Counter-Terrorism and Border Security Bill (Second sitting)

Simon Hoare Excerpts

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

[The Chair]

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

[Simon Hoare (North Dorset) (Con)]

Q Following on from Mr Thomas-Symonds’s question, can I probe slightly? Given the pressures of time, I hope that it will just be a slight probe.

I listened with great attention to what you said, Mr Hill. As a matter of principle, do you think that a clause that aims to track, monitor and quantify streaming, its effects on behaviours and so on, perhaps amended to reflect some of the issues that you have set out, merits inclusion in an Act of Parliament? You have suggested some improvements or embellishments to the clause, but if you were given a free hand, would you say, “If you are going to have it, you need to embellish it,” or, “Actually, it would be better not to have it at all”? Does that make sense? I am not a lawyer, so I am not very good at asking these lawyerly questions.

Max Hill: That does make sense. Given a choice—given a free hand—I would be more likely to argue that it is not necessary to legislate in this way at all. Let me explain that in two very short ways. First, I do not seek to undermine the existing section 58 offence of collecting information. It has its place on current indictments, many of which I have prosecuted over the years. I do not seek to undermine that, but this new variant sets a lower threshold than we have at the moment.

The second point is that there is at least an argument, or perhaps a discussion, which no doubt time forbids today, that there is a very considerable overlap between what one has in mind by clause 3 and the existing offence of encouragement of terrorism, which is separately enshrined in section 1 of the Terrorism Act 2006. If that argument has force, that is the second way in which I would say we do not need to replicate where we already have a precursor offence—one that has withstood scrutiny for more than a decade and that actually goes into considerable detail in its sub-clauses as to the definition of recklessness, for example. Where section 1 of the 2006 Act already covers territory, I would be tempted to argue that this is unnecessary.

[Simon Hoare]

Q Mr Hill, you talk about lowering the threshold. Obviously, that is a subjective assessment. Perhaps the threshold set in part of the 2000 Act was about right given the circumstances at the time, the challenges the country faced, the nature of terrorism as it presented itself, and indeed the scope and reach of the internet. Are we now, 18 years subsequent to that, right to review and potentially to lower the threshold because the opportunity to engage, search and disseminate information is such that it is now much easier and available to affect a larger number of people than was the case even 18 years ago? I know it does not seem that long ago, but in technological and internet terms, it is a millennium ago.

Max Hill: Yes. I agree, if I may put it this way, with the Home Secretary on relaunching Contest on 4 June, when he said in answer to questions that this Bill introduces a number of “digital fixes”—the Home Secretary’s words—to existing legislation. It is of course right that, even after one decade—sometimes even less, because of the way that communication technology moves on—Parliament is perfectly entitled to revisit existing offences. What that means is that a redefinition to include online activity within section 58 does not strike me as controversial.

What does strike me as difficult, though, is the suggestion that somebody who is thinking in a particular way without more—let us define that as a predisposition to extreme thinking—has crossed the line into terrorist offending, which is violent extremism. I am concerned that setting a lower threshold, which is a matter for Parliament, actually takes one across that line and ultimately we are doing nothing more by clause 3 than identifying people who may express an interest in certain types of material, but who up until now have not been at risk of prosecution for terrorist activity. They may be of interest to counter-terrorism policing and to the security and intelligence services—it is their function to take a very keen interest in even this sort of activity—but I am concerned about saying that that has crossed the threshold into criminality.

[The Chair]

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

--- Later in debate ---

[Stephen Doughty]

Q Is that the same for you?

Abigail Bright: I agree. There might well be a case for identifying exceptions to liability under the Bill, but if we are to co-exist with reasonable grounds alone, I certainly agree with Peter’s and Max Hill’s approach.

Corey Stoughton: I agree with that. I would also point out that, to create a reasonable grounds standard, you would have to amend the Bill’s current definition of hostile activity, because hostile activity as currently defined is not linked to any particular crime. It is any action that could arguably negatively affect the interests of the nation. On the face of it, that could include a businessman engaged in a trade deal that is to the detriment of the UK economy, or a businessman striking a deal that would not help UK businesses. I do not think that is what the power was meant to get at, but that is the way it is drafted. It needs to be amended to link it to criminal activity, and there must also be a reasonable grounds standard.

[Simon Hoare]

Q Can I ask the witness from Liberty how you would amend clause 3?

Corey Stoughton: I would stamp it out. I do not think there is a way to amend that provision in a way that would not end up simply reducing it to what is already covered by existing criminal offences. There is no ground between what is already criminal and would therefore be unnecessary, and what goes too far.

[Simon Hoare]

Q This may be a little rhetorical. I remember, not exactly, it has to be said, with unalloyed pleasure, the very long debate that we had on the Investigatory Powers Bill—Mr Newlands and Mr Warman will also remember this—about the distinction between a journalist and a citizen journalist. It might just be my impression, but there always seems to be a disconnect between realpolitik and the outlook of Liberty. When was the last time that Liberty demonstrated either an appreciation or an understanding of the need for, or indeed a welcome of, any proposed legislation to deal with the significant and frightening threat that this country faces from those who wish us ill, both within it and outside it?

Corey Stoughton: Let me affirm that Liberty takes very seriously the Government’s responsibility and obligation to protect all of us from terrorist attacks, which threaten the fundamental right to life. There are many provisions in the Bill that we have no objection to whatsoever. However, I also point out that our opposition to this is not radical or extreme—we are joined by the independent reviewer of terrorism legislation and the eminent counsel sitting next to me—so I do not think there is any cause to point out that our criticisms of the Bill are radical or not in keeping with what a, frankly, rational lawyer would think when looking at the provisions proposed.

[Simon Hoare]

I did not actually use the word “radical”. That is an interpretation.

[The Chair]

Thank you. That is now very much on the record.

--- Later in debate ---

[Dr Rupa Huq (Ealing Central and Acton) (Lab)]

Q This morning, as you were saying, I asked the two panels about clause 3 and the potential for criminalising thought without action. I raised a case that was quite high profile at the time, and nobody from the two panels this morning had heard of them.

I wanted to ask you about, first, the issue of thought without action and secondly, the difference between lone wolves and proscribed organisations. The case I wanted to raise was the first ever person convicted under the Terrorism Act, in 2007, the 23-year-old “lyrical terrorist”—the person writing extremist poetry about beheading people. That resulted in an Old Bailey conviction that was later overturned by the Court of Appeal. What are your thoughts on that and this Bill? How would they apply? Have you heard of that case? Nobody this morning had, and I was surprised by that.

Peter Carter: No, I am afraid I have not. It was not one I acted in.

[Simon Hoare]

Are you sure you did not dream it?

[Dr Huq]

It was all over the news at the time in 2007 and it was overturned in 2008.

Peter Carter: The difficulty with section 58 is that it is not about terrorist material; it is about

“information of a kind likely to be useful to a person committing or preparing an act of terrorism”.

If it was about terrorist material, as identified by the Minister, I think there would be very little problem with it.

The difficulty of extending the definition of “material” in section 58 of the 2000 Act, as this clause does, is to take it into thought. We are at risk of getting close to a heresy idea. It would be trying to stop what is genuine interest in political issues of extremism and people being able to inform themselves about extremism in order to engage with the debate and to defeat these views. Unless we engage in a debate with those views, we will not defeat them. There has to be a capacity for ordinary people to be able to understand what extremism is and why these views are so dangerous that we must engage with them and overcome them.