 is welcome in that it seeks to widen the scope of losses covered. Business interruption costs are not currently covered when there is no physical damage to the commercial premises, although we know that such interruption occurs. I pay tribute to my hon. Friend the Member for Bermondsey and Old Southwark (Neil Coyle) for the work that he has done in that regard. We will press the Government in Committee on whether they will cover losses that have been suffered by businesses in connection with the incidents of the past 15 months, and not simply losses that will be suffered in future incidents. Will they compensate businesses that have lost out in the past when they should not have done so as a consequence of the current loophole?

We intend to table substantial amendments to the Bill in Committee. The Minister has indicated a willingness to be constructive, and I take him at his word. I hope that he will consider all our amendments in the constructive spirit in which they are intended. We will continue to make the case for proper resourcing, an issue that was raised by my hon. Friend the Member for Barrow and Furness (John Woodcock). I myself have asked the Minister about it on a number of occasions. We will continue to hold the Government to account for their funding of our police and other emergency services, and our security services, and, indeed, for how much we pay the workers who do so much for our society.

The first three clauses seek to update terrorism offences on expressions of support for a proscribed organisation, publication of images, and obtaining or viewing material on the internet—the so-called digital fixes. We agree of course that the law should be updated and keep pace with the times, but those clauses will need work in Committee. Max Hill QC, the independent reviewer of terror legislation, has said in recent days that

“the tweaks to existing offences range from pragmatic to problematic.”

Of course, with any change in the law, we have to ensure that there is wide public consent. The independent reviewer of terror legislation said last October:

“While we can all agree that there should be nowhere for real terrorists to hide, we should also agree that legislating in the name of terrorism when the targeted activity is not actually terrorism would be quite wrong.”

That is why the legal frameworks we set in this House must be forensically considered, seeking to protect our daily lives and our values of freedom and respect. It is vital that we guard in our criminal law against any unwelcome consequences.

We will therefore be scrutinising the Government carefully on what they mean by “reckless” in the context of an expression of support for a proscribed organisation. On the photographs provision, we will want the Government to distinguish genuine threat from immature behaviour or other motives. On the streaming of material as well as downloading, I agree that the law needs to be updated in that respect, but we need to be clear about what “streaming” means. At present it is specified in the Bill as three views, but, as a number of contributions to the debate from across the House have suggested, that will need to be carefully considered. Journalists and assiduous researchers accessing material for legitimate purposes—and indeed the Chair of the Home Affairs Committee—should not be criminalised, so we will be looking at the position of the Government with regard to the “reasonable excuse” defence.

On the additional sentences in the Bill, the Sentencing Council published its guidelines for terrorism offences on 28 March, but those were based on the current maximum sentences. I would be grateful for reassurance from the Minister that the Government will work with the Sentencing Council on the new proposed maximum sentences.

The release of terrorist offenders who are subject to extended sentences will be a decision for the Parole Board. There were concerns in a different criminal context with regard to the Warboys case, but I sincerely hope that the Government will be able to give reassurances that shortcomings have now been satisfactorily resolved and that there can be wide confidence in the Parole Board as it carries out such an important task.

On data retention, we will of course look carefully at the Government’s justification as to why the collection of data from people who are arrested but not charged is necessary and proportionate, and what mechanisms are in place for wholly innocent people who wish to have their data removed.

A number of Members mentioned the extension of the Prevent programme, and clause 18 gives local authorities the power to refer to Channel panels as part of that strategy. Labour’s policy is for there to be a review of Prevent, and we will of course consider carefully the capacity of local authorities in this regard in their current funding settlements. Indeed, at Home Office questions only last week, I raised with the Minister my concerns about local authorities being given additional duties in respect of data without appropriate data security and training and the resources required.

It is entirely reasonable for the Government to be looking at border security. Clause 20 activates schedule 3, which includes the power to stop, question and detain. That is a very broad power. Paragraph 1(4) of schedule 3 states that somebody can be stopped, questioned and detained

“whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity.”

In his opening remarks, the Home Secretary made it clear that there should be robust safeguards in circumstances such as these, and I absolutely agree with him. At the moment, the Bill provides for oversight by the Investigatory Powers Commissioner, but I suggest that working with the independent reviewer of counter-terrorism—who is at the moment the reviewer of schedule 7 to the Terrorism Act 2000—is going to be crucial. That relationship will need to be spelled out as the Bill proceeds.

[Stephen Doughty]

We obviously understand the need to detain individuals in certain circumstances, particularly at airports when they are potentially posing a risk. Does my hon. Friend agree that, if we are to exercise these powers sensitively, it is crucial to have regard to compensation for those who have been stopped and subsequently found not to be guilty of any offence—for example, if they have missed their flight or had property taken off them?

[Nick Thomas-Symonds]

I very much agree with my hon. Friend on that point. How we draw the law precisely in this area is very important. The powers will need to be backed up by appropriate safeguards and protections for those who are wholly innocent of any offence.

On the question of border security, the Bill as it stands means that a person who is detained for less than an hour will not have the right to access a solicitor, and that someone detained for more than an hour will be able to access a lawyer, but they could be required to do that within the sight and hearing of an officer. That will clearly have consequences for our cherished and valuable principle of legal professional privilege, under which people have the right to consult a lawyer and to do so in private. This is something that we will want to consider further in Committee, and I very much hope that the Government will listen to the points that have been made about the need for appropriate safeguards.

I hope that the considered nature of this debate will continue into the Committee stage. I look forward to working with colleagues on both sides of the House to scrutinise and, hopefully, improve this legislation in such a crucial policy area.

Counter-Terrorism and Border Security Bill (First sitting)

Nick Thomas-Symonds Excerpts

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

[Simon Hoare (North Dorset) (Con)]

Q Thank you, gentlemen, for your representations. My question is to Mr McGill because he has his CPS hat on. Clause 3(2)(c) uses the phrase:

“on three or more different occasions the person views by means of the internet a document or record containing information of that kind.”

Does that provide the necessary discretion to prosecutors? Is it clear enough, or would you need greater clarity? Could you comment on that, because the clause has been discussed here?

Gregor McGill: I am aware of the discussion that there has been. Prosecutors require clarity when looking at legislation, because they have to apply that legislation. Approaching this practically—we discussed this beforehand—three seems an appropriate number to us, because we would not want people to be criminalised for inadvertently going on to a website. I have to accept that that could happen. That could be a single occasion. It is a more difficult argument to accept if the person has gone on to it twice, and it is more difficult again if the person has gone on to it three times.

There is of course a statutory defence to the offence as set out, which gives some safeguards. The code for Crown prosecutors has a two-stage test, which is sufficiency of evidence and, if the evidence is satisfied, whether it would be in the public interest to prosecute. There are a number of safeguards in that for us to say that we think the legislation as drafted hits the right balance between protecting society and protecting the rights of a suspect.

[Nick Thomas-Symonds (Torfaen) (Lab)]

Q Welcome, and thank you both for your opening statements. I want to turn first to clause 1 and the expressions of support for a proscribed organisation. The original offence is in section 12 of the Terrorism Act 2000, which says:

“A person commits an offence…if he invites support for a proscribed organisation”.

The new clause in the Bill states:

“A person commits an offence if the person…expresses an opinion or belief that is supportive of a proscribed organisation”.

It then brings in the concept of recklessness. Could both of you give me an example of a type of situation that could not be prosecuted under the previous regime but could be prosecuted under this new regime?

Assistant Commissioner Basu: Yes, I can certainly give you an example of that. The biggest problem we have in counter-terrorism, without a doubt, which is making this a generational challenge, is radicalisation. I think that is a given, from my position, but I could find a great deal of current support in Government and in social media sentiment to say that the ability to radicalise is a significant issue. I will leave the fine legal point of “reckless” to Greg, but it is a well-established criminal tenet, so I do not see that necessarily as an issue.

I could relate a number of studies. One is of Mohammed Shamsuddin. Many of you will have seen commentary on the Channel 4 documentary “The Jihadis Next Door” last year. On 27 June 2015, Shamsuddin gave a speech. In the context of that speech, it was very clear that he supported Daesh and what they were doing. He did not invite others, which is obviously the current test, so he did not meet a section 12 charge. He shouted anti-kufr rhetoric and said, “Allahu Akbar” in relation to the Kuwait mosque bombing. He said that one should not feel sorry for the British who died in Tunisia or for the kufr killed in Kuwait. He criticised Gay Pride and said that gay people should be thrown from tall buildings. Having spoken on recent shootings in Tunisia, he said, “The spark was lit,” and that the listeners knew the rest.

A second example is Omar Brooks, again in 2015, on 4 July. He gave provocative talks and spoke of jihad and of how Islam was spread by the sword and was not a soft religion about peace. Brooks also mocked a sheikh who had spoken against the killing of Lee Rigby. Again, it was clear, when you look at the full tone of his speech, that he supported the concept and principle of Daesh, but he did not invite others, under the terms of the current legislation, and again it would not have met a section 12 charge.

Now, were either of those two people reckless in that they would have thought that their deeds would have encouraged terrorism? My contention is that they absolutely would. What we have seen in the rise of terrorism—particularly with the malleable, vulnerable people not well equipped to understand the nuances of religion or ideology—is that this kind of radicalisation speech has really worked to increase the threat to the UK.

Gregor McGill: I would adopt that. I think there is a gap in the law at the moment that means that we cannot always prosecute people in the circumstances that Mr Basu has set out. You raised the question of recklessness. Do you want me to deal with the question of recklessness?

[Nick Thomas-Symonds]

Please do.

Gregor McGill: As you are aware, recklessness is a concept that is well known to the criminal lawyer. It is currently in the terrorism legislation. It is something that investigative colleagues and prosecutors are aware of dealing with. It has been seen to be ECHR-compliant; that is correct.

The legal definition of recklessness is a subjective test now; the courts made that clear in the 2003 case of G. It is about a person who realises that there is an obvious risk in what they are doing and, realising that obvious risk, goes on to do something that brings about that obvious risk happening.

It is a concept that is well known in terrorism legislation and also well known in the wider criminal law. It is used in a number of offences—for instance, arson, child neglect and some assaults. It is not an unknown concept. It is not unknown to prosecutors and judges, who are used to dealing with these difficult situations.

[Nick Thomas-Symonds]

Q I have a couple more questions. Let us move on to clause 2 for a moment, which is about the publication of an image of an item of clothing or other article. I think this argument probably also applies to clause 1, where we are trying to balance things up—in clause 1, it is freedom of expression versus the offending that we are talking about. In clause 2, where we are talking about the publication of images, presumably we would not want to criminalise a reckless 16 or 17-year-old going to a fancy dress party or something who clearly does not have terrorist intent. They may be doing something very distasteful, but we would not want to criminalise them via this clause. Could you both comment on that balance in relation to clause 2?

Gregor McGill: I agree with you. Most of the decisions that are made in the criminal law are a balancing exercise. Prosecutors have to balance the rights of a suspect against the rights and protection of the public. The code enables us to do that. That is why we have a public interest test that enables us to ask. Even if the evidence in its purest form makes out the criminal offence, it has never been the case here that, just because you prove an offence, you necessarily should prosecute it. Prosecutors have the discretion not to prosecute, and they exercise that discretion very frequently.

Assistant Commissioner Basu: I do not want to be glib about this, but I have worked with Greg for a very long time and I would never get such a case past him anyway, even if I was prepared to put that case. We are far too busy on genuine acts of terrorism to be concerned with such a case. What it might point to is somebody who is in trouble and needs a bit of guidance: that is the Prevent tactic under the Government’s Contest strategy. There are some remarkable people on the front line capable of speaking to people and changing their minds about the path they might be following.

The other thing I would say about this clause is that this, again, is a modern technology phenomenon. The idea of dressing up in regalia that would be abhorrent to—hopefully—all of us here and the vast majority of the public has been well-established. The Public Order Act has established that. People just do not attend public assemblies, marches and demonstrations in the same way that they used to. Why would you need to? A tiny fraction of the population might see that for a fraction of a second, but now you can put it online and publicly display your message.

We would look at all the circumstances in relation to how that was being publicised and what you were trying to achieve by that before we looked at any form of executive action.

[Nick Thomas-Symonds]

Q Can I turn to clause 3, before we come to the issue of streaming and so on? This is to Mr McGill. Consider a situation in which someone goes to somebody’s house and that person has, for example, streamed four or five things that we would be unable to prosecute under section 58, as it stands. I have seen it argued that that could or should be prosecuted. Section 5 of the 2006 Act relates to acts “preparatory” to terrorism: why could that not be prosecuted at the moment under that section or any other?

Gregor McGill: The answer to that, I think, is that we are dealing with specific offences under section 58, which is about viewing and streaming material. Prosecutors are adept at looking for other offences that would enable you to deal with the criminality, but the essence of prosecution is that you prosecute the most appropriate offence set out by the facts in front of you.

Prosecutors can sometimes shoehorn offending into other offences, but experience tells us that that can result in problems down the line because there can be technical defences to certain clauses that superficially make you think you can prosecute under those offences, although it is more difficult. Prosecutors will always try to prosecute under the most appropriate offence, and the most appropriate offence for this type of material is the section 58 offence under the 2000 Act.

[Nick Thomas-Symonds]

Q Have there been any attempts to prosecute under different sections, such as section 5 of the Terrorism Act 2006, or is it simply a decision that prosecutors have felt unable to make because of the nature of the offence?

Gregor McGill: Most cases are fact-specific, so it is difficult to talk in general terms. In these particular cases, so much turns on the particular circumstances of each case, the particular evidence in the case and the particular conduct of the person under investigation. It is difficult to speak in generalities. Prosecutors have, of course, tried a number of offences to deal with certain criminality, but generally it is difficult to shoehorn some conduct into offences that were not specifically set out to deal with that type of offending.

[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.

--- Later in debate ---

[Gavin Newlands]

Q It would be useful if you provided the Committee with more examples. The Bill is asking for an extension from two plus one to five years; that would be more than double in some cases. To justify that, it would be useful for the Committee to have that information.

Gregor McGill: We can certainly look for those examples and write to the Committee.

[Nick Thomas-Symonds]

Q I have a narrow question. Clause 12 concerns the power to enter and search houses. I am trying to get a practical sense of that. There are, of course, various requirements. On at least two occasions there has to have been attempts at entry before. The purpose is this:

“to enter premises specified in the warrant for the purpose of assessing the risks posed by the person to whom the warrant relates;”

Could you expand on that? Mr Basu, what exactly do you think is meant by “assessing the risks”? What practically would be likely in a situation like that?

Assistant Commissioner Basu: This is based around lifetime offender management of terrorism. The parallel is obviously registered sex offenders, where this power exists. You are looking for anything that looks as though they have re-engaged or are breaching their notification requirements, if they are on notification. It is something that allows us to assess the ongoing risk of their re-engaging with terrorism. You might find material if you were to do such a warrant. You might find a flag being displayed. You might find material that is of use to a terrorist. That is the purpose of it.

[Mr Wallace]

Q I think we are coming towards the end. Can I just thank you very much for your evidence? Could I ask you to set the scene, assistant commissioner, of where we are with today’s threat and to put in context why these powers are needed?

Assistant Commissioner Basu: Certainly. You can listen to me or you can listen to Andrew Parker from MI5, who has spent 35 years in terrorism and says he has never seen anything like it. If I wanted to describe the threat, that is where I would start. It is definitely a shift, not a spike. We saw the start of problems that were predictable when the military push went into Mosul and Raqqa at the beginning of 2017.

Before Khalid Masood hit Westminster Bridge on 22 March, the number of leads from international partners, covert means and here in the UK were starting to increase in January. What we reached, post Khalid Masood’s attack, was probably a lowering of the bar for terrorism in this country, where people thought that perhaps we were not as hostile to terrorism as we could be and, therefore, they were capable of committing attacks. The attacks that followed were not connected in any way, shape or form, but they say something about the inspiration and the radicalisation that we have discussed.

That has left us with a trebling of our leads; on a monthly basis we deal with three times the number of investigative leads that might later work themselves through into a priority investigation against terrorism. There is more attack planning here in the UK, which is why section 58 of the Terrorism Act 2000 is so important. Holding information is often a precursor for people seeking to do a much more serious offence down the line. We are seeing something in the region of about a 30% increase in case load.

We talk about somewhere between about 500 and 600 cases. Taking the cases that are not police and MI5-led and including the ones that are led by police alone, it is more like 650. We have talked openly about the fact that 3,000 subjects are of acute interest to us, which means 3,000 open cases of individuals who are considered a national security threat. We talk about the growing pool of those we have looked at and are no longer considered a national security threat, but who may re-engage in the future, as being 20,000.

We also have a number of issues, as we have discussed, of people who have been exposed to this in countries overseas. Now that the caliphate has collapsed, what will happen to those people? Will they return to their countries of origin? We still have a substantial number of people who could return against whom we do not have prosecutable case.

Within our communities, we continue to see a rise in extremism. Most disturbingly, along with the jihadist Islamist threat that we see in international counter-terrorism, we now see the extreme right wing growing as well. Those probably feed off of each other, which is why this becomes a whole-society problem, because we are seeing both sides of the coin. The previous Home Secretary proscribed National Action. We have done a great deal of work against National Action.

The most disturbing thing about the extreme right-wing threat, in terms of how it transfigured as National Action, is that it shows very similar signs to what was discussed about al-Muhajiroun—ALM—many years ago. It probably took years to get on top of ALM, and we did not want to make that same mistake with the extreme right-wing threat. Counting that together with the scale of the pace, our ability to counter that level of threat will be severely challenged over the next couple of years. This legislation provides me with some help on that.

--- Later in debate ---

[The Chair]

Q We will now hear oral evidence from Richard Atkinson, chair of the criminal law committee of the Law Society. We have until 11.25 am. I welcome you, Mr Atkinson. Thank you for being with us this morning. Will you please introduce yourself for the record?

Richard Atkinson: Good morning. I am Richard Atkinson and I am co-chair of the Law Society’s criminal law committee. I am a defence practitioner specialising in criminal law.

[Nick Thomas-Symonds]

Q Thank you for coming to give evidence to us, Mr Atkinson. I want to turn to the border security part of the Bill and issues of detention and access to a lawyer. There is no right to consult a solicitor in private in the Bill. The way the Bill works is that there is a one-hour period without the right to consult. Beyond that, there is a further six-hour period. The Bill is pretty clear about the power attached to it:

“a detainee who wishes to exercise the right”

may in some circumstances do so

“only in the sight and hearing of a qualified officer.”

Is it a concern that there is no right under the Bill to consult a lawyer in private?

Richard Atkinson: Yes, a very great concern. It fundamentally undermines what I would consider to be a cornerstone of our justice system—legal professional privilege. As you may know, legal professional privilege is a right that belongs to the client, not to the lawyer, and it is a right to consult with their lawyer and have the contents of those discussions, where they are a matter of advice, privileged and not to be disclosed to anyone. Clearly, if someone is listening to that conversation who is not advising them, that conversation is no longer privileged. Therefore, that risks undermining the whole concept we have of privilege.

I understand that the motivation for this is the concern that there may be advisers—lawyers—who may be susceptible to being used, if I can put it that way, by manipulative suspects to achieve the goals being sought to be prohibited—communication with remaining suspects, interfering with evidence or furthering criminal activity. However, that is not unknown to our current justice provisions. Powers are already in place to deal with such situations that do not require the breach of legal professional privilege.

For example, in the Police and Criminal Evidence Act 1984 code H, which deals with counterterrorism cases, where there is concern about an individual lawyer there is provision for the suspect to have the consultation with that lawyer delayed but to be offered the services of another lawyer in the meantime. The suspect is therefore not devoid of legal advice. That advice is in private and maintains privilege but meets the concerns, if there are specific concerns, in relation to that particular legal adviser. So we have in place a situation where we can address the concern but maintain the fundamental principle of legal professional privilege. The Bill goes much further than that and is a step that I feel is very detrimental to our system, and of course to our reputation.

[Nick Thomas-Symonds]

Q From what you are saying, there is a practical solution for any legitimate concerns there may be. There is also a situation—in a police station, for example—where you can have a duty solicitor or lawyer made available. That person could be someone of particular standing and reputation in whom we could all have faith and whom we would not have those concerns about.

Richard Atkinson: Absolutely. Again, code H allows exactly for that. If there are specific concerns about a lawyer, the duty lawyer or solicitor can be called to come and advise. That maintains privilege and maintains the defendant’s access to advice at that point.

[Mr Wallace]

Q In your earlier replies, you talked about how an individual who was detained could have a conversation without legal advice or compromising themselves. It is right, is it not, that in this environment such a conversation would not be admissible in court, under the grounds of the stop?

Richard Atkinson: Not necessarily, because although there is a provision to limit its use, it is not absolute, is it? There are three exceptions where it can be used.

--- Later in debate ---

[Mr Wallace]

Q Are you happy with the Bill’s oversight of that process, with the judicial commissioners and the independent commissioners being the ones who give the authorisation to retain or destroy material?

Richard Atkinson: Yes, but the issue is whether privilege is breached prior to that.

[Nick Thomas-Symonds]

Q Staying on this point, but moving away from the distinction about whether a document is privileged, do you think it would help if the Bill said, “Every single time this power is used, the commissioner will be informed about it”?

Richard Atkinson: Yes, I do.

[Mr Wallace]

The judicial commissioners will be the oversight for the use of the hostile port stops overall—the annual report or whatever it is.

Counter-Terrorism and Border Security Bill (Second sitting)

Nick Thomas-Symonds Excerpts

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

[The Chair]

Thank you.

[Nick Thomas-Symonds (Torfaen) (Lab)]

Q Thank you, for coming along to assist today, Mr Hill. I have read some of your writings about the Bill and watched your evidence to the Joint Committee on Human Rights, so I am aware of your views. Could I ask first, just in broad terms, about clause 3, which updates the streaming offence from the downloading offence? Do you think the clause is satisfactory as it is, and, if not, what changes would you suggest?

Max Hill: By way of introduction, I have sought to look with care at the clauses alongside my senior special adviser, Professor Clive Walker, and he and I would agree in answering that question. The amendment—perhaps it is better to say the new variant of the section 58 offence—is likely to be difficult in practice. It is my duty to warn the Committee that it is very likely to attract arguments of principle based on a rights analysis, principally article 10 on the freedom of expression.

I commend the Government, who have scrutinised counter-terrorism strategy ever since the Prime Minister announced on 4 June 2017 that it would be done. My commendation is on the basis that we do not see brand new precursor offences appearing in the draft legislation. As an independent reviewer, I was worried that we might come across new offences of aspiration for terrorism—for want of a better expression—but I am pleased to see that we do not have them. The question that you pose on clause 3 is, first, whether this is a new offence. That is debatable, but it certainly is a new way of committing the existing offence under section 58.

I am concerned about the very low threshold that has been set, and about the lack of precision in some respects that at the moment is written into clause 3. Trying to move, though, from a position of giving credit to the Government, who have looked at it very carefully, what I believe they are attempting—the explanatory notes give force to this—is to identify a “pattern of behaviour”. That is a phrase from the explanatory notes for clause 3. If the clause as drafted is capable of identifying a pattern of behaviour, then although article 10 arguments do not go away, one can understand the logic behind the new variant of a section 58 offence, but I am concerned that it might not go that far—in other words, it is incapable of establishing a pattern. Why? Because the three clicks offence—forgive me for using the shorthand—may relate to different material rather than to repeated viewing of the same material, and there is no indication of the period of time over which an internet user may log on for different sessions. It is certainly no longer necessary for there to be any download or offline footprint of the material, whereas section 58 currently pretty much requires that, and of course the more general arguments are that there is no requirement that the individual either go on to prepare, or still less commit, an act of terrorism. That is a very low threshold.

The last part of my answer—forgive me for going on at a little length, but this is a headline example of the new variant offences—is that the French Parliament has attempted to legislate into exactly this space. On two occasions, the Cour de Cassation—the constitutional court in France—has struck down the French equivalent, yet the French equivalent attempts to define “reasonable excuse.” To put that another way, it exempts from prosecution—I am paraphrasing here—professional research, which may be journalistic or academic. This clause does not do that.

I have no doubt at all that the general reasonable excuse defence under section 58(3) remains, but—forgive me for repeating a phrase that I have used elsewhere—the mesh of the net that the proposed new clause would create is likely to be so fine that, although it would perhaps capture some who represent a pattern of behaviour, it would also capture others who probably do not. I hope that answers your question as to the concerns I have.

[Nick Thomas-Symonds]

Q I will combine two questions about how to improve the clause. First, would it help to be more specific on the face of the Bill about the reasonable excuse defence and what that might include? Secondly, should we have a time limit—12 months, to pick a time limit out of the air, or perhaps another period—for the streaming offence in clause 3? Would those two changes assist?

Max Hill: The short answers are yes and yes. All I would add as a criminal lawyer is that, as many members of the Committee will know, the appellate courts have been asked to consider reasonable excuse on at least two occasions—the cases of G and J in the House of Lords in 2010, and the case of AY in the Court of Appeal in 2011-12. At a judicial level, the courts have said that reasonable excuse means anything that is capable of being regarded by a jury as reasonable. That is perfectly understandable, because judges like me do not make law; it is Members of the Houses of Parliament who make law.

Perhaps one way of putting it is that if we are going to have a new offence, there is an imperative to define with greater precision the ways in which somebody is not guilty of that offence. That is just as important as defining and placing in statutory form the ways in which someone is, or may be, guilty.

[The Chair]

Thank you. I am conscious that quite a few people want to ask questions.

--- Later in debate ---

[Gavin Newlands]

Q We heard this morning, in terms of some of the Bill’s provisions, such as the three clicks and the lack of a time limit on that, that to rely on prosecutorial discretion, rather than having fixed limits and so on in the Bill, is a step too far. Do you agree?

Michael Clancy: That is an interesting question, and it allows me to get out my brief on clause 3. Prosecutorial discretion is an important issue. The position of the Lord Advocate in Scotland, as a Scottish Minister, is separate from his position as head of the prosecution service. Prosecutorial discretion is therefore key to how the prosecution service undertakes its work, and it has to be inherent in any prosecutorial legislation. It is quite difficult to dictate to the prosecutor what cases should be prosecuted, so I would prefer to stick with the arrangements for prosecutorial discretion in Scotland.

