Extradition (Provisional Arrest) Bill [HL]

Lord Anderson of Ipswich Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 4th February 2020 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, the objective of the Bill is worthy and uncontroversial: to enable persons wanted in approved countries to be brought more efficiently into extradition proceedings, so as to reduce the prospect of absconding or further offending while they are in the UK. I entirely accept that, as the Minister said, it does not diminish the safeguards in the extradition proceedings themselves. However, the chosen mechanism is a new power of arrest without warrant. That is sufficiently unusual to require a little more reassurance than appears in the Explanatory Notes, helpful though they are, and I would be grateful if the Minister would comment now, or at any rate before Committee, on six gentle questions on this short Bill.

First, could the Minister explain why the existing powers of urgent arrest under Sections 73 and 74 of the Extradition Act 2003 before an extradition request has been submitted or certified are not considered sufficient? There may be a good reason but it needs to be made known. My understanding is that a request from the issuing state for the accused’s provisional arrest can already be the subject of a provisional warrant application by the CPS to the court—an application which, in urgent cases, can be made out of hours to the relevant duty judge, if necessary by email.

Secondly, does the Minister accept that the new procedure will itself take time? The NCA, as designated authority under the Bill, will have to review any extradition request and decide whether to certify it as creating a provisional arrest power. That may be a substantial exercise, given the need not to interfere arbitrarily with the rights of extradition subjects, even for 24 hours, the well-documented abuses of Interpol red notices, and the possibility that the list of category 2 territories may be substantially expanded in the future—to which I will return.

Thirdly, and staying on that subject, can the Minister tell us more about the nature of the triage process that the designated authority will conduct? In particular, will it be part of the NCA’s function to verify that extradition requests comply with the human rights requirements under Interpol’s constitution, and with any procedural or human rights requirements under the US-UK extradition treaty or its equivalents? Finally, the impact assessment states that the new policy is

“expected to result in 6 individuals entering”

the criminal justice system

“more quickly than would otherwise have been the case.”

It seems pretty plain that this Act of Parliament has not been constructed just for those six people, whoever they may turn out to be, and that the list of specified category 2 territories is likely to be significantly expanded.

Therefore, my fourth question is: the Minister spoke of trust, but what precisely are the criteria that will be applied by Ministers in determining to designate a new category 2 territory for new Schedule A1, and, in view of the potential for abuse identified by the noble and learned Lord, Judge, why are they not set out explicitly in the Bill? I remind your Lordships that category 2 territories include the likes of Russia, Turkey and Zimbabwe.

My fifth question: is it envisaged, as the noble Baroness, Lady Hamwee, thought, that the member states of the European Union, or some of them, will find their place in the schedule?

My sixth question: will reciprocal powers to those in the Bill be sought from the EU in negotiations for whatever will replace the European arrest warrant and, more broadly, can the Minister give any further indication of the type of replacement to which we aspire? Are we aiming to adapt the European arrest warrant itself, or the Norway-Iceland agreement with the EU, or are we looking for something of a different nature?

As the noble and learned Lord, Lord Brown, just said, many of us would greatly regret the loss of the European arrest warrant, which, since its political awakening in the weeks after 9/11, has exemplified both the effort required for meaningful co-operation in Europe and the enormous benefits to be derived from it. We can be particularly grateful to the noble Baroness, Lady Ludford, who will follow me, for her tireless work on improving it over the years.

Forebodings that any replacement will be inferior have already been borne out by the EU’s declaration of 31 January that Germany, Austria and Slovenia will not surrender their own nationals to the UK, even during the transition period. But Brexit has happened, its consequences must be faced, and we all share the same objective of ensuring that the best possible alternative is negotiated. I hope that the Minister will at least be able to tell us what we are aiming for.

[Lord Bethell (Con)]

My Lords, there is a technical problem with the clocks. We have moved to using the old-fashioned clocks, which we believe are still working. An engineer has been called and we hope to resolve the problem shortly.

Terrorism: Contest Strategy

Lord Anderson of Ipswich Excerpts

Monday 3rd February 2020 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, having met a number of family members of those killed in the Manchester Arena, and having admired the remarkable strength and dedication of Figen Murray in her various interviews and public statements, I hope that I can begin to understand the devastation that terrorism causes to its victims and to those who are left behind.

After the terrorist attacks of 2017, I worked intensively with MI5 and counterterrorism policing to assess proposed improvements to their intelligence-handling models. This debate illuminates another important aspect of the picture: the Protect strand of the Contest strategy, as it relates to the physical security of venues and crowded places.

The distinguished judge Lord Goff wrote in Smith v Littlewoods of

“the general perception that we ought not to be held responsible in law for the deliberate wrongdoing of others”.

None the less, the organiser of an event may be liable under the existing law of negligence or contract should he fail to take reasonable steps to keep reasonably safe a customer for whom he has assumed responsibility. Further obligations relating to security may flow from the Health and Safety at Work Act etc. 1974, or be imposed as conditions on venues requiring a licence or safety certificate. Is there a case for imposing on the owners and operators of venues additional statutory duties, more extensive than those I have outlined, to protect their customers from the risk of terrorist attack? I offer, if not a concluded answer, three slightly scattered thoughts.

First, as in so many areas, I counsel against legislation specifically directed at terrorism. Any review of the protective security to be required of events organisers needs to have regard to all threats posed by third parties. To that exercise, the motivation of the putative attacker is irrelevant. A racially motivated killing, a random shooting spree, a mentally ill arsonist or a gangland feud at an open-air concert may be just as potentially dangerous, and just as traumatic for the victims and their families, as a terrorist attack.

Secondly, we must retain a balance. While the promoters of Martyn’s law correctly emphasise advice, training and planning, a requirement for new infrastructure and equipment seems also to be an important part of their ambition to “mitigate any vulnerability”, if I may quote from the title of the Bill introduced by the noble Lord, Lord Harris, this afternoon. In its document Martyn’s Law, the group Survivors Against Terror says:

“Things like metal detectors, CCTV cameras and security personnel are available within the reasonable cost of any business’s running cost.”


We are used to arches and metal detectors when entering the Home Office or the courts, but not, thankfully, the local cinema, town centre café or parish church. The Home Office estimates that more than 625,000 organisations operate at least one crowded place in the UK. Figen Murray is right to say that any plan must be relevant to the threat; it must also be proportionate to the threat. The strongest of reasons is required for new obligations that may impinge on stretched budgets, increase the cost of public liability insurance and frighten public-spirited persons from organising events.

In that connection, it is important to be clear-headed about the threat. Any death from terrorism is one too many but thankfully, and contrary to some predictions, terrorism over the past 20 years has killed fewer than 100 innocent people in Great Britain. Furthermore, notwithstanding the horrific slaughter of young people at the Manchester Arena and Fishmongers’ Hall more recently, the great majority of these deaths—from 7/7 to Woolwich, Borough Market and Finsbury Park—have been on public transport or the streets of London. Knowing the risks, we still prize the ability to run for a train or hop on a bus without submitting to any check or scrutiny. That is not the case everywhere in the world. It is an index of our freedom and a fitting response to the pathetic bigots who seek to change our way of life. We need to reflect long and hard before requiring checks at venues that are not required on public transport, particularly small and medium-sized venues where there is no specific threat.

My third and final point may seem off-topic at first, so please bear with me. It is addressed to those in this country and elsewhere who for sincere, but I think misguided, reasons would deprive the security services of the surveillance capabilities—subject as they are, and must be, to strong independent oversight—that derive from the targeted interrogation of data collected in bulk. I have noted in a number of reports the value of targeted data exploitation and other automated techniques, both for warning our security services of emerging threats from leads and from live and closed subjects of interest, and for enabling them to set tripwires that will notify a re-emerging threat. The use of such techniques identified the Manchester bomber in 2017 as one of the more than 20,000 former MI5 subjects of interest who posed the highest risk to the public. Tragically, the meeting that would have discussed his case had been fixed for 31 May, nine days after the attack.

The utility of the approach is clear. Faster and more sophisticated uses of artificial intelligence and behavioural analytics to extract information from bulk datasets are now being developed, as I reported in June 2019, sometimes in collaboration with the private sector. That might all seem a long way from Martyn’s law, but in reality it is the other side of the same coin. The better the information we have from covert surveillance, the more accurate will be our threat assessment and the easier it will be to resist calls to flood the streets with soldiers or routinely screen the users of transport, bars, venues and hotels. Whenever I spend time in countries like that, I am always glad to get home.

Complacency is not in order. I do not exclude the need to require scaled-up physical protection where there is insufficient inclination to provide it and where the threat, whether from terrorism or knife crime, is at its most severe. I look forward to reading the Bill introduced by the noble Lord, Lord Harris, and to hearing more about the measures that the Government will propose. But we have not yet forgotten, as the terrorists would like us to do, what a free country looks like and feels like, and I hope we never will.

--- Later in debate ---

[Lord Stunell]

I think that the point is that, if it contains relevant information, we should have it in preparation for the legislation that is due to be brought forward in 70 days.

[Lord Anderson of Ipswich]

If I have remembered the legislation correctly, it requires the report to be published on receipt. If it was received in October, why has it still not been published?

[Baroness Williams of Trafford]

I am suitably chastised; I shall go back, ask that question and update both noble Lords in writing. On the independent review of Prevent, I take this opportunity to thank the noble Lord, Lord Carlile, who is very modest about his knowledge of Prevent. I understand that the next steps are being considered, but I take the point that there is an end date to this. The Government intend to look at options for taking this work forward.

The noble Lord, Lord Harris, and the right reverend Prelate the Bishop of Southwark, asked about places of worship. The Government, of course, funded security training for mosques during Ramadan in 2019. We have committed to a fifth year of the Places of Worship Protective Security Funding Scheme and we are developing security training for places of worship of all faiths. We will also open a funding consultation on what more can, and should, be done to protect faith communities.

The noble Lord, Lord Harris, asked about schools. Through the Counter-Terrorism and Security Act 2015, we introduced the Prevent statutory duty, which requires local authorities, schools, colleges, universities, health bodies, prisons and probation services, as part of their day-to-day work, to prevent people being drawn into terrorism. We keep the guidance issued to organisations on this duty under review to ensure that it is fit for purpose in this changing world.

Facial Recognition Technology

Lord Anderson of Ipswich Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Baroness Williams of Trafford]

I hate to differ on this with my noble friend, but e-gate technology is in fact superb at matching facial recognition to passports—in some cases, better than humans. However, the human eye in these things is of course not to be dismissed and it can detect all sorts of other things in terms of e-gates.

[Lord Anderson of Ipswich (CB)]

My Lords, the Surveillance Camera Commissioner reported in July that not only facial recognition but gait analysis, lip-reading technology, algorithms that can predict fights and sensors that can detect explosives and radiation are all in development and all linked to surveillance cameras. Given the enormous potential of those developments, both positive and negative, and the need for trust on the part of the public, will the Government commission an independent review, with clear parameters, into how, if at all, such investigatory powers should be used and how that use should be supervised in the public interest? Does she agree with the commissioner that there is a case for placing the oversight of all these powers with the existing Investigatory Powers Commissioner’s Office?

[Baroness Williams of Trafford]

I agree with the noble Lord that the emergence of these new technologies necessitates a very careful approach. The live facial recognition technology is currently being trialled rather than fully rolled out, so we need to be very careful about it. In terms of oversight, the Surveillance Camera Commissioner has provided guidance for the police. We have established an oversight board, and the police are bringing forward proposals for new trials. We are working with the police on the development of national operational guidance, which will capture the lessons learned, as well as best practice. However, the noble Lord is absolutely right: with all these new technologies, we need to tread with extreme care and balance their proportionate use with the interests of the public.

Intelligence and Security Committee of Parliament

Lord Anderson of Ipswich Excerpts

Monday 9th September 2019 Grand Committee

[Lord Anderson of Ipswich (CB)]

My Lords, I am grateful to the noble Marquess, Lord Lothian, not only for this debate and the fine speech we have just heard but for his Global Strategy Forum, at which I have learned so much. The debate is timely—indeed, it is overdue, considering that, according to Andrew Defty, an authority on intelligence oversight to whose research I am indebted, the House of Commons last debated the ISC in 2011 and the House of Lords in 2010.

The security and intelligence agencies are only peripherally relevant to the everyday work of the Independent Reviewer of Terrorism Legislation, in which capacity I had the privilege of serving for six years until 2017. However, from 2014 I was commissioned by the Government to conduct a number of extra reviews focused on the work of the SIAs. These include A Question of Trust, a comprehensive report on investigatory powers, the Bulk Powers Review, which assessed the operational case for bulk collection of data, and a quality assurance of the steps proposed by MI5 and Counter Terrorism Policing to improve intelligence-handling procedures after the terrorist attacks of 2017. In each of those assignments I drew on the work of the ISC and found its members and staff unfailingly helpful. I declare a further interest as a miniature oversight mechanism myself—the Investigatory Powers Commissioner for Guernsey and Jersey.

There are many reasons why effective oversight of security and intelligence agencies is needed, even when those organisations have a strong internal compliance culture, which is what really counts. Informed scrutiny can identify systemic errors and ingrained misconceptions, challenge groupthink and bring different perspectives to complex issues. At the political level, it can help formulate and scrutinise policy in relation to such delicate issues as 5G suppliers and offensive cyber. By pressing for, and indeed providing, an appropriate degree of transparency—perhaps in this field it should be called “translucency”—active and forward-looking oversight can promote informed public discussion of such controversial matters as the ethics of intelligence, the exercise of bulk powers, the efficacy and intrusiveness of current and future data-driven intelligence techniques and the impact of technologies such as blockchain and quantum computing. Such discussions should be conducted dispassionately on the basis of trustworthy information and assessments provided in good time. That is far preferable, not least for the agencies themselves, to what we saw in the aftermath of the Snowden revelations: stolen or leaked information prompting an emotional debate and a drop-off in co-operation, causing potential harm to national security.

