Reconciliation: Role of British Foreign, Defence and International Development Policy

Earl Howe Excerpts

Friday 14th December 2018 Lords Chamber

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, it is a particular privilege for me to respond on behalf of the Government to this important Motion. I thank the most reverend Primate not only for tabling it but for introducing it with his characteristic authority and insight. I am sure that he will agree that this has been a debate of notable depth and quality. Indeed, I can say without fear of correction that the messages and ideas articulated by your Lordships are deserving of close consideration within government.

I begin by acknowledging the obvious: that reconciliation is a vital part of ending violent conflicts which claim so many innocent lives and immeasurably harm the lives of so many others. Reconciliation is also the ultimate safeguard to prevent a relapse into conflict or repeating cycles of violence.

We see about us how the scourge of violent conflict continues to affect many parts of the world. Over the past decade, the number of conflicts has increased, and we have observed a disturbing pattern in civil wars. More than half—57%—of countries that experienced a civil war between 1945 and 2009 have again relapsed into violence. It is vital that we continue to strive to prevent, reduce and bring to an end conflict wherever we can. As the most reverend Primate has argued, this requires a strategic approach.

Addressing, as we must, the root causes and drivers of armed conflict requires three broad strands of activity: early prevention, crisis response, and conflict resolution. Our Building Stability Overseas Strategy, published in 2012, and the introduction in 2017 of the fusion doctrine in the national security capability review, have given the UK a firm basis on which to develop our conflict response work. We can, I think, take some pride in the scale of this work. On average, between 2007 and 2016, the UK has been the second-largest OECD donor supporting civilian peacebuilding, conflict prevention and resolution. In 2016, the UK spent $581 million—up from $291 million in 2008—on conflict, peace and security. Although some people’s perceptions may be different, our work in this area is truly cross-Whitehall in nature. It is co-ordinated through the National Security Council and the Cabinet Office and involves the specialist skills of the Foreign and Commonwealth Office, the Department for International Development, the Ministry of Defence and the Stabilisation Unit, all supported by supported by the £1.2 billion Conflict, Stability and Security Fund, the CSSF.

Promoting reconciliation is a vital ingredient in this activity. However we define it, and there are a number of definitions out there, reconciliation is about transforming the relationships between the parties to a conflict—between victims and perpetrators of violence—while addressing elements of the past and using approaches that are properly inclusive. In short, as my noble friend Lady Stroud described so well, it is a process of moving from a divided past to a shared future. The UK supports reconciliation in a number of ways. We have recently doubled our contribution to the United Nations Peacebuilding Fund from £16 million to £32 million annually between now and 2020, a valuable means of supporting international peacebuilding efforts. We strongly support the Secretary-General in his “sustaining peace” agenda. We also work with international non-governmental organisations that specialise in reconciliation and peacebuilding.

A number of noble Lords have referred to the importance of promoting transitional justice mechanisms, which can include truth commissions, judicial processes, mechanisms for reparations as a means of making amends, and supporting longer-term institutional reforms. Again, this is central to much of our work. I completely agree with the comments of the noble Lords, Lord Anderson and Lord Boateng, on that theme. We also lend direct support to local reconciliation projects on the ground. For example, the CSSF is funding a multifaceted reconciliation process in the Nineveh plains and Kirkuk in Iraq, involving civil society events and community-level engagement projects. As noble Lords have pointed out, this is far from straightforward. Conflicts become more complex by the day: they become more internationalised, their non-state armed groups become more fragmented and the war economies that they create become more powerful. All this makes conflicts more intractable. Half the conflicts in the world today have been with us for more than 20 years. This complexity dictates that Governments, including our own, should approach conflict resolution with sensitivity and care.

Reconciliation cannot be imposed from outside: it can only be fostered. Often, the best approach is for us to actively support specialist organisations which can build dialogue and trust, and can nurture reconciliation through community-led action. The Government favour that approach but, as noble Lords have suggested, we can undoubtedly do more to build on that. That includes looking to see how we can strengthen societal resilience, not least to political and economic shocks. I was grateful to the noble Lord, Lord Alderdice, for stressing that.

As we consider the potential for reconciliation in the conflicts that dominate the headlines today, we must also recognise the need to exercise sensitivity and care in the UK’s own interventions. The situations in Yemen, Syria, Cyprus, Kashmir, Cameroon and Haiti might merit separate debates in their own right, for each of those conflicts is unique in its causes and complexity. They are big topics. Each of them will require time and patience, as well as well-judged engagement and support, if they are to be satisfactorily resolved.

However, this debate has highlighted that there is scope for us to do more, in three areas in particular. First, as the noble Lord, Lord Ramsbotham, and my noble friend Lord Trimble illustrated so well—my noble friend Lady Fall also spoke powerfully about it—any society on the road to reconciliation has to take ownership of that process. So there is undoubtedly more we can do to enhance our work with civil society, supporting grass-roots reconciliation efforts through engaging opinion leaders such as religious figures, community leaders and leaders in the local private sector. Of course, in answer to my noble friend Lord Taylor, we can do this, as we do now, through the good offices of our overseas embassies.

In that context, the noble Baroness, Lady Andrews, reminded us of the admirable and varied work of the British Council, including the UK’s Cultural Protection Fund, which the British Council manages. That fund does wonderful work, currently supporting 45 projects across 12 countries to protect vital cultural heritage that is at risk due to conflict in the wider Middle East and north Africa region. There is £30 million in the fund, which supports efforts to keep cultural heritage sites and objects safe, as well as the recording, conservation and restoration of cultural heritage, helping to bolster a positive vision of shared identity at a time of crisis. It is helping to position the UK as a prominent actor in cultural protection in many parts of the world, and I believe that it is seen as a model of best practice, enabling communities to play a pivotal role in the care of their own heritage. I can tell the noble Baroness that, as we approach the end of the funding period, we are working closely with DCMS on opportunities to continue and expand the fund beyond 2020. This includes targeted funding, disaster preparedness and the protection of cultural heritage post disaster.

Secondly, the noble Lord, Lord Collins, and other noble Lords were right to urge us to collaborate ever more closely with international partners, including through multilateral organisations such as the UN, to prevent conflict and support sustainable peace. The direct involvement of the United Kingdom in UN peacekeeping operations has considerably increased in recent years, and we do our best to lead by example, in training and mentoring peacekeeping teams from other countries. I was grateful to the noble Lord, Lord Hannay, for his remarks on this point, and to the noble Lord, Lord Campbell, who spoke about the importance of maintaining hard power. However, a feature of peacekeeping operations is that they are becoming more dangerous: they are less and less about policing a brokered peace settlement, and more and more involve the enforced separation of warring factions. Reconciliation in such circumstances can often be a distant prospect.

However, even in situations of that kind, where there are factions which merely coexist in an uneasy truce, with little or no mutual trust or shared values, there are opportunities. When I attended the UN peacekeeping conference in Vancouver last year, I made a particular point of strongly endorsing the Secretary-General’s drive to include more women in peacekeeping roles as a way of promoting a culture of gender equality and of interacting more effectively with local populations. The noble Lord, Lord Campbell, referred to the variable quality and sometimes unacceptable behaviour of peacekeeping troops; I can tell him that we actively promote the Secretary-General’s Action for Peacekeeping initiative, which is designed to address exactly that issue.

Thirdly, even though we do our best in government not to operate in departmental silos, I am sure that we can do better as regards interdepartmental joint working to bring the collective skills of our defence, development and foreign policy experts towards a more co-ordinated approach. There are mechanisms at working level, such as the CSSF and the National Security Council, to fulfil part of that remit, but these can be broadened. The most reverend Primate has proposed the creation of a joint reconciliation unit. A concept of that sort, if it is designed correctly, could make a contribution to addressing gaps in our work, and on behalf of the Government I undertake to consider it seriously.

There are some improvements we can make in, for example, linking our horizon-scanning and early warning systems to well-targeted and rapid responses to crises as they arise. If I sound a little cautious, it is because I think we need to be realistic about what could be expected to flow from such a unit. Clearly, we would need to make sure that it represents the best mechanism for achieving our desired ends. For example, it might be more effective to focus our efforts and resources even more on mobilising fellow spirits, such as peer Governments, multilateral organisations and reputable organisations from civil society, to deliver conflict prevention and mediation.

On, I hope, an encouraging note, I can tell the most reverend Primate—and indeed the noble Lord, Lord Boateng—that there is now a cross-government working group, led by the Stabilisation Unit, which has been tasked by the National Security Adviser to explore cross-government collaboration platforms on reconciliation.

My noble friend Lady Brady questioned whether the UK’s aid budget is spent in a way that promotes our national interest. Some 50% of DfID’s aid budget is spend in fragile states because poverty is increasingly concentrated in these areas. Conflict and fragility will become the main reasons why extreme poverty exists. Our aid budget is also vital to ensure that we tackle the great global challenges, from the root causes of mass migration and disease to the threat of terrorism and global climate change, all of which directly threaten the UK’s national interest. The noble Lord, Lord Collins, was absolutely right to bring that point out.

DfID’s building stability framework, the BSF, aims to change how aid is delivered in fragile states and to ensure that we also work on—not only in—conflict, so that all our development programmes have a dual dividend; namely, reducing poverty and contributing to long-term stability. This approach will help states and communities to find pathways out of conflict to a sustainable peace.

My noble friend Lord Holmes focused on the imperative of inclusion, specifically inclusion of the disabled; and, in a more general way, the right reverend Prelate the Bishop of Coventry did the same. Inclusion is a vital component of building peace, starting from peace agreements through to local development projects. In December this year, the DfID Secretary of State, Penny Mordaunt, launched her department’s five-year strategy for disability-inclusive development. However, we continue to understand and learn about inclusion. The Government are supporting the UK peacebuilding organisation Conciliation Resources, which is conducting research into the inclusion of disabled people in peace processes. We have a long way to go on that but the Government, and DfID in particular, are adamant about the central aim, which is to leave no one behind.

I hope I can help my noble friend Lord Elton on the respective roles of the Conflict, Stability and Security Fund and the Stabilisation Unit. I believe that he misunderstands not only their roles but their relationship with individual departments. It is the departments that make and hold the policy and agree on an approach. The Stabilisation Unit then implements that policy—for example, by finding staff to deploy overseas to assist with stabilisation and post-conflict work—and the CSSF that works through its £1.2 billion pot. Therefore, the CSSF and the Stabilisation Unit are the instruments of the FCO/MoD/DfID; it is not the other way round. I hope that brief explanation is also helpful to my noble friend Lord Taylor.

The noble Lord, Lord Jay, asked about the extent to which the National Security Council engages with NGOs, faith groups and others, and I hope I can reassure him on that. The members of the NSC—that is, Ministers—have frequent engagement with non-government figures such as faith leaders and NGOs. Similarly, officials who advise the NSC also have frequent contact with non-government actors to discuss conflicts and other international issues.

The noble Lord, Lord Boateng, spoke of the importance of investing in diplomatic skills, including language skills. I hope he is glad to hear that the FCO has reopened its language school, which was closed in the early 2000s. This is enabling the FCO to give its staff the required skills to both speak and listen effectively to their interlocutors overseas. The FCO has also established the Diplomatic Academy, which offers training to both FCO staff and staff from across Whitehall engaged in international issues.

There is never time in debates of this intricacy and depth for me to cover all the questions that have been asked of me, and I willingly undertake to write to noble Lords on any matters that I have not properly addressed. There are many parts of the body to form the whole, as Corinthians 12 reminds us. However, it is perhaps appropriate for me to end by reflecting on what I think we all recognise—that reconciliation is a long road, and it is one that is rarely documented or adequately supported. We must learn to persevere and to support communities and nations emerging from violence not just to coexist but to make reconciliation what it ultimately is—a personal experience based on truth-telling, inclusiveness and a sense of justice.

Twenty-three years after the Dayton agreement, citizens in Bosnia still identify primarily along ethnic lines and not as Bosnians. Lessons such as that can be observed and, as speakers in this debate have highlighted, we have the tools both to learn from them and to apply that learning to better effect. I say to the most reverend Primate that the will to do so is as strong as he would wish.

Counter-Terrorism and Border Security Bill

Earl Howe Excerpts

Report: 1st sitting: House of Lords
Monday 3rd December 2018 Lords Chamber

Moved by

[Earl Howe]

6: Clause 3, page 2, line 44, at end insert “, or
(b) the person’s action or possession was for the purposes of—(i) carrying out work as a journalist, or(ii) academic research.”

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, we have had detailed and insightful debates on Clause 3, particularly on the operation of the “reasonable excuse” defence in Section 58 of the Terrorism Act 2000, which Clause 3 amends. Amendment 6 responds to arguments made in both Houses that we should provide greater certainty that particular categories of legitimate activity will constitute a reasonable excuse.

As I explained previously—and as my right honourable friend the Minister for Security and Economic Crime explained in the House of Commons—it is clear that those engaged in legitimate journalism and academic research have been able to rely on the “reasonable excuse” defence provided by the Section 58 offence in its present form since it was passed in 2000. The Government have been equally clear that this will continue to be the case under Section 58 as it will be amended by Clause 3.

We have also set out the longstanding legal position, codified by the Appellate Committee of this House in a 2008 judgment, that it is for the jury to determine whether a particular excuse in a particular case is reasonable on the basis of all the evidence in that case. Such a determination will always be highly fact-specific; it is not possible to prescribe particular exemptions or reasonable excuses in advance and in the abstract. The Government have therefore taken the approach until now that it has not been necessary to write these categories of reasonable excuse into the Bill.

However, we have heard the points made by your Lordships and reflected on the concerns raised. We recognise that the Government’s assurances have not satisfied noble Lords thus far as to the protection afforded to journalists and academics by Section 58, and which will apply following Section 58 as amended by the Bill. It is clear that the Government need to go further and provide greater assurance. In that spirit, we tabled Amendment 6.

The amendment will make it clear in the Bill that it will be a reasonable excuse for a person to access terrorist material falling under Section 58 for the purposes of academic research and carrying out work as a journalist. This will apply both to the existing limbs of Section 58—that is, the collection, possession or making a record of such material—and the new limb of viewing material online, which Clause 3 will insert. The amendment will underline and put beyond doubt the position already set out by the Government. I hope that it will be welcomed by your Lordships as providing the necessary assurance to those working in the fields of journalism and academia who have a legitimate reason to access terrorist material.

