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.

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[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.

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[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.

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[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.)