Counter-Terrorism and Border Security Bill (Second sitting)

Ben Wallace Excerpts

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

[Nic Dakin (Scunthorpe) (Lab)]

Q Thank you, Mrs Main. Given your experience, Mr Hill, do you have any other misgivings about the Bill as drafted that you have not already raised?

Max Hill: I hope I have given appropriate credit for other matters that might have been brought forward in this Bill but have not been. What I would say, looking at the five offence-creating clauses in general, is that clause 4 is something against which there is no pushback—no adverse reaction from me. In other words, amending sections 1 and 2 of the 2006 Act to place the jury’s view at the heart of offence creation—the view of a reasonable person as to whether encouragement is actually what the defendant is about—strikes me as eminently sensible, so I agree with clause 4.

I agree with clause 5 as to the principle of extraterritorial jurisdiction and the extension of the remit of the Explosive Substances Act 1883 and sections 1 and 2 of the Terrorism Act 2006. There is no comment from me—I agree. However, I am worried about the extension of section 13 of the 2000 Act—the proscription offence—and affording extraterritorial jurisdiction to that, because of the dual criminality issue; forgive me for using lawyer’s shorthand. This country takes a robust and appropriate approach to proscription, which may be different from that taken by other countries. I suggest that clause 5, at the very least, needs reconsideration as to whether extraterritorial jurisdiction concerning section 13 should be limited to UK citizens, who are deemed to know how we deal with proscription here, as opposed to foreign nationals.

On clause 3, I have answered as far as can. Regarding clauses 1 and 2, recklessness as used in clause 1 is a term of art that I know caused discussion on Second Reading and may do so again. From a simple lawyer’s perspective, however, this is nothing new: subjective recklessness is a feature of the criminal law away from counter-terrorism legislation. It is defined with some precision in section 1(2)(b)(ii) of the 2006 Act, which defines recklessness for the purpose of encouragement of terrorism. Provided that the Government intend the same definition when they refer to recklessness under clause 1 of this Bill, I have nothing to add. My assumption is that that is the intention.

That only leaves clause 2, which amends section 13 of the 2006 Act—the flags and paraphernalia offence. As a legal historian, it is interesting to note that we are moving away from the public order origin of legislating in this space. The public order Acts of the 1930s were intended to deal with demonstrations on the streets; clause 2 now takes this out of a public space and into a private space, and, as the explanatory notes make clear, a particular flag on a bedroom wall is sufficient for the commission of the offence. I would suggest that evidence of what is on the bedroom wall of a perpetrator is already admissible and routinely referred to by prosecutors as supporting material for indictments for other offences; the only debate is whether it is the commission of an offence on its own.

Whatever the answer on that initial concern, the extra concern that I have about clause 2 is that, without more, it begs some serious questions about the display of historical images. There is no statute of limitations on clause 2. I wonder whether one is intended, whether there should be one, or what clause 2 unamended says about those who seek to display in private historical images of individuals working for organisations that were proscribed decades ago where it is a matter of historical interest and nothing more. It seems to me there is a vulnerability in clause 2. I understand where the Government are trying to get to, but some tighter definition might be of use.

[The Minister for Security and Economic Crime (Mr Ben Wallace)]

Q Can I go back to the clause pertaining to section 58 of the Terrorism Act 2000—the streaming clause or the three clicks provision? The original section of the Terrorism Act 2000 is very clear: it is about collecting material, which can include a record which is electronic. Back in 2000, broadband was pretty slow, if it worked at all, so most people watched things by down- loading; nowadays it is streamed, because, first, you do not want to use up your own data and secondly, that is how most of us live our lives. If you are going to watch iPlayer, you do not download each programme before you watch it. Streaming is a reality that is not reflected in the 2000 Act; that simply refers to the way that people look at records. In your experience of doing the job so far, is streaming now used quite broadly by terrorist suspects in learning things, spreading belief or radicalisation, or indeed training? Do you see a lot of that?