[Nick Thomas-Symonds]

Thank you for coming along, Mr Clancy. I appreciate your evidence about terrorism legislation being reserved to the UK and about the memorandum of understanding between the Attorney General and the Lord Advocate and so on. However, moving beyond that, do you have any concerns about clause 3 of the Bill that you have not already referred to?

Michael Clancy: I think we were generally in favour of the idea that this area should be updated to take account of the digital revolution. The fact that the review of terrorism legislation that the Government precipitated last year has resulted in no further offences, as Max Hill described, is a vindication of the extent to which the law captures most of the issues. However, there are always questions that can be asked—some of which you have already heard about—about the balance between the right of expression and the requirements under the Bill.

It is fair to say that the courts have been quite explicit about where they fall on that balance. The right to freedom of expression under ECHR article 10 is not an absolute right; it has to be balanced with the other rights that the rest of us enjoy, such as the right to life, and so on. Therefore, although others may not subscribe to this view, the case has to be made that the provisions in the Bill will upset those rights to the extent that we would be considerably concerned about them, given that they build on existing provisions that have already been tested in the courts.

In that context, we have to look at all the legislation we have got—several Acts relate to counter-terrorism—and construct some sort of codification or consolidation of it. I do not know about you, ladies and gentlemen, but flitting between three or four Acts of Parliament within the compass of one Bill is difficult enough. It is difficult to imagine that those who will be subject to the legislation will do that kind of thing. We should make the law as simple and easily understood as we can.

[Mr Wallace]

Q Thank you very much for coming today. May I ask your view of clause 1, which is obviously the part of the Bill that talks about expressions of support, and the challenge around that? Critics have used the phrase “thought police”. Obviously, we are trying to grapple with the threat from inspiring—people who do not specifically stand up and say, “Join ISIS”, but use their position recklessly to promote such organisations by saying, “I think they are great,” and so on. Correct me, because I may not know this. Is the previous legislation that deals with the area of incitement and religious hatred devolved or reserved?

Section 18 of the Public Order Act 1986 and the Racial and Religious Hatred Act 2006 effectively do the same thing: they set out that, for an offence to have been committed, you do not have to tell people to hate, or say, “You must attack Muslim people,” or, “You must attack Jewish people”. You can express in a private or public place sentiments or views that could have the consequence of inciting racial or religious hatred. Do you see a read-across from that position, which is accepted in established law, to clause 1, so it relates to encouragement towards a proscribed organisation?

Michael Clancy: I have not, I confess, made that read-across myself, Mr Wallace, but I will go back to Edinburgh and do so later on today. The general proposition about someone making a reckless statement and about whether the person to whom the expression is directed will be encouraged to support a proscribed organisation raises a couple of issues. What is reckless? It is taking a risk, in terms of the information you convey about the outcome of what you say. What is a proscribed organisation might, too, be a difficulty, because if I were to ask members of the Committee to list all the proscribed organisations they might not be able to do that. It might also pose a difficulty regarding whether some people making statements are supporting a proscribed organisation as we understand that to be the case.

There are some issues. There is a read-across to the analogous provisions in race and religion. Of course, if we have those models to follow, and those have been followed without any difficulty since they were enacted, the Government are probably on safe ground in extending the provisions to the kind of incitement envisaged in clause 1.

--- Later in debate ---

[Gavin Newlands]

Q Back to your earlier point about prosecutorial discretion, do you think there is a danger that elements of clause 3 risk criminalising thought without action?

Michael Clancy: Well, there is an action: clicking three times is the action. It depends on what is clicked on and how that works in practice. It says in the existing provision for the collection of information in section 58 of the Terrorism Act 2000:

“A person commits an offence if…he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism…he possesses a document or record containing information of that kind”

or—this is the addition made by clause 3 of the Bill—

“on three or more different occasions the person views by means of the internet a document or record containing information of that kind.”

That fits in the analogous provision in the 2000 Act of possessing

“a document or record containing information of that kind.”

The fact that it is on the internet is simply an update.

I am not convinced that three strokes is the problem. We heard from Max Hill about the French cases. We have to be cautious about drawing analogies with another legal system—certainly one that has a written constitution and a codified arrangement for its law. Those are two significant differences from the system here, where something that contravenes article 10 or some other article of the European convention on human rights is subject simply—simply—to a declaration of incompatibility. That would require Mr Wallace to come to a decision about whether he would amend the legislation, were the courts to make such a declaration of incompatibility.

We must be careful about demonising this issue in that way, in so far as there has not already been trespass on the idea of freedom of expression and freedom of thought. That is that balance that has to be struck between making the counter-terrorism law work and at the same time preserving our rights. The courts have to be asked to make that balance day in, day out.

I wonder just how one would work around this provision. If I were so minded, would I, for example, click once and then take out my phone and take a film of what I was watching on the internet? Is that a reasonable proposition? Is that captured in this Bill? I do not think so. Those are the kinds of questions that one might return to later on in your deliberations.

[Nick Thomas-Symonds]

Q Just one question, Mr Clancy, arising out of the Minister’s question about section 18 of the Public Order Act 1986 and the Racial and Religious Hatred Act 2006. Both Acts are about the use of abusive, threatening or insulting behaviour to stir up hatred, but do you agree that there is a distinction between that and actual recruitment to the cause, which is what the clause in this Bill is talking about? Are they different things?

Michael Clancy: Clearly, there is a legislative distinction between the two. It depends on what the abuse in terms of race or religion is intended to do. Is it simply to make someone feel uncomfortable, aggrieved or violated, because of their religion or race? Or is it in some kind of a way to encourage others to take up that same kind of attitude toward people based on their religion or race?

Legislation in this area, countering discrimination on the basis of religion or race, is something that we have had in this country since the 1960s. Therefore, the fact that we are continually having to look at this again means that the educative value of that legislation has not yet reached its optimum. We have to be aware of pushing that further, to make sure that those who would fall into that pattern of behaviour know that it is wrong, illegal and that they must desist from doing it.

[Mr Wallace]

Q I want to follow on from the previous issue of the person collecting the materials and the three clicks. I do not know if you heard my question to Max Hill, which was that given that section 58 of the 2000 Act is well established, has been used and has not been struck down by challenge in a European court setting, if instead of defining by three clicks it was to explore simply adding in streaming, with the reasonable excuse defence, do you think that would solve the problem of streaming as opposed to holding or downloading information?

Michael Clancy: If you have an adequate definition of streaming, that might work, but for me it is just a word that people use when they are accessing information and videos on the internet. I suspect that the kinds of videos that are covered by this legislation will not have a pop-up window that says, “Do you want to play from the start or resume from where you left off?” The idea that these might be formal productions is not the case.

If we can do something that makes the legislation tighter and more usable, of course. But we may get into those difficulties about what is meant by streaming, how long does the stream have to be and what kind of document or record is being streamed.

--- Later in debate ---

[The Chair]

We will now hear oral evidence from our last panel of witnesses. They are Corey Stoughton, advocacy director of Liberty, Abigail Bright, executive member of the Criminal Bar Association, and Peter Carter QC, a member of the Criminal Bar Association. Both Abigail Bright and Peter Carter are also barristers at Doughty Street Chambers. We must end this session by 3.45 pm. Would the witnesses please introduce themselves for the record?

Corey Stoughton: I am Corey Stoughton, advocacy director at Liberty.

Abigail Bright: My name is Abigail Bright. I am a practising barrister at Doughty Street Chambers.

Peter Carter: I am Peter Carter. I am Queen’s Counsel at Doughty Street, and I am also a member of the Bar Council law reform committee.

[Nick Thomas-Symonds]

Q If I could start with you, Corey Stoughton, could you turn please to clause 14 of the Bill, which is the traffic regulation clause? Having read some of Liberty’s previous comments on the Bill, I know that there is a concern here about the imposition of charges, which would have an impact on legitimate protest. Could you explain your concern about that?

Corey Stoughton: Thank you for raising this issue. Our concern with clause 14 is simple and straightforward. Read strictly, it would allow charges to be imposed on the promoters or organisers of events in connection with the cost of protecting those events from terrorism. To be consistent with the right to assemble and protest under article 10, there must be a legislative exemption for activity protected by those fundamental rights. That is an exemption that we have seen replicated in other, similar provisions in UK law. I assume it was just an oversight that that exemption was not put in here. A simple fix to this would be to recognise that putting such charges on activity protected by the right to protest and assemble is an undue burden on that activity, and the cost of protecting those events has to fall on the state in the course of its obligation to protect that right.

[Nick Thomas-Symonds]

Q Turning from that issue to the retention of biometric data, do you think there should be additional safeguards to protect those who are wrongly arrested as a result of mistaken identity or poor intelligence?

Corey Stoughton: Yes, I do. Viewed against the context we currently live in, where the Government have struggled to correct existing deficiencies in databases such as the police national database of custody images, it is deeply concerning that the Bill’s provision on biometric data retention extends the powers on retention of data, including fingerprint data and DNA data, of people who are arrested but not charged—that is to say, innocent people—and also removes the critical safeguard of requiring that retention to be proved by the Biometrics Commissioner.

Arguably, the current system has insufficient safeguards and, against the backdrop of the repeated pattern of an inability to correct databases that have already been ruled by courts not to be complying with human rights standards, there should be great caution and a pause before expanding the Government’s power to retain the data, particularly when that data belongs not to people convicted of any crime, but to people merely arrested, which would include those who have been falsely or wrongly arrested for terrorism-related crimes.

[Matt Warman (Boston and Skegness) (Con)]

Q Again to Corey Stoughton, your briefing says that clause 3 risks criminalising academics or journalists. I used to be a journalist, and I cannot myself recall a case where a journalist has been prosecuted for the kind of things that you are worried about, and which we would all be worried about. Is there a case that I have not noticed, or is this a theoretical inquiry, in which case, are you simply arguing for responsible prosecutions?

Corey Stoughton: It is not theoretical. I have to say that, although concern about wrongful prosecution is a legitimate concern, the real concern here is with the chilling effect that this has on journalistic activity. The question is not, do we believe that prosecutors will prosecute a Guardian journalist who clicks three times on extremist content. The real question is what journalist—what independent journalist, what citizen journalist—would be deterred from engaging in valuable journalistic activity? They will now, given the sentencing enhancements in this Bill, face a potential 15-year penalty for clicking on extremist content, which they may have done over the course of any unlimited period of time.

So we are concerned with that chilling effect and the fear of what that does to a journalist. It is a very brave journalist who would risk a 15-year sentence for anything, but you should not even require that level of bravery to be a journalist. Many journalists who are out there pursuing important critical activity are not protected by the legal teams that people at established journalistic institutions are, but that journalism deserves protection and respect, no less than other journalism.

Counter-Terrorism and Border Security Bill (Third sitting)

Nick Thomas-Symonds Excerpts

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

[The Chair]

If Members wish, they may remove their jackets. Will they please ensure that any electronic devices are switched to silent?

This morning we begin the line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room and shows how the selected amendments have been grouped for debate. Grouped amendments are generally on the same or similar issues. Please note that decisions on amendments take place not in the order that they are debated but in the order that they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause that the amendment affects.

I will use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following debates on relevant amendments. I ask Members wishing to push to a separate Division an amendment that is not the lead amendment in a group to please let me know in advance, and I will use my discretion in deciding whether to allow such a vote.

Copies of written evidence that the Committee has received since our last meeting have been made available in the room.

Clause 1

Expressions of support for a proscribed organisation

[Nick Thomas-Symonds (Torfaen) (Lab)]

I beg to move amendment 2, in clause 1, page 1, line 5, at end insert—

“(A1) Section 12 of the Terrorism Act 2000 (support) is amended as follows.

(B1) In subsection (1), after paragraph (b), insert—

‘(c) in doing so is reckless as to whether another person will be encouraged to support a proscribed organisation.’”.

This amendment would amend the existing offence of inviting support for a proscribed organisation so that a person must be reckless as to whether another person is encouraged to support a proscribed organisation to commit the offence.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 3, in clause 1, page 1, leave out line 6 and insert—

“(1) After subsection (1) insert–”.

This amendment is consequential on Amendment (2).

Amendment 1, in clause 1, page 1, line 10, leave out paragraph (b) and insert—

“(b) in doing so, intends to encourage support for a proscribed organisation”.

This amendment would mean that the offence is only committed where a person intends to encourage support for a proscribed organisation.

Clause stand part.

For the sake of clarity, this debate may range across all aspects of clause 1, in addition to those points covered by the amendments.

[Nick Thomas-Symonds]

It is a pleasure to serve under your chairmanship, Ms Ryan. I first want to make a few general remarks about clause 1.

I think we all accept that there is a need to update the law in this area, and that is for a number of reasons. The first is the evolving and changing nature of the terrorist threat over past decades. There have also been changes in technology, which I appreciate we will deal with in later clauses. However, there is also—this is vital for clause 1—the fact that we now have experience of the Terrorism Act 2000 in our criminal justice system and in the decisions taken by the Crown Prosecution Service.

The clause essentially updates section 12 of the Terrorism Act 2000. Just so that we are clear, section 12(1) of the Act indicates:

“A person commits an offence if—(a) he invites support for a proscribed organisation, and (b) the support is not, or is not restricted to, the provision of money or other property”.

The key part of that subsection is the inviting of support for a proscribed organisation.

When Assistant Commissioner Basu gave evidence to the Committee on Tuesday, I was careful to ask him whether there were examples of situations that are not covered under the 2000 Act but would be captured—or are intended to be captured—by this new offence, and he gave a couple examples. One was the case of Mohammed Shamsuddin and the Channel 4 documentary, “The Jihadis Next Door”. He referred to a speech that Shamsuddin gave on 27 June 2015, in which

“it was very clear that he supported Daesh and what they were doing…He criticised Gay Pride and said that gay people should be thrown from tall buildings. Having spoken on recent shootings in Tunisia, he said, “The spark was lit,” and that the listeners knew the rest.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 6, Q3.]

Of course, the problem with those remarks, which I will come back to, is that they are not captured by the 2000 Act as it stands, because there was no specific invitation to others to join the cause.

The other example given was of Omar Brooks, in relation to an incident on 4 July 2015. Again, there was clearly talk about religion being spread by the sword and about it not being a soft religion about peace, and there was the mocking of a Shi’ite who had spoken out against killing of Lee Rigby. The tone of the speech shows clear support for the concept and principles of Daesh, but, again, it does not take the additional step of inviting support from others.

Prior to this clause being proposed, the law as it stands was interpreted in the case of Choudary and Rahman, which the Minister referred to in his questions to the witnesses on Tuesday. About the offence as it stands, the Court of Appeal said:

“When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation.”

In essence, along with the two examples I have given on the basis of Assistant Commissioner Basu’s evidence, that captures where the law is and where it stops. There are others acting in a clearly unattractive way whom we wish to extend the law to.

The issue then becomes how, precisely, we want to draft the law to achieve that. Nobody says that freedom of expression is a wholly unqualified right—it is not, actually—but I am sure we all wish to strike a balance between people expressing views that we find distasteful and may not agree with, but that none the less come into our public debate and are defeated by others, and the clear nature of the offence, which is about recruiting people to the terrorist cause. How we draw that distinction is very important.

The amendments in my name seek to consider how we get that balance right. Nobody in the Committee would want to put something unworkable on the statute book, or something that was likely to attract a declaration of incompatibility with the Human Rights Act 1998. I tabled these amendments for the Minister’s consideration in that spirit and to assist in striking that balance appropriately. This is not a partisan issue, and I hope that we would all wish to strike that balance appropriately and to make the clause effective.

The two amendments—there are really two amendments, although there are three on the amendment paper—seek to look at the original offence under the Terrorism Act 2000 and at how the extension of that offence appears in clause 1. I have put forward two options: first, that the offence is committed only when the person intends to encourage support for a proscribed organisation—in other words, when the opinion is expressed, as set out in clause 1, together with intention; and, secondly, that recklessness is attached to the offence. Both options extend the existing offence, but not quite as widely as clause 1 as it stands.

Recklessness is not an unknown legal concept in our criminal law; on Tuesday, the Crown Prosecution Service gave evidence about it. There has been a change in the concept of recklessness in law. It is what we call subjective recklessness, so it is about what the individual person thinks about the risk. Recklessness would be far more difficult as a concept in this area if it was defined as it was prior to 2003, when it was about an objective view and about others assuming what that person might mean. With the restriction that is in our law on recklessness anyway, recklessness should perhaps be less of a concern for the Committee.

I offer the two amendments for consideration in a constructive spirit. Their purpose is to ensure that, when the Committee looks at extending the law, as we all agree we should be doing, to examples of what the Minister has referred to as the “charismatic preacher” and to the impact of a person who is recruiting people to the cause, but who is not quite using a form of words that is captured in the intention in the Terrorism Act 2000, we do that in a way that is workable and proportionate and does not draw a declaration of incompatibility under the Human Rights Act. I therefore hope the Minister will indicate that the amendments will be considered.

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

I rise to support the amendments tabled by the hon. Member for Torfaen.

--- Later in debate ---

[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.

[Nick Thomas-Symonds]

I am not sure that is quite it, but let us use that second example. There is the original offence of invitation of support and the new offence, which talks about expression of opinion. At the moment, recklessness is attached to that, but intention could be attached to it. It would not be as broad, but it would be broader than the existing offence.

[Mr Wallace]

That is my point: it will narrow it from what we are proposing. It would pretty much mirror the existing offence. One of the alternatives in the amendments would add recklessness to the existing offence, if I am not mistaken, but the existing offence is that the person has invited support, so whether or not they are reckless does not really matter, because they are guilty of an offence.

[Nick Thomas-Symonds]

The overall point is correct: the two amendments taken as alternatives certainly would not broaden the first offence to the extent that the new clause does, but they would both broaden it. At the moment, the first offence is intentional, so you can add recklessness to it, or you can put intention on the first part of the new offence. In both cases you would broaden it, but you certainly would not have the impact of going back to the original one; you just would not broaden it to the extent that the full clause 1 does.

[Mr Wallace]

The point is that both your amendments would require us to prove intent. You are saying, “If you add it to the old offence, you have to prove intent, because the old offence as it stands includes intent.” If you add intent to the new offence, you are effectively mirroring the existing one. Clause 1 is about trying to deal with a gap where you find yourself unable to prove direct intent but—I go back to the idea of the baseball bat—know that someone is recklessly inspiring people to join or follow a proscribed organisation.

[Nick Thomas-Symonds]

I am grateful to the Minister for being so generous in giving way. If you add recklessness to the offence as it is, you broaden it. Similarly, if you broaden it out to expressions of opinion and you add intention, that also broadens it. What it does not do is broaden it to the extent that the new clause as a totality does. That is the point.

[The Chair]

Can I just remind hon. Members that if you refer to “you”, you are referring to me? The same rules apply as in the Chamber.

--- Later in debate ---

[The Chair]

Correct.

[Nick Thomas-Symonds]

Not that we are saying the Chair is not inspirational. [Interruption.]

[Mr Wallace]

I am backed up from nowhere by Lord Diplock. The hon. Member for Torfaen makes valid points, but the issue here is what Lord Diplock said in the case of Sweet v. Parsley—you could not make that name up, could you? He did not say it to me, but nevertheless it came to me. He said that it is

“difficult to see how an invitation could be inadvertent.”

The point is that, if the hon. Gentleman is saying that by adding “reckless” we inadvertently go to intent, we must get that challenge right. We are trying to plug the fact that at the moment, unless we can prove intent, we find it very hard to deal with that aspiration.

[Nick Thomas-Symonds]

With the greatest respect to Lord Diplock, subjective recklessness is not necessarily inadvertent. That is the whole point. However, it is not my intention to press the matter today and I would be very happy to enter into further discussions with the Minister on that point.

[Mr Wallace]

Lord Diplock has thrown me off my stride, or more likely it was Sweet v. Parsley that threw me off my stride, as it is lunchtime. Our contention is that, if we accept the amendment, there would be no point to clause 1, and that the new section 12(1A) offence would simply mirror the effect of the existing section.

Similarly, the addition of a recklessness test to the existing offence of inviting support at section 12(1) would not address the difficulty. The requirement to prove that an invitation—that is, a deliberate encouragement—had been made would not be removed, and would still need to be met in a case in order to make out the offence. Again, therefore, the current gap would remain. Recognising what the hon. Gentleman has said, I invite him to withdraw the amendment and support clause 1. However, in light of his comments I would be happy to meet him to discuss it.

[Nick Thomas-Symonds]

I am grateful for that final point, and on the basis that the Minister is happy to meet me to discuss the matter, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

We discussed clause 1 stand part as part of the group, so I shall put the question forthwith.

Clause 1 ordered to stand part of the Bill.

Clause 2

Publication of images

[Nick Thomas-Symonds]

I beg to move amendment 4, in clause 2, page 2, line 6, at end insert—

“(1C) It is a defence for a person charged with an offence under subsection (1A) to prove that he had a reasonable excuse for the publication of the image.”

This amendment explicitly sets out that a person charged with the new offence under subsection (3) has a defence if they can prove a reasonable excuse for the publication of the image.

Clause 2 fits into the category of offences I have mentioned that are being updated to take account of technology. Amendment 4 is not unreasonable and would simply set out the defence of reasonable excuse. Whether that is necessary may be subject to argument, and I am happy to listen to the Minister’s position, but I tabled the amendment to give a degree of comfort in relation to the scope of the offence.

We would all agree that the situation needs to be updated. It is set out in section 13 of the Terrorism Act 2000, on uniform. Under that provision, which was of course passed some 18 years ago, a

“person in a public place commits an offence if he—(a) wears an item of clothing, or (b) wears, carries or displays an article, in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation.”

A term of imprisonment not exceeding six months can be imposed.

The problem that arises is that people can now perfectly well wear such an item of clothing, or display an article, in a private place and take a photograph to be quickly disseminated on social media such as Facebook or Twitter, or by other means. It is right for the Government to look at that. Wearing something in a private place and putting a picture of it on social media could result in far more people seeing it than would have happened in the situation envisaged in the old offence, where the item was displayed in a public place.

My first reason for tabling the amendment is simply to add a note of caution. We are moving from criminalising behaviour in a public place to criminalising something that happens in a private place in the first instance, but which technology allows to be disseminated in the public sphere.

The second reason is that we should take care not to extend the criminal law to behaviour that we might all think unattractive—I hesitate to use the word “reckless” after the previous discussion—but that none the less would not give rise to terrorist intent. In a question during the evidence sitting on Tuesday, I gave the example of a 16 or 17-year-old going to a fancy dress party who wears something that we might all regard as offensive, in bad taste and showing poor judgment, but whom no one would seriously want to criminalise as the clause would do. The answer I received from Mr McGill on behalf of the Crown Prosecution Service and Assistant Commissioner Basu was simply that, in such cases, they would not be interested in pushing the matter into court. Assistant Commissioner Basu said, with respect to the CPS and Mr McGill:

“I would never get such a case past him anyway, even if I was prepared to put that case. We are far too busy on genuine acts of terrorism to be concerned with such a case. What it might point to is somebody who is in trouble and needs a bit of guidance”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c.7-8, Q4.]

He referred to Prevent.

Assistant Commissioner Basu is right. Such behaviour might suggest that someone had problems. It might just suggest in the situation I described that they were being offensive for the sake of it. I obviously appreciate, too, that the Crown Prosecution Service has to apply a public interest test, but at the same time, while that prosecutorial discretion is important, the legal framework we set out in the first place is also important.

I completely support the intention of the clause. It is right that we update the law in the social-media age. We want to deal with the dissemination of unpleasant images. However, it is not an unreasonable amendment to. We ask simply to put that reasonable excuse on the face of the Bill to cover the situations I have suggested may arise.

[Gavin Newlands]

I neglected to say earlier that it is a pleasure to serve under your chairmanship, Ms Ryan. As has been outlined by the Labour Front-Bench spokesman, clause 2 extends the offence that would result in criminalisation for the publication of an image, the wearing of an item of clothing or the display of an article such as a flag in such a way that would arouse reasonable suspicion that a person is a member or supporter of a proscribed organisation.

It should be noted that it is already an offence to wear certain clothing, or to carry, wear or display certain articles in public places. The behaviour of those who disseminate terrorist publications intending to encourage terrorism, or being reckless as to whether the behaviour encourages it, is already criminalised by section 2 of the Terrorism Act 2006 and will attract a 15-year maximum sentence under the provisions of the Bill.

The clause would criminalise those who might be highlighting their support for a proscribed organisation, which is akin to using a sledgehammer to crack a nut. It overcomplicates the response and risks targeting innocent individuals in the attempt to target people who would look to do us harm. In a briefing, which I am sure the hon. Member for North Dorset fully endorses, Liberty—his favourite campaigning group—[Interruption.] I was talking about Liberty.

--- Later in debate ---

[Mr Wallace]

Yes, because the key is “in such a way”. Someone does not have to fly a swastika. The hon. Gentleman may have seen that some of the far right used to fly a red flag with a white circle but no swastika in it. Someone on an al-Quds parade might think that they can alter the Hezbollah flag and somehow pretend it is not to do with the military side, but that will not save them if they are using it in such a way as to commit that offence. Someone does not have to use the full wording, but we, the prosecuting authorities, have to prove that they are doing it in such a way as to incite or commit that offence. I warn those clever terrorists out there who think they can get away with it by swapping a few letters around that that will not make a difference.

[Nick Thomas-Symonds]

I am grateful for the Minister’s response and the additional reassurance he has given about “in such a way” or “in such circumstances”. On this occasion, he is right to say that the Bill uses the same wording as the Terrorism Act 2000, which has a solid body of interpretation from the courts behind it. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Paul Maynard.)

Counter-Terrorism and Border Security Bill (Fourth sitting)

Nick Thomas-Symonds Excerpts

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

[The Chair]

I remind hon. Members to switch off any electronic devices and to feel free to remove their jackets, although a reasonable breeze is blowing through the room. Will Members please note that I have made a change to the provisional selection and grouping on clause 3 with the agreement of the Minister, Mr Thomas-Symonds and the Scottish National party spokesperson, Mr Newlands?