More generally, detailed and unsparing scrutiny can serve to reassure an often suspicious public that the money and intrusive powers devoted to intelligence work are properly used. I refer not only to the British public—who are rightly conscious of our fine intelligence heritage and warm as instinctively to the history of Bletchley Park and Operation Double Cross as they do to the fables of James Bond—but to the international public. If the United Kingdom is successfully to defend before national or supranational courts its drone strikes, data sharing or covert interception of international cables, or indeed to secure the data adequacy determination from the EU that is likely to be required after Brexit, assurances from government are not enough; independent and hard-hitting assessments are called for.

The positive findings of such independent assessments were helpful to the Government in the recent Big Brother Watch judgment of the European Court of Human Rights on bulk collection of data by intelligence agencies. The United Kingdom was rewarded also for the massive exercise in transparency, independent approval of warrants and beefed-up oversight that was the Investigatory Powers Act 2016, when the UN’s Special Rapporteur on Privacy, Professor Joe Cannataci, opined last year after a fact-finding visit that, after what he called,

“significant recent improvement to privacy laws and mechanisms”,

the UK,

“is now co-leading with that tiny minority of EU states which have made a successful effort to update their legislative and oversight framework dealing with surveillance”,

and,

“can now justifiably reclaim its leadership role in Europe as well as globally”—

not bad from a UN rapporteur.

Parliamentary oversight of intelligence, which is now standard in most democracies, brings another important benefit: it ensures that the parliamentarians who conduct it, on the basis of access to highly classified material, are sufficiently versed in intelligence matters to understand the implications of proposals that come before Parliament, and thus to speak with authority on the issues under debate. Nor, I need hardly say, would the interests of the agencies in any way be served were we to see the appointment of compliant rather than critical overseers.

I spoke once to a Green Party member of the G10 Commission, the German parliamentary body responsible for the scrutiny of surveillance warrants. I have no doubt that his initial reservations, and the way in which he had overcome them when shown the evidence, had been helpful in influencing his colleagues and in formulating his party’s policy along practical and realistic lines.

Noble Lords will be pleased to hear that there is no time for me to address the form, mandate, membership, powers or resources of the ISC. However, it seems to me that, since the reforms of 2013 for which its then chair Sir Malcolm Rifkind fought so hard, the ISC has compared favourably in a number of these respects with its parliamentary counterparts elsewhere in the Five Eyes.

The ISC’s recent work has been, to my mind, generally impressive, both in itself and as an accompaniment to the other principal UK mechanisms for intelligence oversight: courts and tribunals, including, in particular, the specialist Investigatory Powers Tribunal, and the super-regulator and approval mechanism for warrants—IPCO—which is now assisted by a high-powered technology advisory panel, which has been given an energetic and successful start by the outgoing Investigatory Powers Commissioner, the appellate judge Sir Adrian Fulford.

The ISC has looked at subjects with strong policy elements to which a parliamentary body is particularly well suited: for example, in its privacy and security report and its current inquiry into national security issues relating to China. It has also displayed a forensically detailed approach, on a smaller canvas, in its reports into the intelligence relating to the murder of Lee Rigby, lethal drone strikes in Syria and the changes required after the 2017 attacks in London and Manchester. Not everyone will agree that a parliamentary body is best equipped for such close work. After all, even the international benchmark in this area, the 6,700-page American enquiry into CIA torture, was adopted in 2012 only after a vote on which members of the Senate Intelligence Committee divided largely on party lines.

The ISC has avoided such partisanship, so far as I know, but in other respects its wings have been clipped. Though there is much of value in the two detainee treatment and rendition reports of last year, the Government’s refusal to give it access to those who had been on the ground at the time prevented the ISC, in its own words, conducting an authoritative inquiry or producing a credible report. If the ISC is to be hobbled by such a restrictive interpretation of its powers—and I hope it is not—the case is strengthened for entrusting future reports of such a forensic nature to a serving or former judge, whether within IPCO or outside it, with the ISC concentrating its efforts on the policy-heavy subjects for which its political expertise gives it a comparative advantage.

I shall end with a few suggestions which I hope the Minister might be prepared to consider. First, something must be done to improve the speed with which new members are appointed. In the three years 2015 to 2017, a period much marked by terrorism in the UK, France and elsewhere, the ISC was not constituted for almost 12 months. This is plainly unacceptable. Secondly, the ISC’s reports should be published without delay and responded to fully by the Government. Delays in publication are said to have become worse in recent years, and the publication of responses to annual reports has been patchy. Thirdly, as I have already indicated, the ISC needs to be able to see any relevant document and to interview any relevant witness in closed session. As the noble Marquess, Lord Lothian, said that must include access to relevant ministerial advice.

Fourthly, the resources of IPCO could be more often requested and made available to supplement those of the ISC staff. Those resources include the reports of the expert technology advisory panel, which I understand is proving a most useful addition to IPCO’s armoury, and the services of IPCO’s expert inspectors who, among other things, know the agencies from the inside. Fifthly, the ISC should do more to invite genuine dialogue with civil society groups, as IPCO has done, for example, in relation to its work on the Consolidated Guidance. They should, after all, be on the same side when it comes to holding the intelligence agencies to account. People active in international NGOs in this area have told me that this is more evident when dealing with parliamentary committees in some other western European states than it is here.

Sixthly, oversight mechanisms such as the ISC and IPCO need the involvement of lively minds from outside the worlds of security and the Civil Service. The refusal of security clearance to such persons should be capable of appeal to the Security Vetting Appeals Panel, as it is when clearance is refused to a civil servant or a contractor. That is the best way of avoiding the real or apparent conflict of interest inherent in a potential overseer being refused clearance by the bodies which they are applying to oversee.

Seventhly, any legal or practical gaps in oversight, whether by the ISC, IPCO or others, need to be identified and remedied, not as an ad hoc response to litigation, as is so often the case, but on a considered basis. Candidates for consideration are: intelligence work abroad that does not need authorisation under Section 7 of the Intelligence Services Act and is not caught, for example, by the Fulford principles; enhanced use of machine learning, artificial intelligence and behavioural analytics, particularly when data is managed, as is increasingly the case, outside the SIAs’ own systems; and the use of overt surveillance and insufficiently regulated techniques such as facial recognition, gait recognition and lip-reading technology. Many of those techniques are of course used not just by the SIAs but by the police and others: oversight, similarly, should not be exercised in silos, and the remit of the relevant bodies should reflect this—as indeed is the case with IPCO.

Finally, the Public Administration and Constitutional Affairs Committee of the House of Commons recently recommended that Parliament’s committees should be given access where possible to the most relevant information that has informed the Government’s decisions about foreign affairs, military action and intelligence. This will also need consideration.

I hope that it is no longer the case, as according to the Snowden documents it once was, that intelligence officials could present it as a “selling point” to the National Security Agency that “We have a light oversight regime compared to the US”. Good progress has been made in recent years, by legislative advances in 2013 and 2016 and by the enhanced professionalism of oversight work. Few of us welcome our auditors with unalloyed pleasure, and, given the vital importance of the work that our intelligence personnel do, scrutiny should be no more resource-intensive than necessary. But, in my judgment, the SIAs are sincere when they tell me that the continued acceptance of what they do by the public, both here and abroad, depends on active, thorough and forward-looking oversight. I commend the ISC and our other oversight mechanisms for their first-class work and look forward to hearing any immediate reaction that the Minister may have to my suggestions for improving them further.

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank all noble Lords who have taken part in this debate, particularly my noble friend Lord Lothian for securing it. He and many noble Lords made the point that the committee has not had an opportunity to discuss this, and in my time as Home Office Minister, I have not had the opportunity to reply to the committee until now. I hope that, in the future, the committee requests more regular debates. I will certainly be happy to respond to them.

Before I proceed, I echo the comments of my noble friend Lord Lothian in praising the noble Lord, Lord Janvrin, and the work that he does, and the committee, which does the most incredible work. When I listened to some of the comments from the committee today, I felt quite humbled by the expertise we are so lucky to have in your Lordships’ House and the contributions that the committee has made. I also join noble Lords from the committee in thanking the right honourable Dominic Grieve QC for his leadership and direction of the work of the committee since 2015. Security and intelligence have featured heavily in public discourse over recent years, and it is to the credit of the chairman and the committee members that parliamentary oversight of the intelligence community has been so effectively maintained, even when the pace of events has been extraordinarily fast.

Noble Lords from the committee talked about its output since 2015 and managed to divvy up various contributions so that they were entirely different and focused on different aspects of the committee’s work. The committee has taken evidence on numerous occasions from Ministers and senior officials, conducted a number of inquiries and published several comprehensive reports on a variety of issues.

I shall take a moment to focus on some of the notable achievements of the committee. First, its report into the terrorist attacks in 2017, to which several members of the committee referred, was well researched with tangible recommendations that will help to improve the safety and security of our country. The Government’s official response to that report made clear that the police, the Security Service and the Home Office are all implementing improvements based on it.

Secondly, the committee’s reports into current and historic issues relating to detainees in the Afghanistan and Iraq conflicts were the result of several years of hard work by the committee and its staff. Those reports were extremely thorough and highlighted a number of important findings.

Thirdly, we must commend the committee’s efforts in looking into at how the intelligence community can become even more diverse and inclusive. It was interesting that a number of noble Lords made that point. Again, the report included useful recommendations that build on the significant work that the agencies have already done to make their organisations more diverse and inclusive places to work. The noble Lord, Lord Kennedy, rightly pointed out that inclusivity and diversity is not just a “nice to have”: it enhances the workforce at hand. I am very glad that the committee gave that issue equal standing with the other topics that it has examined.

Finally, the annual reports demonstrate the breadth of its remit and the wide-ranging nature of its oversight role. The conclusions and recommendations of those reports are always noted with interest by the Government and the agencies.

I have so far acknowledged the vital work that the Intelligence and Security Committee conducts to ensure that the UK’s oversight of its security and intelligence agencies is world-leading, but of course, like other noble Lords, I want to put on record the excellent work that the agencies do. As the noble Lord, Lord Janvrin, mentioned, their families support them in their work, and one must not underestimate the strain that that probably often puts them under.

I turn to the various points that noble Lords made, starting with the point made by my noble friend Lord Lothian and others on lethal drone strikes in Syria. A precision airstrike against a British citizen is one of the most difficult decisions a Government can take. However, if there is a direct threat to UK citizens, such as that posed by Reyaad Khan, this Government will always be prepared to act. In 2015, there was no alternative to a precision airstrike in Syria. There was no Government who the UK could work with and no military on the ground to detain Daesh operatives. There was also nothing to suggest that Rayeed Khan would desist from his desire to murder innocent people in the UK. The Government had no way to ensure that all of his planned attacks would not become murderous reality without taking direct action. As the then Prime Minister informed the House in September 2015, a rigorous decision-making process underpinned the airstrike. A direct and imminent threat was identified by the intelligence agencies and the National Security Council agreed that military action should be taken. The Attorney-General was consulted and was clear that there would be a clear legal basis for action in international law. An air strike was the only feasible means of effectively disrupting the attack planning, so it was necessary and proportionate for the individual self-defence of the UK. On that basis the Defence Secretary authorised the operation, which was conducted according to specific military rules of engagement that complied with international law and the principles of proportionality and necessity.

The ISC announced on 29 October 2015 that it would be,

“investigating the intelligence basis for the lethal strikes”.

The ISC was provided with all the relevant information in this respect, and we are very grateful to the committee for its work. The decision-making process was not part of the review’s remit, which meant that the committee was not provided with a number of documents, including what the ISC has referred to as the “key Ministerial submission”. More generally, I assure noble Lords that the Government take all ISC requests for information very seriously and respond in line with the memorandum of understanding between the Government and the committee.

My noble friend Lord Lothian, the noble Lord, Lord Anderson, and others talked about the detainees and the committee saying its inquiry was neither authoritative nor credible because of government restrictions. The Government and the agencies fully and willingly co-operated with the committee and the earlier Gibson inquiry. The Government provided all relevant documentary evidence to assist inquiries into this issue, including the committee’s. The committee had access to the Government’s material provided to the Gibson inquiry and the agency heads’ responses to the 27 themes issued by Sir Peter Gibson in his preliminary report. As the committee said, it took 50 hours of oral evidence, reviewed 40,000 original documents and devoted over 30,000 staff hours to its inquiry. The only sticking points were the committee’s request to interview junior staff and staff subject to ongoing legal proceedings.

The point about Russia has been well made, and we look forward to reading the committee’s report on Russia when it is published.

My noble friend Lord Lothian asked why the Prime Minister has not met the committee and whether it is a statutory requirement. The Prime Minister takes the work of the committee seriously and will provide evidence to it at an appropriate point in the future.

My noble friend also asked me about air strikes in Syria outlined in the 2017-18 annual report. All indications were that this was a chemical weapons attack, and we were and are clear about who was responsible. Both the Organisation for the Prohibition of Chemical Weapons’ interim report on the Douma attack and the UN commission of inquiry’s most recent report support the Government’s conclusion that a chemical weapons attack was carried out on Douma on 7 April. While we do not comment on specific targeting decisions, targets were selected on the basis of rigorous intelligence and were extensively examined and assessed to ensure that our objective was achieved while protecting civilian life.

The action we took has had a disruptive effect on the Syrian regime’s capabilities. There should be no doubt as to our resolve regarding any future use of chemical weapons. As the then Prime Minister said at the time:

“It is in our national interest to prevent the further use of chemical weapons in Syria”,—[Official Report, Commons, 16/4/18; col. 42.]


and we will continue to work with partners, including through the UN and other international organisations, to uphold and defend the global consensus that these weapons should not be used. The Syrian conflict has been one of the most destructive in recent human history, and we reacted with our largest-ever humanitarian response. Our priority now is for the war to end as quickly as possible through the UN-facilitated political process reaching a lasting settlement to the conflict that protects the rights of all Syrians.

I will move on to the comments of the noble Lord, Lord Anderson of Ipswich. The Government welcome the assurance that the noble Lord has provided in order to monitor the progress of the work of MI5, CT policing and the Home Office. As he highlighted, it is of great importance that MI5 and CT policing improvement programmes continue to be scrutinised. It should be noted that as part of the ongoing scrutiny, the Government are providing six and 12-month updates on a number of the recommendations in the committee’s recent report, The 2017 Attacks: What needs to change?