Max Hill: Let me answer you this way. I am with you on the digital fix, because I think that is what you are referring to. It is undoubtedly a new variant that, instead of downloading, there are some circumstances—although technically they are quite few—in which one goes no further than streaming and there is no download imprint that has been caused. I add that prosecutors are already alive to the risk of using as prosecution evidence cached material, within an internet cache, from which it does not follow that the perpetrator has ever actually read that which appears in the cache. I know that the clause is not designed to capture information of that sort, but we need to be very clear that a cache on a laptop or phone is not evidence of personal interest by the owner of the device in the material in question.

Streaming is a modern phenomenon and to that extent I am with you, but section 58 in its origin might be looked at as an “anti-proliferation offence”—my phrase and nobody else’s. I would suggest that one of the reasons Parliament originally looked to section 58 is to stop the proliferation and perpetuation of material that we deem to be extreme terrorist propaganda, which should not go to other places. This does not deal in the same way with that. This is not anti-proliferation, because, by definition, somebody who streams and does not go any further is not bringing to the attention of third parties—still less is he or she storing for dissemination later on—material that is already online.

So there are some very strict limitations to what somebody is actually doing by streaming without more. They are not straying into the section 2 of the 2006 Act dissemination territory, which they might with section 58 in its current form. Download might be issue number one, and then issue number 2 might be later proliferation, perhaps with additions or amendments to whatever was originally downloaded. That is not what we are talking about here. We are talking about merely online streaming in—as I am afraid I have described it—rather imprecise circumstances as to time and circumstance, and that is why I am concerned.

[Mr Wallace]

Q If we all agree that streaming is a problem and is a modern reflection of how people are viewing things, would another solution to your worries be simply to amend section 58? The first line of section 58 says:

“A person commits an offence if (a) he collects or makes a record of information of a kind—”

so that in and of itself is an offence with a reasonable excuse defence in it.

Max Hill: Yes.

[Mr Wallace]

Are you happy with section 58 of the 2000 Act as it stands?

Max Hill: Yes. I hope I have made clear that I do not seek to undermine that. I have a practical question—it is nothing more than that—as to whether it forms an indictment pure and simple. I am very familiar with it and have prosecuted indictments myself where section 58 offences on their own, or in multiples, are used as supporting evidence for more serious preparatory or terrorist plotting activities, but it is very rarely used on its own.

[Mr Wallace]

Q But as it stands at the moment, it can be an offence on its own?

Max Hill: It can be, technically, yes.

[Mr Wallace]

Q If you were to just amend subsection (a)—

“A person commits an offence if…he collects or makes”—

and added “, or streams”, would you be satisfied with that? Would that address the issue we are getting at?

Max Hill: In one sense it would, but I am afraid it still begs the questions as to how much you are streaming, on how many occasions, and how much interest you are actually showing in material that you do not go on to download or store. Reasonable excuse, as you say, remains. The concern I have is that, whether the French example is a good one or a bad one, the legislators there have sought to provide exemptions and licences for obvious categories—professionals, academics, journalists—which we do not have in this draft clause. There must be a danger that individuals will be put to the trouble, and often considerable expense, of facing an indictment, raising reasonable excuse at trial, and it then being incumbent on the prosecution to disprove it where they should not have stood trial at all.

[Mr Wallace]

Q Could that already be the case for academics downloading, recording or collection information under the existing section 58?

Max Hill: It could.

[Mr Wallace]

Q And it has not been struck down by any of our courts?

Max Hill: No, it has not been struck down. There is appellate judicial guidance on what reasonable excuse means. I suppose that my point is that if we are extending the ambit of activity that is likely to require that reasonable excuse defence, it becomes more important that we do more to define circumstances in which the offence is not committed, rather than leave a generic reasonable excuse defence currently undefined.

[Mr Wallace]

Q The Government are always being probed for judicial discretion. There is the idea that we have a tendency to be too prescriptive and want to encourage judicial discretion. Is that not, a bit like the appellate guidance that you talk about, a place for judicial discretion?