Clause 3

Obtaining or viewing material over the internet

[Nick Thomas-Symonds (Torfaen) (Lab)]

I beg to move amendment 5, in clause 3, page 2, line 13, after “occasions” insert

“in a 12 month period”.

This amendment would mean that a person would have to view the relevant information three or more times in a 12 month period to commit the offence.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 6, in clause 3, page 2, line 15, after “kind” insert

“, provided that on each occasion the person intends to provide practical assistance to a person who prepares or commits an act of terrorism.”.

This amendment would require a person viewing information likely to be useful to a person committing or preparing an act of terrorism to intend to provide practical assistance of that kind in order to commit the offence.

Amendment 7, in clause 3, page 2, line 26, at end insert—

“(4) In subsection (3), leave out from ‘section’ to the end of the subsection and insert ‘where—

(a) the person sets out a reasonable excuse for their action or possession; and

(b) the excuse in paragraph (a) is not disproved beyond reasonable doubt.’.”.

This amendment would mean that a person has a defence to the offences in section 58 of the Terrorism Act 2000 as amended if they raise a reasonable excuse and that excuse cannot be disproved beyond reasonable doubt.

Amendment 8, in clause 3, page 2, line 26, at end insert—

“(5) After subsection (3), insert—

“(3A) A reasonable excuse under subsection (3) may include, but is not limited to, that the material has been viewed, possessed or collected—

(a) for the purposes of journalism;

(b) for the purposes of research;

(c) by an elected official, or an individual acting on behalf of an elected official, in the course of their duties; or

(d) by a public servant in the course of their duties.

(6) At the end of subsection (5) insert—

“(c) “elected official” has the same meaning as section 23 of the Data Protection Act 2018; and

(d) “public servant” means an officer or servant of the Crown or of any public authority.”.”.

This amendment would explicitly set out non-exhaustive grounds on which a reasonable excuse defence might be made out.

Amendment 9, in clause 3, page 2, line 26, at end insert—

“(7) The Secretary of State must within 12 months of the passing of this Act make arrangement for an independent review and report on the operation of section 58 of the Terrorism Act 2000 as amended by subsection (2).

(8) The review under subsection (7) must be laid before both Houses of Parliament within 18 months of the passing of this Act.”.

This amendment would require the Secretary of State to conduct a review and report to Parliament on the operation of the new offence inserted by this clause.

[Nick Thomas-Symonds]

I am grateful for the opportunity to speak to all the amendments together, Ms Ryan, which I think will assist the speed of business in Committee this morning. The Opposition support the aims of clause 3, as I made clear on Second Reading. A clear problem with the law is that the Terrorism Act 2000 covers downloading but not streaming. As I remarked on clause 1, updates to the law need to be made to take into account technological changes. The reality is that people now live-stream many things, rather than formally downloading them. It is not right that we criminalise the downloading but not the live-streaming. That clearly has to change.

However, two major points arise on the updated offence. The first is that it has to be workable from a practical perspective. If it is not, that will clearly be a problem. The second is that the clause should not bring into our criminal law those who carry out perfectly legitimate activities, so how the offence is drawn is extremely important. It was with those two factors in mind that I tabled my five amendments. They all aim, first, to make the clause workable, and secondly, to ensure that the way the clause is drawn targets the activity that we all wish to target and to criminalise but not that which I am sure every Committee member would want to encourage.

Amendment 5 relates to the period of time in the Bill over which the three clicks would be considered to give rise to a criminal offence. I proposed it as a safeguard on the three clicks, although I have severe reservations about the three clicks provision. It is vague, as it stands—we do not know whether it will be three clicks on the same stream or on different streams. By its very nature, it is also arbitrary. I have tabled amendment 5 to draw a period of time to the attention of prosecutors in making decisions on this new offence. I do it on the basis that I have reservations about the underlying three clicks approach in any event.

Amendment 6, on the intention to provide practical assistance, is based on something the Home Secretary said on Second Reading. The chair of the Home Affairs Select Committee, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) intervened on him and made the sensible point that, as clause 3 stood, she was concerned that the Select Committee itself could be in trouble under that clause. He replied:

“The objective is clearly to find and punish those with terrorist intent.”—[Official Report, 11 June 2018; Vol. 642, c. 633.]

That may be right at a common-sense level, but is not quite what the three clicks approach does, because there is no intention requirement alongside it. Amendment 6 would simply introduce the intention requirement to which the Home Secretary referred on Second Reading.

Amendments 7 and 8 are about the reasonable excuse defence, which I would like to see added to the Bill. It would be an important safeguard and reassurance to academics, researchers, members of the Home Affairs Committee or anyone else who might be viewing this type of content, not—to use the Home Secretary’s words—with any kind of terrorist intent, but for perfectly legitimate reasons in studying this kind of activity and helping the rest of society to understand and defeat it. That is very important and something that we should all encourage.

Amendment 7 would also reverse the burden of proof. It should not be for the person raising the reasonable excuse defence to have to prove it. Once raised as a defence, it should then be for the prosecution to disprove it beyond reasonable doubt. I am sure the Minister will also pick up that that reverse burden is in the Terrorism Act 2000 and, in my view, it is reasonable to expect that it should also be in this Bill.

Amendment 9 would provide for a review of the operation of the clause and a report to Parliament on it. If we were to persist with the three clicks approach, Parliament would need to look at its operation carefully in terms of how it is drawn and its workability.

To conclude, I am greatly concerned by the three clicks approach. I have tabled five amendments aimed at workability and safeguards, and I hope they will be considered carefully by the Minister.

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

It is a pleasure to see you in the chair again, Ms Ryan. I support amendments 5 to 8 in the name of the hon. Member for Torfaen. As has been outlined at various stages, clause 3—and the Government’s three clicks policy—has received the most attention and probably the most public criticism of any part of the Bill. Furthermore, I think the Minister knows that it is imperfect in its current guise. He has been open about the fact that the Government are not fully aligned to the three clicks policy, as the Home Secretary commented on Second Reading.

The Minister and the Government have my sympathy on this. The first job of any Government is to keep their citizens safe in these difficult times of high terrorist threat combined with the constant march of technology and online communication. It is very hard to keep legislation up to date and answer the calls of police and security services for further powers, while maintaining the balance of freedom and civil liberties that we expect and enjoy.

The SNP has serious concerns about how the policy will work in practice, and the impact that it may have on innocent individuals who have no interest in, intent to engage in, or no wish to encourage terrorist acts. It is self-explanatory that anyone who downloads or streams content for the purpose of planning or encouraging terrorist activity should face a criminal charge and, if convicted, a long sentence. Nobody would disagree with that, but this is about finding the most effective approach that targets the right individuals.

I accept the Government’s point that more people now stream material online than download it to a computer or other device, and as such it is vital that we continue to review our counter-terrorism approaches and ensure they meet the current threat level, but the Government’s approach to tackling streaming content through the three click policy is riddled with difficulty. Amendment 5 deals primarily with timing and does not take into account when a prosecution may be made.

The Government suggest that the three clicks policy is designed as a protection for those who accidentally access certain content online, but we must consider how easy it is for someone to click on a relevant source that could put them into conflict with the provision. It could catch someone who had clicked on three articles or videos of a kind likely to be of use to a terrorist, even if they were entirely different and unrelated and the clicks occurred years apart. Timing is crucial, because it would be difficult to accuse someone of being involved in terrorist activity if they had clicked on a certain source three times over a 10, 15 or 25-year period. Those concerns were echoed in the evidence session, and the independent reviewer of terrorism legislation, Max Hill—who we should all listen to—expressed his concern about the variable threshold proposed. We should act on that independent and expert advice by introducing a safeguard that could effectively help to identify a pattern of behaviour.

Richard Atkinson, the chair of the Law Society, also voiced his concerns about the Government’s three clicks policy, stating that it could undermine or restrict those with legitimate cases, and that the lack of any consideration of timing makes the measure very vague. He said:

“To leave the law in the hands of prosecutorial decision as to whether or not it meets the public interest is a step too far. I think there is a need for greater definition around what is being sought to be prohibited.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 31, Q74.]

Amendment 5 would add the safeguard that an individual would have to view the information three times or more in a 12-month period to have committed an offence, and that position was supported by Max Hill during the evidence session.

On Second Reading many Members made clear their concerns about the lack of other safeguards in clause 3, particularly regarding intent—for example, the clause does not take into account the length of time that anybody watches a video or views a website. That point was raised by the hon. Member for West Aberdeenshire and Kincardine on Tuesday in a question to Gregor McGill, who confirmed that the length of time that someone watches a video is not defined in the Bill, so watching a video or viewing a website for one second by mistake could be counted under the Government’s three strikes policy.

I accept the point made by Mr McGill that such breaches would be harder to prosecute, and that discretion would be applied, but as I have said, I am not comfortable with leaving such a wide area open to prosecutorial discretion. More importantly, as Max Hill said, such an offence without a test of intent is too broad and would capture too many innocent individuals. It is important that the Home Secretary accepts that a balance can be struck between liberty and security. Hoda Hashem, a law student at Durham University and one of many individuals and groups who sent helpful briefings to the Committee—I thank them all on behalf of the SNP—summed it up well by saying,

“the certainty and precision of laws are essential principles of our legal system. It allows ordinary people to know when their behaviour might veer into the realm of criminality, and it also means that the government and police cannot arbitrarily choose who to prosecute. In effect, it is wrong for the Home Secretary to argue that it would be down to the Police and CPS to fix a bad law. As a matter of principle, it is for Parliament to ensure that the laws it passes are clear enough to be applied consistently and, more importantly, predictably…If the government is serious about striking the right balance between liberty and security, the offence must include a criminal intent, or it must be withdrawn altogether.”

The Government may claim that adequate safeguards are in place to protect innocent individuals, but as we have heard, few agree with that position. That is why we support amendments 7 and 8, which have been tabled by the Labour party. The Government are asking for wide and vague powers, and we need safeguards in place to protect innocent individuals by ensuring that they are not prosecuted in the first place, and to provide for an adequate defence in the event that non-terrorists are taken to court. The stress placed on someone who was being investigated in that scenario would be extreme. Unless the safeguards are strengthened, and notwithstanding the Minister’s commitment regarding journalists and academics, it would be a brave journalist or researcher who would not be deterred or at least have second thoughts before viewing such material. Max Hill warned that thought without action must not be criminalised. We all agree that real terrorists should have nowhere to hide. We should also agree that legislating in the name of terrorism when the targeted activity is not actually terrorism would be wrong.

As we have heard, the French courts struck down a similar attempt by the French Government. In addition, a UN special rapporteur, Professor Joe Cannataci, expressed concerns about this provision, saying:

“It seems to be pushing a bit too much towards thought crime…the difference between forming the intention to do something and then actually carrying out the act is still fundamental to criminal law. Whereas here you’re saying: ‘You’ve read it three times so you must be doing something wrong’.”

In our view, amendments 5 to 8 are eminently sensible and, indeed, vital if the Government are to have any chance of surviving a legal challenge to elements of clause 3 and—almost as importantly—if they want to make good on the Home Secretary’s commitment that a balance can be struck between liberty and security.

--- Later in debate ---

[Mr Wallace]

Yes. That is the challenge for all policy makers: where legislation is too tied to the technology of the day, they end up becoming a prisoner of that legislation. Obviously, when the Act was written in 2000, or probably in 1999, it talked about a person who was guilty of an offence if he collected or made a record of information. No one thought in 2000 that, with 4G, and with 5G around the corner, people would not be downloading everything and that things would be done much more in a live stream.

That is the challenge for not only law enforcement, but other policy, whatever regulations we are doing. If someone is sitting in the Treasury, I should think that they are perplexed—I am not going to wander off my brief, because I will get into trouble—at how certain companies exploit old tax regulation to make huge profits, simply based on the fact that that regulation was written for an analogue and not a digital day. That is the same challenge we face in law enforcement.

In the spirit of what I have said from the very start of the Bill, and as I said when the Criminal Finances Act 2017 went through the House previously, I am determined that we collectively try to get to a place that will help our law enforcement and intelligence services and meet their need, but also reflect the very real concerns that have been raised.

[Nick Thomas-Symonds]

I am grateful to the Minister for that answer and for the constructive discussions he facilitated with me yesterday. It is important that we work constructively to get this clause absolutely right. I welcome the Minister’s approach in terms of not sticking to the three clicks approach—in fairness, he himself expressed reservations about it at an earlier stage—and in terms of the reasonable excuse defence, and I say that in respect of both the reverse burden, which is in the original Terrorism Act 2000 anyway, and of looking at whether we can put a non-exhaustive list of examples on the face of the Bill. All those things would be helpful in getting this clause into the right place. On that basis, I am happy not to press any of the amendments to a vote at this stage, and I look forward to what the Minister will bring forward on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4

Encouragement of terrorism and dissemination of terrorist publications

Question proposed, That the clause stand part of the Bill.

[Mr Wallace]

Clause 4 updates the law on the encouragement of terrorism, to ensure that it properly protects children and other vulnerable people. It amends sections 1 and 2 of the Terrorism Act 2006, which provide for the offences of encouragement of terrorism and dissemination of terrorist publications respectively. A statement containing an encouragement of terrorism for the purpose of section 1 and a terrorist publication for the purpose of section 2 are defined as a statement or publication that is likely either to be understood by members of the public to whom the statement or publication is published or made available as a direct or indirect encouragement to acts of terrorism or to be useful in the commission or preparation of acts of terrorism.

Those who radicalise others and who incite violence and hatred often target the most vulnerable in our society, seeking to spread their poison as wide as possible and to cause the maximum harm. Reflecting that, the focus of the section 1 and 2 offences is on the actions of the radicaliser, rather than of the person being radicalised. Specifically, it is on the nature of the encouragement to terrorism and on the intention, or recklessness, of the person doing the encouraging or disseminating the terrorist publication—that their actions should directly or indirectly result in another person preparing or committing an act of terrorism.

Other offences will of course apply if a person being encouraged goes on to prepare or commit an act of terrorism as a result, but those sections are specifically targeted at the harm intended, risked or actually caused by the radicaliser. That was Parliament’s intention when it created those offences in 2006, and clause 4 closes a gap so as to give full effect to that intention.

At present, the wording of sections 1 and 2 means that those offences are committed only if a person being encouraged or being shown a terrorist publication is objectively likely to understand what they are being encouraged to do. That produces Parliament’s intended result in cases in which encouragements are published or terrorist publications are disseminated to the general public and, in most cases, to a particular individual who has been targeted for radicalisation.

However, it also produces an unintended gap in cases in which a child or vulnerable adult is targeted for radicalisation and may lack the maturity or the mental capacity to fully understand what they are being encouraged to do, even when, to an objective bystander, it would be clear what the radicaliser was seeking to achieve. In such cases, the radicaliser may be purposefully seeking to indoctrinate and groom a child or vulnerable adult to become involved in terrorism but could potentially evade liability for doing so, despite their best efforts and their worst intentions to cause serious harm, if they could establish that the current tests in sections 1 and 2 were not met, because their target did not fully understand what they were being encouraged to do.

We do not believe that any case has so far arisen in which this issue has prevented a prosecution, and thankfully we do not anticipate it being relevant in large numbers of cases in the future. However, we consider it important to take this opportunity to close that gap, which is well highlighted by the recent and horrifying case of Umar Haque, who was jailed for life after pleading guilty to disseminating terrorist publications to large numbers of children, whom he encouraged to carry out Daesh-inspired attacks, as well as being found guilty of a number of other serious offences, including plotting terror attacks.

I am not sure whether hon. Members are aware of the case, but Haque taught at unregulated schools in north London, exposing his views to, we think, hundreds of children, getting them to swear allegiance to ISIS, to re-enact attacks and to watch beheading videos, and then threatening that they would go to hell if they told their parents or other people. That is an example of the campaigns deliberately targeting the vulnerable and the young that some Daesh members get involved in.

We have seen in a number of lone wolf attacks—individual attackers, rather than complex plots—people with significant conditions who have been groomed or encouraged to do things. That is a very real example of why we have to be alert to the desperate measures that Isis involve themselves in. They are totally indiscriminate about who they encourage or who they wish to use to spread their hate.

I do not think that that is entirely on one side of the spectrum, and we could look at some examples of neo-Nazis and the far right: they, too, are casting their net wider and wider. Lonely, often damaged, young individuals sitting in their bedrooms are attracted to being part of some white, superior ideology. Again, that is why we are trying to close this gap.

This measure will help to ensure that the most vulnerable people are protected from radicalisation and prevented from engaging in terrorist activity. By extension, it will help to protect the wider public from acts of terror perpetrated by those who are vulnerable and who, as we have seen, may be exploited and manipulated by others for terrorist ends. I beg to move that clause 4 stands part of the Bill.

[Nick Thomas-Symonds]

I can deal with the clause relatively briefly, because the Opposition support it. The way in which sections 1 and 2 of the Terrorism Act 2006 are drafted means that they do not capture some of the activity that we wish to criminalise. The drafting of the 2006 Act looks at the victim and at whether, objectively, they are likely to have understood. As the Minister set out, section 1(1) states:

“This section applies to a statement that is likely to be understood by some or all of the members of the public to whom it is published”.

That means that anyone who is a vulnerable adult or a child, or anyone who may, on that objective test, be unlikely to understand it, is not covered by the law as it stands. Clearly, that needs to be tightened up.

The second part of the clause, which refers to section 1(2) of the 2006 Act, substitutes the test of “a reasonable person” for the test that exists. That is an entirely sensible change. Taken together, the changes mean that when we look at dissemination of this material, we can consider vulnerable victims, whether they are adults or children, and not be stuck with the objective test, which means that they cannot be covered. On that basis, the Opposition support clause 4.

--- Later in debate ---

[Nick Thomas-Symonds]

I rise to support the clause. The Minister has already set out that extraterritorial jurisdiction is nothing new under our law. It most certainly is not, and the effect of this clause is to extend that extraterritorial jurisdiction to new offences, including under section 13 of the Terrorism Act 2006, which is about uniforms and flags associated with proscribed organisations; section 4 of the Explosive Substances Act 1883, which is the making or possessing of explosives in suspicious circumstances; the dissemination offence under section 2 of the 2006 Act, which we referred to in our debate on clause 4; and finally to section 1 of the 2006 Act on encouraging terrorism.

I would press the Minister to elaborate a little more on the point made by the independent reviewer of terrorism legislation in his evidence to the Committee, expressing concern about the way in which extraterritorial jurisdiction is applied to UK citizens on the one hand and non-UK citizens on the other. The Minister referred to the Attorney General’s permission being given in certain circumstances, where we have British nationals on the one hand and on the other we do not. While the Opposition wholly support the clause, it would assist if the Minister at least addressed the concern that the independent reviewer raised about the clause in that regard.

[Stephen Doughty]

I agree with the comments the Minister and my hon. Friend have made on this clause 5, but I would be interested in the Minister’s remarks on this point: if an individual has committed these offences or any of the existing offences abroad, it is crucial to detain them at the border when they attempt to re-enter the UK. There have been some worrying reports in the last few weeks about stolen passports or identity documents being available, and being used by criminals and those who have potentially committed terrorist offences overseas. It is crucial that we co-operate with Europol and Interpol, through the databases on stolen documents, to stop individuals who are attempting to sneak back in, perhaps because they have committed the offences outlined in the clause—indeed, they are the most likely to be trying to avoid detection on entering the UK. Can the Minister say a little about what steps are being taken to enforce not only the existing measures, but the measures as outlined in clause 5?

--- Later in debate ---

[Mr Wallace]

I will be quick, because this is definitely wandering off the clause. We wash millions of passenger name records at the National Border Targeting Centre, and if there are cancelled or stolen passports, they match. We are quite quick on that compared with our European allies, and we have a high detection rate, although it is not 100%. We have invested in that capability over the decades and I am confident that although we do not get them all, we do detect them. Obviously, we have to ensure that we continue to review that, and we are doing that as we speak.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clause 6

Increase in maximum sentences

[Nick Thomas-Symonds]

I beg to move amendment 10, in clause 6, page 3, line 36, at end insert—

“(7) Sentencing guidelines for offences for which the maximum sentence has been increased under this section must be published within six months of the passing of this Act by the following bodies—

(a) in relation to England and Wales, the Sentencing Council for England and Wales;

(b) in relation to Scotland, the Scottish Sentencing Council; and

(c) in relation to Northern Ireland, the Lord Chief Justice’s Sentencing Group.”

This amendment would require the bodies responsible for sentencing guidelines to produce new guidelines in relation to offences for which the maximum sentence would be increased under Clause 6.

Clause 6 is the first of five clauses that facilitate the extended maximum sentencing periods with respect to the earlier clauses. I was uneasy about additional sentencing, given the state that clause 3 was in, but because of the Minister’s reassurances about the changes to that clause, I am less uneasy about it. Amendment 10 looks at the continuing role of the Sentencing Council. The council published its guidelines on this area in March, but they have not been updated to take into account the changes that are happening to offences as a result of clauses 1, 2 and 3, as I will set out.

In one of our earlier debates, the Minister said that it is of course always at the discretion of the judge to apply the law to the sentencing of an offender in an individual case and to take into account the circumstances, the background of the offender, the nature of the offence and so on. No parliamentarian would seek to interfere with that judicial discretion in particular cases, but the Sentencing Council’s guidelines fulfil a vital role when parliamentarians set maximum sentencing penalties, as the Bill does—it does not set minimum sentences.

All I wish to say to the Minister on this amendment is that, although we would not wish to stray into that judicial discretion, it might be sensible for the Sentencing Council to look at these offences in updated form, to see whether they wish to publish new guidelines. That would be sensible for everybody.

[Mr Wallace]

Let me start on a positive note: I fully endorse the sentiment behind the amendment of the hon. Member for Torfaen. It is right that the bodies responsible for providing sentencing guidelines in England, Wales, Scotland and Northern Ireland can review and update any relevant guidelines in relation to terrorist offences to take account of the provisions in the Bill. As the Committee will be aware, the Sentencing Council for England and Wales published new guidelines for terrorism offences in March. Those came into force on 27 April. The new guidelines reflect the developing nature of the terrorist threat and the increasing concern about the availability of extremist material online, which can lead to people becoming self-radicalised.

The Sentencing Council has indicated that, in terms of the impact on sentencing levels,

“it is likely that in relation to some offences, such as the offences of preparing terrorist acts and building explosive devices, there will be increases in sentence for lower level offences. These are the kinds of situations where preparations might not be as well developed or an offender may be offering a small amount of assistance to others. The Council decided that, when considering these actions in the current climate, where a terrorist act could be planned in a very short time period, using readily available items such as vehicles as weapons, combined with online extremist material providing encouragement and inspiration, these lower-level offences are more serious than they have previously been perceived.”

That approach is very much to be welcomed, and I commend the Sentencing Council for its work on these guidelines.

I should also stress that the Sentencing Council, and its Scottish and Northern Ireland equivalents, are independent bodies. The Sentencing Council for England and Wales is governed by the statutory provisions of the Coroners and Justice Act 2009. The council has particular statutory duties, including a duty to consult on guidelines or amendments to guidelines. That consultation duty includes, for example, a requirement to consult with the Justice Committee. There are practical implications, therefore, with requiring the council to issue guidelines six months after Royal Assent, especially when the council cannot begin to consider guidelines until the Bill receives Royal Assent. However, the guidelines need to be kept up to date to reflect changes to the law, including those made by the Bill. I can assure the Committee that the council is alive to that; indeed, in its consultation on the draft terrorism offences guidelines, it was to some extent able to anticipate the increases to sentences contained in the Bill.

Clause 6 changes the maximum penalty for four offences. We are not rewriting the sentencing provisions for the entirety of terrorism offences, but seeking to update a specific set of offences to make sure that the maximum penalty reflects the severity of the offence. Consequently, we believe that the council will be able to modify the existing guidelines once the provisions to increase penalties in this Bill are enacted. We do not envisage that being a protracted process. As the Committee would expect, we have kept the Sentencing Council apprised of the provisions in the Bill, and the chairman has indicated that the council plans to revisit the guidelines once the Bill has completed its parliamentary passage.

The position in Scotland and Northern Ireland is different. In Scotland, I understand that the Scottish Sentencing Council has not issued any specific guidelines relating to terrorist or terrorism-related offences. There is a similar situation in Northern Ireland. Instead, the judiciary is guided by guideline judgments from the Court of Appeal. I would be happy to alert the Scottish Government and the Northern Ireland Department of Justice to this debate, but we should otherwise leave it to the Scottish Sentencing Council and the Lord Chief Justice’s sentencing group to determine how best to proceed. I am sure that is a sentiment that the hon. Member for Paisley and Renfrewshire North would endorse.

I thank the hon. Member for Torfaen for tabling this amendment, and I fully understand his reasons for doing so. However, I hope I have been able to persuade him that the mechanisms are already in place for the relevant sentencing guidelines to be updated to reflect the provisions in the Bill. On that basis, I ask that he withdraw his amendment.

[Nick Thomas-Symonds]

I am very grateful for those assurances. I welcome the assurance in respect of England and Wales, and the fact that the Sentencing Council is very much alive to this debate and prepared to make further recommendations. I also welcome what the Minister said with regard to Scotland and Northern Ireland. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Clauses 7 to 10 ordered to stand part of the Bill.

Clause 11

Additional requirements

Question proposed, That the clause stand part of the Bill.

[Mr Wallace]

Clause 11 strengthens the notification requirements that apply to individuals convicted of terrorism offences or offences with a terrorist connection to enable the police to better manage the risk posed by such individuals. The notification requirements apply to an individual over the age of 16 who has been sentenced to a term of imprisonment of 12 months or more. Such terrorist offenders are required to notify the police of certain information, such as their name, address, date of birth and national insurance number, on release from custody, and to keep such information up to date. The notification requirements apply for up to 30 years, depending on the length of sentence imposed and the age of the offender. Those requirements provide the police and other operational partners with the necessary but proportionate means to monitor the whereabouts of convicted terrorists. They allow the police to assess the risk posed by a registered terrorist offender and, where appropriate, to take action to mitigate any risk posed by an individual.