The noble Lord talked about the reconstitution of the committee and the speed, or lack thereof, with which appointments were made. As he will know, the Justice and Security Act 2013 devolved more of the appointments process to Parliament. Candidates for membership of the committee are nominated by the Prime Minister, after consultation with the leader of the Opposition, and Parliament then votes to appoint them.

The noble Lord talked also about the lack of speed in publications. The Government aim to publish our response to ISC reports within 60 days, as set out in the MoU, but I will defer to the noble Lord, Lord Paddick, who seems to think that one of them was not responded to. We aim to do so within 60 days.

The noble Lord, Lord Anderson, also referred to the IPCO, civil society and wider expertise. I thank him for his suggestions about IPCO resourcing, the involvement of civic society and the opening up to wider expertise. These suggestions will be considered by government.

On the same theme, the noble Lord, Lord Paddick, mentioned that the committee cannot sit during Prorogation, which is right. Both Prorogation and general election campaigns unfortunately do not provide for that process to continue.

I will move on to the comments from the noble Lord, Lord Janvrin. Rightly, his first point—

[Lord Anderson of Ipswich]

Before the Minister leaves those comments, I wonder might I press her a little further on a point that was raised a number of times. We have heard in this debate of no fewer than three reports—on drone strikes, a detainee inquiry and Parsons Green—in which the committee has not been allowed either to see relevant documents or to speak to relevant personnel. That seems to be something of a pattern. Could the Minister explain how the public can have the necessary confidence that we have comprehensive intelligence oversight when the overseer itself complains that it is not being given the tools it needs to do the job? What guarantees can we have that this situation will not recur in future ISC inquiries?

[Baroness Williams of Trafford]

As I said to noble Lords, we endeavour to respond within 60 days. There will be certain occasions when responses cannot be given for reasons possibly of national security, but where responses can be given, we endeavour to give them.

[Lord Anderson of Ipswich]

Is the Minister saying that there may be reasons of national security why information cannot be provided to the privy counsellors on the Intelligence and Security Committee to hold the intelligence agencies to account?

[Baroness Williams of Trafford]

I am saying—I will be corrected if I am wrong—that there may be occasions when it is not possible for that information to be provided. But, for the benefit of the noble Lord, Lord Anderson, I will go back and interrogate each event that he mentioned and confirm that in writing to the committee if that is the case—but I suspect that is the reason why sometimes documents cannot be provided. I know the noble Lord does not look happy about that.

Moving back to the point about diversity and inclusion, I said that better workforces are more diverse workforces, and the other point I wanted to make was about flexibility in working styles to allow for more inclusivity within the workforce.

The noble Lords, Lord Janvrin and Lord Ricketts, talked about 5G suppliers. The UK Government have recently conducted a comprehensive review to ensure the security and resilience of 5G in the UK. We published that review earlier this month. Our response to the review is based on evidence and a hard-headed assessment of the risks. We will never compromise security in our pursuit of economic prosperity. I think we can have both. I stress that no final decision has been made about Huawei. The US entity listing is a new and relevant factor for the findings of this review, with potential implications for the market as a whole. The Government will further consider the position regarding high-risk vendors and make a decision in due course.

The noble Lord, Lord Janvrin, referred to Prevent and the Abedi case. As with all the other issues relating to the 2017 terrorist attack, the Government have looked for lessons learned relating to the Prevent programme. Abedi was not referred to the Prevent programme following the closure of investigations into him in 2014 by MI5 or CT policing. The investigations were closed because he was thought to be an individual seen acting suspiciously with a subject of interest, but he turned out not to have been that individual and therefore was judged to be low risk. He was also not referred separately to Prevent as part of the operational improvement review. Investigators must now give thought to referring an individual to Prevent upon the closure of an investigation.

The noble Lord, Lord Ricketts, made a point about how Brexit might impact on intelligence sharing with our EU partners. We work exceptionally closely with our European counterparts on intelligence sharing, joint operational work and sharing experiences of the developing threat. National security is outside the EU purview, but the noble Lord made the point that when we leave the EU the whole dynamic will change.

The light is flashing. I hope that noble Lords will be content for me to continue for another minute.

The noble Lord, Lord Kennedy, asked why the purchase of chemicals used in the Manchester and Parsons Green attacks was not picked up and why it took an attack for the Government to realise that the suspicious activity reporting regime was out of date. Terrorists diversify their methods, including their methods of acquisition, and therefore our methods need to adapt over time to maintain that correct balance. Since the attacks we have refined our comprehensive strategy for preventing and detecting terrorists’ acquisition of explosives precursors to make our activities smarter and more efficient. The Government are actively working with retailers to design out the threat by substituting products with safer alternatives that cannot be used in an attack.

The noble Lord also made the point about the Manchester attacker visiting a known terrorist prisoner in prison and asked why that was allowed. All offenders of extremist or terrorist concern are managed actively as part of the comprehensive counterterrorism case management system. We are currently scoping work to strengthen controls around communications and visits for TACT and TACT-related offenders that could continue to pose a risk to the community irrespective of their prison security category. This process will be part of the wider review of all contact and transactions between people in the community and extremists in prison, and it will include addressing arrangements currently in place under the approved visitors scheme.

Finally, the noble Lord made a point about bots—about what is real news and what is fake news. I have to say that the past week has led me to wonder what is real in the world; so much is going on on Twitter. The noble Lord made an important point about elections because we need them to be based on what people have actually voted for rather than on what might have been influential over the internet. We have the Online Harms White Paper and will be doing further work on what appears on the internet, but the noble Lord makes a valid point in which I know that DCMS will also be very interested.

I thank noble Lords for their patience—the light has now been flashing for three minutes—and particularly my noble friend.

Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

Report: 2nd sitting (Hansard - continued): House of Lords & Report: 2nd sitting (Hansard): House of Lords
Monday 17th December 2018 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, this is an issue that we debated in Committee when an independent review of Prevent was called for. The Prevent programme introduced by the Labour Government in 2003 has undoubtedly done much valuable work. My moving of this amendment should in no way be seen as not recognising that fact. As when we last debated this issue, I pay tribute to all those who work to keep us safe, to divert people away from a life of terrorism and to support people who contribute positively to the community. We should all recognise the good work that has been done. I am not aware of any specific problems that give rise to concern, but that does not in itself negate the fact that it is good practice to review matters.

The amendment does not specify who should carry out the review. I would be happy for it to be placed under the remit of the Independent Reviewer of Terrorism Legislation. It seems preferable to do that rather than appoint another person to carry out the review. Prevent has not been the subject of an independent review; I very much believe that the programme would benefit from that sort of oversight.

Clearly, questions have been raised over the programme’s operation and effectiveness. Some are justified, but other criticisms have been stirred up deliberately to undermine the programme. I see my amendment calling for review not as seeking to undermine the good work that has been done but as a sound, sensible, careful look at an area of policy and a programme that deals with matters of the utmost concern to the country as a whole and to individual communities.

In addition to the review, my amendment calls for a report to be laid before Parliament within 18 months of the Bill becoming an Act, and for the Secretary of State to produce a statement to accompany the report. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, we should have pride in the achievements of the many excellent people who work locally in Prevent, and in the increased transparency that has been a notable feature of the past few years. I have in mind not only the helpful publication of statistics but recent initiatives such as the staging in the West Midlands of simulated Channel panel meetings through which outsiders have been brought in to witness the process of decision-making.

As the noble Lord, Lord West, has indicated, triumphalism about the successes of Prevent would be quite out of place. In its report last month, the Intelligence and Security Committee noted that the failure to pick up attack planning by the Parsons Green tube bomber, Ahmed Hassan, despite him having been an active Channel case, highlighted what the committee called,

“deep-rooted issues in the administration”,

of Prevent. Assistant Commissioner Neil Basu described Prevent in an interview this February, when he was senior national co-ordinator for counterterrorism, as “hugely controversial”. He went on to say:

“Prevent, at the moment, is owned by the Government, but I think it should be outside central government altogether ... Rather than the Government handing over a sum of money and then it becoming state-sponsored with accusations of demonising communities, it should be locally generated. We have gotten all of that messaging the wrong way around, it should be grassroots up”.


I mention this to encourage noble Lords to avoid complacency on this subject and because the Minister quite rightly expressed in Committee her strong respect for Mr Basu’s views. Perhaps it shows that the best of us are not monolithic in our views; with great respect to my noble friend Lord Carlile, that is true also of the noble Baroness, Lady Warsi, whose recent book is both nuanced and constructive in its approach.

The legitimate questions raised by Mr Basu could be multiplied: how should Prevent relate to other safeguarding mechanisms on the one hand and to the Government’s Counter-Extremism Strategy on the other? How robust are the mechanisms for measuring success? To what extent should concerns derived from Prevent contacts be shared with counterterrorism police and others? Decisions as to the future direction of Prevent are of course for Ministers. It was encouraging to hear from my noble friend Lord Carlile that the Prevent oversight board might be showing signs of renewed life. But independent review of the operation of Prevent by a security-cleared person, based on the widest possible engagement with those affected, could help to inform those decisions. It could also provide much-needed public reassurance about an initiative which is so hotly debated that it has been described as “5% of the budget and 85% of the conversation”.

As Mr Basu said in February:

“Government will not thank me for saying this, but an independent reviewer of Prevent … would be a healthy thing”.


I agree, and I hope your Lordships will too.

[Lord Carlile of Berriew]

My Lords, I do not disagree with much of what has been said by my noble friend Lord Anderson. However, I have some concerns about a proliferation of independent reviewers. My suggestion to the Government is that, if there is to be an independent review of Prevent, it should be done by the new Independent Reviewer of Terrorism Legislation who I understand is about to be appointed. After all, Prevent is part of the four-strand counterterrorism policy; it seems logical that the independent reviewer should be able to consider all strands of that policy. My only reservation would be if there were serious national security implications of any such review. That said, all independent reviewers have had to be “subtle and nuanced”, to adopt a phrase from my noble friend, about national security issues. This has been taken into account in the production of all reviews.

Of course I accept that Prevent is not a perfect policy. All policies can be improved, particularly in counterterrorism. If it would give greater confidence to the public, or rather—as I suspect the public are not too worried about this—if it would give greater confidence to those who spend a lot of time in the Palace of Westminster and the couple of square miles around it, then I see no disadvantage in an independent review being carried out by somebody already vetted and expert on counterterrorism policy as a whole.

--- Later in debate ---

Moved by

[Lord Anderson of Ipswich]

32A: After Clause 20, insert the following new Clause—
“Amendment to the criteria for proscription
For section 3(4) of the Terrorism Act 2000, substitute—“(4) The Secretary of State may exercise the power under subsection (3)(a) in respect of an organisation only if—(a) he or she is satisfied, on the balance of probabilities, that it is or has been concerned in terrorism; and(b) he or she reasonably believes that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for the organisation to be proscribed.(4A) For the purpose of subsection (4), the public includes the public of a country other than the United Kingdom.””

[Lord Anderson of Ipswich]

My Lords, the amendments in this group have their origins in a fact admitted by the Government, published in more than one of my reports as Independent Reviewer of Terrorism Legislation and, I am afraid, mentioned more than once to your Lordships: at least 14 of the 74 organisations proscribed under the Terrorism Act 2000, not including the 14 Northern Irish groups, are not concerned in terrorism and therefore do not meet the minimum statutory condition for proscription.

The question is: what do we do about that mismatch between law and practice? The pertinence of that question is greatly increased by the fact that a major theme of the Bill is to widen the scope, both substantive and geographical, of the proscription offences—membership, inviting support and so on.

Amendment 32B was designed to apply the law we have, by providing for an annual review of the activities of proscribed organisations—as happened routinely until four years ago—and the de-proscription of those lacking a statutory basis for continued listing. That principled course was chosen by Theresa May, as Home Secretary in 2013, when the irregularity was brought to her attention. With Amendment 32B, action on the conclusion of such reviews would be required by statute and could not be defeated by Foreign Office policy priorities, as was the case on that occasion, and indeed previous ones, judging from my noble friend Lady Manningham-Buller’s speech in Committee.

Since that seemed not to be enough, I tabled Amendment 32A in an attempt to make things easier. This would allow organisations to be proscribed if they are or have been concerned in terrorism, so long as the Secretary of State reasonably believes it necessary for purposes connected with protecting members of the public from a risk of terrorism.

That two-stage formulation is tried and tested. It was used in the Terrorist Asset-Freezing etc. Act 2010 and the Terrorism Prevention and Investigation Measures Act 2011. It would allow the continued proscription of groups which have a powerful history and terrorist brand, but in respect of which ongoing terrorist activity cannot be demonstrated. This could be particularly useful in Northern Ireland, where groups that have laid down their arms do not satisfy the current test but, depending on the Secretary of State’s assessment, could satisfy the new one. More fundamentally, it would have the merit of ensuring that the Government’s actions in relation to proscription are in accordance with the law; currently, they are not. This would be a useful example to set the rest of us.

I convey to the House the apologies of the noble and learned Lord, Lord Judge, who has had to leave his place and I beg to move.

[Lord Paddick (LD)]

My Lords, I rise to support the amendments in the name of the noble Lord, Lord Anderson of Ipswich, to which I have added my name. I really am intrigued to hear what the Minister will say about the fact raised by the noble Lord that at least 14 organisations still proscribed by the Government are not involved in terrorism and are therefore effectively proscribed illegally. The noble Lord’s amendments are designed to rectify that situation, requiring the Government to take action once a review has determined whether organisations currently proscribed should be proscribed or not.

It is not just a question of the organisations themselves; going back to previous measures in the Bill, anybody who supports these organisations could be convicted of a criminal offence, even though they are supporting an organisation that should not legally be proscribed. I am also very interested to hear from my colleagues on the Labour Front Bench why they would not support these amendments were the noble Lord to divide the House. We certainly would support him were he to test the opinion of the House.