Max Hill: There is judicial discretion and before that, of course, there is prosecutorial discretion. The Director of Public Prosecutions, or her designates, will have a discretion as to whether to prosecute. But I am afraid, from my position as an independent reviewer, I am bound to say that although that is a valuable safeguard, it would be better, given the opportunity, if we defined as matter of legislation more closely the circumstances in which an indictment should follow, rather than left it to prosecutorial discretion.

--- Later in debate ---

[Nick Thomas-Symonds]

Thank you for coming along, Mr Clancy. I appreciate your evidence about terrorism legislation being reserved to the UK and about the memorandum of understanding between the Attorney General and the Lord Advocate and so on. However, moving beyond that, do you have any concerns about clause 3 of the Bill that you have not already referred to?

Michael Clancy: I think we were generally in favour of the idea that this area should be updated to take account of the digital revolution. The fact that the review of terrorism legislation that the Government precipitated last year has resulted in no further offences, as Max Hill described, is a vindication of the extent to which the law captures most of the issues. However, there are always questions that can be asked—some of which you have already heard about—about the balance between the right of expression and the requirements under the Bill.

It is fair to say that the courts have been quite explicit about where they fall on that balance. The right to freedom of expression under ECHR article 10 is not an absolute right; it has to be balanced with the other rights that the rest of us enjoy, such as the right to life, and so on. Therefore, although others may not subscribe to this view, the case has to be made that the provisions in the Bill will upset those rights to the extent that we would be considerably concerned about them, given that they build on existing provisions that have already been tested in the courts.

In that context, we have to look at all the legislation we have got—several Acts relate to counter-terrorism—and construct some sort of codification or consolidation of it. I do not know about you, ladies and gentlemen, but flitting between three or four Acts of Parliament within the compass of one Bill is difficult enough. It is difficult to imagine that those who will be subject to the legislation will do that kind of thing. We should make the law as simple and easily understood as we can.

[Mr Wallace]

Q Thank you very much for coming today. May I ask your view of clause 1, which is obviously the part of the Bill that talks about expressions of support, and the challenge around that? Critics have used the phrase “thought police”. Obviously, we are trying to grapple with the threat from inspiring—people who do not specifically stand up and say, “Join ISIS”, but use their position recklessly to promote such organisations by saying, “I think they are great,” and so on. Correct me, because I may not know this. Is the previous legislation that deals with the area of incitement and religious hatred devolved or reserved?

Section 18 of the Public Order Act 1986 and the Racial and Religious Hatred Act 2006 effectively do the same thing: they set out that, for an offence to have been committed, you do not have to tell people to hate, or say, “You must attack Muslim people,” or, “You must attack Jewish people”. You can express in a private or public place sentiments or views that could have the consequence of inciting racial or religious hatred. Do you see a read-across from that position, which is accepted in established law, to clause 1, so it relates to encouragement towards a proscribed organisation?

Michael Clancy: I have not, I confess, made that read-across myself, Mr Wallace, but I will go back to Edinburgh and do so later on today. The general proposition about someone making a reckless statement and about whether the person to whom the expression is directed will be encouraged to support a proscribed organisation raises a couple of issues. What is reckless? It is taking a risk, in terms of the information you convey about the outcome of what you say. What is a proscribed organisation might, too, be a difficulty, because if I were to ask members of the Committee to list all the proscribed organisations they might not be able to do that. It might also pose a difficulty regarding whether some people making statements are supporting a proscribed organisation as we understand that to be the case.

There are some issues. There is a read-across to the analogous provisions in race and religion. Of course, if we have those models to follow, and those have been followed without any difficulty since they were enacted, the Government are probably on safe ground in extending the provisions to the kind of incitement envisaged in clause 1.

[The Chair]

Does anybody else have more questions for Mr Clancy? Yes, Mr—

--- Later in debate ---

[Nick Thomas-Symonds]

Q Just one question, Mr Clancy, arising out of the Minister’s question about section 18 of the Public Order Act 1986 and the Racial and Religious Hatred Act 2006. Both Acts are about the use of abusive, threatening or insulting behaviour to stir up hatred, but do you agree that there is a distinction between that and actual recruitment to the cause, which is what the clause in this Bill is talking about? Are they different things?