The notification regime in the Counter-Terrorism Act 2008 operates in much the same way as a similar notification regime for convicted sex offenders. However, the range of information that registered sex offenders must provide to the police was updated in 2012 and is now far more extensive than the information that terrorist offenders must provide. This clause seeks to bring the notification scheme in the 2008 Act more closely into line with that in the Sexual Offences Act 2003. The changes in respect of registered terrorist offenders will strengthen the requirements and ensure that they provide the police with an even more effective risk-management tool.

The changes provided for in this clause are as follows. First, we are adding to the information that RTOs are required to notify to the police to include details of bank accounts and credit, debit or other payment cards; details of passports and other identification documents; phone numbers and email addresses used by the RTO; and details of vehicles that are owned by the offender or that they are able to use. The provision of information about vehicles does not apply to registered sex offenders, but it is considered necessary for intelligence purposes to help build a picture of the RTO’s activities and movements.

Secondly, we will require offenders with no fixed address to re-notify their information to the police on a weekly basis. That is to ensure that the risk posed by offenders can be monitored appropriately. Finally, although the point is dealt with in schedule 4 rather than the clause, the Bill requires RTOs to give the police seven days’ notice of any overseas travel, rather than, as now, only travel that lasts for more than three days. As now, RTOs will be required to keep that information up to date, so the existing duty to notify the police of any changes will apply. Failure to comply with the notification requirements is a criminal offence, punishable by up to five years in prison.

As I have indicated, the changes to the notification regime will enable the police to better manage the risk of re-offending by convicted terrorist offenders. Much of the additional information that RTOs will be required to notify to the police is already reflected in the sex offender notification regime, and it is high time to bring the 2008 Act scheme into line.

[Nick Thomas-Symonds]

I rise to support the clause. The registered terrorist offender regime is nothing new and is already set out in the Counter-Terrorism Act 2008. As the Minister set out, the Bill makes a number of extensions to it, so as to include details of bank accounts, credit cards, passports, phone numbers, email addresses and vehicles.

The Minister was right to draw parallels with the convicted sex offender regime, which was updated in 2012. There is the distinction that vehicle details do not apply to registered sex offenders, but given that vehicles have been used as weapons in terrorist atrocities that we have seen, I do not think it unreasonable to include vehicle details in the clause. In addition, it is welcome that we have the seven days’ notice for overseas travel, rather than simply looking at the duration of overseas travel, which was the previous requirement. For all those reasons, the Opposition support the clause.

Question put and agreed to.

Clause 11 accordingly ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 12

Power to enter and search home

[Nick Thomas-Symonds]

I beg to move amendment 28, in clause 12, page 13, line 18, at end insert—

“(ba) that there are reasonable grounds for believing that the person to whom the warrant relates has committed an offence;”.

This amendment would require a police officer applying for a power to enter and search the home address of a person subject to notification requirements to demonstrate reasonable grounds for believing that the person has committed an offence.

I make it clear at the outset that I hope that the amendment will simply draw an explanation from the Minister as to a particular meaning within the clause. The amendment again refers to the regime in place to deal with registered terrorist offenders. As we discussed, clause 11 will extend the detailed information available regarding an offender’s home, vehicle and finances. Clause 12 brings a power to enter and search the home address of a registered terrorist offender. There are already safeguards in the clause, including that there has to be authorisation from a magistrate and that the police have to have twice failed to gain access, and both of those are reasonable.

I do not oppose the idea that there will be circumstances in which the police will need to enter property in that way. I tabled the amendment simply to draw from the Minister a bit more explanation of what is meant in new section 56A(1)(a), which the clause will insert into the Counter-Terrorism Act 2008, by the words

“to enter premises specified in the warrant for the purpose of assessing the risks posed by the person to whom the warrant relates”.

I raised this issue with Assistant Commissioner Basu, who—in a very common-sense and perfectly acceptable way—talked about the risk of the person falling back into terrorist activity. Will the Minister be a bit more precise about what the police will look for, including whether this will relate to digital material, flags or other materials? I would appreciate his elucidating on that, because concern has been expressed that, as drafted, “assessing the risks” is rather vague.

--- Later in debate ---

[Mr Wallace]

The hon. Gentleman makes the fair point that it is all very well having lots of powers, but we must have the officers to deal with such matters. We have increased funding for counter-terrorism policing to ensure that we have as many such officers as possible. I am confident that the management of terrorist offenders is predominantly down to counter-terrorism officers. It would not be left up to a PCSO or a general beat constable. We have sufficient police officers to deal with this issue.

The power is as much an offender management tool as a criminal justice pursuit tool. It is about how we manage offenders effectively. That is why it is voluntary at first: we ask twice whether we can come and check up on someone, and only then do we resort to the law, which I think will happen rarely. There will probably be a reason when it happens, and that is when we will see a borough commander. People in the constabulary would move resources to address this.

I share the sentiment expressed by the hon. Member for Cardiff South and Penarth that the police and other law enforcement authorities should exercise their powers sensitively. Many members of the Muslim community in my constituency live together as large families. It may be that one person is a terrorist offender but no one else is. We all have good and bad neighbours and family members, and we have to respect that.

I reassure the hon. Gentleman that the power to enter and search will be exercised under the powers of entry code of practice, which is issued under section 48 of the Protection of Freedoms Act 2012. The code states that officers entering properties where people are subject to the notification regime in part 4 of the Counter-Terrorism Act 2008 must act reasonably and courteously to persons present and the property, and use reasonable force only where it is assessed to be necessary and proportionate to do so. We all know that that requirement is not always met, and we have to intercede with local police to ensure that our constituents’ concerns are addressed.

The amendment would therefore create a provision analogous to the code of practice by which the police already operate, in the context of their seeking twice to be granted entry voluntarily. One hopes that a good police officer would manage to get there without having to resort to the law.

I believe that the safeguards built into the clause are sufficient to ensure that the power will be used proportionately and only when it is absolutely needed by police officers. Introducing a requirement for police officers to have reasonable grounds for believing that an offence has been committed would restrict the use of the power to an unnecessary degree and undermine its primary purpose, which is to ensure that officers can assess the risk posed by a convicted registered terrorist offender at the address they have provided.

It is important to mention that we are dealing with people who have been convicted of an offence rather than those who are suspected of having committed one, so restricting the power of law enforcement forces would get the balance slightly wrong. These people are already offenders, so I believe that our police should have slightly wider powers in this respect.

I remind the Committee that Assistant Commissioner Neil Basu said last week that the power of entry

“is something that allows us to assess the ongoing risk of their re-engaging with terrorism…You might find a flag being displayed. You might find material that is of use to a terrorist. That is the purpose of it.”—[Official Report, Counter-Terrorism and Border Security Bill Committee, 26 June 2018; c. 25, Q52.]

Given the clear operational need for the provision, I ask the hon. Member for Torfaen to withdraw his amendment.

[Nick Thomas-Symonds]

I am grateful for that further elucidation from the Minister. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clause 13

Serious crime prevention orders

Question proposed, That the clause stand part of the Bill.

[Mr Wallace]

Clause 13 will make it clear in the Serious Crime Act 2007 that a serious crime prevention order may be made in respect of terrorism offences. SCPOs, which were introduced by the 2007 Act, are court orders that are used to protect the public by preventing, restricting or disrupting a person’s involvement in serious crime. They may impose various measures on an individual, proportionate to the risk of that person re-engaging in serious criminal activity.

Such an order may be made by a Crown court—or, in Scotland, by the High Court of Justiciary or a sheriff—in respect of an individual who is convicted of a serious crime, in which case the order would come into effect once its subject was released from custody. Additionally, such orders may be made by the High Court—or, in Scotland, by the Court of Session or a sheriff—where the Court is satisfied that a person has been involved in a serious crime, and where it has reasonable grounds to believe that the order would protect the public by preventing or disrupting the person’s involvement in serious crime.

--- Later in debate ---

The Serious Crime Act 2015 includes various safeguards, such as the provision for the variation of the terms of an order, and rights of appeal against the making or variation of an order and a refusal by the court to discharge an order.

[Nick Thomas-Symonds]

I rise to support clause 13. It is self-evident that terrorism is a serious offence, and the SCPO regime, which has been in place since the 2007 Act, can be an important tool in dealing with terror offences.

As the Minister has set out, the SCPO will come into effect when an offender is released from custody with the purpose of preventing or disrupting their involvement in serious crime. Restrictions on travel and access to property or telephones can be part of that. The regime has worked in relation to other serious offences, and it is sensible to extend to it to terrorism.

Question put and agreed to.

Clause 13 accordingly ordered to stand part of the Bill.

Clause 14

Traffic regulation

[Gavin Newlands]

I beg to move amendment 13, in clause 14, page 15, line 20, at end insert—

“(2A) The authority may not impose any charge where the relevant event is a public procession or assembly as defined by section 16 of the Public Order Act 1986 taking place for the purposes set out at section 11(1) of the same Act.”

This amendment would ensure that a new power to impose charges in connection with anti-terror measures at events or particular sites would not restrict protest rights through the imposition of costs that organisers are unable to pay.

[Gavin Newlands]

Amendment 13 is straightforward, so I will not detain the Committee too long. Anti-terrorism traffic regulation orders—ATTROs—allow vehicle or pedestrian traffic to be restricted for counter-terrorism reasons. We have all seen the bollards and barriers that are set up during events to protect the organisers, spectators and those taking part. ATTROs can be temporary or permanent fixtures—as is the case at the moment outside Parliament. The amendment is not about restricting the importance of ATTROs, but ensuring that any new measures that are introduced are proportionate and do not restrict people’s ability to protest and demonstrate.

Clause 14 proposes a range of changes to the Road Traffic Regulation Act 1984, including removing the requirement to publicise an ATTRO in advance and allowing the discretion of a constable in managing and enforcing an ATTRO to be delegated to third parties, such as local authority staff or private security personnel.

In addition, the clause would allow the cost of an ATTRO to be recharged to the organisers of an event. It states:

“The authority may impose a charge of such amount as it thinks reasonable in respect of anything done in connection with or in consequence of the order or notice (or proposed order or notice).”

The new charge would be payable by an event promoter or organiser, or the occupier of a site, and relevant events include those taking place for charitable and not-for-profit purposes. Although I see a lot of merit in clause 14, I am concerned that it will stop people gathering for demonstrations.

Amendment 13, which I hope is a common sense amendment, was tabled to address those specific concerns. It would allow an exemption to be made, so that any new power introduced through clause 14 would not restrict an individual’s right to protest on a cause that is important to them. Clause 14 certainly will not save a huge amount of money; the Library briefing on the Bill states that it could be as little as £66,000. The amendment is designed to ensure that the right of freedom of assembly and association, as protected by articles 10 and 11 of the European convention on human rights, is not violated due to the organiser of a protest being unable to meet the costs levelled against them.

Last week, Corey Stoughton of Liberty expanded on that in her evidence to the Committee. She said:

“To be consistent with the right to assemble and protest under article 10, there must be a legislative exemption for activity protected by those fundamental rights. That is an exemption that we have seen replicated in other, similar provisions in UK law…A simple fix to this would be to recognise that putting such charges on activity protected by the right to protest and assemble is an undue burden on that activity, and the cost of protecting those events has to fall on the state in the course of its obligation to protect that right.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 52, Q109.]

I agree. We have created exemptions in the past to protect our right to protest. The state must protect that right and I think most people, even Government Members, believe that a citizen’s right to protest is worth a lot more than £66,000.

[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.

[Stephen Doughty]

I rise to support the amendments, but I wish to raise a separate point about obstructions. First, I want to understand fully from the Minister why all the new powers are necessary. I represent a constituency where we host many major events. We have the National Assembly for Wales, we hosted part of the NATO summit, and we hosted the UEFA champions league final, including the fan zone. I regularly see such measures—bollards, traffic restrictions and blockages—being put in place anyway, so why are all the additional powers necessary? Substantial powers seem to be available to the police and other authorities already to restrict traffic or make areas safe.

Secondly, what steps will the Government take to ensure that appropriate notice of likely disruption is given to residents, or indeed to businesses, in areas that will be affected by the measures? Also, what compensation might be available to those who face significant disruption to, for example, business activity? Obviously, I appreciate that in very short-notice situations, when a specific threat arises, it may be impossible to give appropriate notice, and sometimes things need to be done to protect the public. That should be at the forefront of all our minds. However, we are talking about major events that are planned many months in advance. Unfortunately, I have seen many examples of businesses, in particular, and residents experiencing disruption that could quite easily have been avoided if better information had been made available about safe travel routes, or likely disruption of business opening hours and so on. That can be quite significant.

For the UEFA champions league final there were, rightly, extensive bollards and access gates, and all sorts of other road traffic measures, for several weeks in advance, as well as during and after the event. However, despite the availability of information about the fact that the event was happening, it was not always clear to Cardiff Bay residents—of whom I am one—or businesses what routes would be available, when they would be open, and what disruption was likely. I know of some businesses that lost substantial amounts because the placing of barriers and bollards obstructed the business and impeded access. Such things are side effects of necessary measures, but we must recognise that they are a consequence of holding major events, and of the provisions needed to keep them safe.

I would like, first, to understand why all the new powers are necessary and, secondly, what steps the Minister believes security authorities, police and local authorities should take to mitigate the effect on residents and businesses.

Counter-Terrorism and Border Security Bill (Fifth sitting)

Nick Thomas-Symonds Excerpts

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

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

I beg to move a manuscript amendment, in paragraph (1), sub-paragraph (d) of the order of the Committee of 26 June, leave out “and 2.00 pm”.

It is a delight to serve under your chairmanship this afternoon, Mrs Main. Following discussions through the usual channels, it was proposed not to sit on Thursday afternoon. Accordingly, I have moved a motion to amend the programme resolution.

Amendment agreed to.

Clause 14

Traffic regulation

[Nick Thomas-Symonds (Torfaen) (Lab)]

I beg to move amendment 30, in clause 14, page 16, line 33, leave out from “authorise” to “to” in line 34, and insert “another constable”.

It is a pleasure to serve under you as Chair this afternoon, Mrs Main. I rise in unusual circumstances, because the Minister responded to parts of the amendment this morning, so I can anticipate some of the response. The amendment relates to proposed new subsection (5)(d) in the Road Traffic Regulation Act 1984, in subsection (9)(c), which is the part of the clause that will empower a constable in connection with anti-terrorism regulation orders, or ATTROs. I am moving the amendment simply to draw some clarity from the Minister.

The explanatory note states that

“it might be left to a security guard or steward to determine when a provision of an ATTRO is to commence or cease operating on a given day”.

I can see the common sense in that. For example, where a particular restriction has a set number of hours and everyone has gone, it would be in everyone’s interest to have somebody on the ground who can say, perhaps an hour before the specified time, that the restriction is being brought to an end. What might be more problematic, however, is situations arising all over the country—for example, where a security firm or otherwise has taken on responsibility for particular things—where broad, strategic decisions are taken out of the police’s hands and put into the hands of different bodies that may be applying them inconsistently.

Will the Minister set out the balance? There is nothing wrong with making common-sense decisions on the ground in a limited way, and if that is what is envisaged, as it seems to be from the explanatory notes, I would be satisfied by that explanation. What I would be less in favour of is a lot of inconsistency around the country or for common-sense decisions on the ground to perhaps interfere with the overall strategy for these events, which I would expect to be in the hands of the police.

[Mr Wallace]

I hear the hon. Gentleman’s concerns. The key part of this provision, reflecting my earlier answers, is that it hands the constable the right to exercise his or her discretion about when to effectively delegate or allow the power to be used. I would trust the judgment of the police commanders I know—for example, Neil Basu, the counter-terrorism lead—to make that call in those situations. It is important to recognise that we do not want highly trained police officers with powers to be inappropriately used for something that a security guard, a steward or somebody else could do, which would be a better use of their time. I trust their discretion and think that the constable will get it right.

Most such events are properly planned. Where there has been an ATTRO, it will predominantly be because of a specific threat, or certainly enough threat to warrant it, which will clearly indicate a significant amount of deliberate planning, such that the local authority and, for example, the sporting event will be fully played into. I am therefore happy that that is where we are and we can allow those police officers to be used better.

I assure the hon. Gentleman that, all the way through, this is as much about the discretion of chief officers and local authorities in being able to police events properly, with the health warning that this is not to be used as a charging mechanism. It is thought that on average an ATTRO will cost between about £3,500 and £10,000, with approximately 90% of the cost usually going on ATTRO advertising. I do not think that is a significant impact. In fact, where an ATTRO is needed, the cost will sometimes fall on the Crown. I suspect that, for the Commonwealth summit at Lancaster House for example, the required costs will effectively mean Government paying Government.

I do not think we should remove the ability of a constable to delegate where they need to. That is the best way to get the correct policing and the right resources to the right event and also, perhaps, to limit the cost impact on some of these events. I would not want them to be unduly restricted. That is the thinking behind this part of the legislation, and I urge the hon. Gentleman to withdraw his amendment.

[Nick Thomas-Symonds]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 ordered to stand part of the Bill.

Clause 15 ordered to stand part of the Bill.

Clause 16

Detention of terrorist suspects: hospital treatment

Question proposed, That the clause stand part of the Bill.

[Mr Wallace]

I want to speak to clause 16 because I am conscious that, even if no amendments are tabled, some parts of the Bill are important and the concerns that we heard in evidence should be reflected. Even if hon. Members on both sides of the Committee agree with the provision, it is important that those on the outside can hear some of our justification.

The clause amends the Terrorism Act 2000 to exclude time spent in, and travelling to and from, hospital from the calculation of the time a suspect spends in pre-charge detention. General criminal law has long recognised that it is appropriate to pause the detention clock so that the time an individual spends in pre-charge detention does not include any time they are receiving hospital treatment or travelling to or from hospital, in the relatively rare cases where a detainee needs hospital treatment.

At present, the calculation of the maximum period of pre-charge detention for an individual arrested under the 2000 Act makes no allowance for any time spent by the suspect receiving hospital treatment. Consequently, if a suspect were to be injured or fall ill in custody, the amount of time available to the police to interview the suspect would be reduced. That could impair the police investigation and prevent a proper decision from being reached on whether to charge the individual before they must be released. They could therefore evade justice and the public could be put at risk.

The change will ensure that the police can use the full amount of time permitted to them under the law to question a suspect, investigate the suspected offence, and work with the Crown Prosecution Service to reach a charging decision. Terrorist investigations are often exceedingly complex and can involve a high level of risk to the public. As such, it is important that the police are able to investigate fully and get such decisions right.

The change will also apply to the calculation of the maximum time for which an individual may be detained for the purpose of examination under schedule 7 to the 2000 Act, which stands at six hours including the initial hour during which a person may be examined without being detained. That will give effect to a recommendation made by the former independent reviewer of terrorism legislation, David Anderson, QC, and will bring the provisions of the 2000 Act in line with the Police and Criminal Evidence Act 1984.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clause 17 ordered to stand part of the Bill.

Schedule 2

Retention of biometric data for counter-terrorism purposes etc

--- Later in debate ---

[Nick Thomas-Symonds]

The amendment goes to the very heart of the framework of counter-terrorism—the balance that is to be struck between liberty and security. I respect the arguments on both sides. Assistant Commissioner Basu referred to how data obtained from a port stop had been useful in identifying someone who would go on to engage in an act of terrorism. He was absolutely clear that that kind of data could be useful in the fight against terror. However, that has to be balanced against the concerns.

There are concerns, first, about whether the data that is held can be kept secure and, secondly, about two particular classes of people, if I can put it that way. The first class is the person who is arrested because of a mistake, whether that be mistaken identity or a mistake in place or in any other material fact. The second class is the person who has been arrested and never charged. How we strike that balance and protect those people is vital.

Although I have sympathy with the means by which the hon. Gentleman has sought to achieve that balance—essentially by keeping the period of retention at two years rather than extending it to five—the amendment is something of a blunt instrument. You would quite rightly stop me, Mrs Main, if I started to refer to the next amendment that is tabled in my name, but none the less I think that that amendment is a better means of achieving and striking the balance. It would protect the two types of people I have referred to and give them a right to appeal. This amendment is a blunt instrument for achieving the same aim.

--- Later in debate ---

[Gavin Newlands]

Despite the Minister praying in aid the Biometrics Commissioner, I still do not buy the Minister’s comments or the strength of his argument about these provisions. However, despite the outrageous description by the hon. Member for Torfaen of my amendment as a blunt instrument, I am conscious that the Labour Front Bench has tabled an amendment in the next group that retains the Biometric Commissioner’s oversight, although it also retains the five years. I will throw my support behind that amendment and for that reason I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Nick Thomas-Symonds]

I beg to move amendment 33, in schedule 2, page 35, line 17, at end insert—

“21 (1) A person whose biometric data is retained under the provisions of this schedule may apply to the Commissioner for the Retention and Use of Biometric Material (‘the Commissioner’) for the destruction of that data when the conditions in sub-paragraph (2) are met.

(2) The conditions referred to in sub-paragraph (1) are—

(a) that the retention of the biometric data has not been previously authorised by the Commissioner or a court of law; and

(b) that the biometric data was taken from the person—

(i) in circumstances where the arrest or charging of the person was substantially due to a mistake, whether of identity, place or other material fact; or

(ii) the person was arrested but never charged for the relevant offence.

(3) On receiving an appeal under sub-paragraph (1), the Commissioner must seek representations from the chief officer of police in the area in which the biometric data was taken as to whether the data should be destroyed or not.

(4) The Commissioner must determine an appeal under sub-paragraph (1) within three months of receiving the appeal.”

Although I described the previous amendment as a blunt instrument, it was proposed in an effective way and was eloquently argued.

[Gavin Newlands]

You are forgiven—just don’t do it again.

[Nick Thomas-Symonds]

I will try not to.

I will put the case for amendment 33, as I started to do in the last series of amendments. The amendment squarely aims at striking an appropriate balance between liberty and security. Two circumstances are highlighted. The first is when there has been a mistake, which can happen, such as a mistake involving identity, place or any material fact—or in the intelligence, which can also happen, as the security Minister would accept. The second circumstance is when a person has been arrested but not charged for the offence. My hon. Friend the Member for Manchester, Gorton referred to the impact on the BAME community, which fits precisely into that category—people who do not end up being charged with an offence.

The amendment states that an application can be made to the commissioner for the destruction of data when the conditions are met. On receiving the appeal, the commissioner must seek representations from the chief officer of police in the area from which the biometrics data was taken as to whether it should be destroyed or not. Even if there is an appeal by an individual to the commissioner, that additional sub-paragraph means that the chief officer of police can make representations, which seems to strike a balance between the two. The individual person has the right, but if there are background concerns, the chief officer of police can make those representations.

There would also be a period of three months in which to determine the appeal, which is a reasonable period for collecting the necessary data from the chief officer of police and for consideration. Of course, there will be circumstances in which appeals will be turned down on that basis, but none the less it provides a framework. If people’s data is being retained in circumstances where a mistake has been made or when they have not ultimately been convicted of an offence, they can appeal to have it taken away, but that safeguard of representations from the chief officer of police remains. In those circumstances, I commend the amendment as a reasonable way through what I accept is a difficult problem.

[Mr Wallace]

The amendment provides for a person whose fingerprints and DNA profiles are retained under a power amended by schedule 2 to apply to the Biometrics Commissioner for the data to be deleted, if the commissioner has not previously authorised its retention. The grounds on which data might be deleted are if the individual was arrested or charged as a result of a mistake, for example mistaken identity, or if they were arrested but not subsequently charged.

In so far as the amendment relates to cases of mistaken identity, I am happy to inform the hon. Member for Torfaen that existing legislation already directly addresses this issue, and in fact provides a stronger safeguard than he is proposing. Section 63D(2) of PACE states that biometric data must be deleted by the police without the individual needing to appeal if it was taken where

“the arrest was unlawful or based on mistaken identity.”

This aspect of his amendment is therefore unnecessary, although I wholly support the principle behind it.

In so far as the amendment relates to cases where the individual was arrested lawfully and no mistakes were made but they were not subsequently charged, similar ground was covered by previous amendments. One of these amendments would have removed from the Bill—in its entirety—measures providing for an automatic retention period following arrest under PACE on suspicion of terrorist offences. I have already set out why those measures are appropriate and necessary, and I am pleased that the Committee did not pursue those earlier amendments. For a similar reason, I cannot support this amendment.

I have already said that the Bill does not depart from the principle established by the Protection of Freedoms Act 2012 in that the biometric data of a person who has been arrested but not charged should no longer be retained indefinitely in most cases, as it used to be. In passing that legislation in 2012, Parliament rightly recognised that it is appropriate and in the public interest for biometric data to be retained for limited periods in certain circumstances in the absence of conviction. One such circumstance is where a person is arrested under the Terrorism Act 2000 on suspicion of being a terrorist but is not subsequently charged. Under current law, there is an automatic three-year retention period. Anything beyond this requires a national security determination to be made by the chief officer of police and approved by the Biometrics Commissioner. Schedule 2 makes equivalent provision for a case where the same person is arrested on suspicion of the same terrorist activity but under the general power of arrest in PACE. The flexibility to use either power of arrest—TACT or PACE—is open to the police and is a decision that will be taken based on operational considerations. It is a current gap that the same biometrics retention rules do not follow the two powers of arrest in terrorism cases despite the fact that there may otherwise be no material difference between the two cases. Schedule 2 attempts to close that gap.

I fully support the well-established principle that biometric data should be automatically deleted following a mistaken or unlawful arrest, but I cannot agree that we should overturn the equally well-established principle that there should be a limited period of automatic retention following a lawful and correct arrest on suspicion of terrorism. There are many reasons why a charge may ultimately not be brought in such circumstances. The individual might have been quite reasonably suspected and there might be extensive intelligence to indicate that they pose a very real threat, but if it is not possible to produce that intelligence in an open court, for example, or if it comes from intercept or from sensitive sources which we cannot put at risk then it cannot be used to support a prosecution.