The amendment has been carefully drafted so as to complement, rather than overturn, the existing legal position relating to reasonable excuses. Clause 3(4) already provides one example of a case that may constitute a reasonable excuse, which is where the defendant did not know and had no reason to believe that the material in question contained information likely to be useful to a terrorist. The amendment expands on that to additionally provide the two examples I mentioned.

I stress that this is an indicative rather than exhaustive list of cases that may constitute a reasonable excuse, and it will remain open to defendants to advance other types of reasonable excuse. This will ensure that we retain the flexibility to cover other unforeseen circumstances that may arise, and that we do not inadvertently close off the “reasonable excuse” defence to those who may have an equally reasonable excuse of a different nature. I appreciate this construction is not self-evident from the Government’s amendment, so I understand why the noble Lord, Lord Paddick, tabled Amendment 7. But key here are the words,

“but are not limited to”,

in new subsection (3A) of Section 58 of the Terrorism Act 2000. That qualification will apply to the new paragraph (b) inserted by the Government’s amendment. All will become clear once the Bill is reprinted after Report.

Amendment 6 does not provide an absolute and automatic exemption for any person who states that they are a journalist or academic. That would not be appropriate, and it would move away from the position established in case law by this House. In Committee, a number of your Lordships highlighted the difficulties in legislating to differentiate legitimate journalism from that which may be carried out by a person with more nefarious intentions, whether as a cover for their true activities or as a platform to propagate their terrorist views. The approach we are taking will ensure that juries will be able to make such distinctions in individual cases, based on the particular facts.

I hope that Amendment 6 will be welcomed as addressing the concerns that have been raised, and as offering a meaningful compromise to those noble Lords who have raised them. I commend it to the House and I beg to move.

Amendment 7 (to Amendment 6)

Moved by

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[Earl Howe]

My Lords, I am grateful to all noble Lords who have spoken, especially for the supportive comments from the noble Baroness, Lady Jones, and my noble friend Lord Attlee, but also for the very helpful remarks from the noble Lord, Lord Kennedy. I shall endeavour to cover all questions that have been put.

The noble Baroness, Lady Hamwee, asked a drafting question. She asked where paragraph (a) will actually fall in the text. I can tell her that paragraph (a) will begin with the words after line 40 on page 2, so I hope that it will run in the broad way rather than the narrow way in which she hoped it would.

[Baroness Hamwee]

The last words of line 40 read,

“in which at the time”

and the next line starts, “of the person’s action”. As I said, I identified two places in line 40 where paragraph (a) might be inserted. It is a drafting point but also a point of substance, because where paragraph (a) starts actually affects the whole of the point. Can the Minister give a little more assistance?

[Earl Attlee]

My Lords, perhaps if my noble friend the Minister is not absolutely certain on this point we could return to it at Third Reading to clarify the drafting amendment.

[Earl Howe]

My Lords, I was not as precise as I should have been. The words after,

“(but are not limited to) those in which”,

will become paragraph (a). So it will read,

“(but are not limited to) those in which (a) at the time of the person’s action or possession, the person did not know”,

et cetera. Paragraph (b) will follow after line 44. I hope that that clarifies the point.

My noble friend Lord Lothian asked a series of very reasonable questions about the meaning of the words “journalist” and “academic”. The distinction between journalism that constitutes a reasonable excuse and that which does not, for the purpose of this offence, will inevitably be highly fact-specific. As several noble Lords commented in earlier debates on the Bill, it is just not possible to provide in advance an exhaustive definition of a journalist or of a legitimate journalist. This is something that we are clear needs to be determined by a jury in particular cases on the basis of all the evidence. We have made it clear that our amendment adds an indicative list of categories of reasonable excuse and does not provide either an exhaustive list or an absolute exemption. It is important to remember that juries will retain their existing discretion to decide whether a particular excuse is reasonable on a case-by-case basis. The same logic would apply to the meaning of the word “academic”. The category of person that my noble friend described might or might not be considered by a jury to be an academic: it would depend on the facts of the case. The jury might consider that there was still a reasonable excuse for a particular individual. I hope that that is helpful.

[Baroness Hamwee]

My Lords, I am grateful to the Minister for that explanation because it answers my point and deals with my amendment. I am sorry to have been tedious and to have consolidated my reputation for pedantry—the noble Lord, Lord Harris, says that is impossible—but I think it was a substantive point. I beg leave to withdraw the amendment.

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[Lord Carlile of Berriew]

My Lords, with great respect to my noble friend, and indeed to my noble and learned friend on my right, I wonder why one needs to say something twice in the same statute.

[Earl Howe]

My Lords, Amendment 10 returns us to an area on which we have previously had helpful and extensive debates: namely, the question of how much evidence is required to establish a reasonable excuse defence under Clause 4, on whom the burden of proof falls and how this is set out in the legislation. As the noble Lord, Lord Rosser, rightly said, these issues have previously caused some uncertainty as they require Clause 4 to be read in conjunction with Section 118 of the Terrorism Act 2000, which sets out how the burden of proof applies to a number of defences to criminal offences within the 2000 Act including, but not limited to, the new designated area offence. It may therefore be helpful if I remind your Lordships of how these provisions operate.

The approach taken in relation to proving a reasonable excuse defence under Clause 4, which inserts the designated area offence into the Terrorism Act 2000, is the exact same formulation that is used elsewhere in various defences to offences contained in the 2000 Act, including the defence to the Section 58 offence which is amended by Clause 3. Clause 4 refers to a defendant proving that they have “a reasonable excuse”. We must then turn to Section 118, which makes further provision on what is required to “prove” a defence in this context. The noble Lord, Lord Rosser, has previously raised a concern that the wording of the two provisions might be out of step, and that Clause 4 might place a greater burden on defendants to make out a reasonable excuse than is envisaged by Section 118. I have addressed this in previous debates and have written to him following our most recent debate in Committee. I hope that I have been able to reassure him that this is definitely not the case.

Section 118 provides that if a defendant,

“adduces evidence which is sufficient to raise an issue with respect to the matter”—

that is to say, the matter has to be proved under the wording of the defence—

“the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.

This, together with relevant case law, has the effect that if a defendant puts forward sufficient evidence to reasonably support a suggestion that he or she has a reasonable excuse, the burden of proof shifts to the prosecution to disprove that defence, which it must do to the normal criminal standard of “beyond reasonable doubt”. If the prosecution fails to do so, the jury must assume that the defence is made out.

Amendment 10 would insert this wording from Section 118 into Clause 4. The noble Lord has suggested that this would make the operation of Clause 4 clearer and would put beyond doubt what is required of a defendant to establish a reasonable excuse defence. I have every sympathy with the noble Lord’s desire for clarity. This is not the most straightforward of the Bill’s provisions, requiring as it does two different provisions in the 2000 Act to be read in conjunction, but I can assure him that there was a good reason for drafting it in this way. It is very simply that, as the noble Lord, Lord Anderson, said, Section 118 makes the same provision in relation to eight other provisions in the 2000 Act which include similar defences. Each of those defences points back to the same single place—Section 118—rather than including eight repetitions of the same wording in eight different places. This is a standard drafting practice where a common principle governs the operation of multiple provisions. It is considered to be the best way of providing clarity and consistency, and of not unnecessarily adding to the length and complexity of legislation.

In practice, the noble Lord’s amendment would have little or no impact on the operation of the reasonable excuse defence as it would simply duplicate the wording of Section 118, which already has effect. However, I must respectfully say that I am unable to support the amendment. As I have set out, the formulation used in the Bill as drafted, and in the 2000 Act, reflects normal drafting practice, and I do not see that there is sufficient reason to depart from this in relation to Clause 4. The courts have successfully operated Section 118 for 18 years in respect of the eight existing offences in the 2000 Act to which it also applies without anyone complaining that its effect is unclear or uncertain. There is clear case law and a settled and well-understood position.

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Moved by

[Earl Howe]

11: Clause 4, page 3, line 19, at end insert—
“(3A) The cases in which a person has a reasonable excuse for the purposes of subsection (2) include (but are not limited to) those where—(a) the person enters, or remains in, a designated area involuntarily, or (b) the person enters, or remains in, a designated area for or in connection with one or more of the purposes mentioned in subsection (3B).(3B) The purposes are—(a) providing aid of a humanitarian nature;(b) satisfying an obligation to appear before a court or other body exercising judicial power;(c) carrying out work for the government of a country other than the United Kingdom (including service in or with the country’s armed forces);(d) carrying out work for the United Nations or an agency of the United Nations;(e) carrying out work as a journalist;(f) attending the funeral of a relative or visiting a relative who is terminally ill;(g) providing care for a relative who is unable to care for themselves without such assistance.(3C) But a person has a reasonable excuse for entering or remaining in a designated area by virtue of subsection (3A)(b) only if—(a) the person enters or remains in the area exclusively for or in connection with one or more of the purposes mentioned in subsection (3B), or(b) in a case where the person enters or remains in the area for or in connection with any other purpose or purposes (in addition to one or more of the purposes mentioned in subsection (3B)), the other purpose or purposes also provide a reasonable excuse for doing so.(3D) For the purposes of subsection (3B)—(a) the reference to the provision of aid of a humanitarian nature does not include the provision of aid in contravention of internationally recognised principles and standards applicable to the provision of humanitarian aid;(b) references to the carrying out of work do not include the carrying out of any act which constitutes an offence in a part of the United Kingdom or would do so if the act occurred in a part of the United Kingdom.”

[Earl Howe]

My Lords, the government amendments in this group will make a number of changes to Clause 4. Clause 4 provides a power for the Secretary of State to designate an area outside the UK which he may exercise if it is necessary, for the purpose of protecting members of the public from a risk of terrorism, to restrict UK nationals and residents from entering or remaining in that area. It will be a criminal offence for a UK national or resident to enter or remain in a designated area without a reasonable excuse.

Much of the debate on Clause 4 has, of course, focused on that reasonable excuse defence, both on its application in various scenarios where a person might have a legitimate reason to enter or remain in a designated area, and on the certainty which will be provided to such a person that they will not subsequently be prosecuted.

The points of principle here and the legal position are very similar to those which we have already debated on the reasonable excuse defence in relation to Clause 3. I will therefore not detain your Lordships by repeating myself, save to say that the Government are equally clear that, under Clause 4, individuals with a legitimate reason to enter a designated area of the kind we have been discussing will have a reasonable excuse.

However, I undertook at the conclusion of Committee to reflect on the concerns that had been raised that the existing approach might not provide adequate certainty and assurance. We have also engaged with representatives of the charitable sector, who have made points similar to those made in this House. Following this reflection, we have concluded that we should bring forward amendments to provide further assurance that those with a legitimate reason to enter a designated area will have a reasonable excuse. I trust that this will be welcome news to your Lordships.

Amendment 11 therefore introduces an indicative list of cases which may give rise to a reasonable excuse. Similarly to that which we have introduced to Clause 3 through Amendment 6, which we have just debated, it is not an exhaustive list, and it will be open to defendants to advance other categories of reasonable excuse. It will ultimately be up to the jury to determine whether a particular excuse is reasonable, on the basis of all the evidence in that case.

This will provide significantly greater assurance to legitimate travellers, but it will not preclude those who travel to designated areas for terrorist purposes under cover of, for example, journalism or charitable work from being prosecuted. Defendants will also not be able to rely on a reasonable excuse defence if they travel for a legitimate purpose and then engage in other activity which is not legitimate while within the designated area.

The categories of reasonable excuse provided by the amendment are: where the person enters or remains in the designated area involuntarily because, for example, they are detained; to carry out work as a journalist; to provide humanitarian aid; to attend the funeral of a relative or to visit a terminally ill relative; to provide care to a relative who is unable to care for themselves without such assistance; to satisfy an obligation to appear before a court; or to work for a foreign Government, the UN or an agency of the UN. This indicative list of reasonable excuses adds to the existing automatic exception for those who are working for or on behalf of the Crown. Where this list refers to a relative, Amendment 16 defines this as a spouse or civil partner, sibling, ancestor or lineal descendant.

A further area on which greater assurance has been sought is reviews of designations. As drafted, the Bill requires the Secretary of State to keep under review whether the condition for designating an area continues to be met, and to revoke the designation if he considers that it is no longer met. The Government have been clear that this will be a meaningful and ongoing review. I reiterate the point that in the kind of exceptional scenario in which this power is likely to be used, the Government will invariably pay very close attention to the circumstances on the ground, and will keep their response across every aspect of the system under continuous review and subject to recalibration as necessary.

Several noble Lords tabled amendments for Committee which would have tightened this further by introducing either a requirement for annual reviews of designations, as proposed by the noble Lord, Lord Anderson, or a sunsetting provision so that regulations designating an area would cease to have effect after three years, as suggested by the noble Lord, Lord Rosser. This latter approach would mirror the equivalent Australian legislation. I indicated in those debates that I considered an annual review to be unnecessary to ensure rigorous and effective review of designations, and that this would not serve the public interest or be an effective use of resources. I have reflected further and, with all respect to the noble Lord, Lord Anderson, I remain of that opinion.

However, I also indicated that I could see merit in the suggestion of a three-year backstop sunset period, with the option to make new regulations designating the same area if that is appropriate. I undertook to consider this ahead of Report. Following that consideration, I find myself persuaded that this would be a sensible and helpful addition to the Bill, and Amendment 18 therefore introduces such a provision. As a result, regulations designating an area will automatically cease to have effect and will fall away after three years. The amendment makes it clear that this is without prejudice to further regulations being made designating the same or a similar area. Any new regulations would of course then be subject to approval by Parliament. This will provide a powerful extra safeguard to ensure that the designation of an area cannot be indefinite, and that this power will be used to manage risk only in exceptional circumstances. While regulations remain in force, they will also be subject to the existing requirement that they be kept under review and that they be revoked sooner than after three years if the condition for designating the area is no longer met.

Amendments 20 and 21 implement recommendations made by the Delegated Powers and Regulatory Reform Committee of your Lordships’ House in their report on the Bill. Amendment 20 requires the Secretary of State, when laying regulations before Parliament designating an area, to issue a statement setting out the reasons why he considers that the legal test for designation is met in relation to that area. The Government have always been clear that we will provide an explanation to Parliament of why we seek to designate any area under this power, and we are happy to place a requirement to do this in the Bill.

Amendment 21 makes any regulations revoking a designation subject to the negative resolution procedure. Under the Bill as drafted, regulations that purely revoke an existing designation would not be subject to any parliamentary approval and would simply come into force immediately upon being laid. The Government took that approach on the basis that lifting the designation of an area, and therefore also the operation of the criminal offence in relation to entering it, would have no adverse impact on any person. The committee wisely identified that lifting a designation could in fact have an impact on those for whose protection the area was designated—that is to say, the public. On that basis the committee recommended that such regulations should actually be subject to negative resolution in both Houses. The Government are persuaded of the committee’s view on this matter and are happy to implement its recommendation. I am grateful to your Lordships’ Delegated Powers and Regulatory Reform Committee for its scrutiny of the Bill and for its assistance in improving it in these two respects.