Michael Clancy: Clearly, there is a legislative distinction between the two. It depends on what the abuse in terms of race or religion is intended to do. Is it simply to make someone feel uncomfortable, aggrieved or violated, because of their religion or race? Or is it in some kind of a way to encourage others to take up that same kind of attitude toward people based on their religion or race?

Legislation in this area, countering discrimination on the basis of religion or race, is something that we have had in this country since the 1960s. Therefore, the fact that we are continually having to look at this again means that the educative value of that legislation has not yet reached its optimum. We have to be aware of pushing that further, to make sure that those who would fall into that pattern of behaviour know that it is wrong, illegal and that they must desist from doing it.

[Mr Wallace]

Q I want to follow on from the previous issue of the person collecting the materials and the three clicks. I do not know if you heard my question to Max Hill, which was that given that section 58 of the 2000 Act is well established, has been used and has not been struck down by challenge in a European court setting, if instead of defining by three clicks it was to explore simply adding in streaming, with the reasonable excuse defence, do you think that would solve the problem of streaming as opposed to holding or downloading information?

Michael Clancy: If you have an adequate definition of streaming, that might work, but for me it is just a word that people use when they are accessing information and videos on the internet. I suspect that the kinds of videos that are covered by this legislation will not have a pop-up window that says, “Do you want to play from the start or resume from where you left off?” The idea that these might be formal productions is not the case.

If we can do something that makes the legislation tighter and more usable, of course. But we may get into those difficulties about what is meant by streaming, how long does the stream have to be and what kind of document or record is being streamed.

[Mr Wallace]

Q To reflect on section 58, when we talk about collecting electronic records or making a copy, we do not qualify that by saying that the definition is that it has to be longer than 10 seconds long or it has to be an hour long. We do not do that already; we do not seek to narrow it there.

Michael Clancy: That is a good point. Perhaps we have to look at that and say whether it is covering everything we need to cover there.

I am also interested in the defence provisions about having a reasonable excuse. Reasonable excuse covers most of the instances, but under the Criminal Justice Act 1988 of course, someone can have lawful authority, justification or excuse. If we look at Section 57(2) in the Terrorism Act 2000, it says there is a defence if

“possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism.”

There may be a way in which one could look at that element of defence to make sure that those who are anxious about this provision have their concerns allayed.

[Andrew Bowie (West Aberdeenshire and Kincardine) (Con)]

Q You mentioned in passing in an answer to Mr Newlands that access to legal advice and issues surrounding confidentiality were different in the Scottish and English legal contexts. As this is a whole UK Bill, I wondered if you might expand on that. I would also ask what your experiences have been in the Scottish context of the operation of the counter-terrorism ports power, in terms of detainees having access to legal advice.

Michael Clancy: The distinction between reserved and devolved matters is that if it is listed in schedule 5 of the Scotland Act 1998, it is reserved. If it is not, it is devolved. That is why aspects such as the legal system, the courts and the legal professions are devolved, because they are not listed as being reserved. It means that the justice agencies in Scotland, including the courts, the police and the legal profession, have to exercise a law that is reserved, but they exercise it in a devolved context. That covers areas where advice is given and where the police have to act, except in provisions where they might be directed in the Bill, or the Act, to do so. I hope that that gives you enough on that.

I am afraid to say I have no experience of the ports provisions that I can offer, but I will ask the question back in Edinburgh and see if anybody can enlighten me. If so, I will write to you.

--- Later in debate ---

[The Chair]

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

[Mr Wallace]

Q Can I ask all three of you the same questions, to hear your views? First, to Liberty, as it stands section 58 of the Terrorism Act 2000 basically hinges on the collecting or downloading of material. Is it your view that that, too, should be struck out?

Corey Stoughton: Liberty opposed the introduction of that offence. We certainly understand that this is not the time or place to take that step.