Although the person will therefore be quite rightly treated as innocent as a matter of law, that does not mean that the police can simply wash their hands of them and take no further action to protect the public. It is right that there should be a limited, automatic period during which their fingerprints and DNA profile can be retained so that the police can identify their involvement in any further suspected terrorist activity. If there is no information to suggest that they pose a threat at the end of this limited period, then it will be neither necessary nor proportionate to seek a national security determination to authorise its ongoing retention, and the data will have to be deleted. This approach strikes the right balance. Although I appreciate the spirit of the hon. Gentleman’s amendment, it would shift that balance and raise a number of difficulties.

Given the limited automatic retention period in question and the need for both a chief officer of police and the Biometrics Commissioner to approve any further retention, it is not necessary to introduce an additional review of the case in advance of the one that would occur at three years. Existing safeguards ensure the proportionality. The Biometrics Commissioner has not raised a concern about them in the case of TACT arrests and they have not been found to infringe disproportionately on the rights of suspects. To add an additional review would place an unnecessary and disproportionate burden on both the police and the Biometrics Commissioner. A more fundamental issue is that it would be difficult to have a meaningful and transparent application process in which the reasons for decisions could be provided to applicants. The hon. Gentleman’s amendment does not specify the criteria by which the Biometrics Commissioner might consider an application from a terror suspect, but presumably it would be the same as the test for retaining the data under a national security determination: that it is necessary and proportionate to do so. The Biometrics Commissioner and his staff have the necessary security clearance to make such a consideration on the basis of all relevant information, including sensitive intelligence.

In cases of the kind I have alluded to, where intelligence clearly suggests that a person poses a risk but it cannot be adduced in open court to support a prosecution, that would prevent the individual from being informed of the reasons for any decision to reject their application. It would also prevent any judicial review of the rejection of their application from being heard in open court. To do so could compromise sensitive sources of information and could reveal the extent of intelligence coverage of the individual. The simple fact of a decision to retain or delete the data could reveal the existence or absence of a hitherto covert investigation into them, and could indicate the level of the police’s interest in their activities. Such information could clearly be valuable to an active terrorist, as it could allow them to disguise their activities and avoid intelligence coverage, or it could provide assurance that the authorities are not aware of their activities. That would simply not be in the public interest and would strike the wrong balance. It would make such an application scheme very difficult to operate in practice. For those reasons, I hope the hon. Gentleman will withdraw his amendment.

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[Nick Thomas-Symonds]

I have three points to make in response. First, although I take on board the point about section 63 of the Police and Criminal Evidence Act 1984, having a personal right to appeal in the Bill is an important principle.

Secondly, on the balance between keeping intelligence confidential and revealing enough for there to be a meaningful process, that is covered by the chief officer of police being consulted and making representations. The balance between what can be said on paper and what cannot occurs right across the spectrum of terrorism offences.

Thirdly, the test that the commissioner would apply would obviously be the necessary and proportionate retention of data, which is very common. On that basis, I wish to press the amendment to a vote.

Question put, That the amendment be made.

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Persons vulnerable to being drawn into terrorism

[Nick Thomas-Symonds]

I beg to move amendment 31, in clause 18, page 19, line 14, at end insert—

“(8) After section 39 (Power to amend Chapter 2), insert—

‘39A Review of support for people vulnerable to being drawn into terrorism

(1) The Secretary of State must within 6 months of the passing of the Counter-Terrorism and Border Security Act 2018 make arrangements for an independent review and report on the Government strategy for supporting people vulnerable to being drawn into terrorism.

(2) The report and any recommendations of the review under subsection (1) must be laid before the House of Commons within 18 months of the passing of the Counter-Terrorism and Border Security Act 2018.

(3) The laying of the report and recommendations under subsection (2) must be accompanied by a statement by the Secretary of State responding to each recommendation made as part of the independent review.’”

This amendment presses for a statutory review of the Prevent programme. Let me make it clear that I have visited the Prevent programme. I am very grateful to the Minister for the way he facilitated my visit, and to the Home Office civil servants who accompanied me on that visit, where I saw some excellent work going on. I would not for a moment denigrate the work that is being done to divert people from a life of terrorism to a far more constructive life. That is absolutely to be praised.

However, it is part of good governance to regularly review whether policies are working as well as they should be. If improvements can be made on the basis of those reviews, they should be made. I would highlight two concerns around Prevent, both of which could be considered within the scope of that review.

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[Mr Wallace]

My rebuttal to that would be: what is the gain? What would the reviewer do? Yes, we can be more accurate; we can reduce from 7,000 referrals to fewer, but what is interesting is that in the two years of the published figures we see exactly that. Prevent is evolving; we are seeing better reporting and we are seeing the sections of society that are and are not reporting. We see exactly the same proportions that we see in wider safeguarding referrals. In Prevent, 30% of the 7,000 need other safeguarding. They do not need to go to Prevent for terrorism purposes, but they go into other safeguarding for domestic abuse or something else. That is exactly the same percentage as we see in the wider safeguarding. If Prevent is the entrance to getting my children better safeguarding, I am happy with that. If somebody is taking an interest in behaviour or actions being inflicted on a child or vulnerable person, I do not mind whether the person who spots it is a Prevent officer or a safeguarding officer; we just want it to be dealt with.

The hon. Gentleman is right that these figures allude to Prevent’s accuracy, but they also allude to its success, in my book. That is the first start point. A review that is frozen in time is not necessary when Prevent is starting to have real success. The Government think that people realise that it is for all of us and not just for the Muslim community. It is for all of us.

I will finish the point about the review by saying that I spoke recently to the headmaster of a pupil referral unit in one of the toughest parts of Lancashire. He had a 15-year-old boy who was referred for neo-Nazi, far-right extremism. The Prevent team came in and the boy is now in mainstream further education college, with a multi-ethnic group of friends, doing his higher-level qualifications. If hon. Members know anything about pupil referral units, they will know that very rarely do 15-year-olds move out of them. The headmaster said to me, “Give me Prevent every time; I wish I had it for the broader spectrum of troubled people.”

I am afraid I cannot agree with the Opposition that we need a review. I am happy to engage, to sell the policy more and to correct the perceptions, but I think a statutory review in the primary legislation is unnecessary.

[Nick Thomas-Symonds]

I have three brief points. First, the Minister talked about myths. An independent review would assist in debunking those myths. Secondly, that a policy is evolving is not an argument against a review—otherwise, hardly any Government policies could actually be reviewed. Thirdly, the Minister said that the policy is being internally reviewed in any event. Why not give those reviews independent status and the weight that would come from that? I will press my amendment to a vote.

Division 2

Ayes: 9

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Labour: 7
Scottish National Party: 2

Noes: 10

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Conservative: 9

[Nick Thomas-Symonds]

I beg to move amendment 32, in clause 18, page 19, line 14, at end insert—

“(8) Within 6 months of the passing of this Act, the Secretary of State must conduct a review to establish whether local authorities have sufficient resources and expertise to effectively carry out their duties in supporting people vulnerable to being drawn into terrorism.

(9) Within 12 months of the passing of this Act, the Secretary of State must lay the results of the review under subsection (8) before the House of Commons.”.

[The Chair]

We have had extremely wide-ranging debates, so I shall be quite firm in keeping this debate close to the wording of the amendment.

[Nick Thomas-Symonds]

You will be pleased to hear that this relates to a very narrow point, Mrs Main. The change made by the Bill to how the current programme relates to local authorities is very narrow: it will give them the ability to refer directly to the Channel programme without the necessity of going through the police. That is one of a number of measures simultaneously going on regarding local councils.

Without going off-point, I should briefly mention that data will be shared with local authorities, which is something that was separately announced by the Government. It is in that context that I put the amendment forward. I just want to raise a number of concerns, and I hope the Minister will be able to offer some reassurance.

The first regards the whole idea of data security for local authorities. I appreciate that, through safeguarding, local authorities already possess sensitive data—on childcare cases and matters like that, for example— but this is clearly data of a different category, and keeping it secure will be important on a number of levels. Secondly, will local authorities be appropriately trained to deal with this data when it is passed on to them?

My third point, which goes to the heart of my amendment, regards resources. I appreciate that the Minister does not yet run the Treasury and so is not in a position to simply hand out money, as it were—it is only a matter of time, I am sure. However, related to the whole debate on Prevent and the wider aspect of community cohesion is that there is no doubt that cuts to local councils have meant that childcare services and youth services have been substantially reduced. If we are to expect local authorities to do more on our counter-terror agenda, I suggest that they should have the resources to do so. It is on those points that I seek reassurance from the Minister.

[Mr Wallace]

The amendment would require the Home Secretary to review whether local authorities have sufficient resource and expertise to carry out their duties relating to Prevent. In responding, I will say a little about the work of the Channel programme, on which the Home Office works closely with local authorities to support individuals vulnerable to terrorism, before turning to local authorities’ wider work in carrying out the Prevent duty.

A Channel panel is chaired by the local authority and works with multi-agency partners collectively to assess the risk of an individual being drawn into terrorism and to decide whether an intervention is necessary. The police are a key partner in this process and currently provide dedicated resources to administer and manage it.

If a Channel intervention is required, the panel works with local partners to develop an appropriate, tailored support package. Any specialist ideological interventions are directly funded by the Home Office and have no resource implications for the local authority. The support package is monitored closely and reviewed regularly by the Channel panel. The current arrangements are that the work of Channel panels is resourced from existing local authority budgets, which is in line with other safeguarding programmes.

Project Dovetail is a pilot currently under way through which the Home Office directly funds posts that support the Channel panel process within local authorities and removes some of the case management functions from the police. This frees the police to concentrate on issues where their unique skills, powers and expertise are best used and brings Channel into greater alignment with other safeguarding processes in local authorities. As the Home Office is directly funding the additional posts, that should come at no additional cost to local authorities. The resource requirements will be carefully monitored to ensure they are adequate before rolling out the project any further.

This pilot has been key to identifying the need to make the change provided for in clause 18 and enable local authorities, as well as the police, to make the formal referral of an individual to a Channel panel once the initial assessment phase has concluded that there are genuine vulnerabilities the panel needs to discuss.

Prevent is implemented in a proportionate manner that takes into account the level of risk in any given area or institution. We recognise the fundamental importance of working in partnership with a range of partners, including local authorities, to reduce the risk of radicalisation in communities and to support vulnerable individuals. That is why we supported 181 community-based projects in 2017-18, reaching over 88,000 participants.

We have supported the roll-out of the Prevent duty—set out in section 29 of the Counter-Terrorism and Security Act 2015—with guidance for each sector and a dedicated package of training for frontline staff in the NHS, universities and schools, and local authorities. Since 2011, Prevent training has been completed more than 1.1 million times. The delivery of Prevent is led locally and driven by analysis of the threat in communities. Local authorities are among the most vital partners in our network. The Prevent duty requires local authorities to establish or make use of existing multi-agency groups to assess the local picture, co-ordinate activity and put in place arrangements to monitor the impact of safeguarding work.

In priority areas, where the risk of radicalisation is assessed as being the highest, Prevent co-ordinators employed by local authorities—again, funded by the Home Office—build partnerships in communities, oversee the delivery of local action plans to respond to the risk of radicalisation, and work with partners to embed safeguarding activity in statutory services, including social care, health and education.

The threat from terrorism is shifting, and there are increasing concerns about the far right. We have seen local authorities rise to the challenge in order to tackle this threat. As I set out in response to the previous amendment, over 500 individuals have received Channel support since April 2015—that is 500 fewer potential people of danger on our streets. To my mind, that demonstrates the success local authorities have had in delivering Prevent and Channel—we should remember that local authorities chair the Channel panel, not the police—and shows they have the resources and training to deliver this effectively.

I thank the hon. Member for Torfaen for his amendment. I share his concern for protecting people who are vulnerable to terrorism and at risk of being drawn into violent and divisive ideology. I trust that I have been able to show that, as it stands, local authorities are able to fulfil this vital safeguarding role effectively with funding provided by the Home Office and that we keep the provision of that funding under close scrutiny to ensure that it is adequate to the task. Given that, I ask him to withdraw his amendment.

[Nick Thomas-Symonds]

While I appreciate the Minister’s reassurances, we will continue to hold the Government to account in other arenas on resourcing local authorities. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.

[The Chair]

We now come to clause 19. Four amendments were deemed to be sufficiently varied to be addressed separately. I ask hon. Members to speak to each amendment in turn, and each amendment in turn will then be voted on.

Counter-Terrorism and Border Security Bill (Sixth sitting)

Nick Thomas-Symonds Excerpts

Committee Debate: 6th sitting: House of Commons
Thursday 5th July 2018 Public Bill Committees

[The Chair]

With this it will convenient to consider New Clause 4—Review of the changing nature of terrorism reinsurance requirements—

“(1) The Pool Reinsurance Company Limited must provide an annual report to the Secretary of State setting out—

(a) an assessment of the nature of terrorism reinsurance requirements; and

(b) any recommendations on how terrorism reinsurance arrangements should be amended to address terrorism reinsurance requirements.

(2) The Secretary of State must lay the report and any recommendations made under subsection (1) before the House of Commons within three months of receipt.

(3) The laying of the report and recommendations under subsection (2) must be accompanied by a statement by the Secretary of State responding to each recommendation made under subsection (1)(b).”.

This new clause would ensure that terrorism reinsurance arrangements are kept under annual review by Pool Re and would require the Secretary of State to respond to Pool Re’s recommendations in relation to terrorism reinsurance.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I raised this issue on Second Reading. I generally welcome the clause. The original provision in section 2 of the Reinsurance (Acts of Terrorism) Act 1993 restricted the loss that could be claimed for loss of, or damage to, property and for consequential loss, which I am afraid therefore excluded business interruption in situations in which there was no direct damage to property. The clause solves that problem and will explicitly insert business interruption as a form of loss in that section of the 1993 Act. That is welcome, because it recognises that the terrible acts of terrorism that we see have an impact on the wider community and have a financial impact on businesses in terms of lost trade.

However, I want to set out the concern about businesses that have suffered losses in the past. I pay tribute to the work of my hon. Friend the Member for Bermondsey and Old Southwark, who has campaigned tirelessly for his constituents on this issue after the terrible atrocity that occurred at London Bridge and Borough market in his constituency. He eloquently put the case today and last week for dealing with these iniquities in the system.

I hear what the Minister says about looking into the past. Wherever a line is drawn, it will, of course, lead to further unfairness because of the events that would fall on the wrong side of it. However, will the Minister at least undertake to look at whether anything can be done with respect to some of the losses occurring through business interruption in Borough market and elsewhere, so that no stone is left unturned as to whether any form of help can be provided? I would be very grateful for that reassurance from him.

[Neil Coyle]

I rise to speak to new clause 4. I have nicknamed this “the resilience clause”, and I hope it will be adopted to protect UK firms. I will speak as briefly as possible, but I will touch more generally on clause 19, for which I have been campaigning for the last year, and I am grateful to see it emerge now. Had it been in place before last year, it would have made a huge difference to those affected by the terror attacks at Borough market and London Bridge last June. I have been seeking this through Westminster Hall debates, so I am pleased to see it. I am disappointed that, as my hon. Friend the Member for Torfaen just said, the Government are yet to offer any form of compensation—a single penny—for the damage felt and caused at Borough market and London Bridge last year. I will keep campaigning for that.

New clause 4 would ensure that terrorism reinsurance arrangements are kept under annual review by Pool Reinsurance, and would require the Secretary of State to respond to Pool Reinsurance recommendations in relation to terrorism reinsurance. The clause is designed to prevent the Government-backed system from falling behind terrorist methods and their future impact. It would help to build resilience in our anti-terror structures overall. The clause would require Pool Reinsurance to provide an annual report on the nature of terrorism and any need to improve the systems designed to protect UK citizens and businesses from the form of terrorism we currently face, and to advise on how it is changing and what we might expect in future.

If that system had been in place from the introduction of Pool Reinsurance in the 1990s, it could have ensured that as the Provisional IRA threat of physical damage to economic infrastructure diminished and as terrorism morphed into the deliberate targeting of innocent civilians with knives and vehicles, the pool would have adapted accordingly over time, or at least have had the potential to do so. The Provisional IRA targeted buildings—physical economic infrastructure—not civilians. The pool was designed for that early 1990s threat, after the devastating Canary Wharf and Manchester Arndale attacks. Sadly, the system has not been updated properly over time as the nature of the threat has changed and, with it, the impact on businesses and employers’ insurance needs.

As discussed on Tuesday, Pool Reinsurance, despite warnings dating back to at least February 2016, has not been updated swiftly enough by the Government to cover the brutal attacks against innocent people, such as those enjoying Borough market on Saturday 3 June last year. That should have been possible, and the new clause will ensure that it will be going forward. The pool should never be left to slip behind again. The duty would ensure an annual appraisal of the nature of terror threats and their potential impact on businesses in particular, and would ensure that advice and recommendations are provided on how to adapt to better protect under-insurance systems from contemporary systems, and who or what terrorists target.

The duty would be on Pool Reinsurance, but the clause is not prescriptive regarding how it would work in practice. The pool could involve a range of stakeholders, including Government Departments, ABI, BIBA and business representatives. The wording is kept simple enough to prevent too onerous a system, or too rigid a structure, from developing. The duty is on Pool, because Pool is obviously in a strong position to provide overview from a tactically strategic position, and at no new cost. Pool already provides a quarterly terrorism frequency report, which could form the basis of any future annual reporting of risks and the UK’s ability both to prevent companies from losing out and to protect employers and employees from job losses as a result of insufficient coverage.

I believe that Pool would welcome the role. It has already sought to improve its insurance coverage in terms of packaged costs, awareness of cover and extending the support offered after different forms of attack, including both cyber and business interruption. However, Pool’s work has not always been swiftly acted on by Ministers, creating the gap that so badly affected London Bridge and Borough market in my constituency last year, and that the Bill is aimed at addressing.

Pool Reinsurance would report, and make recommendations, to the Secretary of State, who would be obliged to reply. That obligation is not massively onerous, especially given the huge range of responsibilities, and the clause suggests an ample three-month timeframe. I hope that the proposed new clause will have the backing of the Minister, and I would welcome an indication of whether the Government will pursue it in the Bill’s later stages.

--- Later in debate ---

[The Chair]

Order. May I make it clear that we are on the clause stand part debate? Although we are discussing new clause 4 within the debate, it will not be formally moved or voted on until we reach new clauses at the end.

[Nick Thomas-Symonds]

I asked for reassurance from the Minister about leaving no stone unturned in the matter of past compensation. I do not think he responded to that when he was responding to the new clause, and I wonder if he would do so.

[Mr Wallace]

We want Pool Re to be dynamic and we want it to stimulate other insurers to meet the growing threat. The issue relates to a point I have made on numerous occasions—the number of travel insurances that have slowly, over the years, dropped terrorist insurance. It is not just about increasing insurance cover; it is important to keep an eye out for areas that are losing it. One of the lessons of last year is that we must be very much in touch with the affected communities—and it is about not only the human beings, but other aspects—to understand what has not been covered, and what more we can do.

[Nick Thomas-Symonds]

I am grateful to the Minister for covering those issues. Last week he argued against compensation for past events—because a line would have to be drawn somewhere. He said there could be additional unfairness because if the past period was set at 12 months, as my hon. Friend the Member for Bermondsey and Old Southwark suggested, something that happened two years ago would not attract the benefit, but something that happened six months ago would. The Minister said that that would create a new unfairness. I seek assurances that he will leave no stone unturned to find out whether anything can be done in relation to some of those past events, including the one at Borough market.

[Mr Wallace]

The hon. Gentleman makes an important point. I spoke to the hon. Member for Bermondsey and Old Southwark after the Committee sitting last week. After last year’s attacks, mayors and local authorities got together and produced requests of Government, which we met, with £23 million or £24 million in Manchester. We also met a request from Salisbury.

I said to the hon. Gentleman, “Let’s meet and speak with the local authority that covers Borough market and put together an ask.” I did not receive a reply from the Mayor of London on that, but we did receive replies from the Mayor of Manchester and the Salisbury council leader. I am happy to sit down and see what we can do. We gave an extra £1 million to the NHS to deal with some of it, but in comparison, for the Manchester package—the hon. Member for Manchester Central (Lucy Powell) was involved in that—we gave in response to a big long list of everything, from a marketing budget—to help that great city attract people back—to help with infrastructure and so on.

I am happy to meet the hon. Gentleman and his local authority and say, “Okay, come on—what is it you seek?” whether it be business rate relief or whatever. The Treasury will go mad at me for suggesting that. The point is, I have not received such a request, but I am happy to help stimulate it and will also work with the Mayor of London to do so.

[Mr Wallace]

The clause simply introduces schedule 3, which confers powers exercisable at ports and borders in connection with the questioning and detention of persons for the purpose of determining whether they are or have been engaged in hostile activity. It fulfils a mechanistic function; the new powers will be best discussed when we debate schedule 3.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.

Schedule 3

Border security

[Nick Thomas-Symonds]

I beg to move amendment 44, in schedule 3, page 35, line 37, leave out “whether or not there are” and insert “where there are reasonable”.

[The Chair]

With this it will be convenient to discuss new clause 2—Threshold for port and border control powers—

“(1) Schedule 7 to the Terrorism Act 2000 is amended as follows.

(2) In paragraph 5 before ‘A person who is questioned’ insert ‘Subject to paragraph 9A,’.

(3) After paragraph 6A(2) insert—

‘(2A) A person questioned under paragraph 2 or 3 may not be detained under paragraph 6 unless the examining officer has reasonable grounds to suspect that he is a person falling within section 40(1)(b).’

(4) In paragraph 8(1) before ‘An examining officer’ insert ‘Subject to paragraph 9A below,’.

(5) In paragraph 9(1) before ‘An examining officer’ insert ‘Subject to paragraph 9A below,’.

(6) After paragraph 9 insert—

‘Data stored on electronic devices

9A (1) For the purposes of this Schedule—

(a) the information or documents which a person can be required to give the examining officer under paragraph 5,

(b) the things which may be searched under paragraph 8, and

(c) the property which may be examined under paragraph 9 do not include data stored on personal electronic devices unless the person is detained under paragraph 6.

(2) “Personal electronic device” includes a mobile phone, a personal computer and any other portable electronic device on which personal information is stored.’”

This new clause would implement the recommendations of Parliament’s Joint Committee on Human Rights and would require an officer to have reasonable grounds for suspecting an individual is or has been concerned in the commission, preparation or instigation of acts of terrorism before she could detain an individual for up to 6 hours under Schedule 7.

[Nick Thomas-Symonds]

I tabled the amendment in the hope of further exposition and assurances from the Minister. The shadow Home Secretary and I set out on Second Reading that, in the light of the events of recent months—with nerve agents on the streets of Britain—it is right that the Government should look at our border security. Therefore, while I will not stray out of order and discuss our other amendments, in generality they are designed to introduce further safeguards into the various powers available.

Amendment 44 would deal specifically with the non-suspicion power, if I may put it that way, in schedule 3, part 1, paragraph 1(4) on page 35. In regard to the power to stop, question and detain at the border, it states:

“An examining officer may exercise the powers under this paragraph whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity.”

I am pressing the Minister specifically on whether or not there are grounds for suspecting. Clearly, in our criminal law there would usually be a reasonable suspicion of an individual. This power clearly goes beyond that, to suspicion that is not linked to the individual who can be stopped.

In previous debates and exchanges with the Minister on this matter, he has given me two explanations. The first was with regard to the nature of the intelligence provided; an example would be a flight where perhaps there is a suspicion about someone or people travelling on that flight, but the intelligence does not necessarily narrow down who that is. Therefore, anyone coming off that flight may be stopped. Secondly, with regard to the nature of the intelligence, when there are reasonable grounds for suspicion, those grounds may come about because of intelligence that, in itself, cannot be declassified or go into the public realm.

I am well aware of the arguments for the non-suspicion power; however, I would be grateful if the Minister could set out some of the situations in which this power would be used. Secondly, will the Minister indicate how frequently he would expect them to be used? I know it is not an exact science—we cannot predict the future—but I hope the Minister would at least have some sense of how he might expect it to be used and how frequently. Thirdly, there is concern because this power is different from so many other aspects of our criminal law where there has to be reasonable suspicion. Why does he think it is so vital for our national security that this be in schedule 3?

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[Mr Wallace]

The hon. Gentleman makes an interesting point. Again, it goes to the reason we have the no-suspicion stop. They are most likely to be trained, capable agents of a country, not amateurs, or they may be disguised using amateurs. Look at the history of the cold war. That is why we sometimes have to respond to more general intelligence specifics. Let us say we had intelligence that a hostile state was seeking to use a minor port, a west coast port or a private air strip. That is all we would have, but if the threat was significant enough we would then have to—and we do—deploy individual police and Border Force officers from each region to cover that. However, that is quite wide. It is not, “Ben Wallace is coming in on flight X, Y or Z”; perhaps it is our responding to a flight plan. It is sometimes that simple.

I have come from a Cobra meeting this morning where we have seen the consequences of some really hostile state activity, which has put two innocent British citizens, who are very seriously ill, in hospital. We are being taken advantage of as an open country. I am afraid that there is far too much intelligence officer activity, not always under diplomatic cover in this country, from some of our adversaries, and we have to make our border a bit harder for them. Diplomats will not be covered by that—we will still be obliged under the diplomatic conventions—but their families may be. It goes back to the question on suspicion. I might have a suspicion that X is doing it, and they are a diplomat, but they may say, “Well, I’m not carrying that in; I’m not risking myself, but I’ll get someone else in the wider party who doesn’t have diplomatic cover to do it.”

I am afraid that is why it is really important for us. It is why the last Labour Government thought it was important on the terrorism issue. The Law Society of England and Wales witness said in his evidence that he had no concern about the suspicion part of the powers. He had some concerns about legal privilege, and I listened with interest to that part of his submission. That is why I think it would set us back in our national security and counter-terrorism work if we lost the power to do that. I am afraid the Government will therefore resist the amendment, and I ask colleagues on both sides of the Committee to reflect on that, and hopefully the hon. Gentleman will withdraw the amendment.