[Lord Carlile of Berriew]

My Lords, the first thing to say is that organisations can apply to be de-proscribed; that should be on the record in this part of our debate. As I understand it, only one organisation has applied to be de-proscribed in recent years: the People’s Mujahedin of Iran. It was de-proscribed. The decision before the Proscribed Organisations Appeal Commission, or POAC, was contested on appeal by—

[Lord Anderson of Ipswich]

I did not mean to interrupt the noble Lord mid-sentence but, on a point of information, the Minister may like to confirm that at least two other organisations have applied to be de-proscribed: the International Sikh Youth Federation and the Red Hand Commando in Northern Ireland. De-proscription of the International Sikh Youth Federation was achieved when the Home Secretary failed to defend the legal proceedings. I know nothing about the progress of the application from the Red Hand Commando and it would be helpful if the Minister could enlighten us.

[Lord Carlile of Berriew]

I am very grateful to my noble friend, who is more up to date than I am. My understanding is that the only fully contested application was from the People’s Mujahedin of Iran, which won in front of POAC. The Government appealed and the Court of Appeal issued a judgment comprehensively disagreeing with the Government. The People’s Mujahedin of Iran—or the NCRI, which includes the PMOI—now functions openly throughout Europe, although its leader, Mrs Rajavi, is not allowed by the Home Office to enter the United Kingdom. My noble friend Lord Pannick and I remember this to our cost, because we were involved in a Supreme Court case on that very subject.

There is a method of seeking de-proscription. It is expensive and quite clunky, it has to be accepted. Secondly, I absolutely agree with my noble friend that there may be some organisations that have almost no membership, which do not have the resources to apply for de-proscription, and which individuals would not wish to expose themselves as being interested in by applying for de-proscription on their behalf.

However, there is another point I wanted to mention. This is a very subtle matter, particularly in Northern Ireland. It is very difficult to read the minds of some former paramilitaries, both big and small. For all we know, they may have reasons for wishing to remain proscribed. My concern about Amendments 32A and 32B relates to the wording of proposed new subsection (6A)(d), which requires the Government to “publish each such decision”. Having been involved from time to time in the area we are talking about, I believe that would potentially raise compromises for national security and undermine the stability of Northern Ireland, if that part of the amendment was required. That said, the addition of the words,

“that it is or has been concerned in terrorism”,

in Amendment 32A, which I understand from my noble friend was tabled in the last fortnight or so, provides some welcome clarity. I will give way, and then I will continue briefly.

--- Later in debate ---

I have set out the Government’s position at length on these issues. I have given a clear commitment today that the Government do not regard proscriptions as fixed, and that if the Government become aware of fresh information which casts serious doubt on whether proscription remains appropriate for a given group, this information will be given serious consideration. On that note, I hope that the noble Lord feels able to withdraw his amendment.

[Lord Anderson of Ipswich]

I am grateful to the noble Lords, Lord Paddick, Lord Carlile, and Lord Kennedy of Southwark, and the noble and learned Lord, Lord Garnier, for their interventions, and to the Minister for her response, although its content was disappointing. I will respond briefly to the principal points that she made.

The Minister undertook or indicated that, if it came to light through fresh information that a proscription was inappropriate, then it would be reviewed. She said a lot about balance, discretion and appropriateness, but this really is not the area we are in. We are in the area of a hard legal requirement only if an organisation is concerned in terrorism. Is there even any question of getting into that area of discretion, balance and appropriateness? What these amendments seek to address is the mismatch between what the law requires and what the Government do.

The Minister raised the prospect of organisations that might engage, disengage and then re-engage, and I am sympathetic to that. It is precisely the difficulty I was seeking to address with Amendment 32A. That is the one which, by making it a condition to be concerned or to have been concerned in terrorism, elides and removes that difficulty. I would think it was helpful in addressing the problem to which the Minister referred.

The Minister said that annual review is not needed to ensure justice. I say with great respect to her that the evidence during the past 15 years is that nothing else has a hope of ensuring justice. It is not enough to rely just on the ability to apply for deproscription, because, as we have all heard, very few organisations over those years have applied to be deproscribed and one can understand why. It is very expensive. The PMOI case to which the noble Lord, Lord Carlile, referred cost some £300,000—perhaps that is lawyers for you. Someone has to put their head above the parapet and say that they want to apply. Some organisations for their own reasons might not want to apply. In any event, what comfort is that to the individual who is disrupted or investigated by police for possibly being connected with a terrorist organisation and who would never have been the person who would have applied for deproscription?

The Minister insisted particularly on Northern Ireland, where, like my noble friend Lord Carlile, I have had the privilege of spending a good deal of time over recent years with the security services. Surely at the root of the Northern Ireland settlement is respect for the rule of law. Continuing to ignore the law, which is what the Government are doing and propose to continue to do, is no substitute for enforcing and, if necessary, changing it, as the amendments propose.

The injustice about the law as it applies is that it exposes people in Northern Ireland, Great Britain and, after Clause 6 becomes law, in other countries as well to a range of police and prosecutorial powers in relation to activities that Parliament never intended should be criminal. The names of the groups that do not meet the statutory condition for proscription are not known to me, and I very much doubt that a secret list of them has been provided to police or prosecutors in the United Kingdom or that such a list would be provided to police or prosecutors in other countries. In those circumstances, there can be no reassurance that the law will be properly applied in practice.

I would have liked to divide the House on these amendments, not least because they concern the whole insecure basis on which much of the Bill is constructed—I am thinking particularly of Clauses 1, 2 and 6—but having heard from the respective Front Benches, I suspect that that could be a futile exercise. I shall not press my amendments and hope that, as the noble Lord, Lord Kennedy, and the noble and learned Lord, Lord Garnier, have constructively suggested, they may find favour in another form or on another day.

Amendment 32A withdrawn.

Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

Monday 17th December 2018 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

34A: Schedule 3, page 38, line 41, leave out “hostile act” and insert “serious crime”

[Lord Anderson of Ipswich (CB)]

My Lords, Schedule 3 to the Bill will confer a bristling armoury of powers on ports police: the power to detain travellers for up to six hours; a requirement that questions be answered and passcodes surrendered, on pain of prosecution and possible imprisonment; powers to take samples and strip search; and the power to download and retain the entire contents of laptops and mobile phones. In Committee, I expressed unease at the prospect of some 1,400 ports officers up and down the country being entrusted with these powers and the right to use them without any need for suspicion for the purpose of determining whether members of the travelling public appear to be engaged in activity that, while reprehensible, is perfectly lawful.

At that stage, three examples were given of activity that was said to be detrimental to national security without amounting to serious crime. Each of them fell squarely within the scope of the Official Secrets Acts 1911 and 1920 and could thus have quite legitimately been the subject of questioning under a law formulated according to these amendments. I continue to believe that strong coercive powers of this nature should, as a matter of principle, be available only in the context of criminality and that the best way to address any deficit is by amendment or addition to our national security legislation. However, since Committee, two further examples have been put to me on which the Minister may choose to elaborate that suggest at least one respect in which our existing law is inadequate to protect against threats to our national security. So until that gap has been filled, a pragmatic case, I accept, has been advanced for extending the Schedule 3 power beyond serious crime.

Furthermore, government Amendment 34C has addressed the most obviously objectionable feature of the clause, and that is its unqualified recourse to the nebulous—if I may use that word—notion of threats to,

“the economic well-being of the United Kingdom”.

I understand that further assurances are to be offered in the draft code of practice that will be laid before this House after the passage of this Bill.

Finally, I take comfort from paragraph 62 of Schedule 3, which the Minister mentioned in the previous debate, which requires the Investigatory Powers Commissioner—currently Sir Adrian Fulford, a serving Lord Justice of the Court of Appeal—to keep under review the operation of the relevant provisions, and provides for the publication of the commissioner’s annual review. Annual reviews over the many years of the equivalent power under Schedule 7 to the Terrorism Act have given rise to a number of changes to the code of practice and to legislation, and have been extensively relied on in the courts.

Will the Minister confirm that the necessary additional resources will be made available to the Investigatory Powers Commissioner for the performance of that task by him and his office? Will she confirm that that will be the case even if the number of stops should turn out greatly to exceed the current estimate of 100 per year? She will remember that, according to figures—provided to me by the Metropolitan Police and published in December 2016—on the intelligence reports filed after Schedule 7 stops between 2009 and 2015, an annual total of between 5% and 8% related to counterespionage and between 8% and 17% related to counterproliferation. That was despite the fact that at that stage no specific power existed for questioning travellers in order to determine whether they were spies or proliferators. It would seem that quite large numbers of people who might have fallen within those categories were stopped and questioned. If remotely accurate, those figures are suggestive of the possibility that the Schedule 3 power could be used up to a few thousand times a year rather than merely several dozen. I appreciate that the Minister does not have a crystal ball, but the need for proper resource to report on this extremely sensitive power is clear and I hope that she will acknowledge that.

On that basis, I support government Amendment 34C and do not propose to press Amendments 34A, 34B or 34D. I beg to move.

[Lord Paddick]

My Lords, I added my name to the amendments in the name of the noble Lord, Lord Anderson of Ipswich. As he said, the Schedule 3 powers are considerable and can be exercised against someone even if the activity they are suspected of being engaged in does not amount to a serious crime. Therefore, we certainly feel that the amendments are valid. However, we accept that the noble Lord has received reassurances from the Government, which I hope the Minister will elaborate on in her response. Clearly, following the comments that we made from these Benches about actions that affect “the economic well-being of the United Kingdom”, the amendments tabled by the Minister provide reassurance on that particular issue.

--- Later in debate ---

[Lord Anderson of Ipswich]

I am grateful to the noble Baroness for what she has said, and in particular for the constructive and successful efforts that are being made to reduce the attack surface, if I may use the intelligence jargon, of these very broad powers. I beg leave to withdraw the amendment.

Amendment 34A withdrawn.

Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

Report stage (Hansard - continued): House of Lords
Monday 3rd December 2018 Lords Chamber

[Baroness Hamwee]

My Lords, Amendment 28 repeats an amendment I proposed in Committee on behalf of the JCHR, which gathered considerable support from the noble Lords, Lord Anderson, Lord Judd and Lord Pannick, and the noble Baroness, Lady Kennedy, as well as my Front Bench and the Labour Front Bench. The noble Lord, Lord Carlile, said that he was,

“not convinced that the Government have got the proportionality of this right”.— [Official Report, 31/10/18, col. 1409.]

That has encouraged me to raise the issue again.

This amendment is in connection with the search and entry provisions. It would provide that, rather than allowing search and entry to assess risk, it would be far more specifically to assess whether the subject of a warrant was in breach of the notification requirements applying to him.

The Minister said that the provision was proportional. The terminology used in Committee included “home visits” and the police “keeping in touch”, which sounds much gentler than a power to enter and search under a warrant. I talked about what the noble Lord, Lord Anderson, called the human element—the impact on an individual’s family—but, as other noble Lords pointed out, the impact is often much wider in such a situation.

We will consider the Prevent policy on the next day of Report and no doubt noble Lords will raise the importance of how a policy is perceived by the community affected. The infringement of the privacy of the individual and of the individual’s family, who I think are at risk of considerable distress, which is part of the Government’s proposals, is not just a matter of a lack of proportion. It also carries a significant risk of damaging, if not destroying, the trust of the community, which in turn impacts on everyone’s security.

I acknowledge that there has to be a warrant. I am sorry if this sounds cynical, but can we be confident that a magistrate will always ask for details of compliance or otherwise with the notification requirements on the part of the subject of a requested warrant? Will a magistrate ignore the police’s wish to go on a fishing expedition, if you like?

The Minister drew a comparison with registered sex offenders. As the noble Lord, Lord Anderson, is here, perhaps I should let him speak for himself if he wishes and intends to do so, having pursued this with Professor Clive Walker. I am looking to see whether he is going to because if not then I am going to quote Professor Walker—I am being told to go ahead. I am grateful to him for pursuing this matter. Professor Walker looked at the comparison with people on the sex offender register and distinguishes this situation from that one because of the additional ways of mitigating the risk where terrorist offenders are concerned. He also made the point that if he had realised what the provisions applying to sex offenders were, he would have been critical then. As he says,

“a bad precedent should not be used as a basis for more bad law … I still argue that it is unwarranted to treat terrorism offenders in this way in comparison to sex offenders because of the different designs now being applied to terrorism offenders … in terms of their periods of endurance and also possibilities of review”.

He refers particularly to the extent of the respective orders—currently scrutiny over identity, residence, travel— and to the fact that the Bill imposes requirements as to mobile phone details, email addresses, vehicles, banks and identification documents. He says:

“If such information is provided, all of which can be checked against external records, should this not reduce the residual risk and so reduce the need for entry in order to check ‘risk’? … If these extra demands do not adequately reduce risk, what is their value?”


That is another way of asking the question that I asked in Committee on whether the notification requirements in themselves were insufficient. If the answer is no, they are sufficient—and I would expect the Government to say that—then what is the justification for this, as I say, potentially damaging provision? I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I support the amendment for the reasons that the noble Baroness has given. The only additional point that I would make, and I made it in Committee as well, is whether the person to whom the warrant relates being in breach of notification requirements constitutes a sufficient ground for the entry and search of the home of a TPIM subject—among, one must assume, the most dangerous of terrorists or suspected terrorists in this country. It is a little hard, at least for me, to see why it should not be sufficient in relation to the prisoners and those remanded in custody who are dealt with under this part of the Bill.

[Baroness Williams of Trafford]

My Lords, as the noble Baroness pointed out, Clause 13 confers on police the power to enter and search the home address of a registered terrorist offender, under the authority of a warrant issued by a justice, for the purpose of assessing the risk the offender poses. Amendment 28 would narrow the purpose for which the power of entry and search may be operated, limiting it to assessing whether the offender is in breach of the notification requirements. There was a good debate on this in Committee, so I will not detain the House by setting out again the underlying purpose of the terrorism notification requirements, and their importance in helping the police to manage the risk posed by those convicted of serious terrorism offences. However, it may assist your Lordships if I briefly rehearse the purpose of this power, and why it is needed in its current form.