[Mr Wallace]

It is either a principle or it is not. You either think it is wrong or it is not. Would you venture that section 58 is not needed?

Corey Stoughton: We would, yes.

[Mr Wallace]

Q So downloading terrorist content and manuals on how to make a bomb and all that sort of stuff should not be an offence?

Corey Stoughton: Downloading terrorist manuals on how to make a bomb is already criminalised under the collection of material that would be useful for the purposes of terrorism, which is already an offence under terrorism legislation. Those things would be illegal.

[Mr Wallace]

That is training. What about downloading ISIS or al-Qaeda propaganda materials?

Corey Stoughton: Liberty’s position is that merely looking at that material should not be an offence. It may well be reasonable grounds to further investigate whether a person is planning to engage in terrorist activity.

[Mr Wallace]

Q On the broader issue of biometric data, the Government have responded to the Biometrics Commissioner’s recommendations. I hear the points about there not being enough safeguards and there being other issues previously. Does that mean that two years is too much already?

Corey Stoughton: I have to think about that a little bit more. It has been a while since we engaged with that provision of the Bill. At this stage, there are obviously occasions on which the retention of biometric data is appropriate, but I think it is clear enough to say that, for the purposes of the Bill, expanding that power, when there are already existing concerns over the way similar powers are being used, is not the right way forward. We need to clean up the system that currently exists and ensure that the important safeguards that currently exist in the system are maintained or, if not perfectly maintained, at least substituted with safeguards that continue to ensure that those powers are exercised wisely and consistent with human rights laws.

Peter Carter: Can I deal with clause 3 and the amendment to section 58? Section 58 of the 2000 Act deals with the collection of information that can then be used, or is likely to be used or of benefit, for an act of terrorism. Simply looking at something is not a predicate act to providing that information for a terrorist purpose. It would be better to make a distinction between the act of simply looking and the act of deliberately retaining something with the potential intention or purpose of it being used or passed on to somebody else.

I therefore think that clause 3 and its amendment of section 58 add a new and undesirable dimension to section 58. It is undesirable because it expands the ambit of the offence in an unnecessary way. By adding something extra, we are making the life of the counter-terrorism command, and the life of judges who have to direct juries, more difficult. In this area of law, simplicity is very desirable, and this is over-complex.

[Mr Wallace]

Q First, the head of counter-terrorism would not have agreed with that. If you heard his evidence this morning, I think he welcomed the ability to deal with the streaming challenge. Secondly, on its own, as a stand-alone, section 58 is an offence—simply to collect material—and it does not necessarily have to be linked. Obviously you can deploy a reasonable excuse. My question to other witnesses has been: it may be that people do not like the three clicks and that sort of route, but if we were simply to amend section 58 to add in “he collects, makes or streams”, would that not achieve the same issue? There would still be reasonable excuse as a defence.

Peter Carter: I think “collecting”—our making a record—is different from accessing. There is perfect justification for having an amendment that accepts the new changes in technology, and that is necessary. But if it is going to be purely accessing, you need a contingent intention: in other words, you are doing it for the purpose of an act preparatory to terrorism, or intending to use it for terrorism or to make it available for terrorism. Simply accessing is too remote.

[Mr Wallace]

Q Would that not already exist? If I were to bring a charge under the existing section 58, and I proved that you had downloaded lots of things but you had not done anything with them, it is likely that a prosecutor would not prosecute. I do not think there has been a case in that environment. So as the offence stands at the moment you have to do more with it than just effectively download it.

Peter Carter: But you are extending an offence which is at the periphery of what is certain—how it is connected, certainly, to a potential act of criminality. In order to protect the right of people, whether they be journalists, academics or those doing research, as Max Hill said, you should not have people facing a risk of needing to raise a defence, having been arrested, charged and had their life interrupted for however long it takes before they can put that before the jury.

[Mr Wallace]

Q There are hundreds of examples of academics and journalists downloading some of this data, and they have not been prosecuted. There is no evidence of a chilling effect on existing journalists under the existing section 58. There is no evidence that prosecutors have been abusing their discretion to bring charges—or, indeed, that the judiciary has successfully allowed a prosecution.