I am also most grateful to noble Lords, and to the noble and learned Lord, Lord Judge, for their contributions to the debates on this important but sensitive new power and for their assistance in identifying the sensible improvements that the Government are bringing forward today in response to those debates. I hope your Lordships will be happy to support these government amendments.

There are a number of other amendments in this group, including amendments to the government amendments. I will wait to hear what noble Lords have to say about Amendments 12, 13, 14, 17 and 19 before responding. For now, I beg to move Amendment 11.

Amendment 12 (to Amendment 11)

Moved by

--- Later in debate ---

[Lord Paddick]

My Lords, very briefly, I completely agree with my noble friend Lady Hamwee, who has addressed all the amendments in this group other than Amendment 15. I have added my name to Amendment 15 and made clear my reasons for supporting it during our debate on the second group of amendments. I do not wish to add further to my comments.

[Earl Howe]

My Lords, the noble Baroness, Lady Hamwee, has argued for the expansion of the Government’s list of indicative reasonable excuses to include peacekeeping and visiting a very seriously ill relative. I understood her not to have spoken to her Amendment 14, which proposed that we include in Clause 4 a power to further add to the list of reasonable excuses by regulations—I hope I was right in understanding that.

The first point I make is to stress again that this is an indicative and not an exhaustive list. I am not suggesting that the amendments from the noble Baroness are without merit, but, in a phrase, we need to draw the line somewhere. I firmly believe that Amendment 11 draws it in the right place. In this regard, we have taken into account the Australian precedent. Trying to put more and more situations beyond doubt—the argument put forward by the noble Lord, Lord Hylton—is simply unnecessary in this context. As I have argued before, we are consciously not creating an exhaustive list of reasonable excuses; it would be quite wrong to try. Juries will be able to make up their own minds on the reasonableness of particular excuses in the light of the circumstances of the case.

I entirely accept the importance of peacebuilding activity, and I am sure noble Lords would agree with me that it is vital that such activity continues. However, as I have explained, the government amendment does not preclude a person advancing this or any other category of reasonable excuse. I am of the view that legitimate peacebuilding activity could very well be a reasonable excuse. However, I must say again that it will ultimately be up to the jury to determine whether a particular excuse is reasonable on the basis of all the evidence.

Much the same arguments apply to Amendment 13, which would add visiting a seriously ill relative to the list of reasonable excuses. I am not sure how fruitful it would be to get into a debate about the difference between being “seriously ill” and “terminally ill”. Again, the line has to be drawn somewhere. Given that the Foreign Office would inevitably advise against any travel to a designated area, it is right that we set the bar at a high level. But I say again that it would be open to any person to advance as a reasonable excuse the fact that he or she was visiting a seriously ill relative.

Amendment 17 seeks to place on the Home Secretary a duty to lay before Parliament an annual report on the outcome of the review of a designation. This amendment misunderstands the nature of the duty on the Home Secretary to keep a designation under review. The requirement does not imply a set piece review with a beginning and an end, culminating in a report which can then be published.

Rather, the ongoing duty to keep a designation under review will ensure that, as the situation on the ground changes, the Government can react and make a judgment, as and when required, as to whether to alter any designation to reflect a change in the threat. However, I reassure the noble Baroness that, should the Government need to amend a designation, that will require a new regulation to be made, which in turn, by virtue of Amendment 20, would require the Secretary of State to issue a statement setting out the reasons why he considers that the legal test for designation is met.

The noble Baroness referred to international humanitarian standards. As she said, there are various commonly recognised international humanitarian standards. The point to appreciate is that the government amendment provides flexibility and future-proofs against developments in this area. She may know, for example, that the UN Office for the Coordination of Humanitarian Affairs provides guidance on principles and standards relating to humanity, neutrality, impartiality and independence. I say to the noble Earl, Lord Sandwich, that the concerns he expressed are satisfactorily addressed by government Amendment 11 as well as by the explanations that I have already given for the provisions of Clause 4 in Committee.

Amendment 15 in the name of the noble Lord, Lord Rosser, is in many ways similar to government Amendment 11. There is, however, a key difference, as he carefully explained. This is not an indicative list of reasonable excuses, but an exhaustive list of exclusions from the offence. We have already debated the difference between these two approaches when we considered Amendment 3 in the name of the noble Lord, Lord Paddick, in an earlier group, but it may be helpful to remind ourselves of the issues in play.

I reiterate that under either approach a person returning to the UK from a designated area abroad would not have immunity from investigation and possible prosecution. The police would still need to investigate to determine whether, under one approach, an offence had been committed or, under the other approach, whether the person has a reasonable excuse such that the investigation can be discontinued. It is worth noting that the police have been extremely clear for some time—since well before this new power was introduced—that any person returning from Syria who has travelled there for any reason can expect to be investigated to establish what risk, if any, they may pose. That is simply common sense given the level of risk associated with such areas.

That would likely also be the approach in any future scenario analogous to the Syrian example in which an area might be designated under Clause 4, whether or not an area is in fact designated. While I appreciate that the intention of the noble Lord’s amendment is to provide greater comfort and assurance to legitimate travellers so that humanitarian aid workers, for example, would not have the prospect of police investigation hanging over them, that would not in fact be the result. The only circumstances in which it could be achieved would be if we were to go further still and provide for any person who travels to a designated area simply to declare that they did so for a specified legitimate purpose, thus unilaterally providing themselves with immunity from any investigation or prosecution. However, that would be wide open to abuse by those who travel for terrorist purposes and would render the new power in the offence entirely unusable.

That leads on to my second point. I have explained that the noble Lord’s amendment would make little difference from the perspective of a potential defendant, and I appreciate that that may beg the question why we should not then accept it. That is simply because the Government’s preferred approach in providing for a reasonable excuse defence fits better with the grain of the Terrorism Act 2000. That approach has been in place for 18 years in Section 58 of the Terrorism Act 2000, which Clause 3 of the Bill amends as well as other provisions in the 2000 Act. As I previously said on the noble Lord’s closely related suggestions for changes to the burden of proof for these offences, which we have already debated today, that approach is well understood by the police, prosecutors and the courts, and clear case law on it is provided by the then Appellate Committee of this House, no less. It has not resulted in judicial concerns, inappropriate prosecutions, upheld appeals or any credible complaints that it has been unfair or inappropriate in its operation. I therefore reiterate that we are not approaching these matters from a neutral starting position. Rather, if we were to adopt the noble Lord’s amendment, we would be choosing to depart from the settled, long-standing position in relation to the Terrorism Act 2000, and I am simply not persuaded that there is any need or good reason to do so.

Furthermore, I am concerned that in unsettling that existing position we could create more uncertainty for defendants and judges in relation to Clause 4, not less, and we could also call into question the currently settled approach that the courts take to Section 58 of the 2000 Act as well as other provisions for similar offences, creating instability and uncertainty in our ability to prosecute serious terrorists. Those strike me as quite undesirable outcomes and risks that we should not run.

The noble Lord, Lord Rosser, asked me what would count as proof that an aid worker was employed by a legitimate NGO. The police have been clear that they will investigate any person returning from Syria to establish what risk they may pose. That would likely be the case in relation to any area designated under Clause 4, including investigating whether an offence has been committed under Clause 4. It will be an operational decision for the police as to how they would conduct that investigation and what proof they would seek. It is not possible for me to set out those considerations in advance.

Finally, Amendment 19, in the name of the noble Lord, Lord Anderson, would provide for the sunsetting of any regulations after two years rather than three. He seeks to split the difference between the one year he advocated in Committee and the three years proposed by the noble Lord, Lord Rosser. Again, this comes down to judgment. There is clearly no absolute right or wrong in this case; it is just that, on balance, the Government consider that three years is the right timeframe. Again, I pray in aid the Australian criminal code and, as I have already indicated, if the situation changes after six months, a year or two years, the Government would inevitably want to review the regulations well before the three-year period was up. The Government agree with the amendment put forward by the noble Lord, Lord Rosser, in Committee that three years is the appropriate period and I hope that other noble Lords are similarly persuaded. I realise that he has shifted his position since Committee, but I hope that on reflection he will feel content to revert to his original view.

I invite the House to agree with the government amendments in this group and I hope that I have been able to persuade the noble Lord, Lord Rosser, not to move his Amendment 15. If he is minded to do so, I invite the House to reject it.

Amendments 12 (to Amendment 11) withdrawn.

Shipbuilding: Appledore Shipyard

Earl Howe Excerpts

Monday 26th November 2018 Lords Chamber

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, the Government were very disappointed to learn of Babcock’s decision to cease operations at Appledore. While it is a commercial decision for Babcock, I recognise how concerning the news is for Appledore employees, their families and the wider community. Appledore is not central to successful delivery of our national shipbuilding strategy. However, more broadly, we are committed to encouraging a more competitive industry, driving innovation and growing the Royal Navy fleet.

[Lord West of Spithead (Lab)]

I thank the noble Earl for his Answer. I am glad he shows that feeling for Appledore because this is highly destructive of the whole of that community. Appledore shipyard has been amazingly competitive in producing survey ships for the Navy, parts of the Type 45 and parts of the carrier, and it won the latest competition for four Irish OPVs. It is a very efficient and very capable yard. I find it extraordinary that a firm has to close it because it has problems on its balance sheet elsewhere in its structure. However, that is not my question.

My question relates to the amount of work that is available for shipbuilding in the United Kingdom, because other yards will go the same way unless there is a core, basic loading of building. The loading of building that we have at the moment is insufficient. We are paying for fleet solid support ships to go elsewhere out of the UK, but that is an opportunity to add to the loading, enabling us to keep key shipyard workers and these key industries going. I am sure the Minister feels that that would be the way to go. I would be very interested to know the Government’s position on this. Does he feel that those in Appledore ought to fight, fight, fight again, like those from Appledore and Bideford who fought with Sir Richard Grenville down in the Azores some 427 years ago against huge numbers of Spaniards? We must keep fighting to keep it open.

[Earl Howe]

My Lords, the noble Lord asks a very serious question about government spend on naval shipbuilding. I do not think it is a fair charge if his implication was that the Government have not been supporting our yards at home. Babcock alone has had £1.7 billion-worth of business just in the last year. It recently started work on a £360 million contract to be the technical authority and support partner for the Navy’s new aircraft carriers. In general, we are seeing in Scotland, for example, a £3.7 billion contract for the first three Type 26s, and at Cammel Laird there has been a £619 million support contract. Then there will be the competition for the Type 31e frigate, which is worth £1.25 billion. Those will be built in the UK. As regards the fleet solid support ships, there is no bias on the part of the Ministry of Defence. This is an open competition and we encourage British shipyards to bid.

[Lord Hamilton of Epsom (Con)]

My Lords, is it not true that the noble Lord, Lord West, was told, when he ordered the aircraft carriers and there was no money to pay for them, that they would have to be paid for by reductions in the surface fleet, and that is what is happening now?

--- Later in debate ---

[Earl Howe]

My Lords, I do not accept that. We are committed to maintaining a fleet of 19 frigates and destroyers. That is what we have at the moment. The Type 26 frigates will replace some of the Type 23s and the Type 31s the rest of the Type 23s. I do not accept that the fleet is somehow dwindling because of the aircraft carriers.

[Lord Campbell of Pittenweem (LD)]

My Lords, I cannot restrain myself from the observation that if the Royal Navy had as many ships as we have Questions about ships, we would be in a pretty good position altogether. The last time that this issue was discussed, the Minister told the House and myself that, notwithstanding the worst-case deficit in the Ministry of Defence equipment budget of £14.8 billion, the MoD would still be able to balance the books. Will that include cancellation or creative accounting, as has happened in the past?

[Earl Howe]

Not at all, my Lords. We are committed to our capital programme. If there has been any creative accounting in the past, we want to put that behind us because we want to be absolutely transparent about what our spending plans consist of. With regard to shipbuilding, as I said in my initial Answer, part of the trick will be to make the British shipbuilding industry more productive, innovative and competitive, and that is what we are seeking to do through the strategy.

[The Lord Bishop of Worcester]

My Lords, having been vicar of the parish in which the Swan Hunter shipyard was when that yard went into the hands of the receivers a number of years ago, I am acutely conscious of the devastating effect that such closures have not just upon individuals but upon whole communities. The Minister has acknowledged that. Will he undertake, if the yard does go under, to provide necessary assistance both to individuals and to the community, which will suffer terribly?

[Earl Howe]

The right reverend Prelate focuses on a very important issue. There is no doubt that the site is regarded as at the heart of the local community, with generations of families employed there. Naturally, as a result, local councils for one are very keen to find a solution. I can tell him that Babcock has offered all affected employees other positions, including at Devonport. It is planning to hold discussions with affected individuals about their long-term options, and it has committed to being as flexible as possible in accommodating travel and relocation needs.

Veterans Strategy

Earl Howe Excerpts

Thursday 15th November 2018 Lords Chamber

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, it is a remarkable and heart-warming feature of your Lordships’ House that across all Benches and shades of political opinion, we find ourselves in almost total unison on the theme so ably introduced by my noble friend Lord Attlee on the obligation that we have as a society to ensure the welfare and well- being of our Armed Forces veterans. The recent commemorations marking the centenary of the Armistice have brought this message into even sharper focus, and while in this country we have a long and proud history of supporting those who have stepped up to protect and defend us, it is morally right that we should continue delivering that support in the best possible way and, where we can, look to do more.

It is against that background that the Government published yesterday The Strategy for our Veterans, a long-term, 10-year vision that outlines what we aim to do to ensure that each and every man and woman who is leaving, or has left, one of our Armed Services feels they are “Valued, Contributing, Supported” in leading a fulfilling and rewarding life.

Much has been done in recent years in pursuit of that end, but the publication of the strategy marks the first time that Governments across the United Kingdom have come together to articulate a joint statement of strategic intent, setting out in clear terms the tangible outcomes we wish to achieve for veterans’ services along with the vision and the principles that will underpin them. Those outcomes, and that vision, are the product of wide consultation with academia, veterans themselves and many of our excellent service charities—the Royal British Legion, SSAFA, Help for Heroes, Cobseo, Combat Stress, Veterans Scotland and others—as well as the three service benevolent funds and the three service families funds.