The purpose of the power of entry and search, as currently drafted and as intended by the Government, is to allow the police to assess the risk posed by a convicted terrorist who is subject to the notification requirements. The police consider that home visits are an important tool in managing and risk-assessing registered terrorist offenders during the time they are subject to the notification regime. Such visits allow them to ascertain whether the offender does in fact reside at the address they have notified to the police, and to check their compliance with other aspects of the notification regime. Home visits are also helpful, as they allow a broader assessment of risk to be made. They allow the police to identify any other factors that might contribute to the overall risk an offender poses to themselves or their community, and their risk of reoffending. This might include their general living conditions, as well as any signs of mental health decline, or of drug or alcohol misuse.

It seems an entirely appropriate purpose for the police to wish to keep in touch with a registered terrorist offender. Indeed, given that the police are charged with protecting us all from such serious offenders, it would surely be irresponsible to do otherwise. However, Amendment 28 would mean that the new power could not be used for that purpose. The police will, of course, always seek to conduct such visits on a voluntary basis and the clause requires that this approach must be attempted at least twice before a warrant is sought. A positive and co-operative relationship is always preferable, and leads to more effective management of risk. However, a power of entry and search is needed because this is not always the reality, and registered terrorist offenders will often not comply with such home visits voluntarily. They will often be generally unco-operative and refuse to engage constructively with the police in conducting necessary checks.

In previous debates, I have highlighted that an identical power exists in relation to registered sex offenders. It was introduced by the Violent Crime Reduction Act 2006, by the then Labour Government. Indeed, the then Home Office Minister, the noble Lord, Lord Bassam, said at the time in reference to sex offenders that,

“we are now of the view that further powers are required to enable the police to gather all the information they need about a small but, it has to be said, determined group of offenders who, while in apparent compliance with the notification requirements, do all they can to frustrate the risk assessment process”.—[Official Report, Commons, 22/5/06; col. 678.)

I can only echo the noble Lord’s words.

The police report that their experience with registered sex offenders, as a result of this power being available, is that the offenders will normally comply voluntarily and that they are able to build a far more constructive relationship with them. This is simply because those offenders know that if they refuse to engage on a voluntary basis the police will be able to return with a warrant. We anticipate this power bringing similar benefits in the management of registered terrorist offenders, who are equally in a particular category of risk, such that monitoring of this kind is appropriate following a conviction. I cannot see that there is a rational argument for why the police should have less effective powers to monitor the risk posed by registered terrorist offenders than they do for registered sex offenders. I hope that the noble Baroness will withdraw her amendment in light of this explanation.

[Lord Anderson of Ipswich]

Before the Minister sits down, perhaps she can explain whether she is saying that, if there is no rational basis for providing this power in a different way from the way it was done in the case of sex offenders, the TPIM Act 2011 was not rational in how it approached the issue, and what does she say about that parallel with the TPIM Act?

[Baroness Williams of Trafford]

I would not like to say that the TPIM Act was not rational. I can write to the noble Lord to outline the significant differences here, but I think that the parallel with sex offenders that I posed is pertinent.

Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, the provisions relating to access to a lawyer, so far as they replicate those in Schedule 7, which I understand they are intended to do, should be seen against the background of three matters.

First, the maximum period under both schedules is six hours’ detention, which was reduced from nine hours a few years ago and from much longer periods during the Troubles, when, as now, these controls could be applied to travellers between Northern Ireland and Great Britain—a long-standing example of a border down the Irish Sea. Secondly, some of these seaports and airports are remote, and stops, let alone detentions, are so unusual that it would be quite impracticable always to have a panel of lawyers on tap. Thirdly, a fact long considered obvious by the courts, and now enshrined in Clause 16, is that answers given under these compulsory powers may not be used in subsequent criminal proceedings save in the special circumstances outlined for Schedule 7 by the Supreme Court in Beghal and echoed in the Bill.

The last of those factors caused Mr Justice Collins, in the case of CC, in 2012, to doubt whether there was any value at all in the presence of a lawyer during Schedule 7 questioning, since no responsible lawyer could advise their client to break the law by remaining silent. That view was rejected by the Divisional Court in the case of Elosta, which held that:

“The solicitor does have a useful, if limited, role to play”.


The fact remains that there are differences between an examination under Schedule 3 or Schedule 7, on the one hand, and a classic police interview under caution, on the other. It is perhaps also relevant to have in mind that, unless I am mistaken—I am sure I will be corrected if I am—these equivalent powers appear not only under Schedule 7 to the Terrorism Act but under Schedule 8, where detention for much longer periods, of up to 14 days, is contemplated.

Before the Minister thinks I have become too tame, let me please make this point. The operation of any powers to delay or impose limitations on access to legal advice, if they are to continue and to be extended, must be subject to effective independent review. This will only be possible if the reasons are recorded, as is correctly provided for in Schedule 3, and if the number of occasions on which they have been used is published, so that concerned citizens are aware and the independent reviewer can investigate individual cases or draw attention to and explore the reasons for any increasing trend in the use of the powers.

The number of occasions on which access to a solicitor has been delayed for those detained under Schedule 8 is logged meticulously in Northern Ireland and published by the NIO in its annual statistics on terrorism legislation. The latest figures tell us that between 2001 and March 2018, only five persons in Northern Ireland were refused immediate access to a solicitor. However, effective review requires the equivalent figures to be available for the whole country.

I was given to understand four years ago by the Home Office—not for the first time—that this was work in progress, at least where Schedule 8 was concerned. Will the Minister undertake that the statistics relating to delayed and conditional access to a solicitor on the part of those detained under the Terrorism Act and the new hostile state activity powers will be published across the country; and will she tell us whether there is anything she can do to speed things up a bit?

[Baroness Williams of Trafford]

My Lords, I thank noble Lords for their comments on these amendments, particularly the noble Lord, Lord Marks. I hope that by the end of my remarks, your Lordships will be more satisfied about the progress of the Bill in this area.

The amendments in this group raise the important issue of a detainee’s right to access a solicitor when detained under the ports powers in Schedule 3 to the Bill or Schedule 7 to the Terrorism Act 2000. These amendments seek to ensure that where an individual has been detained under these schedules, the examining officer must postpone questioning until the examinee has consulted a solicitor in private.

I am aware that the right to access a solicitor under these ports powers was the subject of much debate as this Bill was scrutinised in the House of Commons, as the noble Lord, Lord Rosser, pointed out. The good speeches at Second Reading in this House served as a fitting reminder that, as new threats emerge, we must continue to be steadfast in our commitment to the principles that our laws and practices are founded on.

The powers under these schedules would afford any person formally detained the right to consult a solicitor, privately, if they request to do so. In the vast majority of cases where an individual has been detained under these powers, there will be no reason to interfere with that right. In exceptional circumstances, however, there may be a need for a more senior police officer to restrict that right where the officer has reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences—for example, interference with evidence or the gathering of information; injury to another person; alerting others that they are suspected of an indictable offence; or hindering the recovery of property obtained by an indictable offence.

I have listened carefully to the debate; it is clear that there are particular concerns about the restrictions under these schedules that would allow an assistant chief constable to require the detainee to consult their solicitor within the sight and hearing of another police officer. Let me explain that the intention behind this restriction is to disrupt a detainee who seeks to exploit their right to consult a solicitor by using the solicitor as a conduit to pass on instructions to a third party, either through intimidation, willing collusion or the use of a coded message, as the noble Lord, Lord Marks, pointed out. Reasonable grounds for belief might develop where prior intelligence indicates that the individual may seek to obstruct an examination, either because they have a history of doing so or they have been trained to evade, frustrate or subvert police examinations. The officer might also witness interactions between the individual and their solicitor that alerts them to the possibility that the detainee is intimidating their solicitor.

Amendments 85, 86 and 88 and the equivalents in the new clause proposed by Amendment 63 would see these restrictions removed from Schedules 3 and 7 in their entirety. I understand the rationale for these amendments and recognise the force of the arguments that have been made in defence of the principle of lawyer-client confidentiality. At the same time, we are all here because we recognise the threat that we face from hostile state actors and terrorists and the risk of leaving loopholes to be exploited.

As alluded to by the noble Lord, Lord Rosser, during the debate on similar amendments on Report in the House of Commons, the Security Minister undertook to consider the proposal of the Opposition Front Bench to allow a senior officer, in such circumstances, to direct that the detainee use a solicitor from an approved panel—a point mentioned by the noble Lord, Lord Marks, and the noble Lord, Lord Rosser, who reiterated this same proposition in today’s debate. Such an approach may offer an acceptable way through this issue and I can undertake to give sympathetic consideration to his amendment in advance of Report.

However, I cannot be so accommodating about Amendment 84 because it would remove the power under Schedule 3 to delay a consultation between the detainee and their solicitor where a senior officer has reasonable grounds to believe that the exercise of this right will result in the consequences I have previously described. Powers for an officer to delay the communication of the fact of a person’s detention to a named person and to delay that detainee’s access to a solicitor have been enshrined in PACE for many years. These powers are therefore not novel but are familiar in the wider policing context and allow the police to delay contact with a third party or consultation with a solicitor where there are reasonably founded concerns that knowledge of the person’s detention may result in serious consequences. Removing this power of delay would undermine the ability to mitigate these risks.

I have already addressed part of Amendment 63 but let me now respond to the proposed changes to the other powers that allow an examining officer to restrict a Schedule 7 detainee’s access to a solicitor. These restrictions under Schedule 8 to the 2000 Act currently allow an examining officer to question a detainee without a consultation having first taken place with a solicitor in person. However, I must point out that this does not preclude the detainee from consulting a solicitor via another means—for example, by telephone.

These powers can be exercised only where the officer reasonably believes that to wait for the solicitor to arrive in person would prejudice the determination of the relevant matters. Amendment 63, however, would limit the availability of these restrictions to a situation where waiting for the solicitor to arrive in person could create an immediate risk of physical injury to any person. This is contrary to the intention of the powers, which were designed to mitigate the risk of a detainee using their right to consult a solicitor to obstruct and frustrate the examination and run down the short detention clock. As noble Lords will be aware and as the noble Lord, Lord Anderson, pointed out, the maximum period of examination is limited to six hours. It would not take a trained terrorist or hostile actor to work out that if they were to insist on speaking to a solicitor, in person, who happens to be located many miles away from the port where they are being examined, they have a means of significantly delaying their examination.

The current powers under Schedule 8 provide a practical solution to mitigate that risk by allowing the person to consult that solicitor over the phone. If the person refuses that alternative, or the solicitor is unavailable, the officer can continue questioning the person while they wait for the solicitor to arrive. Any decision by the officer to apply these restrictions must be clearly recorded.

Before using these restrictions, the examining officer will exhaust all other means to ensure that the detainee has been able to consult a solicitor in private, including directing them to a solicitor of the duty solicitor scheme. The changes proposed in Amendment 63 would resurrect the risks that I have described and undermine key powers for countering terrorism.

The noble Lord, Lord Anderson, asked about recording when restrictions are used in Great Britain and Northern Ireland. We will consider with our operational partners which statistics it would be appropriate to publish with regard to Schedule 3. I hope that the noble Lord is satisfied with that response and I will keep him updated.

[Lord Anderson of Ipswich]

The noble Baroness has asked whether I am satisfied with the response. As the independent reviewer, I was told four years ago that this was happening, and it was not the first time that I had been told it was happening, in relation to Schedule 8. I am sure that the Minister did not mean to backtrack on that commitment, but I would be very grateful if she felt able to give someone a bit of a push.

[Baroness Williams of Trafford]

I was going to use the word “shove”, but I will give them a push instead, which is probably more in keeping with your Lordships’ House.

Perhaps I may move on finally to Amendments 83 and 87. I draw the attention of the Committee to the draft Schedule 3 code of practice, which I have already circulated to noble Lords. Like its equivalent for Schedule 7, the draft code is clear that a person detained under either power must be provided with a notice of detention that clarifies their rights and obligations. The examining officer must also explain these rights and obligations to the detainee before continuing with the examination. In addition, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.

The Government are in complete agreement that any person detained under Schedule 3 should be informed of their rights before any further questioning takes place. It has always been the case through the exercise of Schedule 7 powers and it is why we have made it explicit in the equivalent draft code of practice for Schedule 3. While the Government are clear that the intention behind these amendments has already been satisfied through the provision of the draft code, I am now ready to consider further the merits of writing such a requirement into Schedule 3 and Schedule 8 to the Terrorism Act.

With those remarks, I hope that the noble Lord, Lord Marks, will be content to withdraw his amendment.

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[Lord Rosser]

My Lords, as has been said, the Bill provides for a person to be questioned and detained under Schedule 3 powers and makes it an offence to refuse to answer questions in examinations. The draft code of guidance, which we have now seen, recognises that there may be a preliminary stage of questioning during which people may be screened before an officer chooses to officially question them under the schedule. During screening, a person is not required to answer a question they do not want to and the code of practice states that a person must be told when the screening ends and an official examination begins. The purpose of this amendment is simply to put the screening process, the right of a person not to answer questions and, equally importantly, the right of a person to be told when screening ends and questioning begins on to the face of the Bill.

The screening does not appear to be an insignificant process. The draft code of practice, which we have sought to enshrine in the amendment, sets out the kinds of questions that can be asked and the issues that can be raised during the screening process. It states that there is no requirement for officers to keep a record of a screening interaction unless the person is subsequently selected for a Schedule 3 examination. There will be circumstances in which there is a requirement to make a record of a screening interaction. Indeed, it also says that while the screening of persons should take only a few minutes—I do not know what “a few minutes” is in this context—it states:

“If it appears that this period will take significantly longer, the examining officer must conclude the screening process and either commence a Schedule 3 examination or notify the person that they have no further questions”.


Again, in a situation where they run out of time and decide to commence a Schedule 3 examination, a record of the screening interaction must be made.

It is not clear to us at the moment why no reference to this process has appeared in the Bill. One purpose of the amendment is to get an answer to that question since it would appear to be a part of the process under Schedule 3, which we have been discussing. I beg to move.