[Nick Thomas-Symonds]

I am grateful to the Minister for that explanation and exposition, and for the promise of the annual review under Lord Justice Fulford, which I think will be extremely useful. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Nick Thomas-Symonds]

I beg to move amendment 37, in schedule 3, page 36, line 7, at end insert—

“(6A) The Investigatory Powers Commissioner (‘the Commissioner’) must be informed when a person is stopped under the provisions of this paragraph.

(6B) The Commissioner must make an annual report on the use of powers under this paragraph.”

[The Chair]

With this it will be convenient to discuss amendment 36, in schedule 3, page 40, line 31, at end insert—

“(2A) The person who owns or was carrying or transporting an article which is retained under paragraph 11(2)(d) or (e) must be notified by the examining officer when the Commissioner is informed that the article has been retained.”

--- Later in debate ---

[Nick Thomas-Symonds]

I will be quite brief, because these amendments simply insert some further safeguards. They do not detract from the central aims of what the Government are seeking to do, but provide additional protections.

Amendment 37 relates to the power to stop, question and detain, which obviously we have been discussing in relation to my previous amendment. The amendment would simply allow the Investigatory Powers Commissioner to be informed when a person is stopped, and to make an annual report on the use of the power, which seems a perfectly reasonable request in the circumstances.

I will deal with amendment 35 in due course. Amendment 36 is simply about the commissioner being informed about the retention of property. The person who owned the article, or who was carrying or transporting it, will be notified by the examining officer when the commissioner is informed that it has been retained. These two amendments are not major interferences with the power, or with the aims of the Bill, but I suggest to the Minister that they are sensible safeguards.

[Mr Wallace]

As the hon. Gentleman has explained, the two amendments seek to enhance the oversight of the powers in schedule 3 by the Investigatory Powers Commissioner. I entirely agree that we need effective oversight, but I hope to persuade him that the Bill already provides for that.

Amendment 37 would require that when a person is stopped and examined under schedule 3, the commissioner must be informed. It would also require the commissioner to make an annual report on the use of those powers. As to the duty to prepare an annual report, I refer the hon. Gentleman to part 6 of schedule 3, which already sets out the duty on the commissioner to keep under review the operation of the provisions in the schedule and to make an annual report to the Secretary of State about the outcome of that review.

The mechanism outlined in part 6 mirrors the well-established reporting apparatus of the independent reviewer of terrorism legislation in relation to counter-terrorism powers. In his annual report, the independent reviewer reviews the operation of the equivalent port and border power in schedule 7 to the Terrorism Act 2000, and in doing so highlights any issues that have arisen through the exercise of those powers, provides a statistical breakdown of how they are used and makes recommendations for their future operation.

Amendment 36 would require that the examining officer informs the owner of an article that has been retained under paragraph 11(2)(d) or (e) of schedule 3 once the Investigatory Powers Commissioner has been notified of its retention. An examining officer may retain an article under paragraph 11 (2)(d) when

“the officer believes that it could be used in connection with the carrying out of a hostile act”,

or under paragraph 11(2)(e)

“for the purpose of preventing death or significant injury.”

Although I appreciate the amendment’s intent, it would place an unnecessary burden on the examining officer.

My officials are working with the Investigatory Powers Commissioner’s Office to determine the precise mechanism for keeping the individual informed of the fate of their property, including the appeal process and notice of any decision made. That will be set out in greater detail in the schedule 3 code of practice that we aim to publish in draft this autumn. Let me reassure the Committee that no individual will be left guessing as to what has happened. I agree wholeheartedly that the process should be governed appropriately and transparently. Given that the issues are already addressed in the Bill, or will be in the code of practice, I invite the hon. Gentleman to withdraw his amendment.

[Nick Thomas-Symonds]

I am grateful for those reassurances. I ask the Minister to comment on a further issue that relates to what I said previously. When the commissioner is carrying out the review process and producing the report that the Minister has referred to, will they be aware of every stop that has taken place?

[Mr Wallace]

Yes. As for the counter-terrorism stops that exist, the total numbers will be in the annual transparency report. Although the commissioner will not be informed every time someone is stopped, the numbers will all be recorded, and he will have the power, in the same way as the reviewer of terrorism legislation does, to investigate those stops while doing the review. It will not just be, “Are these the numbers? Have they complied?”

The reviewer of terrorism legislation can investigate intelligence agencies issues, police issues and the things that lay behind the stops, and that is what we expect them to do. That is why I want a judicial commissioner to do that for hostile states, so if we see it being abused or not being right, he will spot it—not us. He will spot where police officers are not being properly trained or are not doing it correctly, or if it is being overused with no results. I assure the hon. Gentleman that in that scenario the independent commissioners will not take it at face value.

[Nick Thomas-Symonds]

I am grateful for those reassurances. In those circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Nick Thomas-Symonds]

I beg to move amendment 35, in schedule 3, page 40, line 27, at end insert—

“11A(1) This paragraph applies where—

(a) an examining officer intends to retain an article under paragraph (2); and

(b) the person who owns or was carrying or transporting the article alleges that the article contains confidential material.

(2) Where sub-paragraph (1) applies, the examining officer—

(a) may not examine the article; and

(b) must immediately provide the article to the Investigatory Powers Commissioner (the ‘Commissioner’).

(3) On receiving an article under sub-paragraph (2), the Commissioner must determine whether or not the article contains confidential material.

(4) Where the Commissioner determines the article contains confidential material, the Commissioner may authorise the examination and retention of material in accordance with the provisions of paragraph 12(5).

(5) Where the Commissioner determines the article does not contain confidential material, the Commissioner must return the article to the examining officer to determine whether the material should be retained under paragraph 11(2).”

The amendment relates purely to the protection of confidential material. I have based it squarely on what was said by the Master of the Rolls, one of our most senior judges, in the Miranda judgment, with which I am sure the Minister is familiar. The Court of Appeal judgment is dated 19 January 2016. The Master of the Rolls, who gave the leading judgment—this is from paragraph 119 of the judgment—said:

“But in disagreement with the Divisional Court, I would declare that the stop power conferred by para 2(1) of Schedule 7”—

to the Terrorism Act 2000—

“is incompatible with article 10 of the Convention”—

the European convention—

“in relation to journalistic material in that it is not subject to adequate safeguards against its arbitrary exercise and I would, therefore, allow the appeal in relation to that issue. It will be for Parliament to provide such protection. The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material.”

It is important to protect the confidential material, as the Minister is aware. I have simply taken what one of our country’s most senior judges has said and tried to construct a protection that is in line with what he has asked Parliament to do. It would work through the oversight of the Investigatory Powers Commissioner.

The commissioner could determine whether an article contains confidential material and could then give powers in those circumstances where it can still be examined and retained, but there has to be that protection and that distinction given by the commissioner. Where there is a determination that the article does not contain confidential material, it could be returned to the examining officer. That is a sensible suggestion to deal with the lack of a safeguard that has been highlighted by one of our most senior judges.

[Mr Wallace]

I am grateful to the hon. Gentleman for explaining his amendment. I want to start by reaffirming the Government’s strong conviction that confidential material should always be handled with the utmost care and consideration. We have sought to provide for that in schedule 3. The Bill provides that the Investigatory Powers Commissioner must be the one who authorises the retention and use of an article that consists of or includes confidential material, subject to meeting the requirements of paragraph 12(5). Beyond the point at which the examining officer comes to hold a reasonable belief that an article contains confidential material, the officer will not be able to examine that article until further authorisation has been granted by the commissioner.

However, it would be improper to impose a restriction on the examining officer such that they were unable to establish their own belief that the article does in fact consist of confidential material. The police have a statutory obligation to protect our citizens and prevent crime. They cannot be expected always to take at face value the word of someone they are examining, who in some cases will be motivated to lie. If an individual being examined claims that an article consists of confidential material, the examining officer should be within their rights to verify that if they feel that is appropriate. Having verified that the article does indeed consist of confidential material, the examining officer should stop the examination and, if they wish to retain the article, seek the commissioner’s authorisation to examine it.

The point about face value is important. Bona fide people will usually be able to identify themselves as bona fide lawyers or journalists pretty quickly. If someone turned up with no law degree or legal background and said, “I’m a lawyer, so you cannot look at my devices,” it would be fair for the officer not to be able to examine the whole documentation or device, but to seek to establish the fact before they then take the next step and go to the judicial commissioner with a request to examine the material. Until the request is granted, the judicial commissioner can say, “No, you can’t. You have to destroy it.” They can direct them.

The difference between me and the hon. Gentleman is the extent to which we want face value to be established before it goes to the judicial commissioner. I stress that under this schedule the examining officer can seek to retain that material only if they believe that the article could be used

“in connection with the carrying out of a hostile act”,

or if they believe that retaining the article could prevent “death or significant injury”. Although it is not in the Bill, I assure the hon. Gentleman that it will be in the code of practice that is provided for in part 4 of schedule 3. If the commissioner concludes that the article could not be used in connection with the carrying out of a hostile act, or could not cause death or significant injury, they will direct the article to be returned to the person from whom it was taken.

I assure the hon. Gentleman that we are working with the police and the Investigatory Powers Commissioner on how those provisions will be implemented in practice. The mechanics will be set out in the schedule 3 code of practice that we aim to publish in draft in the autumn. I hope that I have persuaded him that that is the right approach and he will accordingly be content to withdraw his amendment.

[Nick Thomas-Symonds]

I am grateful that the Minister has set out the position regarding the proposed code of practice. If he would undertake to keep me updated on how discussions go leading up to that publication in the autumn, I would be very grateful and willing to withdraw the amendment.

[Mr Wallace]

To reassure the hon. Gentleman, it will be a statutory code, so it will go through the full process.

[Nick Thomas-Symonds]

In that case, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Gavin Newlands]

The amendments would delete the provisions that restrict access to a lawyer for those detained under schedule 3 for the purpose of assessing whether they have engaged in hostile activity. However, in doing so, the amendments would add an important safeguard that would ensure that that would not apply if the examining officer reasonably believed that the time it would take to consult a solicitor in person would create an immediate risk of physical injury to any person.

In addition, new clause 3 would amend schedule 8 of the Terrorism Act 2000 with regards to access to a lawyer. It acts on the concerns that have been expressed to us by many different organisations and respected individuals. As we have heard, this section of the Bill would allow an individual to be detained for a significant period of time without reasonable grounds.

Notwithstanding the Minister’s points about the varied forms of intelligence that are received, the amendments are not about constraining the powers of the men and women who work at our borders, but acting on the concerns that have been expressed to ensure that correct and proper due process is followed. During the evidence session, we heard from Richard Atkinson that the schedule was of “great concern” to him as

“It fundamentally undermines what I would consider to be a cornerstone of our justice system—legal professional privilege.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 26, Q55.]

We will come on to that in more detail in the next set of amendments.

In addition, during the oral evidence, Abigail Bright of the Criminal Bar Association also had concerns about

“having no access to a lawyer, on the face of it for no good reason”

and

“why the rights of a suspect, who is potentially an accused person, should be diminished”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 58, Q128.]

I suspect that the schedule has been drafted as a result of concerns that lawyers and legal advisers could be exploited and manipulated in some way, as has been outlined. However, as was pointed out, that is not unknown to our criminal justice system and we already have powers in place to deal with such occasions. For example, in code H of the Police and Criminal Evidence Act 1984, which deals with counter-terrorism cases, if there is a concern about an individual lawyer, there is provision for the suspect to have the consultation with that lawyer delayed but to be offered the services of another lawyer in the meantime, so the suspect is not devoid of legal advice.

Access to legal advice is a cornerstone of the British justice system—as a Scottish National politician, I should say the English and Welsh justice system and the Scottish justice system, before I get chided—and one that we should protect at all costs. I accept the Government propose the changes with the best of intentions to keep us safe but, as we have pointed out, there are ways that that can be done without eliminating or infringing on the basic principle of the rule of law.

The amendments provide a degree of flexibility to the authorities while ensuring that individuals can still access and make use of proper legal representation. Specifically, amendment 23 would, as I have outlined, provide that an individual can be prevented from consulting a lawyer in person only where the officer reasonably believes that the time it would take to secure a solicitor’s presence would create an immediate risk of physical injury to an individual or group of people. Those are important safeguards when there is valid suspicion about waiting for a lawyer to meet a client. Public harm can be caused by the wait, but at the same time there is an issue in the majority of circumstances of protecting someone’s basic right of access to a lawyer.

New clause 3 would amend schedule 8 to the Terrorism Act 2000. It would delete provisions restricting the access to a lawyer of people detained under schedule 7 to the same Act. I respect the concerns that the Minister has outlined, but I think that they were alleviated in the oral evidence given by Max Hill a couple of weeks ago. By tabling the amendments and new clause I am trying simply to maintain access to justice.

[Nick Thomas-Symonds]

I support the amendments tabled by the hon. Member for Paisley and Renfrewshire North; I also want to speak to amendments 38 to 41, which I tabled. They follow the same general tenor as the hon. Gentleman’s amendments, in that they are practical suggestions for maintaining the right to access to a lawyer. Amendment 41 is about consultation via telephone.

I will not discuss the amendments in the next group now. They have far more to do with the right to consult a solicitor in private. None the less, that issue is also at the heart of the amendments in the group we are now considering. The hon. Member for Paisley and Renfrewshire North has already referred to the evidence given by Max Hill, and I commend the evidence of Richard Atkinson, too. He chairs the criminal law committee of the Law Society, and I am sure that the Minister recalls a conversation with him on this very issue.

The Minister put the practical point to Mr Atkinson about whether access to a lawyer would be requested on every stop at the border. However, that is not what is at the heart of the amendments. The Minister asked Mr Atkinson whether he thought

“that when a Border Force person, a customs person, seeks to detain you for an hour or however long to examine and question you further, they, too, should have access to a lawyer”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 29, Q66.]

That was about when the stage of being questioned was reached. The Minister mentioned a series of stages—whether it was a screening stop or another type of stop; but what I am talking about applies when questioning starts, when legal advice would be a necessity. We are not talking about the thousands of stops that are made. We are talking about particular circumstances that would be analogous to the position in the Police and Criminal Evidence Act 1984.

I also commend Mr Atkinson’s evidence in terms of seeking practical solutions to deal with the Government’s concerns and still maintain our cherished right of legal professional privilege. As I have said, Ms Ryan, I will not talk about that in principle now, as I will do so on the next group of amendments. However, Mr Atkinson suggested several ways in which the balance could be maintained. He said the consultation could be delayed; if there were concerns about a particular lawyer, the services of a different one could be offered; and advice could still be given within the sight of examining officers without necessarily being given within their hearing.

I recognise the issue of immediate physical threat, as well. However, I urge the Minister to look at the matter practically, and not to sacrifice legal professional privilege but to take note of the practical solutions by which we could deal with concerns about individuals abusing the right to consult a lawyer by, for example, consulting someone who is not a lawyer or passing on information. I accept that there is a risk and I accept what the Government say, but we should turn our minds to finding a practical solution that maintains legal professional privilege.

[Mr Wallace]

I commend the spirit of the amendments tabled by the hon. Members for Paisley and Renfrewshire North and for Torfaen. It is important that as we strengthen our powers to tackle hostile state activity, we ensure that appropriate safeguards are in place to govern the exercise of those powers. The amendments seek to ensure that if an individual has been detained under schedule 3 to the Bill, and schedules 7 and 8 to the Terrorism Act 2000, the examining officer must postpone questioning until the examinee has consulted a solicitor in private. The amendments, and those in the next group, would remove almost all restrictions on that right, which allow police officers to impose conditions on its exercise. The Government’s case against the amendments applies equally to those in the next group, so I ask for your indulgence, Ms Ryan, if I touch on the issues raised by amendments 24, 25 and 42. It may be that when we come to the next group, we will find that we have already covered much of the ground.

The powers under schedule 3 to this Bill and schedule 8 to the 2000 Act would afford any person who is formally detained the right to consult a solicitor privately, if they request to do so, subject to exceptional powers of delay, which I will explain further. I agree with Opposition Members that where an individual has been detained under those schedules and has requested to consult a solicitor, they should have the right to do so privately. In the vast majority of cases, there will be no reason to question that right. On rare occasions, there might be a need for the examining officer or a more senior police officer to impose certain restrictions.

I want to be clear that the restrictions in schedule 3 are not new or novel. Indeed, they are modelled on existing restrictions and conditions that are available now to police officers in schedule 8 to the 2000 Act and in the PACE codes governing the detention rights of those arrested under non-terrorist arrest powers. They are designed to be available only in specific and serious circumstances, namely where those detained seek to frustrate an examination, cause evidence to be interfered with or alert others who are in some way involved in an indictable offence.

[Nick Thomas-Symonds]

If there were, just as there would be in a police station, a list of duty solicitors—or a list of approved lawyers where, if there were concerns, those lawyers could be removed from the list—why would there be a concern about an individual speaking to one of those lawyers in private, if that control were in place?

[Mr Wallace]

In the PACE codes, we already have that small ability to reflect that concern, if there is a concern. It can be done already in such a situation.

[Nick Thomas-Symonds]

There can certainly be restrictions. There could be a restriction that an individual can consult a lawyer within sight of an examining officer—no issue with that. The issue is where the Bill goes further and provides that it must also be within the officer’s hearing. The justification given for that, as I understand it, is a worry that the individual will abuse that right and pass on information to someone, saying they have been picked up or whatever it might be. Why would that be a problem if there was an approved list of lawyers, which we were monitoring all the time, where we know that they are bona fide lawyers and there is not a concern?

[Mr Wallace]

I will address that issue later in my speech. I can inform the hon. Member for Torfaen that at the moment, if an individual is detained on a customs stop for an hour, they only have a right to a lawyer in that environment once they have been arrested, not while they are being detained. That is currently the practice.

In the vast majority of cases there will be no reason to question the right, but on rare occasions, there may be a need for the examining officer or a more senior police officer to impose certain restrictions. As I have already stated, these conditions are available now to police officers in schedule 8 to the 2000 Act and in the PACE codes. It is mainly about a situation where those detained seek to frustrate an examination or in some way alert others who might be themselves subject to an indictable offence. That might be where prior intelligence indicates that the individual might seek to obstruct an examination, either because they have a history of doing so or they have been trained to bypass, frustrate or subvert police examinations. The officer might also witness interactions between the individual and their solicitor, which alerts the officer to the possibility that they are conspiring to obstruct an examination or interfere with evidence.

[Nick Thomas-Symonds]

Clearly, the professional code of conduct that lawyers have would prevent them in engaging in any illegal activity, so that would be covered in any event. If there were, say, four or five approved lawyers who were completely regulated and we knew who they were, why would there be a risk of them passing information on to other people?

[Mr Wallace]

Let me proceed. When it comes to a person’s right to have access to a lawyer, no one currently prescribes in law that they may have only certain lawyers, except in Special Immigration Appeals Commission hearings. I would be interested in what the Law Society in Wales would say if we tried to set out that they could see only vetted lawyers.

[Nick Thomas-Symonds]

Police stations have duty solicitor rotas, and that has been in existence for decades.

[Mr Wallace]

I understand that, but that does not restrict arrested people in a police station to choosing only from those lawyers. They can say, “I don’t want any of those five. I want the one I want.” I understand the hon. Gentleman’s point about a lawyer being trustworthy or effectively selected not specifically by the person detained but from an approved list. However, it would be difficult to go down the path of trying to approve people.

[Nick Thomas-Symonds]

But that is already the case in Police and Criminal Evidence Act 1984 code H. Richard Atkinson said that

“where there is concern about an individual lawyer”—

let us take the example of a person who asks to ring someone we are not entirely sure about—

“there is provision for the suspect to have the consultation with that lawyer delayed but to be offered the services of another lawyer in the meantime.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 27, Q55.]

Why do we not take the equivalent of that to the border? We could offer the services of those on our duty list—problem solved.

[Mr Wallace]

I understand the hon. Gentleman’s point. All such schemes, including his, restrict people’s right to a lawyer, one way or another. They either say, “I don’t trust your lawyer, so you can have my lawyer,” or—this is how the Government are doing it—“We have exceptional grounds, authorised by a chief officer, because we are suspicious of something”.

The hon. Gentleman makes a point about police stations, but many of these examinations are about establishing who, what, where and when. We should remember that in the port stops power, to balance the removal of some rights, these verbal discussions are not admissible in court as evidence, unlike in a police station, where everything said can be taken down in evidence and used. We give that protection, as my hon. Friend the Member for Cheltenham (Alex Chalk) pointed out.

[Mr Wallace]

If I were to propose such a restriction on which lawyers could be consulted, I would find difficulty in the House of Lords. Let me proceed.

Accepting the amendments would in effect offer an opportunity to those engaged in activity of such severity to frustrate and obstruct an examination. Let me address the key point raised—the evidence we heard last week on restriction of the right to consult a solicitor in private. We must be clear that schedule 3 would allow use of the power only when an officer at least of the rank of commander or assistant chief constable has reasonable grounds for believing that allowing the examinee to exercise his or her right to consult a solicitor privately will have certain serious consequences.

The provisions are largely modelled on similar provisions in PACE: namely, where there are reasonable grounds to believe that private consultation will result in interference, injury to another person or hindering the recovery of property. Due to the potential severity of an act of terrorism, schedule 8 to the 2000 Act outlines additional consequences that might justify allowing the legal consultation to take place only within the sight and hearing of a qualified officer. Those include interference with information-gathering relating to an act of terrorism, alerting a person and making it more difficult to prevent an act of terrorism.

Schedule 3 to the Bill contains a similar consequence as a ground for allowing non-private legal consultations, namely the consequence of interference with information gathering about

“a person’s engagement in hostile activity.”

The need for the restriction is clear. It is there to disrupt and deter a detainee who seeks to use their right to a solicitor to pass on instructions to a third party. It already exists in legislation in schedule 8 to the 2000 Act, which the Bill seeks to replicate. In giving evidence to the Committee, the chair of the Law Society’s criminal law committee questioned why this restriction went beyond the equivalent provisions in PACE code H, which relate to a situation where an individual has been arrested on suspicion of a terrorism offence. PACE code H provides that:

“Authority to delay a detainee’s right to consult privately with a solicitor may be given only if the authorising officer has reasonable grounds to believe the solicitor the detainee wants to consult will, inadvertently or otherwise, pass on a message from the detainee or act in some other way which will have any of the consequences specified under paragraph 8 of Schedule 8 to the Terrorism Act 2000.”

Those consequences include harming others or tipping off terrorism suspects. In such circumstances,

“the detainee must be allowed to choose another solicitor.”

We have considered that carefully, but there are two main reasons why it is not feasible from an operational standpoint. First, in the circumstances described, where the police are concerned that an individual will use their solicitor to pass on instructions, allowing them access to a different solicitor in private will not prevent that possibility. The solicitor might be completely oblivious to the fact that their client is using them to pass on instructions to a third party. For instance, a detainee might ask the solicitor to contact someone and pass on a specific message, such as the fact that they are being detained and their location, with the solicitor unaware that the message will trigger some prearranged activity.

Secondly, inviting the detainee to choose another solicitor is not as straightforward at a UK port as it is at a police station. Unlike a detention under PACE, where there is time and access to a duty solicitor, it might take a substantial amount of time for an alternative solicitor to arrive at a UK port. To offer that option up front to the detainee, who is already presenting reasons to believe they are up to no good, provides another means for them to obstruct and frustrate the examination against a ticking detention clock.

Despite those reservations, I draw the Committee’s attention to two important safeguards that govern the exercise of such a direction. The first will ensure that a direction may be given only by an officer of the rank of assistant chief constable. The second will ensure that the officer present during the detainee’s legal consultation must not be connected with the detainee’s case. I reassure the Committee that the safeguards to the schedules have been carefully considered, following lessons learned through the exercise of the equivalent police powers, the work of the independent reviewers of terrorism legislation and our engagement with the public in respect of the existing powers for counter-terrorism purposes.

In relation to the amendments before us today, I stress that we should not hinder the ability of our law enforcement professionals to disrupt and deter those who present a threat to this country due to their involvement in terrorism or hostile state activity. Accordingly, I invite the hon. Member for Paisley and Renfrewshire North to withdraw his amendment.

[Nick Thomas-Symonds]

I do not propose to take this particular group of amendments to a vote at this stage, but I say to the Security Minister that the first of the two explanations given—that somehow solicitors bound by a code of conduct would be unwilling and unaware stooges passing on information to third parties—is not particularly credible. I do not think the distinction between a police station and a border security stop is particularly strong either, and I urge the Minister to look again at the practical steps around this. However, it is not my intention to push the amendments to a vote at this stage.

[Gavin Newlands]

I have to say that I remain somewhat unconvinced by the Minister’s arguments, and we may choose to revisit some of these amendments on Report, but at this stage I will keep my powder dry until the next group of amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Paul Maynard.)

Counter-Terrorism and Border Security Bill

Nick Thomas-Symonds Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 11th September 2018 Commons Chamber

[Mr Wallace]

The hon. Member for Torfaen is absolutely right; it is set out quite clearly in the 2000 Act. The reasonable excuse defence is a good defence. It will cover journalists and academics, which is important. It would also mean that the prosecution is unlikely to commence in those circumstances, because it would not pass the Crown Prosecution Service threshold test of being in the public interest and of there being a realistic prospect of conviction. The police and the CPS are rightly focused on those who pose a genuine threat, and they have no interest in wasting their valuable time investigating and prosecuting people who pose no threat, where there is no public interest and no prospect of conviction.

Amendment 3 expands the offence of viewing information likely to be useful to a terrorist, so that it also includes otherwise accessing such material through the internet. This is simply intended to ensure that the offence captures non-visual means of accessing information such as audio recordings, in addition to video, written information or other material that can be viewed.

The Government recognise the sensitivities of the issues and the need to ensure proportionality and to provide appropriate safeguards, and we have been open to exploring how clause 3 can be improved to do so in a clearer and more certain way. But we make no apologies for sending a clear message that it is unacceptable to view or stream such serious and harmful terrorist material without a reasonable excuse, nor for having in place robust penalties for those who abuse modern online technology to do so. We consider that clause 3, as amended, is both proportionate and necessary to allow the police to take action to protect the public from potentially very serious threats.