We estimate that there are some 2.5 million veterans in Great Britain. They are not a homogenous group. They can be former regulars or reservists. They can be younger or older, in good health or in poor health. They hail from every part of the United Kingdom, and from diverse backgrounds. In consequence, their needs and experiences will be very different, a difference that is reflected in the wide range of organisations—public, private and charitable—which are charged with ensuring that the debt we owe to them is properly and effectively delivered.

I say to the noble Lord, Lord Tunnicliffe, that the document is not a blueprint for delivery, it is a strategy. It maps out a direction of travel, clearly waymarked by a number of factors and themes that are relevant to improving the lives of veterans, and it will, in that sense, hold us to account in measuring success. For each of those cross-cutting factors and themes there is an outcome for the year 2028 towards which all UK nations will work to deliver.

In furtherance of those objectives, the UK Government have published a consultation alongside the strategy. The consultation addresses the wide range of ways in which public services are delivered to veterans, but in essence it seeks to ask one overarching question: how can we do better? We in the Government may have our own answers, but it is only those at the sharp end who know what works best and who can tell us where the real gaps are. We want to hear from them.

The various themes covered in the strategy will be familiar. They are the challenges posed by the transition from service to civilian life; the need to find stable and fulfilling employment; the impact of a veteran’s service experience on their state of health; and the need for a home. These and other challenges are ones which we must help our veterans, wherever possible, to take in their stride, but where they falter, we must be there to support them. The consultation picks up on all these themes in greater detail and poses a series of questions on those issues where we most need answers. I encourage noble Lords to submit their views and to alert others to do so.

In addressing some of the many issues and questions that have been put during this debate, I shall begin with one raised by the noble and gallant Lord, Lord Walker, who called for a dedicated veterans ministry. I recognise that governance and collaboration around all these issues could be strengthened, hence the consultation that we have launched, but the key issue, surely, is delivery of policy and delivery of services. At governmental level, the Ministerial Covenant and Veterans Board is co-chaired by my right honourable friends the Defence Secretary and the Chancellor of the Duchy of Lancaster and has ministerial representatives from all government departments and devolved Governments. At ground level, responsibility for delivery is diverse, but in practical terms for a veteran in need of help and advice, Veterans UK and the Veterans’ Gateway will enable any veteran to receive the support they need.

I now turn to a topic which has loomed large in today’s debate, not least for my noble friends Lord Attlee, Lady Browning and Lady Helic and the noble Lord, Lord Tunnicliffe, which is mental health provision. Mental health services are delivered to veterans by the NHS. We in government know that some patients wait too long and that additional resources are needed. The Government are already investing £12 billion in mental health. In the Budget an additional £2 billion for mental health was promised by 2020, and the NHS will invest up to £250 million a year in new crisis services by 2023-24. I hope that gives a sense of how committed we are to the mental health and well-being of the population at large but also of our service personnel and veterans.

We fully recognise that service life can cause stress. We announced in October last year a new partnership with the Royal Foundation that will provide resources for training and education for the Armed Forces community around good mental fitness. In July last year the Defence People Mental Health and Wellbeing strategy was launched. It identifies the need for strong partnerships with the Department of Health and Social Care, the NHS, the devolved Administrations and the charitable sector. The MoD has provided a new 24-hour mental health helpline, which is targeted at serving personnel and their families, allowing them to access support for any mental health problems any time, anywhere, and of course there is the Combat Stress helpline for veterans. As part of the consultation, though, we will look at the idea that was very helpfully suggested by my noble friend Lady Browning; namely, what buddy support is already provided and whether it should be strengthened further. I thought that was a most interesting idea.

As I have said, we take the well-being of personnel very seriously, and we are funding research so that we can continue to do so. The aim of the study currently taking place at King’s College London is to understand the ways in which mental health is impacted during the years following exposure to conflict. The study suggests that the symptoms of PTSD can manifest several years after an individual has deployed, which I am sure we all instinctively knew. That is why the King’s College research is still ongoing. As the senior author, Professor Sir Simon Wessely, who is a world-renowned expert in this field, has pointed out in relation to the most recently published data,

“it would be wrong to say there is a ‘bow wave’, ‘tsunami’ or ‘time bomb’ of PTSD in the UK military and veteran community”,

but we need to analyse and take seriously what is actually happening.

I will answer a number of my noble friend Lady Helic’s questions in writing. However, I shall address the very important issue that she raised at the beginning of her speech: the rate of suicides. Every study conducted by the MoD has found that the risk of suicide among the Armed Forces community, including veterans of the 1982 Falklands War and the 1990-91 Gulf conflict, is lower than among the general population. However, we will commission a new study on the risk of suicide for those who served between 2001 and 2014 covering combat operations in Iraq and Afghanistan. It is important that we get to the bottom of those statistics.

The Department of Health and Social Care has had a national suicide prevention strategy in place since 2012 and that aims to address the causes of suicide for every civilian, not just veterans. Veterans are identified in the strategy as requiring tailored approaches to meet their mental health needs. That has resulted in NHS England’s veterans’ mental health transition, intervention and liaison service, which since its launch in April last year has supported hundreds of veterans and their families. That is complemented by the veterans’ mental health complex treatment service, launched in April this year to support those with the most complex needs, with holistic support for the whole person and their family.

My noble friend Lady Pidding and others referred to the defence holistic transition policy. That is aimed at better co-ordinating the assistance that is out there and to supplement it to prepare service personnel and their families who are about to leave the Armed Forces. That will be launched later this year. My noble friend Lady Browning spoke of the need for advance preparation, and I can tell her that the chain of command will routinely discuss with individuals throughout their career their plans and preparations for life after the military. Immediately prior to leaving the Armed Forces, the chain of command will assess their readiness to leave and refer those needing extra support to the defence transition service. The specialist defence transition services team within Veterans UK will support those who need it most by undertaking a thorough needs assessment to determine the best interventions required by that individual.

I turn to another extremely pressing and important issue: that of homelessness. We take this extremely seriously, and I was very grateful to the noble and gallant Lord, Lord Walker, for his constructive suggestions in this area. I start by saying that this year, there is a new statutory responsibility on the MoD to refer anyone leaving the military at risk of homelessness to the relevant local authority. Under the new defence holistic transition policy, early service leavers who are assessed by their chain of command as needing extra support will be referred to the defence transition service, which will undertake a thorough needs assessment to determine the best interventions required by that individual, including housing.

Housing was also raised by the noble Lord, Lord Tunnicliffe. I can tell him that, in line with the Armed Forces covenant, veterans who have,

“reasonable preference and more urgent housing needs”,

must be given additional preference—high priority for social housing. This requirement applies also to bereaved spouses of Armed Forces personnel and seriously injured or disabled veterans of the regular or reserve service. These are the only groups of citizens whose priority is based on prior employment. I say to my noble friend Lady Helic that the MoD is reviewing options which will assist with housing support for veterans. I take the point ably made by the noble Lord, Lord Tunnicliffe, on the question of supply.

As regards rough sleeping, one veteran on the street is too many. That is why we implemented the Homelessness Reduction Act, which will ensure that service men and women can work with their local authority earlier to ensure that homelessness is prevented. That is also why we published the Rough Sleeping Strategy, backed by £100 million of funding. We are committed to delivering our manifesto commitment to halve rough sleeping by 2022 and end it by 2027.

My noble friend Lord Robathan touched on a sensitive set of issues about the legacy investigations into Northern Ireland veterans. There is broad agreement within Northern Ireland that the current systems and structures to deal with the legacy of the Troubles are not delivering enough for victims, survivors and wider society. The Northern Ireland Secretary launched a consultation on legacy issues on 11 May which closed on 5 October. Her department is carefully considering the many responses to the consultation and will set out in due course how it intends to move forward. We recognise the growing concern about the repeated investigation and prosecution of veterans in relation to historic operations. That is why we established a dedicated team to examine all the options to increase legal protection for these individuals. The team is working with colleagues across government to find the best way forward. Of course, we have not forgotten the need to provide the legal and welfare support to military veterans who are subject to investigation.

I turn to other health-related issues. The noble Lord, Lord Burnett, referred to the problem of adequate advanced prosthetics—a very interesting topic, but one on which I am certainly not an expert. He may be interested to know that the Complex Prosthetic Assessment Clinic was introduced at Headley Court in 2016 for the small number of veterans with particularly challenging prosthetic needs. Since its inception, the clinic has seen 40 individual patients, six of whom have subsequently been treated under the LIBOR-funded direct skeletal fixation technique. That involves the insertion of a titanium implant into the bone, eliminating the need for traditional socket-based technology. As the prosthetic is anchored directly to the bone, it offers greater freedom from the limitations and complications commonly associated with socket-based prosthetic systems. The Government are simultaneously funding research into direct skeletal fixation and we look forward to the results.

The noble Lord, Lord Burnett, also referred to issues around adaptations to housing. As I am sure he knows, there are various grants available to allow disabled people to continue to live at home, including the disabled facilities grant. People can get a grant from their council if they are disabled and need to make changes to their home—for example, to widen doors, install ramps, improve access to rooms and facilities, or install a downstairs bathroom. Having said all that, we shall await responses to the consultation if it is felt that this package of measures that is currently available does not meet veterans’ needs in every case.

My noble friend Lady Fookes, whose work with war widows I have admired for many years, asked about the reinstatement of war pensions. The Government recognise the unique commitment that service families make to the country and we remain sympathetic to the circumstances of those widows who remarried or cohabited before 1 April 2015. However, as my noble friend recognises, this is a complex policy area, and it is taking time to carefully consider the potential options within both financial and legal constraints, and I can tell her that my friends at the Treasury are currently considering the issue actively.

The noble Lord, Lord Burnett, referred to the Armed Forces compensation scheme, which is covered on page 26 of the consultation, as he has probably seen. An independent review of that scheme in 2016 found that it remained fit for purpose and recommended both the uplift of the lump sum tariff awards and a review of the maximum tariff level award for mental health conditions.

My noble friend Lord Attlee, and others, including the noble and gallant Lord, Lord Walker, referred to the need for better data. As most veterans transition successfully from the Armed Forces and do not need help after discharge, it would be inappropriate to mandatorily track all of them; it is much more important to focus on the significant minority who do require additional support. We must respect at the same time that some individuals will not want to maintain a connection with the MoD, or they may not wish to declare their service. However, more data on specific cohorts would certainly aid delivery organisations. An amendment to the Data Protection Act 2018 allows the MoD to verify contact details of the ex-Regular Reserves against HMRC data to check whether people have moved—because obviously we need to know where people are. I can tell my noble friend Lord Attlee that national insurance numbers are used as the unique identifier between the two datasets.

Time is against me. I am conscious that I have not had time to answer a number of questions, but I assure noble Lords whose questions remain in the air that I will write after this debate with as full a response as I can, and copy in all noble Lords. I hope that noble Lords will allow me to conclude on that note. It has been a most constructive debate and I am extremely grateful to all speakers who have troubled to take part, and to share their ideas and their wisdom. A century on from the Great War, our people continue to give their all for our country. Our obligation to do right by them and their families remains steadfast. As the themes and programmes outlined in the strategy are developed further over the coming months and years, for the benefit of our veterans, we will continue to do our utmost to deliver on the debt we owe them.

Shipbuilding: Warships

Earl Howe Excerpts

Wednesday 14th November 2018 Lords Chamber

[Baroness Bryan of Partick]

To ask Her Majesty’s Government what assessment they have made of the impact that the process for awarding contracts for building complex warships will have on shipbuilding in the United Kingdom.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, as set out in the national shipbuilding strategy, the Type 31e programme is the pathfinder for a new streamlined competitive procurement process which allows the Ministry of Defence to work collaboratively with industry to deliver warships to meet the Royal Navy’s needs. The Type 31e procurement is still under way. However, industry has welcomed the approach, and initial engagement indicates a healthy interest throughout the supply chain.

[Baroness Bryan of Partick (Lab)]

I thank the Minister for his Answer, but there is a strong case for awarding contracts for all Royal Navy ships, including those serving under the Royal Fleet Auxiliary, to UK shipyards. The Government are making an unnecessary distinction by insisting on putting RFA ships to international tender. Does the Minister agree that awarding these contracts to UK shipbuilders would provide certainty, and enable shipyards to grow in size and capacity, train more apprentices, help sustain their supply chains and, importantly, keep prices down? Does he also agree that this would be one of the MoD’s objectives: to contribute to UK prosperity?

[Earl Howe]

My Lords, I absolutely share the noble Baroness’s ambition for the prosperity of the UK shipbuilding sector. Future warship procurement will be restricted to UK-wide competition for reasons of national security. However, we think it right for other naval ships to be subject to open competition. This is not just because of the rules of the EU treaty. Of course, we hope that UK shipyards will be able to compete for those contracts, but they will win them only if they are internationally competitive. It is that competitiveness that will ultimately secure their prosperity, not only as suppliers in the UK context, but as potential exporters in the global marketplace.

[Lord Garel-Jones (Con)]

Will my noble friend tell the House what effect he thinks the recent announcement in the Budget of an extra £1 billion for the Ministry of Defence will have, not only on the building of complex warships in the United Kingdom, but on the wider operational activities of the Ministry of Defence?

[Earl Howe]

I am grateful to my noble friend. As the House will be aware, the Autumn Budget gave defence a further £1 billion between now and 2020, in addition to the £800 million of in-year support that we received earlier this year from the Treasury. We have not yet allocated precise sums to particular programmes, but there is no doubt that the additional funds represent a substantial boost for defence. It means that we will be able to modernise some key capability areas. Offensive cyber, anti-submarine warfare and protection of the deterrent are some good examples. Importantly, it also means that we do not have to make any cuts to the force structure or changes to our capability plans.

[Lord Boyce (CB)]

The Type 31 order seemed to have something of a derailment earlier this year. Will the Minister confirm that the original in-service stage is being held?

[Earl Howe]

Yes, we want the first ship in 2023, with five ships delivered by the end of 2028 to replace the five Type 23 general purpose frigates.

[Lord Campbell of Pittenweem (LD)]

My Lords, given that the National Audit Office report of 5 November concluded that the Ministry of Defence equipment budget remains unaffordable by as much as £14.8 billion, where will the money come from to build complex warships?

[Earl Howe]

My Lords, that worst-case prediction is a forecast over 10 years. We have plenty of time to manage the budget, as we always do, to make sure that we can deliver our very ambitious equipment programme. Work is in hand to do just that.