[Lord Anderson of Ipswich]

My Lords, for every person who is subject to a Schedule 7 examination, as I often used to report, some 10 to 20 others are asked light-touch screening questions on a consensual basis, as a result of which it is determined that a Schedule 7 examination is not necessary. The prevalence of screening questions may explain the discrepancy between the low and rapidly declining incidence of Schedule 7 examinations, on the one hand—I think they are running at around a quarter of the level they were when the noble Lord, Lord Carlile, handed over the post of independent reviewer to me—and, on the other hand, the perception of some people that they are stopped on a routine basis when they travel abroad. I reported in 2016 the example of a security-cleared government lawyer with a Muslim-sounding name who had been stopped by police on each of the last five occasions that he had left the country and on the majority of occasions when he re-entered it. On each occasion, as he acknowledged, he was stopped for screening questions only. Because screening questions are not recorded, there was of course no way of alerting ports officers of the previous fruitless stops.

I agree with the noble Lord, Lord Rosser, that the parameters applicable to screening questions need to be clearly set out under Schedule 3 to the Bill, as under Schedule 7. The draft code of practice, which I thank the Minister for providing well in advance, goes a long way towards doing that, although I am not sure that it cracks all the old chestnuts, one of them being how, if at all, one can administer screening questions to a coachload of people who are on their way to a possibly troubled part of the world.

As to whether screening questions should go into statute, the noble Lord is not alone in his provisional view. Senior ports officers have said to me—as I have recorded in the past—that if screening questions appeared in Schedule 7, we would all know where we stood. Against that, one thinks of the provisions in PACE Code C relating to “voluntary interviews”, which are not enshrined in the Police and Criminal Evidence Act 1984, no doubt because of the moral and social duty, as it has been described by the courts, that every citizen has to give voluntary assistance to the police. I approach this issue with an open mind and look forward to hearing what the Minister has to say. In particular, can she tell us whether she has consulted the Investigatory Powers Commissioner, who is to have oversight of Schedule 3 and, if so, what he had to say, because I suspect that his view may help to inform mine?

[Lord Carlile of Berriew]

My Lords, my noble friend Lord Anderson tempts me to say a few words on this matter. He is absolutely right that the number of Schedule 7 stops declined dramatically over the years, and there was a very good reason for it. When I became Independent Reviewer of Terrorism Legislation, a phrase commonly used with me was “copper’s nose”. I was extremely concerned, because—if the noble Lord, Lord Paddick, will forgive me—coppers do not always have the same-sized noses nor the same air throughput into them. Some officers started to develop them for themselves. The noble Lord, Lord Hogan-Howe, is no longer here, but some officers in Scotland Yard with what is now called SO16 demonstrated to me how they had refined copper’s nose into a series of behavioural analyses that led them to decide whether and how to ask screening questions. A whole behavioural science has built up around this; it is called behavioural analysis. It emanated from America, but it has been well used by police officers here—I have been to a number of lectures about it.

I regret that the formalisation of screening questions, as suggested in the amendment, is completely impractical. My noble friend Lord Anderson referred to a coachload of passengers. One place that I used to visit quite regularly was Dover port, where buses come through at speed. Officers go on to them and ask questions such as, “Where are you going?” or “When did you come to this country?”, usually based on a reason that they have derived from the methodology they use for the people they are questioning. Formalising this process would make it very slow and more oppressive in the minds of those asked simple screening questions. They do not mind being asked a simple question or two, but they would mind if it were done in a way that suggested that it was part of a formal police process.

The police generally do this very well. They should be left to do it as they do it. We should not over-formalise something which has evolved to a point where the people who are stopped, asked a series of questions and detained for a time, and whose attention is demanded for a time, are usually those of whom there are good reasons to ask more detailed questions.

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Moved by

[Lord Anderson of Ipswich]

66: Schedule 3, page 38, line 41, leave out “hostile act” and insert “serious crime”

[Lord Anderson of Ipswich]

My Lords, this amendment goes to the purposes for which the Schedule 3 power can be used. It raises what I believe is an important point of principle, to which there may, however, be a pragmatic solution. Schedule 3, like Schedule 7, contains perhaps the most extensive police powers anywhere in the statute book, extending to questioning, with no right to silence, detention, the taking of fingerprints and DNA samples, and the downloading of mobile devices and the long-term retention of their content, all without the need for any objective or even subjective suspicion of wrongdoing. Those powers are already used under Schedule 7 by police of all ranks, at very short notice, in seaports and airports both large and small, and anywhere within a mile of the Northern Irish border. Their extraordinary strength makes it all the more important that the purpose for which the powers can be used is clearly defined and understood.

Schedule 7 is limited to the purpose of determining whether someone is a terrorist. Having learned from intelligence reports that it was in practice being extensively used also for the purpose of determining whether people were involved in proliferation or espionage, I suggested some years ago, as independent reviewer, that the reach of the power could usefully be extended to these other purposes. This would have put practice in accordance with the law, and it would have avoided the absurdity of having to pretend that David Miranda, stopped under Schedule 7 when carrying documents through Heathrow Airport stolen by Edward Snowden, might have been a terrorist, when more obvious explanations, falling outside the scope of Schedule 7, suggested themselves.

After the Salisbury incident, this suggestion found favour with the Government. Schedule 3 powers, it is proposed, may be used for counterproliferation and counterespionage, and to determine whether persons crossing the border are involved in other forms of hostile activity, such as assassination, whether or not with biological weapons. For myself, I entirely support that objective. Where I part company with the Bill is in the suggestion that these very extensive powers, memorably described by my noble friend Lord Carlile in his regular talks to the police as a Ming vase—precious and to be treated with very great care—should be used in order to determine whether a traveller has been engaged in activity which is perfectly lawful.

That is the consequence of paragraphs 1(6)(a) and 1(6)(b) of Schedule 3. National security, as is well known, is nowhere defined in legislation, or even in the draft code of practice. The concept of threats to the economic well-being of the United Kingdom is more nebulous still and as the noble Lord, Lord Paddick, said, it is not even linked in Schedule 3, as it is in other contexts, to the concept of national security, let alone to a concept as specific as the critical national infra- structure, to which the Minister referred earlier. Acts falling into these categories need not be crimes. Indeed, they need not even be carried out for or on behalf of a foreign state; it is enough that they are judged by the officer on duty to be in the interests of such a state.

It is quite true that MI5 is tasked by Section 1 of the Security Service Act 1989 with the functions of protecting national security and safeguarding the economic well-being of the United Kingdom from foreign threats. No one would quarrel with that. My unease stems from the proposal that the police be given new and very strong coercive powers, powers that intrude into civil liberties and that are not allowed to our intelligence agencies, for the purpose of determining whether persons may have acted in ways that are not contrary to the law.

I am concerned by that. The police are entrusted with executive powers for the purpose of detecting crime and enforcing the criminal law. We have a wide range of offences relating to CBRN materials, espionage, sabotage and other types of hostile state activity. If that range is insufficient, or if the sentences are too short, as the Minister indicated she thought might have been the case with some of the lesser offences under the Official Secrets Act 1989, it is open to the Government to seek change. They could change the law on official secrets or change their own definition of serious crime for the purposes of the Bill, as they apparently had no difficulty in doing in the Data Retention and Acquisition Regulations. I see the noble Lord, Lord Paddick, nodding ruefully: those regulations were considered only very recently by the House. I think that in that case the definition was reduced to 12 months, so if the issue is the sentences of only two years for lesser offences under the Official Secrets Act 1989, that is worth thinking about.

The Bill as it stands would allow these strong coercive powers to be used by any police officer for the purpose of defining whether people have acted in undefined ways that the Government may not like but have not chosen to make unlawful. I am not sure that I can think of any precedent for this, and I would be grateful if the Minister would tell me if she knows of any. In their human rights memorandum, the Government rely heavily, in relation to Schedule 3, on the majority decision of the Supreme Court in the case of Beghal on Schedule 7, but in Schedule 7 the scope of non-consensual police powers is strictly defined and limited to the detection of serious criminal activity. That is certainly not the case here.

My noble friend Lady Manningham-Buller, who I know cannot be in her place at the moment, thought that the current version of the schedule could perhaps be swallowed as a temporary patch—perhaps pending the amendment of the Official Secrets Act or a change to the definition of serious crime. I am not very reassured by that. Temporary patches sometimes have a way of turning into slippery slopes. I shall listen carefully to the Minister, but I wanted to signal by this amendment that I am troubled.

[Lord Judge]

I support this amendment, as I have supported every one of my noble friend Lord Anderson’s amendments to the Bill. Every time he has spoken during our debates and said things that are agreeable to the Government, he is wise and elegant—I cannot think of all the many complimentary adjectives that have rightly been paid to him. When he raises a point with which the Government do not agree, can they please reflect that he is wise, elegant and so on and so forth, so that his submissions to the Government are taken with the seriousness they merit? I entirely support the noble Lord’s expressions of anxiety about the breadth of this provision. If I may say so, we could make life much easier for everybody who has to administer it, not least the examining officer, if we just reflected on a way of amending it slightly.

I added my name to the noble Lord’s amendment. I support it. But I have listened to the debate this afternoon and I see that there are problems with it, in particular the problem raised by the noble Baroness, Lady Manningham-Buller, who, as has just been said, is not now in her place. But we really could turn sub- paragraphs (6) and (7) into a much simpler piece of legislation by saying that an act is a hostile act if it is an act of serious crime and then at sub-paragraph (7)(d) defining serious crime—I know it is defined differently in different parts of terrorism legislation, but this is a new power, in effect producing a new scheme and a new way of administering it—if on conviction the offender would be liable to a term of imprisonment of two years. That, I think, would cover all the various matters raised earlier by the noble Baroness, Lady Manningham-Buller, and it might make life much easier for everybody.

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[Baroness Williams of Trafford]

My Lords, I echo the words of the noble and learned Lord, Lord Judge: the noble Lord, Lord Anderson, is indeed wise and elegant in his words. As the noble Lord has explained, this group of amendments deals with the definition of “hostile act” in Schedule 3.

It is important to emphasise that the design of any new power should be specific to the threat it is seeking to mitigate. The scope of this power has been designed to do just that; namely, to mitigate the known threats from hostile state activity. The danger of these amendments, therefore, is that they will limit the scope of the power, thereby limiting the range of threats that it has been designed to combat.

For the benefit of the Committee, the ports powers under Schedule 3 will be used by examining officers at UK ports or the border area,

“for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.

A person is engaged in hostile activity if they are,

“concerned in the commission, preparation or instigation of a hostile act that is or may be … carried out for, or on behalf of, a State other than the United Kingdom, or … otherwise in the interests of a State other than the United Kingdom”.

Under this schedule, a hostile act is defined as an act that,

“threatens national security … threatens the economic well-being of the United Kingdom, or … is an act of serious crime”.

By replacing “hostile act” with “serious crime”, these amendments would significantly narrow the range of hostile activity that these powers are designed to counter. It would undoubtedly limit the ability of our ports officers to detect, disrupt and deter hostile actors. Serious crime is defined in the Bill as being an offence which could reasonably be expected to result in,

“imprisonment for a term of 3 years or more, or … the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”.

Some of the activities which I believe noble Lords would expect to be captured through these new powers would not fall within the scope of the truncated definition of hostile activity. As the noble Baroness, Lady Manningham-Buller, explained earlier, some offences under the Official Secrets Act 1989 attract a maximum penalty of only two years’ imprisonment and may not involve the use of violence, result in financial gain or involve a large number of people acting in pursuit of a common purpose. Consequently, an examining officer would not be able to exercise Schedule 3 powers for the purpose of detecting, disrupting or deterring this type of hostile activity even if the activity threatens national security or could be prosecuted for offences under the Official Secrets Act. This is simply not acceptable.

There may even be occasions when we have intelligence to suggest that a person linked to hostile state activity is travelling to the UK for a hostile purpose but the intelligence we have is incomplete and the nature of the hostile purpose cannot be determined; therefore, we cannot assess whether the purpose is linked to a serious crime. In this circumstance, it would be very important to have a power to stop and examine them at the port to establish the nature of the hostile act.

As noble Lords will know, following the appalling acts in Salisbury, the Government are undertaking a review of legislation to combat hostile state activity. Hostile activity, by its very nature, is often covert and undertaken by foreign intelligence officers or their agents seeking to acquire sensitive information to gain an advantage over the United Kingdom and undermine our national security. On occasions this activity may not be considered criminal under the law as it stands; for example, if a foreign intelligence officer intended to travel to the UK to maintain or build a relationship with employees contracted to work on UK defence projects with the aim of acquiring sensitive information, this may not be a crime but it would be imperative to detect and disrupt this activity at the earliest opportunity, before irreversible damage to our national security occurred.

It is entirely plausible that a hostile actor should want to visit the UK in order to collect classified documents from an agent who had committed acts of espionage on their behalf. It is not a crime for the hostile actor to receive these documents and leave the country but, although the individual has not committed a crime, a Schedule 3 examination would enable an examining officer to make a determination as to whether they have been engaged in a hostile act. An examination would also allow the examining officer to remove the classified documents from the hostile actor, preventing the disclosure of potentially damaging information.

Even though the purpose of a Schedule 3 examination is to make a determination as to whether the actor has been engaged in a hostile act, exercise of the power may provide a number of secondary benefits. In instances such as the example I have just talked about, it would provide the first leads into an investigation to detect who the agent is—if we did not already know—and prevent the documents from ever being disclosed. These investigations may or may not lead to future prosecutions. It is therefore right to give the police the power to investigate hostile state activity, even at a preliminary stage before we have reasonable suspicion that a foreign intelligence officer has committed an offence. I know that noble Lords do not really think that the police should not have the power to stop someone who is from, or acting on behalf of, a foreign intelligence service as they enter or leave the United Kingdom.

If we were to accept these amendments, traditional behaviours undertaken by hostile states which have the potential to have such a detrimental effect would fall out of scope of the power and we would not be able to detect, disrupt or deter them. I put it to noble Lords that such activity should not go unchallenged. The definition of “hostile act” is necessarily broad to ensure that the powers capture the full range of activities which hostile actors engage in. We recognise the concerns that have been raised and I reassure the Committee that these were considered in the drafting of Schedule 3. This is why we have explicitly restricted the definition to an act that is carried out for, or on behalf of, or otherwise in the interests of, a state other than the United Kingdom.