Peter Carter: That is because, as I say, section 58 as it exists has, as its apparent purpose, an element of an activity predicate to a potential terrorist offence. There is nothing to stop the security services from tracing and tracking people who simply access the material. The question is whether you transform that material, available to the security services to keep an eye on people, to make it a specific criminal offence. You should not transform one to the other.

[Mr Wallace]

Q I just want to explore reasonable grounds in the schedule. How focused is reasonable grounds in the law that currently governs stop-and-search? Is it very specific to an individual? Is it currently able to be used in a broader environment where you simply have an indication that a knife is about to be used in an area? In other words, how elastic is that concept?

Peter Carter: It is elastic: it depends on the circumstances. It may be that, depending on the nature of the intelligence available to the officer—the person doing the stop-and-search—it needs to be specific if there is a person of a particular description, but it may be that the nature of the threat is so serious and the information about the individual so amorphous that it is perfectly justifiable to stop a large number of people in a specific area.

[Mr Wallace]

Q If I had intelligence that we suspected that a hostile state would move some radioactive material via a passenger on an aeroplane into this country over the next six months, would that be too broad to target flights from a certain part of the world? For reasonable grounds to be satisfied, would that need to be narrower?

Peter Carter: I am not going to say that it would not be satisfied in certain circumstances; I have prosecuted lots of drug trafficking cases where the customs officers have had intelligence of that nature. That has then been refined, which meant that they could focus on a finite number of planes or ships, but they have had to do covert surveillance on a potentially large number of persons and transits. If that transforms itself into focusing down on to, “Right, this is an individual on this flight or on this ship who satisfies what we think our refined intelligence is,” then yes, it can be quite a few people.

[Mr Wallace]

Q But it may not get that narrow. It may not be something you can further explore. It may simply be that you know that between June and September, there is a plan to bring something—a radioactive material—into this country, and that is what I, as the Security Minister, will have to take a defence against.

Peter Carter: I would suggest that it is a question of proportionality. If the threat is extreme, I would not want to say that your hands are tied.

[Mr Wallace]

Q But would not using reasonable grounds or grounds of suspicion be doing that?

Peter Carter: You would do, because if you were able to identify that it was coming from a particular place and was of a particular kind, in reality, you would not search everything and everyone. As I say, it is a question of proportionality. If there was a really major threat to the security of this nation, I would hope that appropriate powers would be available to ensure that it never came to pass. If that meant an extensive number of searches, that would be proportionate and reasonable.

[Nic Dakin]

Q Looking at the powers of detention at the border, I see that there is no access to a solicitor for an hour, and there is a power for someone to have to speak to their solicitor within the hearing of an officer. Does that concern you?

Abigail Bright: The first part certainly does—having no access to a lawyer, on the face of it for no good reason. If there is a good reason, of course that will present itself—it will be case-specific or fact-specific—but I do not see why the hands of law enforcement officers should be tied to one hour, or why the rights of a suspect, who is potentially an accused person, should be diminished with reference to that. That would be my observation about that first part.

Peter Carter: I agree.

--- Later in debate ---

[Julia Lopez]

Q So a beheading would not be considered the same?

Corey Stoughton: Extremist content is what the current provision would cover. Extremist content is not inherently harmful in the same way as child pornography is. For example, there may be a range of legitimate reasons for a range of people to engage in viewing extremist content, whether because you knew that a student of yours in your secondary school had viewed it, or your child had viewed it, and you wanted to understand what they were looking at, or for journalistic and academic activity, which we have covered.

Child pornography really is in a class by itself, because the harm in the creation and the viewing of it is so unique and different that it is appropriate for it to be criminalised in that way. Extremist content, although quite serious—I do not mean to diminish the seriousness of the problem of the proliferation of extremist content and the challenges it legitimately poses to law enforcement —is of a different kind from child pornography for that reason.

[Mr Wallace]

Q I just wanted to clarify: terrorism content or extremist content?