Government amendment 5 responds to the oral evidence heard by the Public Bill Committee about the maximum penalty for the offence of failure to disclose information about acts of terrorism. Section 38B of the Terrorism Act 2000 makes it an offence to fail to disclose to the police information that might be of material assistance in preventing an act of terrorism or in securing the apprehension, prosecution or conviction of a terrorists. This offence might apply in a case where a person, not themselves a terrorist, knows that a family member or a friend is planning or has committed an act of terrorism and fails to inform the police. In his evidence to the Committee, the independent reviewer of terrorism legislation, Max Hill QC, argued that the maximum penalty for this offence is too low and should be increased. Having considered the issue further in the light of recent cases, we agree. Those who know that others are engaging in, or planning, terrorist activity have a clear duty to inform the police about such actions. Where people do have information about attack planning or other terrorist activity and they fail to inform the police, it is right that we have appropriately stringent sentencing options in place. An increase in the maximum penalty from five to 10 years’ imprisonment will send a clear signal about the seriousness of this offence.

This group of amendments also includes amendment 13, in the name of the hon. Member for Torfaen, which seeks to provide for an independent review of the Prevent programme. I shall wait to hear what he has to say about that amendment.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I am grateful to the Minister for setting out the designated area offence.

Before I turn to that, I join entirely with the Minister in his opening remarks marking the anniversary today of the terrible attacks on the twin towers on 9/11 in 2001, and indeed his remarks about the inquest on the Westminster bridge attack. We all join together in paying tribute to our emergency services, to the first responders in the United States and to all the families who were affected by those terrible events. Of course, as we debate this legislation today, we bear in mind that experience, and indeed the experience of other terror attacks.

I am pleased by and accept what the Minister said in apology for the late arrival of this new clause. I am sure he will appreciate that it was disappointing that we were not able to subject it to scrutiny in Committee, because it would obviously have been more useful had we been able to do so. Of course, that does not mean that we will not want to put it to scrutiny in the other place, and we certainly will do that, but I would have liked to have been a position to give it more scrutiny before today. None the less, I accept that, as legislators, we have to look to deal with the threat that foreign fighters pose to this country when they return, and I am not proposing that the Opposition oppose this measure. However imperfect legislation can be, the rule of law is paramount. If we ever sacrifice the rule of law—if we undermine our own values in dealing with those who seek to destroy them—then we lower ourselves to the level of their barbarism.

I am pleased that, in dealing with this, the Minister has rejected calls to update the law of treason, which, after all, reached our statute book in 1351, has not been used since 1945, and was meant for a different age. We are also pleased that the Minister has rejected calls simply to dole out justice summarily and arbitrarily, which would undermine the rule of law. Unfortunately, other members of the Government—not least the Defence Secretary, I am afraid, last December—have previously suggested that. I am glad that those courses for dealing with this have clearly been rejected by the Minister.

As the Minister set out, new clause 2 designates in a statutory instrument laid before Parliament an area for the purpose of protecting members of the public from terrorism. In a letter to me, the Minister made it clear that such a statutory instrument would be introduced via the affirmative procedure, so that whenever an area was to be designated, it would be done on the Floor of the House. I hope he can confirm that that will be the case.

As the new clause sets out,

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

That reasonable excuse defence will be an extremely important safeguard. I also draw attention to what Max Hill QC, the current independent reviewer of terrorism legislation, said in October 2017:

“those who travelled out of a sense of naivety, possibly with some brainwashing along the way, possibly in their mid-teens and who return in a state of utter disillusionment…we have to leave space for those individuals to be diverted away from the criminal courts.”

Prosecutorial discretion and whether prosecution is in the public interest will, of course, be vital in this area.

While it is essential to deal with this matter by legislation, we will want to look at it in more detail, particularly in the other place. I welcome what the Minister said about being willing to work constructively on this, as he has on other parts of the Bill. We clearly cannot guarantee where future conflicts will take place, but we have to be prepared for those eventualities. We will want to look at the mechanism by which the Home Secretary designates these areas and ensure that we have appropriate safeguards. I am sure that nobody in this House would want to discourage aid workers and other people who we want to be in these areas from going to them. That clearly is not the intention of this law, and we will have to look at how we can ensure that that is the case.

I turn to the issue of seizing flags. In evidence to the Committee, Assistant Commissioner Basu mentioned the absence of this power from the Bill. I have looked carefully at amendment 1, and I am grateful to the Minister for his briefing on the context of how this power will be used. The issue of the sensitivity with regard to Northern Ireland was raised in interventions on the Minister. I am grateful to hear that he has been in contact with the Police Service of Northern Ireland, and I hope that that will continue.

At present, the issue is that police can only seize material with an arrest at the scene. Amendment 1 allows material to be seized where notice is given of a summons—in other words, the person does not have to be arrested at the scene, and a summons can follow within the prescribed six-month period. The person will still have to appear in court, but there will not have been an arrest at the scene. There is a suggestion of the power being used where there is not quite enough evidence to arrest someone at the scene, but I suspect that that would be extraordinarily rare in practice, because if a flag is in support of a proscribed organisation, it is difficult to see how someone would not be committing a criminal offence in those circumstances.

I tend to see this amendment in terms of how large protests will be managed. This power provides police at the scene with an additional option. It may well be the case that trying to arrest someone at the scene can either cause a public order problem or exacerbate one, and the summons method might be easier. It is not, of course, for us to comment on an operational matter. That would have to be a judgment of the police officer at the scene, but we can set out the framework. I expect that we will have to review how the power works in practice, but it is not my intention to oppose the amendment in principle.

I turn to the Government amendments on the three clicks offence, which has been raised in interventions on the Minister. I raised a number of concerns about this in Committee and tabled a total of five amendments on it. First, let me say that I understand why the law needs to be updated in this area. It was designed for a different internet age, when people tended to download content and watch it. It does not cover those who stream it, and clearly it must cover those who do so. The difficulty in my view is that the three clicks approach simply creates more problems than it solves, and I am grateful to the Minister for listening in that regard.

--- Later in debate ---

[Mr John Hayes (South Holland and The Deepings) (Con)]

I hear what the hon. Gentleman says about Prevent, and welcome his warm support for its principles. I am glad that he has been to see its programmes, as I did when I was Minister for Security. He makes a useful point about the oversight of Prevent and about measuring the implementation of the Prevent duty. He will remember that we introduced that duty when I was the Minister. The duty affects a wide range of organisations, but the evidence suggests that its effectiveness varies across them. It would seem to be useful to take a look at that, but I would not call that a wholesale review; rather it is measuring its effect.

[Nick Thomas-Symonds]

I am grateful to the right hon. Gentleman for his intervention. I know the work that he did in this area. I have seen the Prevent duty in operation, both on visits as a shadow Minister and in my constituency, as it happens. I appreciate his point about whether a statutory review is justified. Clearly, we are talking about an aspect that could be taken into account in a statutory review, but wider issues to which I have already referred could also be taken into account. A statutory review would give us the opportunity to re-evaluate the programme fully, to look at those communities that have lost confidence in it and why, and to improve our ability to tackle counter-terrorism.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

I will speak about new clause 2 and the context in which it has been brought forward. The first responsibility of any Government is always to protect their citizens, and as the threats to our country evolve, so must our laws. In a speech on 17 October 2017, Andrew Parker, the director general of MI5, described the ongoing terrorist threat as

“multi-dimensional, evolving rapidly and operating at a scale and pace we’ve not seen before.”

The threat posed by terrorists and malicious actors is not going away—far from it. Last year, there was an increase of 58% in the number of arrests for terrorism-related offences. The threat is increasing and new clauses will be required to combat it.

Members have alluded to the fact that today is 11 September. No doubt we all remember where we were on this day in 2001 during the attack on the United States. I was on the wards in my first job as a hospital doctor. I was looking after an old lady who was watching television, and from behind her, I saw on the screen the aeroplane fly into the first tower.

We were all here last year when Westminster was attacked. People were tragically killed and PC Palmer gave his life protecting this House and protecting us. As we debate this topic today, we will be remembering those who were injured in those attacks and the good work and bravery of the police and the other emergency services who protect us. Every day when we come to work, the Annunciator reminds us that the threat level is “severe”. It has been severe continually for at least the past four years. This means that at any given time an attack is considered to be highly likely. As I said, it is our first duty to protect the citizens of the country. It is important, in a free and democratic country, that we do that in a way that is both proportionate and effective.

On declared areas, my understanding is that there is a significant precedent in Australia, where a specific law states that it is a criminal offence for people to go to an area. I understand that it has been used on three separate occasions in Australia, where, as is proposed here, the maximum sentence is 10 years imprisonment. That is understandable, given what the Security Minister has said, which is that 400 people who have returned to this country are believed to have been active in fighting abroad.

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[Sir Edward Davey]

Across the House, we share a determination to tackle terrorism. Seventeen years ago today, I was visiting my grandmother. She was watching the television and she showed me what was happening in the appalling attacks in the United States. We in this House also know about the atrocities that happened just 100 yards away on Westminster Bridge recently. So we all want to ensure that we can do whatever we can to keep our people safe and to fight against the scourge of international terrorism. The question tonight, however, is whether the new clause and the new Government amendments will help to protect us. We have seen a huge number of laws added to the statute book, quite rightly, to help us and our security services in the attack that we are making on terrorism and in the fight back, but I am not yet convinced that this new clause and these amendments will add to the successful work that has been going on.

I say to the Minister that I reach that conclusion reluctantly, but I should like to put forward my arguments, because I am not alone in this. Skilled independent commentators have reached a similar judgment to the one that I have reluctantly reached. My first argument in relation to new clause 2 is that it is not needed. Clause 5, with which we agree, will quite rightly expand extraterritorial jurisdiction. We have seen this before, and clause 5 takes those measures further to ensure that terrorist offences committed abroad can be prosecuted in the United Kingdom. That is sensible stuff. New clause 2 wants to go further, however. Rather than being primarily concerned with terrorist acts abroad, it seeks to criminalise the whole concept of going abroad. In other words, it is not about the actions of a person but about locations.

The Minister, in his usual rational way, tried to reassure us that this was not meant to apply to aid workers or journalists, and I presume that it would not apply to people who wanted to visit sick relatives and who might even risk going to a war-torn country to do so. He referred to proposed new subsection 58B(2), which is found in new clause 2, which offers that defence, but the way I read it, the person charged will have to prove that they had a reasonable excuse for entering a designated area. That is not quite what the Minister said at the Dispatch Box, and although I did not intervene at the time, I do not think that people will be innocent until proven guilty, and that should worry the House.

The other issue is one of common sense. If a terrorist or freedom fighter who has returned is accused of going to such an area, they could no doubt make a reasonable excuse defence. They could say that they were an aid worker, and the Government would then still have to prove that they have evidence that the person was doing something wrong and was not an aid worker. I am not absolutely convinced that the Government have got this right, and I will go on to quote the former independent reviewer of terrorism legislation, David Anderson QC, who supports my view.

[Nick Thomas-Symonds]

There are obviously concerns about new clause 2 that we will have to consider in the other place; it is a shame that it arrived late. As for the idea of the reverse burden, under section 118 of the Terrorism Act 2000 a defendant has to raise it and then it is up to the prosecution to disprove it.

[Sir Edward Davey]

I am just going by what the Minister has tabled today.

David Anderson, the former independent reviewer of terrorism legislation, said in 2016 of a very similar proposal that

“this offence would not be worthwhile for the UK.”

He also complained about the burden of proof being

“on the honest and worthy to show entry into the prohibited area for a legitimate purpose.”

He said that foreign terrorist fighters

“will also cite aid purposes, so the ultimate burden of proof will still demand evidence not just of presence but also of training, logistical support, or involvement in fighting”

and went on to argue that such activities are of course already covered by the law. He also looked at the practical problems, referring to the fluidity of the

“area controlled by Islamic State (Daesh)”

and how difficult it would be to fix an area in law when the task might be like mapping the shifting sands of time and reality as the space governed by such organisations changes. There are practical problems with this legislation and, like the former independent reviewer of terrorism legislation, the Liberal Democrats do not think that the Government have made a case for it. We want to ensure that the other place scrutinises the measure given that this House has not been given sufficient time.

Finally, Government amendments 2 and 4 seek to replace their original proposal for obtaining and viewing certain material over the internet—the so-called three-click rule—with a one-click rule and a defence of ignorance about the content of the click. I spoke against the three-click proposal on Second Reading, as did many other Members on both sides of the House, and asked Ministers to go away and think again, but I did not expect them to come up with an even worse proposal. The defence for viewing such material with good cause has actually been reduced, and I am not alone in thinking that. Amnesty International fears that there is a serious risk of a chilling effect on the freedom of inquiry, whether from journalists, academics or researchers.

--- Later in debate ---

Brought up, and read the First time.

[Nick Thomas-Symonds]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 3—Access to a solicitor—

“(1) Schedule 8 of the Terrorism Act 2000 is amended as follows.

(2) In paragraph 7 leave out “Subject to paragraphs 8 and 9”.

(3) In paragraph 7A—

(a) leave out sub-paragraph (3),

(b) leave out sub-paragraph (6) and insert—

(c) in sub-paragraph (7) at end insert—

(d) leave out sub-paragraph (8).

(4) leave out paragraph 9.”

This new clause would delete provisions in the Terrorism Act 2000 which restrict access to a lawyer for those detained under Schedule 7.

Government amendments 6, 7, 19, 8 and 9.

Amendment 26, page 36, line 7, schedule 3, at end insert—

“(6A) The Investigatory Powers Commissioner (“the Commissioner”) must be informed when a person is stopped under the provisions of this paragraph.

(6B) The Commissioner must make an annual report on the use of powers under this paragraph.”

Government amendment 10.

Amendment 27, page 46, line 17, leave out “and 26”.

Amendment 28, page 46, line 26, leave out sub-paragraph (3).

Amendment 29, page 46, line 33, leave out sub-paragraph (6) and insert—

Amendment 30, page 46, line 37, at end insert—

“provided that the person is at all times able to consult with a solicitor in private.”

Amendment 31, page 47, line 29, leave out paragraph 26.

This amendment would delete provisions in the Bill which restrict access to a lawyer for those detained under Schedule 3 for the purpose of assessing whether they are or have been engaged in hostile activity.

Amendment 14, page 47, line 31, leave out “and hearing” and insert “but not hearing”.

Government amendments 11, 12 and 20 to 25.

[Nick Thomas-Symonds]

New clause 1 would make our continued participation in the European arrest warrant a negotiating objective of the Brexit negotiations. There can be little doubt about the value of the EAW to this country. The Security Minister will be aware, for example, that it was vital to apprehending the man who helped to organise and co-ordinate the London bombings of 7/7. According to the National Crime Agency, between 2010 and 2016, the UK issued 1,773 requests to member states for extradition under the EAW and received 78,776 from member states. Of those the UK issued, 11 related to terror offences, 71 to human trafficking, 206 to child sex offences and 255 to drug trafficking.

According to the Government’s own White Paper, more than 12,000 individuals have been arrested, and for every person arrested on an EAW issued by the UK, the UK arrests eight on EAWs issued by other states. Without the EAW, extraditions can cost four times as much and take three times as long. The Security Minister will of course be aware that in counter-terror investigations speed really is of the essence, and it is therefore vital that we set the objective of continuing to play a key role on the European security scene.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

I completely agree with what my hon. Friend has said, and I support the new clause. Does he share my concern that the current Brexit Secretary has a track record of voting against home affairs and justice co-operation before taking up his current post, and does he believe that that is reconcilable with the Government’s stated objective of close security co-operation? This is no-brainer stuff. We should be co-operating to deal with terrorist suspects and serious organised crime.

[Nick Thomas-Symonds]

I entirely agree. The Brexit Secretary’s previous record is of real concern, and it is certainly inconsistent with the Government’s stated objective. Tonight, the Security Minister has an opportunity to support the new clause and to put to bed any doubts that Members may have on this matter.

On 5 September, only days ago, in a speech updating the House on the attacks in Salisbury and referring to the two suspects, the Prime Minister said:

“with respect to the two individuals, as the Crown Prosecution Service and police announced earlier today, we have obtained a European arrest warrant and will shortly issue an Interpol red notice.”—[Official Report, 5 September 2018; Vol. 646, c. 169.]

That only goes to show that the European arrest warrant is a critical tool in our security toolkit. It is vital to ensure that should those suspects set foot in the EU, they will be remanded to the UK to face justice.

Having heard what the Security Minister himself has said in the past, I think that he actually agrees with me. On 9 December last year, he told the House:

“As we have said and will continue to say, we seek tools similar to the European arrest warrant, which we find incredibly useful. It helps us and our law enforcement agencies.”—[Official Report, 19 December 2017; Vol. 633, c. 1018.]

That is his view, and I hope that it will be reflected in his approach to the new clause this evening.

On 19 June, the EU’s chief negotiator, Michael Barnier, said that there was room for manoeuvre on the European arrest warrant. He said that if the UK

“cannot take part in the European Arrest Warrant”

in the way that it does now,

“This does not mean that we”

—the EU and the UK—

“cannot work together on extradition.”

The Government’s own White Paper stressed the difficulty in which the Government now find themselves, stating:

“Existing extradition arrangements between the EU and third countries do not provide the same level of capability as the EAW.”

Continued participation in the European arrest warrant really should be an objective of our negotiations. As we all know, organised crime knows no borders. To keep our country safe, we must co-operate with the EU27 and, indeed, other countries around the world.

My new clause does not bind the hands of negotiators. It simply says clearly that continued participation in the European arrest warrant is a negotiating objective. If it were passed tonight, it would send a signal to Brussels, reassuring those who are concerned about the Government’s approach to security in the negotiations—my hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) picked up that point in his intervention—and would also send a signal to the Security Minister’s colleagues.

[Kevin Foster (Torbay) (Con)]

We are not seeking to send signals this evening; we are seeking to create an Act, and inserting the new clause would create a part of that Act that would become irrelevant within months. Does the hon. Gentleman not agree that it would merely litter the legislation? While I accept some of his points, the Government have already made continued co-operation an objective. Why should we litter a permanent piece of legislation with a clause that would be defunct within months?

[Nick Thomas-Symonds]

With great respect to the hon. Gentleman, his argument seems to be circular. He will not vote for the new clause because he agrees with it: that appears to be his position. The idea that any piece of legislation is immune from becoming out of date, given time, is simply not credible.

[Robert Neill (Bromley and Chislehurst) (Con)]

I have a great deal of respect for the hon. Gentleman, and I understand the substance of where he is trying to get to, but in fairness to my hon. Friend the Member for Torbay (Kevin Foster), will the hon. Gentleman accept that there is a difference between what might be termed Brexit-facing legislation, such as the Trade Bill—and I myself have sometimes not been afraid to push a point because I thought it relevant—and a Bill that does not face in that direction? Given that the Government have made very clear their desire to replicate as closely as possible our arrangements under the European arrest warrant, I cannot, in this instance, agree with the hon. Gentleman that this is the right route for the Bill, although I accept his objective.

[Nick Thomas-Symonds]

As the hon. Gentleman knows, I have a great deal of respect for the work he does as Chair of the Justice Committee, but I simply say to him that security, which is what this Bill is about, is very much engaged in the issue of the European arrest warrant. As we look in the round at our security position, which we must do and are doing in the context of this Bill, I believe the EAW and the tools it gives us cannot be excluded from our consideration of security. That is why in my view this new clause belongs in this Bill, and why I hope that still, even at this late stage, the Security Minister might support it, because I think that deep down he agrees with it and I would like to see that reflected in the Division Lobby.

I think the Security Minister and I do agree on the original clause 14. The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) and I both tabled amendments to it in Committee. This is the part of the Bill that gives the power to impose charges on the organisers of an event for the purpose of protecting a relevant event or site from danger or damage connected to terrorism. The concern I and many others had in relation to that clause was to do with article 10 of the European convention on human rights, on freedom of expression, and arguably article 11 and the right to peaceful assembly. We did not wish to get to a position where somehow people were priced out of the right to peaceful protest. I am glad that the Government listened on that and have amended this clause so as not to impose any potential charges on those organisations that wish to gather and protest peacefully. I understand of course that the priority must be to keep citizens safe when people gather together and that that sometimes requires infrastructure in terms of policing events, but we must strike a balance between these charges and the right to assemble. On that basis, I am pleased that the Minister has made the concession and can support that amendment.

Amendment 26 in my name addresses a specific concern that I have flagged previously with the Security Minister. It relates to border stops where there is no reasonable suspicion in relation to the individual. I previously suggested that the Investigatory Powers Commissioner be informed whenever a person is stopped under the provisions of the relevant paragraph and that there be an annual report. I have suggested this amendment again on Report because of a concern about the position in Northern Ireland, which I will come back to shortly. However, the Minister justified the power in Committee by referring to an example. An aeroplane may land at one of our airports and we may have general intelligence that someone on it poses a threat, but we do not know which person it is. That is the justification for the power and the context in which the Security Minister and I had a discussion in Committee.

This evening, however, I am seeking some reassurances about how this applies to the situation in Northern Ireland, and the Security Minister will be aware that proportionately the number of border stops is high in Northern Ireland. In 2017, that border represented 3% of the passenger numbers for the whole UK but 18% of the stops. In other words, people are six times more likely to be stopped there than in another part of the UK. The figures show that nobody who was stopped was detained for more than an hour, and in the rest of the UK the figure for that is 9%. But this power applies to the first place a train from the Republic stops in Northern Ireland to let passengers off, and I refer the Minister specifically to paragraph 2 of schedule 3, which states that an examining officer may question a person who is in the border area for the purpose of determining whether their presence in the area is connected with the person’s entry into or departure from Northern Ireland. This applies on the border strip and at the Newry and Portadown train stations. Under the provision as it stands, people could be stopped, questioned and detained without reasonable suspicion.

As I have said, I understand the need for that power in relation to the perpetrators of hostile activity outside the United Kingdom coming in, but we do not want through this provision to somehow create a hard border for people on the island of Ireland, between the north and south. I really hope that, even if the Minister does not respond to this at the Dispatch Box tonight, he will at least go away and look at this issue before the Bill appears in the other place, and indicate what protections he envisages in relation to that power being exercised in Northern Ireland.

[Stephen Pound (Ealing North) (Lab)]

I know that the Security Minister needs no reminding of the sensitivity of this matter. Does my hon. Friend agree that there could not be an area of greater sensitivity than the area around Newry and Portadown? Does he also agree that we need a full, robust and transparent reporting mechanism? Otherwise, rumours will spread, and there are some people who will seek to make the situation appear worse than it is. We must have this out in the open, because this is an area of such sensitivity. I cannot stress overmuch how delicate and dangerous this situation is.

[Nick Thomas-Symonds]

I am grateful to my hon. Friend for that intervention. He always speaks eloquently when he speaks from the Front Bench on these matters. I do not want to divide the House on this issue. My amendment proposes a robust reporting mechanism. The Minister has stated that there are other ways of doing this, and I am perfectly happy to consider them, but I hope that he will go away and look at this proposal before the Bill appears in the other place, so that we can avoid the kind of suspicion that my hon. Friend has just described.

Amendment 14 relates to legal professional privilege and to a person’s ability to consult a lawyer in private. That is an important principle. In recent weeks, following the case in the UK Supreme Court of the Serious Fraud Office v. Eurasian Natural Resources Corporation, it has been stated that

“the rule of law depends on all parties being able to seek confidential legal advice without fear of disclosure”.

I do not believe that we have to balance liberty against security in these circumstances, as we have to do in so many other areas. There is a simple, practical solution to this, and I hope that the Minister will go away and look at it so that I do not need to divide the House on this amendment.

This relates to stops at the border. There is a power in the Bill for an officer not only to watch someone receiving legal advice but to hear that legal advice being given. The power to watch has pertained for some time. Lawyers often give advice with an officer standing behind a glass frontage, for example. That has been a feature of our criminal justice system for many years. The Chair of the Justice Committee is nodding, and he will know that that practice can be used to protect the person being questioned, or indeed to protect the lawyer in certain circumstances. I have no issue with that. The power to overhear the advice gives rise to a major issue, however.

I heard the concerns that the Minister expressed in Committee. His first argument was that, rather than contacting a lawyer, a person might contact someone they wanted to notify of the fact that they had been stopped. He also argued that they might notify a lawyer who would not adhere to the professional standards that we would expect and who might pass some information on. The third scenario that he mentioned was that of a lawyer inadvertently passing on a piece of information. The solution that I have suggested to the Minister, which I hope would deal with all three points, would be to have a panel of lawyers, properly regulated by the Solicitors Regulation Authority and the Law Society, just as we currently have a duty solicitor scheme in police stations. In that situation, lawyers would both have the expertise and be properly regulated, meaning that the Minister might not have the same concerns about people’s ability simply to contact who they wished.

[James Heappey (Wells) (Con)]

I am interested in the shadow Minister’s suggestion. Would he have any concerns about whether sufficient lawyers could be accredited to guarantee appropriate availability? Does he propose that they undergo some sort of security vetting in addition to their accreditation through the Law Society or whichever other organisation is deemed appropriate?

[Nick Thomas-Symonds]

I am not aware of an area of law where there is currently a shortage of lawyers, but perhaps the hon. Gentleman will be able to tell me of one—I say that based on many years’ experience of practising as a lawyer. As for the second question, I have no issue with vetting people before they can join a panel. Indeed, it is the case now that people are considered for their expertise in professional matters before they join a legal panel. I am just making a perfectly practical suggestion that would deal with the Minister’s worries while preserving that highly important principle of legal professional privilege which, as I said in my opening remarks, the Supreme Court has said in recent weeks is vital to the rule of law in this country. We should not abrogate that as we seek to tackle the real terror threat before us. I hope that the Minister will at least undertake to go away and consider whether that could realistically be looked at in the other place. It is an important principle, and I do not want to divide the House on it, but whether there is to be a concession is a matter for the Minister.

[Stephen Doughty]

I do not want to detain the House for long, but having served as a member of the Bill Committee I wanted to put on the record some of my concerns about the new clauses and amendments in this group.