I also recognise the concerns about the term,

“economic well-being of the United Kingdom”.

As has been pointed out, there may be instances where an act undertaken by a hostile state actor threatens that economic well-being yet does not threaten our national security; it is also true for acts of serious crime. Economic well-being, like national security, is a term already used in UK legislation. The intention of this limb of the definition is to ensure that these powers can be used to mitigate hostile acts which could damage the country’s critical infrastructure or disrupt energy supplies to the UK. For example, if an employee in the banking sector of the City of London discovered a serious vulnerability in computer networks and shared this information with a hostile state, it would drastically undermine confidence in the City of London and cost the UK economy millions, if not billions.

I hope that with these explanations, the noble Lord will feel content to withdraw his amendment.

[Lord Anderson of Ipswich]

My Lords, I am grateful to the Minister and to all noble Lords who contributed to this debate, including the noble Baroness, Lady Manningham-Buller, who made her remarks earlier.

I asked the Minister whether she could give another example of the police being given strong, coercive powers for the purpose of determining whether people are acting in a way which may be undesirable but which is perfectly lawful under the law of the land. I do not think that I had an answer and, if there is no answer, I would suggest that the Bill as written constitutes a new and very dangerous departure. That is the point of principle behind this amendment and, with great respect to the Minister, she did not address it in her reply. I hope that the Minister will consider this carefully because my concerns, as she has heard, are shared by lawyers far more distinguished than I—and not only by lawyers.

As to the pragmatic solution, the Minister has heard suggestions as to how the scope of this power could be reduced in a way that achieves its objectives in a manner more consistent with the principle of legality. I hope that she will deliberate further on those suggestions. I would be more than happy to discuss them with her but, in the meantime, I beg leave to withdraw the amendment.

Amendment 66 withdrawn.

Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Lord Anderson of Ipswich (CB)]

I support the Government’s position on Amendments 42 and 46. In a report of July 2013, The Terrorism Acts in 2012, I recorded the result of an extensive inquiry conducted with MI5 and counterterrorism police into the value of no-suspicion stops under Schedule 7 to the Terrorism Act. I started from a position of, I hope, healthy scepticism, but noted three useful functions of the no-suspicion stop: deterring and detecting the use of “clean skins” to transport terrorist material; avoiding alerting travellers that they were the object of surveillance; and enabling the travelling companion of a person suspected of involvement in terrorism to be stopped and questioned. I followed this up with several real-life examples, which I had verified, of no-suspicion stops that had brought significant benefits in terms of disrupting potential terrorists. More to the point, perhaps, in the case of Beghal in 2015 a majority of the Supreme Court held that having regard to the many safeguards on its exercise, the absence of a suspicion requirement was not such as to render the basic Schedule 7 power inconsistent with the principle of legality. That judgment contained a lengthy comparison of Schedule 7 with the former Section 44, to which the noble Lord, Lord Paddick, addressed some remarks.

These few words should not be understood as a rejection of some enhanced threshold for the use of more specialised powers under Schedule 7 to the 2000 Act, or Schedule 3 to this Bill, such as downloading a phone or, indeed, taking a person into detention. Still less should it be understood as support for no-suspicion powers of stop and search in more orthodox areas of policing where threats to national security are not in issue. I hope, however, that it explains why I do not support these amendments.

[Baroness Hamwee]

The noble Lord reminds us about the draft code of conduct. It spells out considerations that relate to the threat of hostile activity and lists a number of factors, one of which, in the context of the stop not being arbitrary, is to have consideration of “possible current, emerging … hostile activity”, which is understandable, and “future hostile activity”. Can the Minister explain the distinction between emerging and future hostile activity?

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[Lord Anderson of Ipswich]

My Lords, I support the amendment. The independent review of terrorism law in this country dates back to the 1970s. It offers us in Parliament an assurance that in return for consenting to some exceptionally strong laws, whose operation is often shrouded in secrecy, a security-cleared person will be appointed to report on their application.

More recently, in a development pioneered by the noble Lord, Lord Carlile, the post of reviewer has become a token of good faith to the general public. Successive reviewers have criticised the Government where it is justified but their approval, when offered, has proved most helpful in dispelling myths and reconciling all sections of the public to controversial aspects of these sadly necessary laws, whether or not they are found to have been mistakenly applied in particular instances.

However, as has been said, Prevent has never been subject to the remit of the independent reviewer and is expressly excluded from the remit of the counterextremism commissioner. I would be the first to accept that policies must be decided by Ministers accountable to Parliament, but external review of the operation of a policy can be of particular value when potential conflicts between state power and civil liberties are acute but information about the use of those powers is tightly rationed.

Prevent is a well-intentioned, voluntary strategy that has achieved striking success, without a doubt, but it is handicapped from reaching its full potential by mistrust, in terms of both individuals and organisations that are willing to work with it. Criticism can fairly be aimed at some of the groups that devote themselves to promoting that mistrust. In my experience, such criticism is generally returned with interest, but blaming others is not enough. One has to ask why an anti-Prevent narrative, promoted by a controversial few, has been allowed to become so prevalent, not only in Muslim circles but more generally among the chattering classes of liberal Britain, and why there appears, from what I am told, to be more mistrust of anti-radicalisation programmes in this country than in comparable places, such as the Netherlands and Denmark.

For some years, I have thought that the Government should combat this hostile narrative through more transparency, wider engagement and commissioning a no-holds-barred independent review. On transparency, they have acted; I applaud the personal efforts of the Security Minister, Ben Wallace. The resulting, regularly published figures are a very good start and are now central to any informed debate, as indeed they were in previous debate on amendments to Clause 19.

On the other two fronts, we have further to go. This strategy is too important not to do as well as we can. An independent operational review with comparative reach would provide public reassurance where it is justified and constructive challenge to the Government where improvement is possible. I accept that it would be more useful if the Government wanted it, but the argument for a review does not depend on the prior identification of specific defects. I hope that the Government will agree to work with the amendments in a spirit not of self-harm but of self-help.

[Baroness Jones of Moulsecoomb]

I am not sure whether the noble Lord includes me among the chattering classes, but I forgive him anyway. Does he accept that those who feel mistrust are not the sort of people to make formal complaints and put their views on record, which is perhaps part of the problem with having cases where we can point a finger and say, “This is a problem and this is where the mistrust comes from”?

[Lord Anderson of Ipswich]

We have heard echoes of mistrust within this Chamber today from a number of noble Lords, so I do not suggest that it is limited to those who are incapable of expressing themselves or have no outlet by which to do so. Nor, for the sake of emphasis, do I suggest that such mistrust is justified. That would be precisely the point of a security-cleared independent review: to get to the bottom of whether things are as they seem and as they should be.

[Lord Sheikh]

My Lords, I want to make some comments relating to the Muslim community in the United Kingdom. There are more than 3 million Muslims in the country, who have come here from different parts of the world. The population is youthful in comparison with other communities. Muslims have done well in every walk of life and contributed to the advancement and well-being of the country. Nearly all of them are law-abiding people, but unfortunately a tiny minority has caused problems. They have been radicalised and committed terrorist acts.

What those misguided persons are doing and have done is totally un-Islamic. They have misunderstood our glorious religion and what they have done is not in accordance with Islamic principles. In the Holy Koran it is written: “Whoever kills an innocent person it is though he has killed all mankind, and whoever saves a life it is as though he has saved all mankind”. It is therefore imperative that we guide such people and tell them about the true principles of Islam. The Muslim community has a role to play in this regard, and I shall expand on this point later.

I have been actively involved in combating radicalisation among the community. In this regard, I prepared a report setting out the various problems and suggesting my recommendations. It was sent to the Prime Minister and a number of Muslim centres and mosques. In addition, I have had numerous meetings and conversations with members and leaders of the community, imams, teachers, parents and the media.

I want to emphasise that I support the Prevent strategy in principle but it is necessary for a review to be undertaken. I therefore support the amendment. To deal with issues concerning radicalisation, we need input and participation from local authorities, the police, schools, prisons and members of the community at all levels. I am trying to raise awareness that the onus is on the Muslim community to be honest and to realise that there are problems among a tiny minority and that it is therefore necessary to take positive action to remedy the issues. This means that a holistic approach must be taken by the community in conjunction with others. The involvement of the community is imperative. We must secure its co-operation to make the Prevent strategy work without problems.

I have travelled to various parts of the country and talked to leaders of mosques, imams, heads of community centres and members of the communities. The Prevent strategy has caused concerns and raised objections. Some critics of the strategy have said that there is racial profiling, excessive spying and the removal of basic civil liberties from innocent individuals.

It has also been mentioned to me that Prevent is perhaps a toxic brand. Not everyone in the community is convinced that the strategy is right, and the concept is difficult to sell to them. It has also been said that only self-appointed community leaders have been involved rather than members of groups which represent the community. The community therefore feels that it needs to be a part of the strategy in whatever form it may be constructed.

I said earlier that Islam is a religion of peace and that any form of terrorism is unacceptable in it. It is therefore imperative that Muslim leaders and imams guide people who may have been misled and are confused about Islamic values. The community therefore has a role to play.

At one of its annual conferences, the National Union of Teachers asked the Government to withdraw the Prevent strategy with regard to schools and colleges and to develop an alternative scheme to safeguard children and identify risks posed to young people. Teachers have said that the strategy causes,

“suspicion in the classroom and confusion in the staffroom”.

It has also been mentioned that Prevent is affecting education and undermining trust between teachers and pupils. It appears that about 65% of a total of some 5,000 Prevent referrals are Muslims. Muslims have a one-in-500 chance of being referred, hence the chances are 40 times greater than for someone who is not a Muslim. Furthermore, a very small number of referrals are acted on. These figures indicate that there is perhaps over-referral of Muslims, which needs to be looked into thoroughly. I have been made aware of some unpleasant incidents in schools where it was proven that Muslim children had been picked on for no good reason. This has led to anguish and anger. School authorities may have acted in good faith, but their actions were wrong.

It appears that the total cost of the Prevent strategy is more than £40 million. One needs to examine whether the money is spent effectively and we are getting proper value for our expenditure. The amount spent may be excessive and perhaps lucrative for some people. Furthermore, it is important that we apply suitable criteria before an organisation receives a contract for undertaking the work. We should ensure that proper checks and balances are applied to organisations granted contracts.

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Of course, we must continue to explore how we can do things better and, in the normal way, the fifth anniversary of the passage of the Counter-Terrorism and Security Act 2015 affords us the opportunity to undertake a post-legislative review of the provisions in Part 5 of that Act, which provides the legislative framework for Prevent. I hope my explanation of some of the positive impact that Prevent has will assuage any lingering concerns and that the noble Baroness will feel free to withdraw her amendment.

[Lord Anderson of Ipswich]

Since the Minister mentioned Assistant Commissioner Basu and what he had to say about the Prevent strategy, is she familiar with the interview he gave, I think to an American periodical, a few weeks before he was appointed to his current role in relation to counterterrorism in which he made a number of constructive suggestions for changing the Prevent strategy, in particular to make it more, as he put it, community focused and less top down?

[Baroness Williams of Trafford]

I shall read it with interest.

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Moved by

[Lord Anderson of Ipswich]

59: After Clause 20, insert the following new Clause—
“Review of proscription
(1) Section 3 of the Terrorism Act 2000 is amended as follows.(2) After subsection (6), insert—“(6A) In respect of each organisation listed in Schedule 2, the Secretary of State must at least once in every calendar year, starting in the calendar year following its listing—(a) review the activities of that organisation,(b) determine whether that organisation satisfies the conditions for proscription in subsections (5) to (6),(c) decide whether to vary or revoke the listing or to take no action with respect to it,(d) publish each such decision, and(e) lay a record of such decision before Parliament.””

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[Lord Anderson of Ipswich]

My Lords, I am sure that all noble Lords will agree that it is unjust to expose a person to prosecution for supporting a proscribed organisation when that organisation does not meet the statutory condition for proscription. That condition is being “concerned in terrorism”, a phrase defined in the Terrorism Act 2000 and elucidated by the Court of Appeal in the PMOI case—the only case on deproscription to have reached a final judgment. The Bill does not seek to amend that condition. Yet precisely such an injustice exists today and will be worsened by the Bill, and in particular by Clauses 1 and 2, which extend the substantive reach of the proscription offences, and by Clause 6, which extends their geographical reach.

No sensible person would deny that the likes of al-Qaeda, Daesh or indeed National Action, three of whose adherents were convicted this morning, are concerned in terrorism. However, our ever-lengthening list of terrorist groups features quite a few that, to put it bluntly, simply should not be there. In June 2013, as independent reviewer, I reported publicly that a preliminary analysis by the Home Office itself had identified 14 groups, some of them already removed from equivalent lists in other countries, that no longer met—or appeared no longer to meet—the statutory test.

Some of them had not done so before the Terrorism Act 2000 came into force. To the 14 should no doubt be added some Northern Irish groups. I cited the example of the women’s group, Cumann na mBan—any involvement in violence far in the past and its centenary celebrations recently attended by the Irish President—in debate on Amendment 32.

Confronted with this evidence and recognising that there was no track record of deproscription by the Home Office, even in those rare cases when someone was brave enough to ask for it, the then Home Secretary, the current Prime Minister, came up with a principled solution: a programme of deproscription to be completed during the first part of 2014 and to be informed by the internal reviews that were, at the time, still conducted every year, and which a High Court judge had described as,

“certainly a practice that the Secretary of State should continue to adopt”.

But principles were not enough. The solution failed, despite the best efforts of the Home Office, because proscription of international organisations, particularly separatist organisations, is seen in some quarters as a cost-free way to please foreign Governments—although I suggest that it could not be described as cost free for members of the relevant communities in the UK, who are liable to find themselves under enhanced suspicion when an organisation claiming to represent their community is deemed to be a terrorist group. I reported also on that.