Corey Stoughton: I am not sure I know what the difference is.

[Mr Wallace]

Q Inspire, a magazine written by al-Qaeda and promoted around the internet, or an ISIL document? Are those terrorist? I would say it is created by terrorists for spreading terrorist theology and hate.

Corey Stoughton: Would I still distinguish that from child pornography? Yes.

[Mr Wallace]

Q No, would you say that was terrorist content or extremism content?

Corey Stoughton: I do not know. Part of the problem with these laws is that the terms are fluid and not very well defined. What one person might consider extremist content another person might not consider extremist.

[Mr Wallace]

Q So a magazine written by al-Qaeda, claiming to be by al-Qaeda, which gives a theology about kufr and attacking everyone else, is inherently a terrorist publication?

Corey Stoughton: Sure. I would agree with that, absolutely.

[Mr Wallace]

Q I understand the issue about extremism content, but when it comes to terrorist content, surely there is a crossover to the paedophile streaming and viewing?

Corey Stoughton: I still think there is quite an important distinction to be drawn from that, because no child is harmed in the creation. If a child was harmed and it was child pornography, obviously it would be different.

[The Chair]

Order. I am just conscious that the Minister is asking the questions.

[Mr Wallace]

You should just watch them; you will see people being executed in the background. I would guess that is harm.

[The Chair]

If there is a moment left, I will come back, but I am conscious that Dr Huq would like to ask a question before we run out of time.

--- Later in debate ---

[Dr Huq]

Q I have another short question. Are the three of you aware of the Prevent programme having lost the confidence of certain communities? Do you have any comments on that?

Peter Carter: I was involved in training the counter-terrorism command when the Prevent policy started. I was an enthusiastic supporter of it, because it was subtle and very effective. It has gone slightly off track and lost the support of some communities. That is a great shame, because it really needs to be supported.

I shared a panel recently at the Law Society with the Metropolitan Police Commissioner; I am glad to say that she and I agreed about just about everything. One of those things was the importance of the Prevent strategy and of getting back the confidence of the communities, because their engagement in it is vital. As a concept, it is a vital part of fighting terrorism.

Abigail Bright: A very specific part of the community is the family doctor—the general practitioners. One only needs to look at The BMJ to see the concern expressed by medical practitioners about the Prevent programme. In principle, there is no resistance to it among the medical fraternity, but how it is executed and how it risks trespassing on medical confidentiality and trust between doctor and patient is a very discrete part of how it is problematic in the community.

[Mr Wallace]

GPs are not covered by the Prevent duty.

Abigail Bright: On another view, much training of general practitioners goes into how to deal with Prevent.

[Gavin Newlands]

Q I think we have covered a fairly wide area. I want to go back to biometrics, because we missed out on that answer previously. Ms Bright and Mr Carter, do you think it is justifiable to retain biometrics information for five years, without oversight by a Biometrics Commissioner of those people who are not charged, whose charges are dropped or who are found innocent? Do you think that is of any use to the police and the security services?

Peter Carter: I am afraid I am going to disagree slightly with Liberty on this one. It is a bit like personal data: it needs to be constantly reviewed. There needs to be a finite term to begin with; then if necessary, continued retention needs to be justified. I do not think there should be an automatic prohibition on the retention of data by those who are not prosecuted, because it might well be that a person is diverted from prosecution even though there is very good reason and very strong evidence that they did actually have the material and were on the verge of getting involved with terrorist activity. In those kinds of cases, it is justified to retain the material. I think it is a question of proportionality—two years to begin with, with the possibility of extending it to five or further, if there is justification.

Abigail Bright: From the specialist Bar associations, I would add two things. First, the Bill incorporates a review by the Investigatory Powers Commissioner. That is very welcome and it is a good part of the Bill as drafted. As the Committee knows, the commissioner is to have two functions: to monitor and to keep under review the operation of provisions of the Act, and after that to report as a long backstop every calendar year. Within that, the commissioner has the power to report to the Secretary of State as and when the commissioner thinks appropriate much before a year.