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.