[Lord West of Spithead (Lab)]

My Lords, there has been a lot of talk about shipbuilding but very little building. It seems to me that we have to get a grip on things such as the Type 26 programme. We will now wait for six or seven years for the first frigate to appear, carrying all the costs of that yard, rather than pushing ahead, ordering all eight, getting all the long lead items and actually delivering them one a year. It seems that we are not grasping these key fundamental issues. The Solid Support Ships add into the programme, but we do not look at the real cost to the nation of not building them here in this country.

[Earl Howe]

My Lords, as regards Type 26, it is true to say that ordering ships in batches is normal commercial practice. For one thing, it enables lessons learned in building the early batches to be reflected in lower prices for the later ships, which of course achieves better value for money overall. Contracting for all eight ships up-front would have precluded us from benefiting from the potential economies of scale, which may now come from the successful export campaigns to Australia and Canada.

[Lord Trefgarne (Con)]

My Lords, can my noble friend say how many destroyers and frigates are presently available for Royal Navy service and how many of them are fully crewed?

[Earl Howe]

My Lords, all the frigates and destroyers that the Royal Navy has at its disposal are in one way or another fully operational. They may be subject to training of crew, they may be alongside having refits or they may be on deployments, but none of them is non-functional.

His Royal Highness the Prince of Wales

Earl Howe Excerpts

Wednesday 14th November 2018 Lords Chamber

Moved by

[Earl Howe]

That a Humble Address be presented to Her Majesty the Queen as follows:

“Most Gracious Sovereign,

We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave

To assure Your Majesty of the great pleasure felt by this House on the seventieth birthday of His Royal Highness the Prince of Wales;

To convey to Your Majesty the admiration that is felt by this House for His Royal Highness; and

To express the hope that His Royal Highness the Prince of Wales may long continue to enjoy good health and happiness.”

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, it is my happy duty today to lead the House in agreeing a humble Address to mark the 70th birthday of His Royal Highness the Prince of Wales. He is not only a remarkable public servant but a remarkable individual: as a tireless promoter of charitable causes and their potential to provide practical help to people; as a representative of this country and of the Commonwealth; and as a father, husband and grandfather. It is fitting that on this significant birthday we pay tribute to him and express our admiration for his exemplary commitment and service.

The Address before the House today rightly mentions the Prince of Wales’s achievement in establishing the Prince’s Trust. Since 1976, the trust has helped more than 870,000 young people into employment, education or training. The work of the trust has brought the Prince of Wales into close contact with young people from all backgrounds, including those who have encountered serious difficulty in life. The success and reach of the scheme is staggering: around 87,000 young people have been helped to set up their own businesses. The transformative effect of his and his trust’s work on those individuals is testament to his unstinting personal commitment. Like many noble Lords across all Benches, I have had the privilege of meeting a number of impressive young people who have benefited from the work of the trust over the years.

Through his effort in this and other areas, the Prince of Wales has set an extraordinary example of hard work and stamina in the cause of public service. At times, he has been accused of meddling, but he has raised important issues, such as the impact of climate change and the effect of waste and plastics on the environment, well before they became political priorities.

With a passion for the built environment, he has understood the value of fostering sustainable communities and the serious and lasting impact on people of not having the infrastructure—both hard and soft— they need to build thriving lives. He has stewarded developments in Poundbury, in Dorset, and more recently in Nansledan, near Newquay, in Cornwall. Through those developments, the communities that live there have assets which will be valued for generations to come, as do the communities in areas developed by the Duchy of Cornwall, such as those within spitting distance of this place in Vauxhall and Kennington, which were stewarded by his predecessors.

His Royal Highness’s deep belief in the value of the built environment does not stop at our coastline: the Prince’s Foundation for the Built Environment helped to reconstruct and redesign buildings in Port-au-Prince, Haiti, after the appalling damage caused by the earthquake in 2010, as well as to refurbish historic buildings in Kabul, Afghanistan, and Kingston, Jamaica.

His commitment to public service and duty is exemplary. It is a frequent occurrence for him to resume work on his boxes in the evenings, when public engagements allow, and to work long into the early hours. While many of us in this House may be familiar with such a routine, other than Her Majesty the Queen, nobody else has carried it for so long or with so much dedication.

However, it is not just this country that has benefited from the commitment of the Prince of Wales. He has been a proud supporter of the Commonwealth throughout his adult life and played a central role in maintaining the Royal Family’s strong connection to its member countries, as his most recent visit to Ghana, the Gambia and Nigeria once again highlighted. Earlier this year, the Commonwealth Heads of State confirmed that they wish the Prince of Wales to succeed Her Majesty as Head of the Commonwealth—a vote of confidence which is fully merited.

Of course, we as a House also have a special connection to the Prince of Wales. He was one of us and almost certainly will go down in history as the last Prince of Wales to sit in this House. As with everything he has done, he took his membership of this House seriously and participated in proceedings. I commend to noble Lords his maiden speech, delivered on 13 June 1974, in which he noted that it had been a century since a member of his family had spoken in the House but that in 1829 there had been a debate in which three Royal Dukes took part. The Prince of Wales recalled:

“Each got up one after the other and attacked each other so vehemently and used such bad language that the House was shocked into silence”.


Needless to say his own speech, which he approached with as much trepidation as any other new Member of this House, went down rather better, and introduced the House to an earnest, committed and well-informed young man, passionate about galvanising the potential of young people everywhere. He was also, I am assured, attired in smart business dress, which paled into comparison with his predecessor as Prince of Wales, also Prince Regent and later King George IV. In his speech the current Prince of Wales memorably described him as,

“exquisitely dressed in black velvet, lined with pink satin and embroidered in gold and wearing shoes with pink heels”.—[Official Report, 13/6/1974; col. 624.]

If the Prince of Wales’s speech summed up the young man, the life he has lived since, played out in the public eye, has given us many further examples of his personal qualities. As a father he has been devoted to the welfare of Prince William and Prince Harry and the whole nation shares his pride at the outstanding young men they have turned out to be. We have also shared in his obvious joy in his important role as a grandfather. On behalf of the whole House, I congratulate His Royal Highness and his family on what we hope is a very happy 70th birthday. I beg to move.

His Royal Highness the Prince of Wales

Earl Howe Excerpts

Wednesday 14th November 2018 Lords Chamber

Moved by

[Earl Howe]

That a Message be conveyed to His Royal Highness the Prince of Wales as follows:

“Your Royal Highness,

We, the Lords Spiritual and Temporal in Parliament assembled, warmly congratulate Your Royal Highness on Your Royal Highness’s seventieth birthday;

We express our gratitude for Your Royal Highness’s outstanding service to the nation, not only in supporting Her Majesty The Queen but also in making Your Royal Highness’s own deep contribution to national life, in particular in Your Royal Highness’s creation of The Prince’s Trust, which has done so much to support disadvantaged young people and in your work with The Prince of Wales’s charities;

We wish Your Royal Highness many happy returns”.

Motion agreed nemine dissentiente.

Counter-Terrorism and Border Security Bill

Earl Howe Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, before I address Amendment 33 let me go back to the debate on Monday when we were discussing Amendment 18 and new Section 58B(2). I fear that during the discussions I misunderstood something said by the noble Earl, Lord Howe. I understood him to be saying that the Act produced two different ways of approaching the burden of proof. I have reread Hansard and I misunderstood him—it is entirely my fault—and I objected to that. I would go on objecting to it if that was what he said, but it was not. I have studied the Bill and I find on page 83 that he is right and that the burden of proof in relation to any offence created by Section 58B(2) is in fact on the prosecution. I therefore apologise to the noble Earl—I am sorry that I misunderstood him—and to the extent that I misled the House, I apologise to the House. However, I just add that it would be so much more helpful if Acts of Parliament said what they meant, instead of telling us to look at whatever page it is to find the answer.

I want to add a word, in spite of the difference of view expressed here: we have to be careful about this provision. I am not going to take sides in relation to what may be a very serious offence or a very minor offence, but can we just reflect on this? Every citizen is presumed to know the law; every visitor to this country is presumed to know the law that applies in this country. Of course we do not: look at me, I got new Section 58B(2) wrong and I am supposed to know the law. The more serious point is that there is a basis and a quid pro quo for this. The quid pro quo is that the criminal law should be clear. I am expected to know the law and to obey the law: it should, at least, be clear what it is I am expected to obey.

We are all supposed to know the law here; every citizen of every country, applying the same presumption, is presumed to know the law in the country of which he is a citizen or to which he is a visitor. There will be occasions—perhaps I need to be less emphatic: there may be occasions—when something is not unlawful in a different country to our own. We have different rules. Bullfighting is unlawful in this country, but would we prosecute a Spanish toreador coming here for breaking what we would regard as our law which is not unlawful under their law? The Bill risks criminalising a citizen of another country for doing something that is not unlawful in that country.

Of course terrorism is unlawful—it is unlawful everywhere, you do not need a book of law to tell you that—but there may be minor matters, in relative terms, which we criminalise here but are not unlawful by the laws of a different country. We need to be careful not to extend the criminal law further than it should go.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, as we have heard Clause 6 adds a number of further offences to the existing list at Section 17 of the Terrorism Act 2006, which extends extraterritorial jurisdiction over those offences. This will ensure that UK courts are able to prosecute foreign terrorist fighters who travel to the UK, having joined terrorist groups and become involved in conflicts or other terrorist activity overseas. It will also ensure that we are able to prosecute people who base themselves overseas and seek to radicalise people—the general public or targeted individuals—in the UK. It is this latter category of radicalisers, and propagandists on behalf of terrorist organisations, that the noble Baroness’s amendments deal with.

Section 13(1) of the Terrorism Act 2000 contains the offence of displaying in a public place an item of clothing or other article such as a flag, in circumstances which,

“arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”.

As a result of Clause 2, it will also contain, at new subsection (1A), the offence of publishing an image of such an article in the same circumstances.

Extraterritorial jurisdiction is most relevant to Section 13, and in particular to the offence the Bill will add at new subsection (1A), in a case where a person located overseas publishes images of flags or logos associated with a proscribed terrorist organisation. We have seen in the Syrian conflict that Daesh has run a slick and effective online propaganda operation, which has included exactly this type of activity—publishing images on social media and other online platforms, aimed at promoting the group, its ideology and its methods, to individuals around the world, including in the UK. Other terrorist groups, in other parts of the world, do the same.

It has been a recurring theme of the debates on the Bill that this is a downside of the rapid development of online technologies in recent years. Although people have been connected and brought together in myriad positive ways, and the world has been opened up, those who would do us harm have been equally quick to exploit the opportunities of the digital age. Terrorists are no exception, and we need to update our laws to keep pace with the evolving threat. The online world simply does not respect national boundaries in the traditional sense, nor does it pay heed to geographical distance. Where this gifts radicalisers the opportunity to reach across the world to target vulnerable people in the UK, it is absolutely right that the UK Government respond by ensuring that our courts have the ability to deal with that. There is a clear operational case to justify this measure.

The noble Baroness, Lady Hamwee, has explained that her concern is that a person could find themselves prosecuted in the UK, having acted in support of an organisation that is not proscribed in the country where the conduct took place, and therefore having no awareness or expectation that they could be held criminally responsible. I respect the principled stance taken by the noble Baroness but, respectfully, I do not agree that it would be right to either simply remove this provision, as Amendment 31 would do, or limit its application, as Amendment 33 would do. The reality is that there is no universal and internationally agreed list of proscribed organisations, and there is no realistic prospect of one being implemented. Even if there were, the kinds of countries in which terrorist organisations are most likely to be based are those that are the least likely to sign up to and implement such an international rules-based system.

Despite this, terrorists are travelling and communicating across international boundaries, in a way which poses a direct threat to the safety of the public in the UK and elsewhere. Given this, we should not deny our courts the ability to act against such individuals if they return or travel to the UK, pending the adoption of such an international list, and we should ensure that the powers available are flexible and not unduly restricted. To proceed as the noble Baroness advocates would risk sacrificing public safety and justice in the pursuit of a frankly unrealistic ideal.

It is right that we should be able to prosecute those who travel overseas to join terrorist organisations, and who publish propaganda in support of those groups, seeking to radicalise others back in the UK or elsewhere. That is the nub of the matter. The noble Lord, Lord Carlile, was absolutely spot on in the way that he characterised these provisions. Such crimes are most likely to be committed in areas of conflict and instability, within failed states that may not have functioning systems of government with effective jurisdiction over their own territory, or in countries where there may not be clearly defined or well-developed terrorism laws equivalent to those in the UK, or which may simply take a different approach. Those are not good reasons to ignore the threat posed on UK soil by people who have published propaganda in support of terrorist groups while overseas. Simply put, foreign terrorist fighters should not be able to evade justice because the country that they travelled to, or hail from, does not have a proscription system equivalent to that of the UK.

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Moved by

[Earl Howe]

32: Clause 6, page 5, line 16, at end insert—
“(cza) an offence under section 12(1) or (1A) of that Act (inviting or expressing support for proscribed organisation);”

[Earl Howe]

My Lords, Clause 6 will add a number of further terrorism offences to the list at Section 17 of the Terrorism Act 2006, as I have already explained, to which extraterritorial jurisdiction—or ETJ—applies. This means that individuals can be prosecuted in the UK courts for conduct that took place outside the UK which would have been unlawful under an offence listed at Section 17 had it taken place here.

Following further consideration, we have identified two additional offences where it would be right to extend ETJ to ensure that the full range of relevant terrorism offences is covered. These are, first, the offence of inviting support for a proscribed organisation at Section 12(1) of the Terrorism Act 2000 and, secondly, the offence of expressing an opinion or belief in support of a proscribed organisation, reckless as to whether another person will be encouraged to support the organisation, which Clause 1 will insert into the 2000 Act as new Section 12(1A). Extending ETJ to these offences will help to tackle radicalisation, particularly by people who have travelled from the UK to join a terrorist organisation and reach back to the UK to spread its propaganda and promote its aims. This will allow prosecution in a case where, for example, someone overseas is in contact with a person in the UK, who may be a vulnerable person such as a child, and is either deliberately or recklessly encouraging them to support a particular proscribed organisation, such as Daesh.

Clause 6 received broad support in the House of Commons and, with the exception of the extension of ETJ to the Section 13 offence which we have just debated, has also been supported in this House. None the less, I hope that your Lordships will be persuaded that it is the right approach to ensure that we have as comprehensive coverage as possible of terrorist offences that might be committed overseas, subject to the normal safeguards, so that we can protect the public in this country. I commend this amendment to the Committee on that basis.