Furthermore, in Northern Ireland, where, as far as I know, there has never been a system of annual review, the non-statutory solution was never even attempted. Embarrassed by its failure, the Home Office discontinued even its former practice of annual review, because it was apparent that reviews determining that the statutory condition was not met were simply never acted on.

This sorry state of affairs persists today. I described it in my final report of December 2016—I am sorry if the phrase is strong, but it is the strongest phrase I ever used in six years as independent reviewer—as an,

“affront to the rule of law”.

Fortunately, there is a solution—and by no means a radical one. The amendment would reinstate the internal reviews that the Home Office always used to operate and extend them to Northern Ireland. By placing the Home Secretary and the Northern Ireland Secretary under a statutory duty to publish and act on the conclusions of their reviews, it would allow them to resist those who, for reasons of foreign policy or because the topic is simply too difficult, would frustrate the clear application of the law.

The amendment will do nothing to endanger us. On the contrary, it will preserve us from the unfortunate tendency, born of misplaced expedience, to use anti-terrorism powers in circumstances where Parliament itself has decided that they should not apply. I beg to move.

[Lord Judge (CB)]

My Lords, it is very simple really, is it not? We spent time in Committee rightly debating the problems of trying to criminalise expressions of opinion or belief and identifying that a proscribed organisation should be one that none of us should support or encourage. Fine. The essence of the problem, however, is this. We should be allowed to express opinions and beliefs about organisations which are not proscribed. That is elementary, and this House will not need a disquisition from me about the importance of being able to do so. The problem is this. We are not in a position to express opinions about organisations which are currently proscribed which should no longer be proscribed or whose proscription should have been removed years ago. That is an affront to the rule of law, and I therefore support the amendment.

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[Baroness Williams of Trafford]

My Lords, I am not entirely sure. They are different procedures. I shall write to the noble Lord on the difference because he makes a valid point.

[Lord Anderson of Ipswich]

I am grateful to the Minister. While she is writing to the noble Lord, Lord Pannick, could she perhaps answer my question? Even if she is correct that the ability to apply to have an organisation deproscribed is a substitute for my amendment—the track record very much suggests that it is not—and assuming that in her favour, could the Minister explain in the letter, or in person if she prefers, what consolation that could be to the innocent member of the community in London who comes under suspicion for alleged links with a proscribed organisation but who has no connection with it and could not in 100 years have been expected to be the person who makes that application?

I am trying to avoid naming specific communities, although I have spent plenty of time in London with Tamils, for example. For them, the fact that the LTTE remains a proscribed organisation—rightly or wrongly; I have no judgment on that—can be a significant impediment on how they go about their everyday life. What consolation could it be for the Tamil greengrocer in London to know that, had they wished to do so, the top brass of the LTTE, or others intimately connected with it, might have made an application for deproscription?

[Baroness Williams of Trafford]

They could have done. I do not know whether or not it is a consolation, but they could have done.

The point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, does not conflict with Clause 1 because there is no offence to suggest that a group should be deproscribed under Clause 1. Is that what he was referring to?

[Baroness Williams of Trafford]

The first part of that would not conflict with Clause 1, but the second part of that statement would, as you are then promoting it as an organisation. Perhaps we can talk about that subsequently.

I move on to Northern Ireland, because I want to talk about the amendment in that context. Any change to the current regime must be carefully considered, paying particular regard to the unique historical and current security context and challenges in that part of the United Kingdom. Paramilitary activity has a greater impact in Northern Ireland than in any other part of the UK. Because of this complex environment, proscription remains an essential tool in the wider, strategic approach to tackling the continued and widespread existence and impact of paramilitary groups in Northern Ireland.

Terrorism legislation, including the proscription regime, is of course an excepted matter in Northern Ireland—it is reserved to the UK Government—but the impact of this amendment cannot be divorced from what is happening at the devolved level. Any change to the proscription regime would have a significant impact on wider efforts to tackle paramilitary activity currently being undertaken at a devolved level and supported by the UK Government and multiple agencies and bodies through the Tackling Paramilitarism programme. A decision to change the proscription regime in Northern Ireland could not, and should not, be taken in isolation from these other initiatives and without detailed prior consultation with the devolved Administration and security partners.

Given the current suspension of the Northern Ireland Assembly and Executive, the opportunity to undertake such consultation does not present itself at this time. We simply cannot ignore the operational, policy, resourcing and wider political ramifications of this amendment. These implications arise in relation to the proscription of international terrorist organisations, but are particularly acute in relation to Northern Ireland-related terrorist organisations. I know that this is a sensitive area, and that this House is rightly concerned to ensure that we strike the right balance, both in relation to the proposed new clause and to the other clauses in the Bill which amend proscription offences.

Finally, I suggest that noble Lords proceed with great caution in this area, given the considerations which I have just outlined. The learned position which the noble Lord has set out needs to be balanced against the reality that these are serious and, in some cases, unpleasant terrorist groups. They have been proscribed with good reason and the Government are anxious to ensure that they do not pose a resurgent threat to the public. I hope that, at this stage, the noble Lord will be content to withdraw the amendment.

[Lord Anderson of Ipswich]

My Lords, I am grateful for the flattering words with which the Minister began and overwhelmed by the distinguished support for the amendment from so many noble Lords. With great respect to the noble Lord, Lord Carlile, I hope that the Minister will not only carefully consider the amendment—as improved by the noble Lord, Lord Pannick—but see the benefits to the Government of having it enshrined in law and not just in an undertaking, so that there can be no doubt who wins in any future conflict within the Government of the sort that the noble Baroness, Lady Manningham-Buller, and I have experienced in our different capacities.

In case it was in any doubt, I clarify that the amendment seeks not to change the proscription regime in Northern Ireland but simply to ensure that the existing regime, as written very plainly in law, is applied. I beg leave to withdraw the amendment, but fully expect to return to it on Report.

Amendment 59 withdrawn.

Counter-Terrorism and Border Security Bill

Lord Anderson of Ipswich Excerpts

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

[Lord Davies of Stamford]

The noble Viscount has reinforced my point with greater eloquence than I could have done.

[Lord Anderson of Ipswich (CB)]

My Lords, it is an uncomfortable fact that the law as it stands has not been as effective as it might have been in prosecuting radicalisers who have stopped short of inviting support for a proscribed organisation but whose words have none the less been instrumental in encouraging others to support terrorist groups, often by actions, not just words. I shall not rehearse the saga of Anjem Choudary and the many unsuccessful attempts to prosecute him over the years. Clauses 1 and 2 attempt to fill a gap in our law by extending the proscription offences. For that reason I look sympathetically on their general thrust although, like the noble Lord, Lord Carlile, I support Amendment 5.

For my part, I could not vote for an extension of the already strong proscription offences in circumstances where substantial numbers of proscribed organisations— 14 by the Home Office’s own admission, and no doubt more in Northern Ireland—are proscribed despite failing to satisfy the statutory condition for proscription, which is being concerned in terrorism. That would expose people to the risk of long prison sentences for expressing opinions supportive of organisations that have long since laid down their arms and committed to peaceful engagement, but which however remain proscribed because no one associated with them has been willing to go to the expense, or indeed attract the associated publicity, of going to court to get them de-proscribed. My support for Clauses 1 and 2 will therefore depend on the outcome of Amendment 59, which would introduce the meaningful review of proscription orders and which noble Lords will consider on another occasion.

[Viscount Hailsham]

My Lords, I shall speak briefly to Amendments 3, 4, 5 and 6. I accept that there may well be a need to further criminalise the overt support of proscribed organisations; I do not dissent from that view. However, we have to accept that what we are proposing in the Bill is an infringement of human rights—the right to free speech. The noble Baroness, Lady Hamwee, is entirely right about that. We therefore need to apply the test of proportionality: to weigh up the evil in one hand and then look at the consequences of what is proposed in the other. It is in that context that I would be very much happier—I now speak directly to my noble friend on the Front Bench—if we were to look again at the concept of specific intent. I would be very much happier if what we were providing for was that the offence was establishable only on proof of specific intent. I find myself very much in support of Amendments 3 and 4 because they seem to satisfy the test of proportionality.

To comment briefly on Amendment 5, I find myself entirely in agreement with the noble Lord, Lord Carlile. Anyone who advocates the de-proscription of a proscribed organisation seems to fall foul of the general language of this part of the Bill, and that should not be the case. It is perfectly proper as part of public debate to argue that a specific organisation should not be proscribed. I therefore hope—

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Moved by

[Lord Anderson of Ipswich]

17: Clause 4, page 3, leave out lines 9 to 11 and insert—
“(2) A person does not commit an offence under this section if the person entered or remained in the designated area solely for one or more of the following reasons—(a) performing an official duty for the government of any country (including service in the armed forces of that government) where such performance would not otherwise contravene the law of the United Kingdom,(b) performing an official duty for the UN or an agency of the UN,(c) satisfying an obligation to appear before a court or other body exercising judicial power,(d) providing support through a registered charity for humanitarian, peacebuilding or development purposes,(e) making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist,(f) visiting a dependent family member,(g) such other reason as the Secretary of State may by regulations prescribe.”

[Lord Anderson of Ipswich]

My Lords, in moving Amendment 17, I shall speak also to consequential Amendment 30. In doing so I take comfort from the words of the Security Minister on Report that this clause, introduced late in the day, would benefit from discussion in your Lordships’ House and, in particular, from exploration of what he called the reasonable excuse issue. These amendments do not seek to remove the designated area offence but rather to render it more predictable in its application and, in addition, easier to prosecute.

There are three problems in the context of this offence with the wholly general defence of reasonable excuse. First, those few people with good reason to travel to a terrorist war zone will have no assurance in advance that they will not be prosecuted for doing so. Secondly, this troubles some of them considerably, as other noble Lords will know. Thirdly, attempts to prosecute a person for this offence are likely to be met with an ingenious array of excuses to which the jury will be invited to be sympathetic. Without any outer limits on the doctrine of reasonable excuse, the prosecution—which, as the Minister said, still bears the ultimate burden of proof—is likely in practice to have to demonstrate some malign purpose for travel, which is precisely the state of affairs that this offence is designed to avoid.

Amendment 21 contemplates a pre-authorisation system, as operates in Denmark. The Danish counter-terrorism officials, to whom I had an opportunity recently to speak to in Copenhagen, expressed themselves as broadly content with that system. However, the Australian independent national security legislation monitor—the equivalent of our independent reviewer—stated in his careful and positive review of the equivalent Australian offence that,

“an authorisation regime could only be effective to the extent that individual compliance with the authorisation could be properly monitored”.

In place of the reasonable excuse defence, I propose a series of reasons which, if they constitute the sole reason or reasons for entering or remaining in a designated area, will mean that no offence has been committed. On the method to which the noble and learned Lord, Lord Judge, referred—the method he commended to me—whatever the scope of the law, no sensible prosecutor would wish to proceed against persons who fall into any of those categories. However, by spelling them out, everyone knows where they stand.

It will be said that no one can predict all the reasons why someone may wish legitimately to travel to a designated area. I give three answers to that. First, the categories of such people are limited and relatively easily defined, in contrast to the categories of person who may have a reasonable excuse to download or access material under Section 58. Secondly, my list is closely based on that which appears in the equivalent Australian legislation, which the Security Minister referred to as a model for this clause. The Australian list was introduced in 2014 by the foreign fighters Act, and it has not been found necessary to substantively amend it since then.

I suggest amending it in only a couple of respects. Proposed new subsection (2)(d) expands on its Australian equivalent, which is providing aid of a humanitarian nature, though limits it to activities conducted through a registered charity. Proposed new subsection (2)(f) replaces the Australian formulation of making a bona fide visit to a family member on the basis that visits to brothers or sisters who are fighting are not to be encouraged and that Latin should not be inflicted upon juries more than is necessary. The third answer to the objection lies in the regulation-making power, which I propose should operate by the affirmative resolution procedure. In four years it has not been found necessary to use a similar power in the Australian law, which noble Lords may find encouraging.

The amendment does not aspire to infallibility but offers a degree of certainty appropriate to the criminal law. It will give assurance for those who travel for good reasons and assist the prosecution of those whose reasons are not so creditable. I beg to move.

[The Deputy Chairman of Committees (The Countess of Mar) (CB)]

I have to tell noble Lords that if Amendment 17 is agreed I cannot call Amendment 18 by reason of pre-emption.

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[Lord Anderson of Ipswich]

My Lords, I am extremely grateful to the Minister for his thorough and courteous response, and indeed to all noble Lords who have contributed to the debate on these amendments. It was intimidating when one noble and distinguished lawyer after another stood up—the noble and learned Lord, Lord Garnier, the noble Lord, Lord Carlile, the noble Lord, Lord Faulks—and rather a relief when most of them had only improvements to offer rather than outright opposition. On the point made by the noble Lord, Lord Faulks, about the ultimate purpose of this clause, with great respect, I prefer the view that the noble Baroness, Lady Manningham-Buller, put forward.

I entirely agree that there is room for discussion about the way some of these elements are phrased, particularly in relation to families and journalists, and perhaps in relation to courts—although it did seem that if there is no recognisable court in a place, then in a sense the issue does not arise of the non-application of the statute. But the fact that the scope of the exceptions is discussable does not mean it should not be done in the way that the noble and learned Lord, Lord Judge, endorsed in his short speech. The principle must surely be to define very tightly the situations in which the Act does not apply, and then allow the prosecutors to exercise their discretion in other cases. To my mind, that is the appropriate area for prosecutorial discretion. We will save the CPS and the courts a lot of trouble if we set out the broad lines now.

But I entirely accept that the Minister, in his helpful speech, has hinted at an alternative way forward, to retain reasonable excuse and perhaps couple that with an indicative list. I give no ground whatever on that, but will certainly reflect hard—and with others—on what he has very constructively suggested. The Minster kindly offered at the end of his intervention to reflect carefully on what had been said. I have not been in this place long enough to be able to decode very expertly what that means. I rather hope it is good news, but it may not be, and in any event I suspect we may be hearing more on this subject. I beg leave to withdraw the amendment.

Amendment 17 withdrawn.