I wholeheartedly support new clause 1, tabled in the name of my hon. Friend the Member for Torfaen (Nick Thomas-Symonds). I cannot see any reason why the Government would want to reject it given that the Chequers agreement and the White Paper—I have read both carefully—point out the 40 different areas of justice and policing co-operation that are so essential to our security and our counter-terror efforts across European borders. The White Paper suggests that some of that co-operation could even be strengthened and deepened, so I cannot see any reason why setting out in the Bill the importance of seeking participation in the European arrest warrant, one of the most crucial of those 40 instruments, would be a problem.

Given the transnational nature of some of the terror plots and serious organised crime that we have seen not only in my constituency, but in some tragic events over the past year at a UK level, I cannot see why we would want to diminish our security co-operation through, for example, Europol and Eurojust. As we approach the Brexit deadline that was set when the Government triggered article 50, we are potentially leaving a great deal of uncertainty around such issues. We do not want criminal or counter-terror investigations that are ongoing at the end of March next year to be jeopardised by the failure to secure participation in the European arrest warrant going forward.

As for my hon. Friend’s amendment 26, the Minister is aware of my concerns because we have discussed them both in person and in Committee. I fully support appropriate strengthening mechanisms to ensure that individuals can be detained at border points and that the police and security services have the appropriate powers to interdict those who might be trying to commit terror acts, serious organised crime or, indeed, espionage or other serious matters. However, it is important that that is balanced against ensuring that such powers are used carefully and effectively. Where problems exist, there should be appropriate appeal and oversight mechanisms to ensure that citizens feel that such matters are being used appropriately and securely and that individuals who are wrongly interdicted have appropriate restitution, which is important for confidence in the system as a whole.

My last point is an important one for the Bill as a whole. This part of the Bill includes many new powers and schedules, and there is cross-party agreement that our security services and the police need them to keep this country and other countries safe and to prevent us from experiencing terror attacks or the consequences of serious organised crime, but they can be applied only with appropriate resourcing.

We have seen what the Metropolitan Police Commissioner has had to say today about the 2% pay rise for police being a “punch on the nose.” We have seen the National Audit Office’s reports on the concerns about cuts in policing, and we in the Home Affairs Committee have been conducting an inquiry into police funding. The frontline policing community policing and specialist counter-terrorism policing that will be required to apply the provisions of the Bill, on which there is cross-party agreement, cannot happen out of thin air or by magic; it only happens if it is properly resourced.

I urge the Minister to make a strong case in the Home Office in the coming months that the police need more resources. We cannot continue cutting in this area, otherwise we put our national security at risk.

--- Later in debate ---

[Mr Wallace]

I will start if I may by addressing the amendments in this group. First, let me turn to the Anti-Terrorism Traffic Regulation Order. Amendments 6 and 7 respond to the debate in Committee about the provisions of clause 14, which, among other things, will enable a traffic authority to impose reasonable charges in connection with the making of an Anti-Terrorism Traffic Regulation Order or Notice.

In Committee, I indicated that I would consider amendments tabled by the hon. Members for Paisley and Renfrewshire North (Gavin Newlands) and for Torfaen (Nick Thomas-Symonds) designed to prohibit charges from being imposed on the organisers of public processions and assemblies. They were quite properly concerned about protecting the right to peaceful protest. Having considered the matter further, I agree that it should not be possible to impose those charges as they have suggested, and amendments 6 and 7 ensure that that is the case.

Throughout the Bill, I have made it my business to make sure that we make changes with as much consensus as possible. I have made the point that, in my time as an Opposition Back Bencher, I rarely, if ever, saw my party or the Opposition get any concession—small or big—from the Government. I do not take that attitude in legislation, and I am delighted that we could make concessions. The Opposition and the SNP were correct in making their points, and it is right that we have put them on the statute book in the right place.

The other Government amendments in this group concern the new power in schedule 3 to stop, search, question and detain persons at a port for the purpose of determining whether they are, or have been, engaged in hostile state activity. It is important to note that this is an exact mirror of schedule 7 concerning counter-terrorism as was introduced by the previous Labour Government in 2000. Therefore, all the questions raised by hon. and hon. and learned Members from all parts of the House should be put in context that some of those issues have been in existence for 18 years—the point on the Irish border, for example. The power was specifically introduced into the Bill to deal with the aftermath of the attack in Salisbury in March. The point is that, in an open trading liberal democracy, we are vulnerable to hostile states abusing that ability to travel and that openness to come and do harm to our society and our citizens. It is a very real threat.

This was in fact considered before last March because the independent reviewer of terrorism legislation, David Anderson—who has often been quoted by the Opposition— highlighted the fact that we were stopping people we suspected of hostile state activity under schedule 7 counter-terrorism stops and said that hostile state activity needed its own separate stop power. We agreed with his observations and have acted on them. It was a tragic coincidence that the attack happened in March, reminding us just how hostile some states can be.

Amendment 10 is about oversight and representations to the Investigatory Powers Commissioner, as we seek to allow those representations also to be made in writing. It is incredibly important that we have these powers. We face a real challenge if a state—as opposed to an amateur or a terrorist—seeks to penetrate our border supported by the logistics of that state. An example is the recent case of GRU officers entering this country with genuine passports, logistically supported by the wider state. This type of activity is better disguised. It is not as easy as it is to stop someone with a rather dodgy back story who is coming here for the purposes of terrorism. This is serious, which is why it is important to take this power.

I know that there is concern about having no requirement for suspicion. That goes to the heart of the ability for us sometimes to action intelligence that is broad. For example, we might know about a certain route that is used or about certain flights in a period of a week, but known no more beyond that. We need to be able to act on that intelligence effectively on the spot.

[Nick Thomas-Symonds]

I accept that point. Indeed, I set it out in my speech. Our concern is specifically in relation to Northern Ireland. How best are we going to secure accountability for how the power is used?

[Mr Wallace]

I agree. We have had the power regarding the Northern Ireland border, or any other border, since 2000. In theory, we able to deal with matters using a counter-terrorism stop. Over the years, I have never seen so much nonsense written about the border of Northern Ireland. I have patrolled the border. I have lived on the border. I have been on the border of Northern Ireland as the Minister for Northern Ireland. I have known the varying powers—the smugglers and the people involved—on that thing for decades.

There have always been checks and stops on the border. There has been a different customs regime on the border of Northern Ireland since the 1920s. Famous smugglers have taken advantages of duty differences. There have been different tax ratios, duties and powers to make immigration stops, and we have carried these out even since the Good Friday agreement. In fact, one of the last things I did before the reshuffle that made me the Security Minister was to stand on the road near Newry doing a traffic stop of cars coming across from Ireland; they were squeezing the money out of me during my time there. These checks have always happened. This has happened for counter-terrorism for the last 18 years and we feel that should be mirrored in the case of hostile state activity.

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[Nick Thomas-Symonds]

On the point about consultation with a lawyer, I have offered a very practical solution. Will the Minister at least undertake to look at that before this Bill goes to the other place?

[Mr Wallace]

I know that the hon. Gentleman absolutely means the best in making his recommendation. I certainly give him the assurance that I will take it away and look at it before the Bill’s introduction in the other place. Many of his points about giving reassurance to people are certainly valid. He accepts, I think, that there is a risk that a state that has deliberately planned to enter this country will sometimes be making sure—if they do a proper operation—that the so-called lawyer they would consult would be in a position to be tipped off. That is why his suggestion is a good one, and I promise to take a look at it.

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[Mr Wallace]

I would say to them and to anyone else that the first duty of a Government is security, and it is absolutely important that we maintain that. The message to Michel Barnier is that security is not a competition; it is a partnership. I hope he will reflect that in his negotiations with this country, but I do not believe that putting it on the face of primary legislation is the best way to go about it, especially as it is our Government’s ask to the European Union on that issue. I therefore urge the hon. Member for Torfaen (Nick Thomas-Symonds) to withdraw his new clause.

[Nick Thomas-Symonds]

I certainly will not be withdrawing my new clause. Continued participation in the European arrest warrant is vital for the security of this country. Can the Minister name another example of a Minister failing to vote for a part of a Bill he agreed with?

[Mr Wallace]

I would be interested to know whether the hon. Gentleman could name a single Labour Minister who, during the passage of any European treaty or any other treaty, put the negotiating position—not the results of the negotiation, but the negotiating position—in primary legislation. I do not think he will find one. We do not intend to put it in primary legislation, especially because it is what we are asking for and we do not need to. I therefore urge hon. Members to reject the new clause.

[Nick Thomas-Symonds]

I do not find that explanation convincing in any sense.

Question put, That the clause be read a Second time.

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[Nick Thomas-Symonds]

The UK national threat level, set by the independent Joint Terrorism Analysis Centre and the security services, has been at severe or higher since 29 August 2014. We put on the record our debt of gratitude to the police and the security services for the work they do in keeping us safe. Since the terrible murder of Fusilier Lee Rigby in May 2013, 25 terrorist attacks in the UK have been foiled. We should never forget that as we consider this Bill.

In June 2016, there was the terrorism-related murder of our late colleague in the Labour party, Jo Cox, and between March and September 2017, there were a further five terrorist outrages, at Westminster, on 22 March, at Manchester Arena, on 22 May, at London Bridge, on 3 June, at Finsbury Park, on 19 June, and at Parsons Green, on 15 September—although, mercifully, no one was killed in that final attack. It is fundamental that our approach in legislation does not undermine the very values that the terrorists seek to attack. The rule of law has to be fundamental to our approach.

I am grateful for the consensual approach that the Security Minister has taken on the Bill and the concessions he has made. The concession in respect of the three clicks in clause 3 makes it a better Bill. The concession on clause 14 and the preservation of the right to peaceful protest is very important, too, and is very much a part of what he rightly said about protecting our own values as an open, liberal and tolerant democracy.

I hope that this consensual approach can now continue into the Lords. As I indicated in my speech on the first set of new clauses and amendments, I am concerned that the designated areas clause came so late, and we will therefore want to subject it to scrutiny. As I indicated, we are not opposing it, but I would like to subject it to appropriate scrutiny—and I am sure it will be so subjected in the other place. I hope that the Minister will continue to work with me in that regard.

In addition, the Minister made two concessions during our debate on the second set of new clauses and amendments. First, he said he would look at the situation in Northern Ireland and accountability for the number of stops. I appreciate what he said about that. Of course, powers have been in place since 2000, but we have to ensure transparency in how the stop power is used. The second concession was on legal professional privacy. He knows that I feel passionately about this and have set out its key importance. He said that he would look at my very practical proposal before the Bill goes to the other place. That was, I accept, a concession. I hope he will continue to work on a consensual basis. Under my proposal, we would not need to balance liberty and security; we could have the position as it is but with a very practical solution.

Before drawing my remarks to a close, I want to put on the record my thanks to the Minister, the rest of my colleagues in the shadow Home Affairs team, the Members who served on the Committee and finally the Clerks who served the Committee so well as well as all of us who wished to table new clauses and amendments on Report.

Counter-Terrorism and Border Security Bill

Nick Thomas-Symonds Excerpts

Ping Pong: House of Commons
Tuesday 22nd January 2019 Commons Chamber

I look forward to working with the hon. Member for Torfaen and with the rest of the House to get the review of Prevent right. I also look forward to ensuring that the offences in this part of the Bill help to empower our law enforcement and security services to deal with the growing threat of safe spaces abroad. We must send a strong message to those who wish to travel to become foreign fighters that they should not do so and that there are alternatives, such as Prevent, that can help to divert them away from committing those offences, but that if they do commit them, they will be caught and sent to prison.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I am grateful to the Security Minister for his opening remarks, and for his tone and the consensual approach he has taken. We most definitely do not agree on everything, and we have robust exchanges across the Dispatch Box, but we try to work together constructively on these serious matters whenever we can. I am grateful to him for accepting Lords amendment 1 to clause 3, which has caused controversy in the past. The clause deals with a situation in which it was previously illegal to download these terrible recruiting videos but not illegal to stream them. We have to have a situation in which both are illegal. We cannot have a situation in which watching something later on is illegal but watching it at the time is not. This has been difficult to deal with, and there is no perfect way to capture it in legislation.

As the Minister knows, I was also concerned about the three clicks approach, and I am pleased that the Government have dropped it. Dropping it has not, as some suggested, led to a situation in which one click could lead to an offence being committed. The Bill sets out clearly that anyone inadvertently clicking in that way would not be covered by the offence. I was concerned that the reasonable excuse defence mechanism went put on to the face of the Bill, particularly in relation to journalists and academics, and I am pleased that the Government have now accepted those concessions. It is clear that in the years ahead we will have to look at precisely how the clause works in practice, but it is important to send a clear message that streaming these terrible videos is equally as awful as downloading them and watching them later on.

On designated areas, the Security Minister quoted what I said in the Commons because this measure was introduced at a very late stage and I was unable to have that discussion with him in Committee. We do not oppose the overall aim of dealing with so-called foreign fighters, but the clause needed significant work. Again, I am pleased with the work that has been done and I pay tribute to my Labour colleagues in the Lords and those of other parties there who have put in the work and time to improve the clause. I am also grateful to the Minister for accepting the changes.

There was originally a non-exhaustive list of reasonable excuse defences on the face of the Bill. This has essentially been taken and carved into the law itself, so that people do not commit the offence in the first place if they have a particular purpose for travelling. That was important for two reasons. First, someone with a perfectly legitimate reason for doing something would inevitably have been stopped, and would have been able to raise the reasonable excuse defence only further down the line. It is therefore much better in principle that they do not commit the offence in the first place. Secondly, the last thing anyone in this House wants is to deter people with a perfectly reasonable motive from going to areas of conflict. Aid workers are an example, and I know that the Chair of the International Development Committee, my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) has tabled an amendment on that.

For completeness, Lords amendment 3 states that the offence is not committed if one or more of the purposes of the visit is to provide

“aid of a humanitarian nature…carrying out work for the government of a country other than the United Kingdom…carrying out work for the United Nations or an agency of the United Nations…carrying out work as a journalist…attending the funeral of a relative or visiting a relative who is terminally ill…providing care for a relative who is unable to care for themselves”.

That is not meant to be an exhaustive list.

In addition, the reasonable excuse defence is maintained. This relates to the amendment tabled by my hon. Friend the Member for Liverpool, West Derby. The reason is that if no exception is already carved into the law and the purpose of the visit is not included in the list, it could none the less appear as a reasonable excuse defence. In an intervention on the Minister, the hon. Member for Torbay (Kevin Foster) talked about a burden in these cases. With the reasonable excuse defence, there is of course a burden on the defendant to raise it, but the burden to disprove it lies with the prosecution. In the carve-outs in the law that I have suggested, however, these people would not be committing the offence in the first place.

I want to press the Security Minister on how exactly this is going to work in practice. As he knows, there are two models around the world: the Australian model, which I think the sunset clause has been taken from, and the Danish model. The way the Danish model works in terms of not committing the offence in the first place involves an extensive system in which people obtain licences before they go. That is not without its problems, because journalists sometimes like to travel to certain areas without advertising the fact that they are doing so, so I am not suggesting that this would be a silver bullet or a magic solution. However, there will presumably have to be a system whereby we can show clearly that someone has not committed the offence in the first place, as against those situations in which there might be a reasonable suspicion that an offence had been committed and in which the reasonable excuse defence was raised later. Any details from the Minister on how this will work would be appreciated.

The other Lords amendments on these issues are also important. They include the introduction of a sunset clause for the statutory instruments to designate particular areas so that they cease to apply and have to be replaced. This will ensure that the Government regularly make the case to Parliament if they wish to continue with a designation in the long term. Lords amendments 7 and 8 relate to two additional concessions. Lords amendment 7 provides that the Government have to make a statement outlining why they believe an area needs to be designated at the same time as they lay the relevant statutory instrument. Similarly, Lords amendment 8 states that when the Government revoke a designation, the change must be subject to the negative resolution procedure in Parliament in case anyone wishes to object to it. Taken together, the amendments produce a much better clause in relation to the designated areas. It will allow the Government to tackle the problem of so-called foreign fighters, of which we are all conscious, but it now does so in a more balanced, fair way, without deterring those who wish to travel to areas of conflict for perfectly honourable and legitimate reasons. No one in the House would wish to prevent them from doing that.

There are three other broad themes to the amendments in this group. The first relates to extraterritorial jurisdiction, which the Minister will be aware I have raised before in a slightly different context. The Government added extraterritorial jurisdiction to the offence of inviting or recklessly expressing support for a proscribed organisation, and concern was expressed about that by the Joint Committee on Human Rights. The Committee was concerned that the extension of extraterritorial jurisdiction to certain offences was problematic when there was no equivalent offence in the country involved. The safeguard will now ensure that extraterritorial jurisdiction applies only if the offence was committed by a UK national or UK resident. That is in line with what the Joint Committee recommended, and I welcome that change.

Turning to the independent review of the Prevent strategy, I genuinely welcome the Security Minister’s acceptance that a review is required, and I give credit to the shadow Home Secretary, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), who has argued for one for some considerable time. As the Security Minister knows, I have visited Prevent programmes across the country, including in south Wales. My hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) also raised the issue of far-right terrorism, which this House must be conscious of and take action on.

My argument about the independent review of Prevent is that there is a concern that its aims may end up in conflict with or become slightly confused between intelligence gathering, what I would call the more welfarist or safeguarding aspect of Prevent, and community cohesion. There has been an issue around community cohesion, because the facilities that are available to local authorities, for example, are an important part of that. I have had conversations in which it was clear that the pressures on local authority services are really affecting Prevent’s ability to deliver.

There are also aspects or parts of our society—in fairness to the Security Minister, he pointed this out himself—that have lost faith in the programme, and it is time to look at that. We need a programme in which everyone can have faith. None of us wants to see people living a life of violence and hatred that is driven by these kinds of ideologies. We all want to prevent people from doing that, but let us do so in the most effective way. From our conversations, I am hopeful that the Security Minister will be keen to have a wide-ranging review that can deal with such issues.

While I am on the subject of Prevent, I know that the competition to become the new independent reviewer of terrorism legislation has now closed to applications, and I hope that someone new will be appointed soon. I hope, too, that the Minister will be receptive to suggestions about how exactly to construct this independent review, so that we can have the most robust and reliable conclusions possible and, if necessary, make appropriate changes.

Lords amendment 16 is another sensible amendment, relating to bank accounts or terrorist’s bank accounts. There was an issue in the law as originally drafted in that the account would have to be in the name of a particular person. Of course, that did not take into account the fact that people can have control of other people’s bank accounts by their behaviour, and it is important that that was covered in the legislation as well.

Taken together, all the Lords amendments make this legislation far better, and it is pleasing that we end the passage of this Bill on a note of significant consensus.

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

I echo the comments of the hon. Member for Torfaen (Nick Thomas-Symonds) about the consensual approach taken by the Government during the passage of this Bill and about the concessions already made during earlier stages, including on the likes of the three-clicks provision. As the Scottish National party has said since this process started last June, we welcome the Government amending this important legislation and appreciate the need to combat the constantly evolving threat from international terrorism in the modern age. However, we must be extremely careful how that is executed, and any new powers must be subject to stringent checks and safeguards if we are to maintain a healthy balance of security and civil liberties.

I will deal with the amendments in fairly short order lest I repeat many of the points already made by the Labour spokesman today or points that either of us made during earlier stages. The SNP welcomes the amendments—the improvements—made to the Bill in the other place and, as an SNP Member, I say that through gritted teeth. However, most of the amendments made in the other place were argued for in one way or another by the hon. Member for Torfaen and myself throughout the passage of the Bill in this place. None the less, I am pleased that the Government have dropped their opposition to many of the additional safeguards, and I hope the Minister is as generous in his treatment of the Crime (Overseas Production Orders) Bill on Report and Third Reading next week.

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[Nick Thomas-Symonds]

I again welcome the approach that the Security Minister has taken in reaching consensus on these matters.

First, and this is a very important principle, in this Bill we have maintained and preserved the right to receive legal advice in private. It is a very important principle and, as the Security Minister knows, I pressed him on it at a very early stage of and throughout the proceedings on the Bill. There was a concern either that someone who had been stopped and detained would use the ability to contact a lawyer to communicate the fact that they had been stopped—in other words, to contact someone who was not a lawyer—or, alternatively, that a genuine lawyer was contacted but that the lawyer would then somehow, inadvertently or otherwise, pass on information about the stop. I pressed the Minister on the solution that is now in the Bill at quite an early stage about a kind of duty solicitor scheme that could deal with both of those concerns, but also ensure that we preserved the very important right of legal advice in private. I am pleased that we have reached this stage on the Bill and that the Government have made that concession.

I now turn to a set of Lords amendments, starting with Lords amendment 14, on the urgent procedure for retaining and copying property at the border. I have looked at the Court of Appeal judgment in the David Miranda case. As the Minister says, the judgment, at paragraph 96, identified that there is

“no provision for authorisation by a court or other independent and impartial decision-making body in a case involving journalistic material prior to the use of the Schedule 7 power or, in an urgent case, immediately after the obtaining of the material pursuant to the exercise of the power.”

I fully accept that there are going to be very urgent situations, and this is expressed in terms of an imminent threat of loss of life or of injury. I am pleased to hear what the Minister has said about the code of practice, which we can look at in due course. I previously suggested that there could be situations where a decision maker was available at the end of a telephone line, but I appreciate that there will be truly exceptional cases. The key to this is that, while I fully accept the law needs to be brought into line with what has been suggested in the Miranda case, we have to understand that these must be truly exceptional cases. That is something we can set when we come to debate the code of practice, being very clear that in these particular circumstances there will have to be a genuine, imminent threat that needs to be dealt with. Again, however, bringing the law into line with what the Court of Appeal has suggested is, on the whole, to be welcomed.

I want to speak to two other sets of Lords amendments. I will start with Lords amendments 17, 19, 26, 28 and 29 on the definition of hostile activity. The difficulty is that if this is defined purely in terms of criminal activity, that does not capture other types of hostile espionage activity, which may not necessarily bring into play parts of the criminal law. I did think that there was a danger of this being drawn too broadly, and I am pleased that these amendments narrow the definition, so that when we talk about threatening the economic wellbeing of the UK, we have now added

“in a way relevant to the interests of national security”.

The key is to ensure that we have the powers we need while also being precise about what we consider “hostile activity” to be. It is a welcome amendment that improves the Bill.

Finally, Lords amendments 41 and 42 relate to information sharing. Schedule 3 provides that an officer questioning someone at the border can hand over information to appropriate bodies, as decided by the Secretary of State. I think that narrowing the provision to bodies exercising public functions is to be welcomed, but I have regularly made the point to the Minister during the passage of the Bill that bodies such as local authorities will need the appropriate resources, expertise and support to handle the information, particularly when it is likely to be highly sensitive.

Taken together, I think that the Lords amendments that I have spoken to, covering the four themes I have referenced, make the Bill a better and more effective piece of legislation, although I am keen to engage with the Minister when the codes of practice to which he referred come before both Houses.

[Gavin Newlands]

The House will be relieved to hear that I intend to be even more succinct in my comments on the provisions pertaining to port and border control powers. We have again seen positive movement in this area.

Despite the best efforts of the hon. Member for Torfaen (Nick Thomas-Symonds) and myself, when the Bill reached the other place it restricted access to a lawyer for those detained under schedule 7. Specifically, it restricted an individual’s right to consult their legal representative in private, away from a relevant officer. As I and other Members have said at every stage of the Bill’s consideration, the ability to speak to a legal representative in private is a fundamental right that should not be infringed. Indeed, as the Minister outlined in oral evidence to the Public Bill Committee, both the Law Society of Scotland and Law Society of England and Wales have reinforced that point. Richard Atkinson stated in evidence that the UK’s criminal justice systems have an excellent reputation but that their very

“cornerstone is legal professional privilege…not access to a lawyer”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 30.]

We therefore very much welcome Lords amendments 12, 15, 35 to 37, 39 and 40, which ensure that that right is protected. Our preference would be for anyone detained under these powers to be able to consult legal representatives of their choosing, but I have heard the Government’s case for the power to require a detainee to consult a different solicitor and, although I would prefer not to have that provision, I completely understand the rationale behind it. I only hope that the power is not abused to ensure lesser representation.

On that note, we also very much welcome amendments 33, 34 and 38, which confirm a detainee’s right to be informed of their rights, which will now be in the Bill rather than simply in the draft code of conduct.

We also welcome Lords amendments 17, 19, 26, 28 and 29—I am not used to having so many Lords amendments, Madam Deputy Speaker. As the hon. Member for Torfaen said, the narrow definition of “hostile act”, so that it is an act that threatens the UK’s economic wellbeing, qualifies only if it

“is relevant to the interests of national security”.

We on the Scottish National party Benches are well known for standing up for civil liberties and human rights, but we do understand that keeping people safe and secure is the primary function of government and fully support our services having the appropriate powers to keep us safe. We therefore support an expedited process for retaining and examining property and confidential material where there is an immediate risk of death or serious injury, or of a hostile act being carried out. That relates to Lords amendments 18, 25, 27 and 30 to 32.

I am sorry to have to mention Brexit so close to the end of our considerations, but it will potentially have a huge impact on the effectiveness of much of this legislation. One of the greatest threats to our national security and counter-terrorism capacity is Brexit and the risk of losing seamless access to multilateral information-sharing tools. Terrorism and organised crime will continue to operate after 29 March without care towards the UK’s membership of the EU—I see that the Minister is delighted by the mention of Brexit. Yet without Europol, Police Scotland will no longer have access to information systems, support and expertise that help make Scotland, the rest of the UK and Europe a safer place. We cannot risk having arrangements that dilute the access that we currently have, and any new arrangements must consider Scotland’s distinctive criminal justice system in order to provide a continuing basis for the direct co-operation that currently exists between law enforcement agencies in Scotland and their counterparts. If we have not made provision to keep our policing effective outside the EU, how can we expect Prevent and everything that has been discussed today to work even after a review?

I thank the hon. Member for Torfaen and the Minister for the manner in which the Bill has been debated throughout its passage and I look forward with joy unconfined to dealing with them again next week on the Crime (Overseas Production Orders) Bill.