[Baroness Hamwee]

My Lords, since the Joint Committee on Human Rights is meeting at this moment it has not been possible to take its view on this amendment but I think it must follow from my comments on Clause 1 that it would not be enthusiastic, as these provisions obviously have to be read together. I was amused that the Minister said, as did the noble Baroness’s letter to noble Lords of 24 October, that the Government have identified further offences. They are not quite offences yet, are they? It would perhaps be fairer to say that the amendment is consequential on Clause, but that is a minor point.

[Lord Rosser]

I shall be very brief. I await the Government’s response to the points made by the noble Lord, Lord Anderson of Ipswich, with interest.

I would like to pursue another point he raised in his contribution. Bearing in mind that this amendment, which adds offences, is coming in at a very late stage in proceedings, is this a result of a perceived oversight on the Government’s part or does it represent a significant rethink of policy?

[Earl Howe]

My Lords, I am grateful to noble Lords who have responded to this proposed amendment. We are very conscious that it is less than ideal to bring in an amendment of this kind at this stage of the Bill’s passage. If we had been able to do so at an earlier stage, it would have been much better.

Having said that, we felt that it was, on balance, right to introduce this change rather than not introduce it. I recognise the reservation expressed by the noble Lord, Lord Anderson, on that score. He also expressed the reservation that we heard on the previous group of amendments about applying extraterritorial jurisdiction to those who are not UK citizens or UK residents. I have already said that as a general rule I respect that point of principle. However, I put it to the noble Lord and the noble Baroness that what we are seeking to do here is not any different in concept from what we sought to do at the beginning of the Bill.

--- Later in debate ---

[Lord Rosser]

This amendment, moved by the noble Lady Baroness, Lady Hamwee, and to which my name and that of my noble friend Lord Kennedy of Southwark are also attached, is another which reflects a recommendation from the Joint Committee on Human Rights. One of the key aspects of the Bill is the proposed increase in maximum sentences for a number of terrorist offences. This was one—but only one—of our reasons for raising concerns about the prospect of innocent parties falling foul of some offences.

The JCHR said that the increases in sentences do not appear to be supported by evidence to suggest that they are justified or proportionate. The committee was particularly concerned that a sentence of 15 years could be imposed for an offence of viewing terrorist material online—even more so in the light of amendments on Report in the Commons that might make a single viewing sufficient for such an offence to be deemed to have been committed. As has already been said, the committee asked the Home Office for the evidence on which it based its decision that the current maximum sentences were insufficient and why it considered the proposed higher maximum sentences to be necessary and proportionate.

The reply from the Home Office, as set out in the JCHR report, stated, among other things:

“The division between preliminary terrorist activity and attack planning is increasingly blurred”.


It did not, according to the committee, explain why existing sentencing powers were inadequate. I hope, like others, that the Government will address this point on existing sentencing powers in their response, as well as the specific terms of the amendment, reflecting the view of the JCHR, which deletes the increase in the maximum sentence from 10 years to 15 years for the “collection of information” offence provided for in Section 58 of the Terrorism Act 2000.

[Earl Howe]

My Lords, Clause 7 increases the maximum sentences for a number of terrorism offences to ensure that the available punishment properly reflects the seriousness of the crime. That is the point that I urge noble Lords to focus on in this debate. A key aspect of the review of our terrorism laws announced by the Prime Minister following last year’s attacks, of which the Bill is the product, was looking again at the courts’ sentencing powers to ensure that they are sufficient to respond to the threat and keep the public safe. The clear conclusion was that sentencing needs to be updated and strengthened, and the Bill contains a package of measures to deliver that, including Clause 7. However, I recognise that the noble Lord, Lord Marks, and the noble Baroness, Lady Hamwee, have queried whether these changes need to be made and have suggested that such changes are unnecessary and disproportionate. However, I sincerely hope that in responding to such concerns I can explain why the Government believe that Clause 7 as drafted is a necessary, proportionate and timely response to the contemporary terrorist threat.

Since the offences in question were first introduced, in some cases 12 years ago and in others 18 years ago, the terrorist threat has evolved significantly. Its source has shifted and diversified, its methods have developed and it has been quick to exploit modern online technology. Both its extent and its severity have maintained an upwards trajectory, and the intelligence services consider that in recent years there has been an enduring shift in the nature of the threat, rather than just a spike. We can be under no illusion: the scale of the threat we face today is unprecedented and, sadly, more attacks are likely.

In particular, we have seen increases in the scale of radicalisation and changes in its methodology and patterns. The growth of the internet has brought new and powerful ways for people to connect with each other, and to share ideas and information, which have brought great benefits to the vast majority of the public. But they have also brought new opportunities to those who would do us harm, increasing the ability of terrorists both to access and to disseminate unlawful terrorist information and training material, propaganda, and incitement to hatred and violence—and to do so, potentially, to a wide audience. Indeed, those who seek to recruit and to inspire or direct individuals to carry out attacks have never found it easier to identify and connect with would-be terrorists, often across international borders, and those who are embarking on the path of radicalisation have never found it easier to access material, to communicate with terrorist individuals and organisations, and to receive encouragement or direction which will move them further and more quickly along that path.

--- Later in debate ---

[Lord Davies of Stamford (Lab)]

I think that the noble Earl would carry the whole House in saying that terrorism has become a greater threat to our society in the last 10 years and that Parliament should do something about this serious matter. I, for one, would be open to persuasion—as, I suspect, would many others in this House—that what is required, among other things, is to strengthen the hands of the courts and to give them the ability to increase the sentences that they impose for terrorist or terrorist-related offences.

However, I have noticed that the Minister has not even begun to answer the quite significant questions asked by the noble Lord, Lord Marks, and my noble friend Lord Rosser, about the principle on which this increase in sentences has been decided—if you like, the multiple which is being applied to existing sentences. What is the origin of this? The Minister mentioned the review. Has the review set out exactly what the increased sentences should be, and if so, on what basis has it come to that conclusion? Did it decide on a universal multiple? From the figures of the noble Lord, Lord Marks, it sounded as though it was about 50%. Is that applied across the board, or was it decided that a different multiple should be applied to different types of sentence, and if so, on what principle? I do not sense that we have heard enough about the methodology that the Government have used to come up with the proposals that they have put before the House today.

[Earl Howe]

I am sorry that the noble Lord did not take one of the central points that I was trying to convey: that the review into this area, instigated by my right honourable friend the Prime Minister, concluded that the kinds of offences that we are considering preparatory to terrorism—which in 2000 and 2006, when the previous Terrorism Acts were passed, were not considered to be as heinous as terrorism offences themselves—were given sentencing structures that reflected that point of view; but that since that time, the intensity and scope of terrorist acts has so increased that it is necessary to treat those former, lesser offences as much more serious and harmful than before. In that context, it is to enable society as a whole, through legislation, to make a more emphatic statement, through sentencing guidelines, of the seriousness of those offences.

[Lord Davies of Stamford]

I did not ask the noble Earl to repeat what he has said to the House before. The question I asked is very specific: on what principle had these precise multiples been arrived at?

[Earl Howe]

There is always a judgment to be made. Once one has reached the conclusion that I have just articulated, there is indeed scope for argument about whether the increase should take place at all—we believe that it should—and, if so, to what extent. The Government have taken a view. We are putting it to Parliament and we believe it strikes the right balance in this context.

[Lord Thomas of Gresford]

The guidelines which came into effect on 27 April this year, a few months ago, were arrived at following consultation and a request for comment. They were considered by the Justice Committee in the House of Commons. What is the review to which the noble Earl is referring? What was its date? Was it not before the Sentencing Council at that time?

I assume that the noble Earl would expect the Sentencing Council to go back to its guidelines in the light of what he has said and the lack of principle to which the noble Lord referred a moment ago, and review the appropriate sentencing. These sentencing guidelines set out six steps for a judge to take before he announces the sentence. They are detailed, categorise the nature of the crime and consider what aggravating or mitigating circumstances there are. There are six steps to getting to a decision. They were all set out on 27 April this year. As the Prime Minister would say, what has changed? Is it the review? If so, what is this review?

[Earl Howe]

My Lords, it may be helpful to the noble Lord and the Committee if I quote part of a press release which the Sentencing Council issued on 28 March this year when it launched the publication of the new sentencing guidelines for terrorism offences:

“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”.


Max Hill QC, the Independent Reviewer of Terrorism Legislation, when he gave evidence to the Joint Committee on Human Rights, said:

“The other aspect which is partly to do with the passage of time as well is that the sentencing powers of those few experienced senior judges who deal with terrorism cases are capable of helpful review … There are examples where a higher discretionary maximum may be appropriate. It is not my purpose to talk about individual cases, but the Choudary case, which I have mentioned, might be a case in point. Some commentators were surprised at the sentence that he received, given the gravity of his offending, but the judge applied the statutory maximum, discounted in the various ways that he is enjoined to do. It seems to me that there is an argument for a higher discretionary maximum”.


That is the context in which the Government have taken the view that they have. I hope that is helpful.

[Lord Thomas of Gresford]

The March press statement was an explanation of the guidelines which were to come into effect on 27 April. It was not looking beyond those guidelines to some future date. Indeed, the noble Earl has not referred to the review that he quoted to us a short time ago—what it is, when it was published and whether it was before the Sentencing Council came to its conclusions. Its March justification for an increase in sentencing power was not for something that might happen now, but because it was increasing the level of sentences with its guidelines in April. What has happened since then?

[Earl Howe]

My Lords, the Sentencing Council’s new guidelines for terrorism offences came into force, as the noble Lord rightly says, on 27 April. In its consultation on the draft guidelines, the council was able to anticipate the proposed increases. Consequently, we believe it will not be a difficult task for the council to modify the guidelines once the Bill is enacted, and the Government will of course work with the council on those increases. Any changes to sentencing will only be made following parliamentary debate and approval.

[Lord Rosser]

Unless I am getting confused, which is quite possible, as I understand it the Security Minister, when the Bill was in the Commons, said,

“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”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 3/7/18; col. 105.]

Is that still the Government’s position?

[Earl Howe]

That is exactly the position. I sense no resistance from the Sentencing Council to that approach and I think it is eminently practicable. To answer the question from the noble Lord, Lord Thomas, about the review, it was announced by my right honourable friend the Prime Minister in June 2017. It is an internal government review and as such was not published, but I have informed the Committee today of some of the conclusions that it reached.

[Lord Thomas of Gresford]

It follows from that that the review was prior to the Sentencing Council coming to its decision in March and April of this year, so its members must have had that material before them. Nothing has happened between April and now that would justify this increase. From what the Minister says, I assume that he is expecting the Sentencing Council to double the sentences that it proposed in April—that is the basis of the increase in sentences from seven years to 15 years. That gives more scope for the judge to do justice, and consequently the Minister would be expecting the Sentencing Council to double its sentences.

[Earl Howe]

My Lords, what I had better do is take advice on the timelines that were involved in all this and clarify that to noble Lords who have taken part in this debate; I would not wish to give the wrong impression about the sequence of events. What I am saying is that the Sentencing Council’s new guidelines, which came into force on 27 April, are capable of being updated, and we believe that that is not a difficult task for the council to do once the Bill is enacted. We will consult with the council to that end, as appropriate.

[Lord Marks of Henley-on-Thames]

I am sorry to keep the Minister on his feet for longer than I am sure he wants. I ask that when the exercise that he has promised is undertaken, he also investigates what evidence there was to justify the sentences. He has mentioned in particular the views of the police and the CPS. Was any evidence taken from any members of the judiciary responsible for sentencing in terrorist cases where they felt that their powers were insufficient under the existing sentences?

[Earl Howe]

My understanding is that the consultation that took place was a wide one, but I can clarify that point having taken advice on it. It is of course not for the Sentencing Council to comment on or recommend statutory maximums; it issues guidance on the application of currently existing maximums. That clarification is important.

[Lord Davies of Stamford]

The Minister has been very helpful to the Committee, but would it not solve an awful lot of problems if he were to publish the review on which these revised sentencing guidelines were based so that we could all see what arguments were adduced and how the conclusions were arrived at that are reflected in the draft Bill before us?

[Earl Howe]

I am happy to take that request away with me and investigate whether it is possible.

[Baroness Hamwee]

My Lords, I too had written down not just “timelines” but “evidence to the review”. I do not think one can disregard that. The Minister also referred to lower-level offences, which were commented on by the Sentencing Council, but we seem to have slid away from that.

The Minister put great emphasis on the need to—I hope I am quoting him correctly—strengthen the ability of the police and the agencies in the criminal justice system to intervene. I do not think anyone has queried the seriousness of the offences that we are discussing, nor have we queried the powers. That has not been the thrust of the argument.

The Minister has not disputed the mean average of three years and four months. Of course, I appreciate that any average is an average, so there are much higher periods and much lower ones, but 10 years seems to send a pretty clear message, which was the term that he used, and it leaves a lot of headroom above the average. Three years and four months is quite a shortfall from 10 years. Unless there is a big increase in that, there will be an even greater shortfall from 15 years. I would have thought that that sent a rather dangerous message. The message that I take is the one from the very recent sentencing guidelines, whose consideration, as a matter of common sense, must have been taken into account in preparing the Bill—or should have been.

I think we have more discussion to come on this issue. For the moment, I beg leave to withdraw the amendment.

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[Lord Carlile of Berriew]

In fact, the Government have a working relationship with the senior judiciary, which is often conducted at a fairly subtle level. The Attorney-General, it is to be hoped, has reasonably frequent conversations with the senior judiciary, but one would not expect the content of those conversations to be published. I apprehend that this matter has been considered fairly carefully in the usual way, and I am sure that we can trust Ministers when they say that there is evidence in their view for extended sentences of this kind.

I was going to add that there seems quite a clear analogy between sexual offences and terrorist offences, save that the evidence for extended sentences in terrorism offences may be much clearer than in sexual offences. When a judge is sentencing someone for a sexual offence, he will often have a clear apprehension drawn, for example, from the probation officer’s pre-sentence report and from the evidence in the case that the person concerned, usually male, represents a serious risk to children for an unknown period. The person is then sent to prison and courses are offered which they may or may not follow. The judge will often have an indication at the time of sentence as to the likely willingness of the individual to follow such a course, and that may influence the judge’s decision on whether to impose an extended sentence, usually for the protection of children.

A terrorism case may come before a court to defend someone like—he is not unique—Anjem Choudary. He has a clear intention, depicted on numerous occasions, to ignore those who criticise what he has been doing and to continue to attempt, in the subtle way that he follows, to radicalise others. There are other cases of a similar kind, but it is not very difficult for the judge to form the conclusion that the person is someone from whom the public needs to be protected by the special measure of an extended sentence. That is not only empirically defensible but meets public concern, which is reflected in the attempt to modernise these provisions in these clauses.

