Counter-Terrorism and Border Security Bill (Second sitting)

Stephen Doughty Excerpts

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

[The Chair]

We are now quorate, so we will resume the sitting.

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

Q I want to ask two questions. The first is about the detention provisions, the removal of property and so on. Parts of the Bill mirror the existing schedule 7 powers, and I have encountered concerns about how those operate. We obviously want these powers to operate effectively, but we also want to maintain the public’s confidence around their use. Where do you think the Bill is on that? Do you think the balance it strikes is right?

Max Hill: You are obviously referring to schedule 3, which introduces a border security equivalent to schedule 7 to the Terrorism Act 2000. They are separate mechanisms. The first point is that, although I understand that they are both to be deployed by counter-terrorism policing—the same officers at our borders—it is not a pick-and-mix choice between legal powers. In recent years, there has been some intense scrutiny of the use of schedule 7 —the best example is the case of the journalist Miranda, in relation to the Snowden material—so it is all the more important, if there is to be a new parallel power, that CT police at our ports are given training, that there are codes of practice, and that police operate from a base of certainty and training when they detain a traveller, whether under the border security provisions or under the existing schedule 7.

I have a remit to review in relation to schedule 7, but it is clear from schedule 3 that I do not have a remit in relation to border security. I would therefore defer to Sir Adrian Fulford, whose remit covers this area. No doubt, his views will be far more important than mine.

The comment I would make is that, like schedule 7, schedule 3 as drafted is absent any independently referable test for the application of the new powers. I am still awaiting the Government’s response to my recommendation in my annual report, published in January this year. I recommended a test of reasonable grounds to support the use of schedule 7 in accordance with codes of practice. I know from subsequent discussions with the Government and officials that very careful thought is being given to that, but I await the outcome. It is my hope that, if we do not have reasonable grounds for suspicion, which my predecessor recommended, we should at least have a threshold test.

There may be a clue, in the absence of a threshold test in the new schedule 3, as to how the Government will respond to my suggestion of a threshold test under schedule 7. Because thousands of travellers are being inconvenienced every year under schedule 7, this is an important feature. My thinking—although, again, I would defer to Sir Adrian—is that the border security power is likely to be exercised in far fewer numbers. We may be talking about 100 or even the low dozens of individuals. None the less, looking at it from the perspective of principle, this needs to be very carefully scrutinised. That is my reaction to schedule 7.

[Stephen Doughty]

Q That is very helpful. On an unrelated issue, the Home Affairs Committee, on which I sit, has been discussing the issue of extremist and terrorist content online. Obviously, there are provisions in the Bill relating to those viewing such material. I have a lot of concern about the failure of technology companies to remove such content adequately. The voluntary approach works to an extent, but it has not worked in many areas. We have identified very serious examples of where major companies such as YouTube, Twitter and Facebook have not removed content. Obviously, there is a different legislative environment in Germany and other countries. I have tabled a new clause requiring manual and automatic searching of all proscribed organisations. I accept that there is a difficulty with the wider boundaries of what is or not, but given that we do have a legally defined list of proscribed organisations, what is your view about whether more needs to be done to regulate such activities—

[The Chair]

Mr Doughty, that was too long a question. I am conscious that Mr Hill has got to go at 2.45 pm, and several of your colleagues wish to get in.

Max Hill: My line on this, which has been constant—rightly or wrongly—is that we should really hesitate before legislating against these very large internet companies, which have the tools at their disposal to look at the material that their platforms support. It would be a more desirable outcome to have ever-greater co-operation and collaboration—obviously, with supervision and access where possible for counter-terrorism policing. That would be preferable to legislating in this space.

My observation, for what it is worth, is that if the large internet companies were not aware of the need to scrutinise their own online spaces before the atrocities in this country last year, they are much more keenly aware of it now and are doing more. Alongside that, we have the Global Internet Forum to Counter Terrorism, which was, if I may so, very ably supported and encouraged by the former Home Secretary. It is doing good work in data-banking extreme content, providing it can be clearly identified.

We have to exercise care in this area. To take an example not relating to terrorism for just a moment, anybody can identify a pornographic image of a child—that is not difficult. Identifying terrorist propaganda is more difficult. That is where the global internet forum comes into play.

The second point is that, having data banked by the headline companies under the forum, it is important that those companies play their part to impress on their much smaller commercial partners or competitors that the smaller platforms need to take the same route. My line has been that that is better through coercion on a non-statutory footing. Of course, we wait to see how effective the new power will be in Germany, and I am aware of other countries that are considering it. So I suggest you are right to consider it; whether we are at the point of legislation yet, I beg to differ.

Finally, the Counter Terrorism Internet Referral Unit, which is a counter-terrorism policing vehicle—I have sat at the shoulder of dedicated officers who surf the web, day by day, with a view to issuing section 3 2006 Act take-down notices—is doing valuable work without the need for further legislation at this time. I understand that the report is that once a take-down notice is issued, that material is taken down in almost every case within 40 minutes of the request. So, if I may say so, we are in a better place than we were a year ago. I agree with the thrust of your question—that we must always do more—but I beg to question whether legislation is needed yet.

--- Later in debate ---

[The Chair]

Order. This is very engaging, but I have loads of Members who are trying to get in, so I am going to have to ask that answers be quite concise. I am also conscious that there are two other members of our panel who have given of their time today. The Minister and the shadow Minister now also want to come in, and I do not want to miss them out either.

[Stephen Doughty]

Q I want to ask all of you the same question I asked Max Hill about the detention powers in schedule 3, which obviously replicates powers in schedule 7 to the 2000 Act. There is obviously a balance between operating effectively and ensuring it is done fairly and appropriately, with compensation and so on. Where do you sit on the detention powers and how they are applied?

Peter Carter: I agree with Max. I think there ought to be a reasonable grounds test. There are a large number of detailed preservations of rights and protections, which are entirely appropriate, but they are rather undermined by the non-existence of a reasonable grounds test, because it is very difficult to challenge it if there is no reasonable grounds test.

[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.