I urge noble Lords to support the spirit behind these clauses and to support the clauses in the knowledge that judges have never been lavish in their passing of extended sentences. In my experience and observation, when it happens it is usually done with great care and much concern by the judges, who start from an impartial standpoint before passing sentence.

[Earl Howe]

My Lords, Clause 9 amends provisions in the Criminal Justice Act 2003, which, among other things, enables a criminal court in England and Wales to impose extended sentences of imprisonment and sentences for offenders of particular concern. Clause 9 adds further terrorism offences to the list of offences for which the court can impose these sentences. Similarly, Clauses 10 and 11 make analogous changes to the equivalent extended sentences provided for in Scotland and Northern Ireland. I should point out, however, that neither jurisdiction has the equivalent of sentences for offenders of particular concern.

To put the provisions of these clauses in context, it may assist the Committee if I first explain, as briefly and clearly as I can, the nature of these extended sentences as they operate in England and Wales. There are two types of sentence relevant here. The first is the extended sentence of imprisonment, usually known as an extended determinate sentence. The second is a special custodial sentence for certain offenders of particular concern. Taking the extended determinate sentence first, these sentences are available in respect of the sexual and violent offences listed in Schedule 15 to the 2003 Act. The sentence can however be imposed only if certain statutory conditions are met. The court must consider the offender “dangerous”, under a test set out in the 2003 Act. That test requires the court to find that the offender presents a significant risk of causing serious harm to the public through committing further specified offences.

If the offender commits one of the specific offences and is considered dangerous, the court may impose an extended determinate sentence. An extended determinate sentence is a custodial term which has two parts. The first is the appropriate custodial term commensurate with the seriousness of the offence, and the second is an extended licence period on supervision in the community. Under current provisions of the 2003 Act, the court may impose this extended licence for up to five years for a violent offence and up to eight years for a sexual offence.

The 2003 Act also makes particular provision about the release on licence of offenders serving an extended determinate sentence. Offenders will be considered for release on licence by the Parole Board once the offender has served two-thirds of the appropriate custodial term. This should be compared with the automatic release at the halfway point in sentence for standard determinate sentences. The offender will be released automatically at the end of the appropriate custodial term if the Parole Board has not already directed release. On release, the offender will be subject to an extended period of supervision on licence.

If a court does not find that an offender is dangerous to the point where it imposes a life sentence or an extended determinate sentence, it must impose a sentence for offenders of particular concern. This sentence must be imposed if the offender is convicted of an offence listed in Schedule 18A to the 2003 Act. The list of offences in Schedule 18A reflects why sentences for offenders of particular concern were created: to remove automatic release for terrorism and child sex offences, which would have applied to a standard determinate sentence.

A sentence for an offender of particular concern, similar to an extended determinate sentence, has two parts: first, the appropriate custodial term, and secondly, the licence period. The effect of a sentence for an offender of particular concern is that the release point set at half way through the sentence is not automatic, but is at the discretion of the Parole Board. If not released at the halfway point, the offender may serve all of their sentence in custody, and on release must serve a minimum of 12 months on licence. That is a brief but—I hope noble Lords will agree—necessary summary of the current sentences.

I turn now to how Clause 9 amends those sentences. Currently, the list of relevant violent offences for which an extended determinate sentence can be imposed—set out in Part 1 of Schedule 15 to the 2003 Act—includes a number of terrorism offences. Clause 9(5) takes those offences from Part 1 of Schedule 15 to the 2003 Act and places them in a new Part 3, created to deal specifically with terrorism offences.

As well as shifting the existing terrorism offences into a new terrorism category, Clause 9 adds additional terrorism offences to the list. These are:

“membership of a proscribed organisation”,

covered by Section 11 of the 2000 Act;

“inviting support for a proscribed organisation”,

under Section 12 of the 2000 Act; wearing the uniform of or displaying an article associated with a proscribed organisation, under Section 13 of the 2000 Act; collection of information useful to a terrorist, under Section 58 of the 2000 Act;

“publishing information about members of the armed forces etc”,

under Section 58A of the 2000 Act; encouragement of terrorism, under Section 1 of the 2006 Act; dissemination of terrorist publications, under Section 2 of the 2006 Act; and,

“attendance at a place used for terrorist training”,

under Section 8 of the 2006 Act. Clause 9 also applies an eight-year maximum extended licence period for terrorism offences. This is an increase from the five-year maximum available for violent offences but is now in line with the eight-year maximum period for sexual offences.

In summary, for extended determinate sentences, Clause 9 creates a new specific list of applicable terrorism offences, adds new terrorism offences to that list, and increases the maximum extended licence period from five to eight years.

For the sentences of particular concern, Clause 9 adds the same eight additional terrorism offences to the list in Schedule 18A to the 2003 Act, meaning that the court, if it does not impose an extended determinate sentence, must impose a sentence for an offender of particular concern.

Counter-Terrorism and Border Security Bill

Earl Howe Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 29th October 2018 Lords Chamber

[Baroness Hamwee (LD)]

Perhaps I can ask both the noble Lord and the Minister a question: first, one to the Minister. Is the requirement for proof found in any other provision for reasonable excuse? I have been looking during the past few minutes; I could not find an example, but I did not get my iPad out to start reading through the whole of the Terrorism Act.

Secondly, I see the attraction of the term “state”. On who has to show what and in what order, we have been referred to Section 118 of the Terrorism Act. The terminology of that is “adducing evidence”. I am not sure whether the term “state” used by the noble Lord, Lord Rosser, is intended to be the equivalent of “adduce evidence”.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, as we have discussed, the offence of entering or remaining in a designated area, which would be inserted as a new Section 58B of the Terrorism Act 2000 by Clause 4, is subject to a reasonable excuse defence. We have already debated the circumstances which might give rise to a reasonable excuse and how these should be catered for within the Bill.

Amendment 18 addresses a different aspect of that provision: the question of how much the evidence is required to establish a defence to the new offence. Related to this is the question of whom the evidential burden is placed on. Section 118 of the 2000 Act sets out how the evidential burden applies to a number of defences to criminal offences within the 2000 Act, including the new designated area offence.

The noble Lord, Lord Rosser, is concerned that the current drafting of new Section 58B(2), which contains the defence to the designated area offence, is out of step with the existing provision in Section 118 of the 2000 Act and will place a greater burden on defendants to make out a reasonable excuse than is envisaged by Section 118.

I understand and respect the noble Lord’s wish to ensure that defendants facing a charge under Section 58B are not placed in a worse position than those charged under other offences with a similar reasonable excuse defence. However, I hope that I can allay that concern and provide a clear assurance that this will not be the case if I explain how Section 118 interacts with the defence to the new Section 58B offence.

The wording used in the defence, which refers to a defendant proving that he or she had a reasonable excuse, is the exact same formulation used elsewhere in various defences to offences contained in the 2000 Act, including the defence to the Section 58 offence amended by Clause 3. It is vital to recognise that this reference in the defence to “prove” should not be read on its own; rather it is subject to the operation of Section 118, which makes further provision on what is required to prove a defence in this context.

Specifically, Section 118 provides that if a defendant,

“adduces evidence which is sufficient to raise an issue with respect to the matter”—

the matter that has to be proved under the wording of the defence—

“the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.

This, together with relevant case law, has the effect that if a defendant puts forward sufficient evidence to reasonably support a suggestion that he or she has a reasonable excuse, then the burden of proof shifts to the prosecution to disprove that defence, which it must do to the normal criminal standard—beyond reasonable doubt. If the prosecution fails to do so, then the jury must assume that the defence is made out.

The precise extent and nature of evidence required on the part of the defendant to invoke the defence in the first instance will be a matter for juries to determine in individual cases. Parliament has set a threshold which is not particularly high; all that is needed is,

“evidence which is sufficient to raise an issue with respect to the matter”.

In practice, a trial judge would be cautious to rule out any proposed defence unless it was plainly incapable of being judged by a jury as a reasonable one. In relation to new Section 58B(2), the evidential burden placed on the defendant will not be any greater than that required in relation to any of the other offences to which Section 118 applies. Furthermore, were Section 118 to continue to apply to new Section 58B(2), the amendment would have no impact in practice. Whether new Section 58B(2) refers to the defendant stating or proving the defence, under Section 118, it will still be for the jury to decide whether the prosecution has disproved the defence beyond reasonable doubt.

[Lord Judge (CB)]

I am extremely troubled by the idea that new Section 58B(2) should have a different form of wording from Section 118. It is a recipe for chaos in the court. Can we not simply address the amendment, take out “prove” and use the words in Section 118?

[Earl Howe]

I am grateful to the noble and learned Lord. I was seeking to make the point that we must not diverge from the wording used originally, otherwise it would cause confusion.

[Lord Judge]

That is exactly how it reads. Any judge looking at this will say, “Good heavens, here is a situation in which, under the counterterrorism Act, the defendant has to prove his defence—not adduce evidence so that the matter can be raised for the prosecution to disprove”. When I read this I thought it must be a typing error, but I knew that that could not be the case.

[Earl Howe]

My Lords, as the noble and learned Lord, Lord Judge, has raised this, I cannot ignore what he has said. If he will allow, after this Committee stage, I will take advice and be in touch with him.

[Earl Attlee (Con)]

My Lords, did not my noble friend the Minister state that other similar offences were drafted in the same way?

[Earl Howe]

My Lords, my noble friend is quite right. “Prove” is used in some six other sections of the 2000 Act, including Sections 57, 58 and 58A, so it is not inconsistent with the generality. However, as the noble and learned Lord has picked this out, I can do no other than to take the point very seriously, and I undertake to do so. If he will suspend his scepticism for a moment, I want to make the point that, in addition to creating an inconsistency between the designated area offence and others with a similar reasonable excuse defence, this would also unsettle a well-established legal position with which the courts and prosecutors are very familiar, and on which there is clear case law.

I very much hope that, on this basis, the noble Lord will be content to withdraw his amendment, subject to the undertaking that I have just given.

[Baroness Hamwee]

Before the noble Lord responds, I am not sure whether I heard the Minister correctly. It sounded as if he said that the requirement for proof elsewhere was proof on behalf of the prosecution. I may well have misheard him, but I am making the point now because that would not be an answer to this point, which is about proof by the defendant.

[Earl Howe]

My Lords, if I misspoke or misread, I apologise. I was seeking to say that, as long as a defendant puts forward sufficient evidence to reasonably support whatever suggestion he is making—that he has a reasonable excuse—then the burden of proof shifts to the prosecution to disprove that to the criminal standard.

--- Later in debate ---

[Lord Judge]

I agree and have nothing to add.

[Earl Howe]

My Lords, as the noble Lord, Lord Anderson, has helpfully explained, these amendments relate to the legal test for designating an area under Clause 4. That test currently requires that it be necessary for purposes connected with protecting the public from a risk of terrorism to restrict UK nationals or residents from entering or remaining in the area. The noble Lord’s amendments would add a second limb to this test, which would require that a proscribed terrorist organisation is engaging in armed conflict within the area to be designated.

It is clear from the noble Lord’s explanation that the purpose of these amendments is to help ensure that designations are proportionate and that they are made only in circumstances where they are genuinely necessary. As the noble Lord has explained, they would more closely follow the approach taken in Australian and Danish law, where those countries have established similar powers.

I completely understand the sentiment and the intention behind these amendments. Nevertheless, I respectfully disagree that they are necessary to secure this outcome. I also do not consider that the UK is bound to follow the approach taken by other countries, which may have different legal frameworks and may be facing different configurations of terrorist threat, rather than seeking the approach that works best for us. As your Lordships would expect, when drafting Clause 4, we looked carefully at the approaches taken by Australia and Denmark, including the legal test for designating an area. We have concluded that the right approach for the UK, and the one that would provide the greatest flexibility while still providing a proper safeguard for proportionality, is the one currently set out in the Bill.

We have no doubt that in most cases in which it might be appropriate to designate an area in future, it is likely that a proscribed organisation will be engaging in armed conflict. Certainly, that has been the experience with the Syrian conflict, which is the closest analogy we have for the type of scenario in which we might wish to use the power. However, we are keen to ensure that the power is sufficiently flexible to be used in currently unforeseen future scenarios.

It is plausible that in the future, there could be an armed conflict or some other situation in an area which gives rise to a clear terrorism-related risk, on the basis of which it is appropriate to restrict travel by UK nationals or residents, but in which a proscribed terrorist organisation is not currently involved. This might be because a grouping of terrorists operating in the area cannot clearly be defined as an organisation. Or it might be because the situation has evolved rapidly—perhaps with an organisation emerging and quickly becoming involved in fighting—and it is necessary to restrict travel urgently before it has been possible to proscribe the organisation. It is also plausible that we may know from sensitive intelligence about the involvement of a specific proscribed organisation in a conflict, but as such intelligence cannot be revealed in public, it may not be possible to prove the organisation’s involvement on open material alone.

As the noble Lord will be aware, regulations designating an area are subject to the made affirmative procedure. As such, Home Office Ministers will need to come to Parliament to explain the basis for the designation, and it would then be for both Houses to decide whether to approve the regulations based on that explanation. In this regard, I note the recommendation by the Delegated Powers Committee that the Home Secretary should be required to lay before Parliament a Statement setting out the reasons why he considers that the condition for designation is met in the case at hand. We are ready to give that recommendation sympathetic consideration ahead of Report.

Given the considerations I have outlined, and the clear and robust necessity test that is already contained within Clause 4, I hope the noble Lord will be persuaded to withdraw his amendment, at least for the time being.

[Lord Anderson of Ipswich]

I thank the Minister for his thoughtful response. It made me wish that we had had a full consultation on this novel offence prior to the introduction of the Bill, or at the very least that we had not seen it introduced to the Bill at such a late stage. However, we are where we are. I concede nothing but will consider carefully what the Minister has said.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I support Amendments 26 and 27 in the names of the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Judge. The rigour that these amendments bring is similar to that in the amendments that the noble Lord will attempt to introduce when we get to proscribed organisations. It seems something that he feels, from his experience as a former reviewer of terrorism legislation, is very much lacking.

Amendment 29 appears to be perhaps a way of getting round the problem of there being intelligence that cannot be put into the public domain around decisions made in connection with this clause, in that the Intelligence and Security Committee of Parliament has the necessary clearance to review that evidence. Perhaps the noble Earl could comment on that.

[Earl Howe]

My Lords, Amendments 26 and 27 would add to the existing requirement in the Bill that the Secretary of State keep under review any designation made under Clause 4 and revoke it if the legal test for designation is no longer met in respect of it. As the noble Lord, Lord Anderson, explained, they would specify that such reviews must take place on an annual basis and would prescribe the options open to the Secretary of State when conducting such a review, as well as requiring the outcome of the review to be published.

I should start by saying that I am in full agreement with the principle that any designation under Clause 4 should not be indefinite, that it should be kept under review and that it should be revoked as soon as it is no longer necessary.

In saying that, perhaps I can take the opportunity to correct something stated by my noble friend Lady Williams when she said earlier that the list of proscribed organisations is subject to regular review. This was an inadvertent slip by my noble friend, for which, on her behalf, I apologise. I understand that she has already approached noble Lords privately to make that correction, but I do so on the record.

Where I depart from the noble Lord’s views, much as I respect them, is that I believe the current drafting of the Bill is the most effective way of delivering the objective. In particular, I cannot agree that a rigid requirement for an annual review is needed or is appropriate. I say that, first, because the type of situation in which this power is expected to be used may be fluid and rapidly evolving, but it may equally be one where there is an obvious and enduring threat. In the former case, an agile review, more frequent than once a year, may be appropriate—I accept that the amendment would not preclude this. In the latter case, an annual review may simply be unnecessary, and may be a poor use of the time and resources of those in government and the security and intelligence agencies tasked with protecting us from the terrorist threat.

I note in this regard that the Australian legislation sunsets a designation after three years, but with the option of an area being redesignated. If we were to go down this road—as the noble Lord, Lord Rosser, seeks to do with his Amendment 28—three years strikes me as more appropriate in this context compared with the annual review provided for in these amendments. Once again I have in mind the Syrian example, where the nature and extent of the threat, and the involvement and intent of UK nationals and residents, is self-evident and has indeed been proactively publicised by its protagonists over an extended period of time.

However, secondly, I say this because, regardless of its frequency, a formal review process at a fixed point is not likely to be appropriate. In all cases where the level of terrorist threat is so high that it is appropriate to designate an area under Clause 4, as your Lordships would expect, the Government and the security and intelligence agencies will keep the situation in that area under extremely close and continuous review.

This will be a comprehensive ongoing assessment across the full spectrum of government. It will involve consideration and ongoing review of every aspect of the Government’s response to the situation, including their use of legal powers and any designation under Clause 4. In reality, this is a closer and more effective consideration than that envisaged by the amendments of the noble Lord, Lord Anderson. It will enable the Government readily to identify if the situation on the ground has changed such that the legal test for designating the area is no longer met, and to take prompt action should this be the case.

I remain to be persuaded that the more elaborate annual process provided for in these amendments would serve the public interest, or would be an effective use of resources, or would lead to any more rigorous or effective a review of whether a designation remains necessary. As I have indicated, I can see more merit in a backstop three-year sunset clause with the option of redesignation. I am ready to consider this option further ahead of Report.

Amendment 29 would require that before a Motion to Approve any designation regulations may be tabled, the regulations must have been reviewed by the Intelligence and Security Committee, and the committee must have laid before both Houses a report providing a recommendation on whether the regulations should be approved.

I recognise and appreciate the constructive spirit in which this amendment is intended and I am happy to make clear that I share the view that Parliament should have as well informed a debate as possible on any regulations made under this power. However, I am not persuaded that involving the Intelligence and Security Committee in this way is the right approach or would be an appropriate extension of the committee’s role, which is what it would amount to. The Intelligence and Security Committee has a specific statutory remit under Section 2 of the Justice and Security Act 2013, which focuses on the administration and operation of the intelligence agencies. This is extended to certain aspects of the Government’s activities in relation to intelligence or security matters by means of a memorandum of understanding agreed under Section 2(2) of the 2013 Act.

Section 2(3) of the 2013 Act specifically excludes from the committee’s remit any matter that is,

“part of any ongoing intelligence or security operation”.

This clearly and intentionally establishes the committee’s role as one of retrospective oversight and review—not one of real-time authorisation, approval or review of operational decisions or the use of powers.

This reflects the long-standing principle that national security and the exercise of executive powers in this area is a matter for the Government of the day. There should of course be effective and robust oversight of decisions the Government have made—including, where appropriate, by the Intelligence and Security Committee and, in the case of this power, through debates in Parliament on any regulations designating an area, as well as by the Independent Reviewer of Terrorism Legislation. However, that is of a very different nature from the role proposed for the Intelligence and Security Committee in this amendment, which would be a significant extension of the committee’s role. I do not know if it is one that the committee would necessarily welcome, and it is not one that the Government consider appropriate.

Setting aside more fundamental questions of principle, I can see the amendment also giving rise to difficult practical issues—for example, around the speed with which the committee would need to prepare reports given the need for regulations to be approved within 40 sitting days; and around the extent of redactions that might be needed in such reports to protect sensitive intelligence, which might have informed the committee’s considerations but which could not be shared more widely to inform the consideration by Parliament.

I am, however, happy to give a clear assurance that the Government will always provide Parliament with as much information as possible about the reasons why any designation under Clause 4 is necessary. This will, of course, be constrained to some extent by the need to protect sensitive intelligence which cannot be revealed in public. However we recognise that this does not mean that Parliament will simply take on trust that a designation is necessary. We will always need to make a clear case for it.

I hope these arguments have reassured noble Lords that the current drafting of the Bill will deliver the outcomes they seek. I hope too that the Committee will take comfort from the fact that we will consider further Amendment 28. In the meantime, I ask the noble Lord, Lord Anderson, to withdraw his amendment.

[Lord Anderson of Ipswich]

I thank the Minister for his very courteous response. I also thank the noble Baroness, Lady Williams, for her welcome and frank correction. I think we are now agreed that the former practice of annual review of proscribed organisations conducted by the Home Office was discontinued in 2013-14. I am not aware of such a practice ever being adopted by the Northern Ireland Office—but we may come to that in due course.

I thought the Minister might respond to my amendment by suggesting it unthinkable in practice that reviews of area designations would be any less frequent than once a year. He made the point, with which I agree entirely, that one sometimes has to be quite agile. Indeed, my amendment was consistent with reviews taking place, where necessary, on a more than annual basis. With respect, I found it harder to agree with the Minister where he referred to the type of enduring threat which I think he was saying might justify a review as seldom as once every three years. This is a very heavy new power, unprecedented as far as I know in our history, whereby British citizens are simply prohibited from traveling to certain parts of the world. I ask the Minister to consider whether it can really be the case either that no timed review of this power should be required or that, if a time is to be affixed to it, it should be an interval as great as every three years. That seems a very long time for these important rights of travel to be withheld. I hope that I do not sound discourteous, but the Minister will understand that I still have concerns. None the less, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Stunell (LD)]

I should like to add to the remarks of my noble friend Lady Hamwee by making two points. First, if one looks at the current situation in Syria, there are clearly many women there who do not have the freedom to leave. Will they have committed an offence simply by virtue of being held as virtual or real captives? These are aspects which need to be looked at quite seriously.

I want also to make the darker point that, at the moment, we are focusing on the Middle East and terrorism as we appreciate it there. However, if this legislation had been in force in 1936 or 1937, I wonder what would have been the realpolitik of designated areas within Spain. We need to understand that legislation passed for one reason can sometimes be adapted and used in a completely unforeseen way or, as I am perhaps suggesting, in a foreseeable way. I would like to hear what the noble Earl might have to say about these two points.

[Earl Howe]

My Lords, it is probably best if I write to the noble Baroness in response to her specific questions. The broad answer is that we have thought of the practicalities. As regards informing people who are already in the designated area that it has been designated and that they therefore have 28 days to leave, there would be FCO travel advice that would almost certainly have pre-existed the designation. The regulations would be given significant publicity, including as part of the requested debate of the designation regulations. There would be a notice on the government website and we would consider other methods of publicity depending on the area being designated.

On the question of the noble Lord, Lord Stunell, about innocent people who have already been caught up in events and the situation within a designated area, the reasonable excuse defence would kick in. As we said in our earlier debates, where it is perfectly obvious that someone is in a designated area for an innocent reason, it is almost unthinkable that the authorities would spend time trying to make a case against them. Their reasonable excuse would be advanced and the circumstances of the case, if they are innocent, would be obvious from the outset. As I have said, we have had the reasonable excuse defence in place for 18 years and, as far as I am aware, there have been no instances of innocent people being arrested or convicted.

That is as far as I can go at the moment, although I am conscious that I have not completely covered the issues raised. However, I will write and copy my letter to all noble Lords who have taken part in this debate.

[Baroness Hamwee]

My Lords, when the Minister writes, could he confirm that the “one month” in new Section 58B(3)(b) is 28 days? He said 28 days; the wording is “one month”. I am sure somewhere we are told whether it is a calendar month or 28 days, but perhaps he could let us know.

[Earl Howe]

I must correct myself. I did not mean a lunar month; I meant a calendar month.

[Baroness Hamwee]

So it could be different depending on the month.

Trident

Earl Howe Excerpts

Thursday 25th October 2018 Lords Chamber

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, Her Majesty’s Government remain committed to maintaining a minimum credible nuclear deterrent and continuing with the programme for our new ballistic missile submarines. The first responsibility of government is the protection and defence of the United Kingdom and its citizens. Economic pressure is not sufficient rationale for taking long-term risks with our national security far into the future. Like any organisation, the Ministry of Defence assigns funds to those activities which are the highest priority.

[Baroness Miller of Chilthorne Domer (LD)]

I thank the Minister for his reply. I am sure he is as worried as many of his colleagues by the Public Accounts Committee report which found that the nuclear deterrent is an enterprise that is already unaffordable. If this spend were making the UK, Europe and the world safer, it might be worthwhile—but it is quite clear that halting a renewed nuclear arms race, binding treaties and multilateral disarmament are the only ways to achieve that safer world. Given that the UK boycotted the UN talks and the Treaty on the Prohibition of Nuclear Weapons, can the Minister tell the House just how the Government intend to set an example, as a nuclear weapon state, in making a success of the forthcoming round of the nuclear non-proliferation treaty, and what steps they have already taken to ensure that positive progress towards disarmament will be achieved?

[Earl Howe]

My Lords, the unpredictable security environment we face today demands, in the very firm view of the Government, the maintenance of our nuclear deterrent for the foreseeable future. However, the Government are committed to a world without nuclear weapons, and we firmly believe that the best way to achieve that goal is through gradual, multilateral disarmament, negotiated using a step-by-step approach within the framework of the nuclear non-proliferation treaty. We have tried over the years to lead by example. Our nuclear warhead stock has been much reduced, as the noble Baroness is aware, and we will do our best to discuss and negotiate, with our partners, the best way to proceed from this point.

[Lord Craig of Radley (CB)]

My Lords, does the noble Earl agree that the credibility of the nuclear deterrent is very much dependent on a strong conventional capability? Are the Government satisfied that the conventional capability today is adequate?

[Earl Howe]

My Lords, that is precisely why the Government are conducting the modernising of defence programme: to ensure that our defence budget is directed towards the capabilities that we need to deal with the threats that face us.

[Lord West of Spithead (Lab)]

My Lords, the noble Earl is absolutely right. In the world environment we are in, it would be madness for us to give up our absolute minimum nuclear deterrent. We have set an example to everyone in the world. While I am delighted that £1 billion has been brought forward to speed up the programme, and that it came from central funds and not from MoD funds, in the context of modernising defence could we go back to what Labour had planned: namely, that the capital costs of nuclear submarines would come from the centre and not from defence funds, with the implications that has for the defence vote?

[Earl Howe]

My Lords, we think we can achieve the same objective under the current arrangements because, in addition to the £31 billion estimated capital cost of the programme, the Treasury has allocated a potential contingency of £10 billion on top of that. We think that it is prudent and have no reason to believe that we will use it to the fullest extent, but it gives an assurance that, over the 30-year timescale of this programme, sufficient flexibility should be built in.

[Lord Boyce (CB)]

My Lords, the BASIC report suggests in two or three places that the Government’s commitment to the continuous at-sea deterrent may no longer have the same priority that it did. Will the Minister acknowledge the remarkable achievement of nearly 50 years of unbroken continuous at-sea deterrence, which is ongoing, and repeat to the House his unequivocal assurance that CASD will still have the Government’s highest priority?

[Earl Howe]

I am happy to confirm to the noble and gallant Lord that that is the Government’s policy. We reaffirmed the continuous at-sea deterrent posture in the 2015 strategic defence and security review and, as he rightly says, we have had a nuclear armed submarine on patrol for every minute of every day for nearly 50 years, including during the transition between the Resolution and Vanguard classes.

[Lord Houghton of Richmond (CB)]

My Lords, I would never publicly question the utility to our defence of the nuclear deterrent, nor the carrier programme, nor the F-35 programme. But it is eminently clear to me that for several years now, the balance of the conventional forces has been used as the financial regulator in order to afford these programmes. Does the noble Earl not agree that, unless the whole of the defence programme is made affordable, we will be presented with decisions that so hollow out our conventional forces that the sense of affording the nuclear deterrent will be seriously questioned?

[Earl Howe]

My Lords, I understand the noble and gallant Lord’s point. There is a £31 billion budget for the Dreadnought programme and we are currently confident that that estimate is robust. It is quite separate and distinct from other procurement budgets. We do not consider that it impacts upon them adversely—but we are conscious of the risks that he articulates.

[Lord Tunnicliffe (Lab)]

My Lords, the BASIC report says that the Infrastructure and Projects Authority, which rates government projects,

“has rated Dreadnought Amber/Red, meaning that the IPA assesses that: ‘Successful delivery of the project is in doubt, with major risks or issues apparent in a number of key areas’”.

It goes on to say:

“Worse, the linked Core Production programme, which will produce a new submarine reactor core production facility … is the … only Red rated project”,


in the Ministry of Defence. Given this sorry state of affairs, what faith can we have in anything the MoD says about these programmes?

[Earl Howe]

My Lords, the amber/red rating for the Dreadnought programme in 2016-17 recognised that the programme was unaffordable at that time against the required profile, and that there were significant risks in the design-to-build transition. Since 2016-17, funding has been approved for the second delivery phase, the design has matured and governance has improved. The red rating for the core production capability reflects scope changes and associated delays and cost increases. We have to recognise that this is a very complex programme—probably the most complex engineering programme that any Government have undertaken—hence the caution in those risk ratings.