Counter-Terrorism and Border Security Bill

Baroness Hamwee Excerpts

2nd reading (Hansard): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I, too, thank the Minister for her introduction. I agree with the noble Lord, Lord King, that the speeches we have heard so far have given us a thoughtful and helpful context for the Bill. I speak from the Liberal Democrat Benches, but also as a member of the Joint Committee on Human Rights. The two positions are not incompatible, as my noble friend Lord Marks has indicated; indeed, the reverse is true.

As background to some of my remarks, I shall quote two paragraphs from the report on the Bill that the committee published earlier this year. It stated:

“Our Committee recognises the need for the Government to have strong powers to defend our national security, prevent individuals from being drawn into terrorism and to punish those who prepare, commit or instigate acts of terrorism, or encourage or connive with others to do so. However, when these powers interfere with human rights, they must be clearly prescribed in law, necessary in the pursuit of a legitimate aim, and proportionate to that aim”.


It went on:

“We are concerned that some of these ‘updates’”—


that is, updates to existing offences—

“extend the reach of the criminal law into private spaces, and may criminalise curious minds and expressions of belief which do not carry any consequent harm or intent to cause harm. In doing so, some of these offences risk a disproportionate interference with the right to privacy, the right to freedom of thought and belief, and the right to freedom of expression”.

I think our Minister will understand that approach, but I am afraid I am not being consensual in this and I cannot let today pass without responding to comments made by the Security Minister, Mr Wallace. At Third Reading in the Commons he criticised the JCHR for not taking wider evidence. He said:

“It took evidence from Cage and other such groups”.


I do not know who he was referring to among the 13 who, in response to an open call, gave written evidence. They included such dodgy characters as the National Union of Students, the Muslim Council of Britain and Clive Walker, adviser to successive Independent Reviewers of Terrorism Legislation. The committee took oral evidence from Max Hill, still—just—the current independent reviewer, and from Liberty, and invited oral evidence from the Metropolitan Police, the Commission for Countering Extremism and the Investigatory Powers Commissioner. There was a very tight timetable and, although they were invited, they were unable to attend.

Not only did Mr Wallace impugn our witnesses, he went on to say of the committee that,

“I think its duty was to be balanced”,—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 11/9/18; col. 717.]

and said in a letter to the committee that our report was not set in the context of current threats. I accept that liberty requires security, and I resent very much the suggestion that the committee was not balanced. I resent that too on behalf of our witnesses who, on the basis of their own experience and backgrounds, would have been irresponsible if they had not voiced their concerns. Max Hill went out of his way to give credit, as he put it, to the Government before his more negative comments. He said:

“There are some good, pragmatic solutions here for the modern world, but there are some aspects of the extension of existing offences that give me serious cause for concern”.


I also resent the suggestion that the committee ignored or was unaware of the threats, which have of course been referred to and described in this debate. I hope that by the end of the debate the Minister will have found a different formula to describe the committee’s work, including acknowledging that—like human rights, which are a matter of proportion and balance and are the scale against which we measure propositions—the committee’s approach has been balanced.

It is in the nature of scrutiny that we focus more on issues of concern in these debates. At this stage there is time only to give a flavour of these; we will have opportunities later. I say that particularly to those outside this place who have sent us briefings. Not referring to those briefings and organisations does not mean that they are ignored; on the contrary, they are very much appreciated.

I start with the new offence in Clause 1. We are troubled by the lack of clarity coupled with the low threshold of recklessness. I am also unclear whether expressing an opinion using social media—I might plagiarise the observation that ISIS knows more about it than I will ever do—and directing that opinion to someone when it is on social media, and open to whoever cares to look at it, comes within the offence. There is a lot of material for the lawyers who will help us on matters of construction. However, I will say now that arguments from the Government that we should be reassured by the prosecution’s sensible use of the public interest test are unlikely to convince me, because that is no substitute for getting the legislation right.

The new offence in Clause 2 also seems to have a low threshold. What if the suspicion is reasonable but wrong? We will no doubt spend time on the reasonable excuse defence to accessing material in Clause 3. The point was made in the Commons that in legislating for a reasonable excuse without including a lack of terrorist intent as an excuse, we could be thought to be intending that not to be an available excuse. Additionally, here and elsewhere we seem to be in the territory of reverse burdens, the burden being on the defendant—guilty until proved innocent.

One of the reasons given by the Minister in the Commons for Clause 4 was,

“to strengthen the Government’s … advice to British nationals … against all travel to areas of conflict where there is a risk of terrorism”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 11/9/18; col. 656.]

I am not sure that it is necessary to create an offence to make it clear that the advice is to be taken seriously. I also wonder whether there will be a correlation with what are regarded as safe places for the purposes of deportation.

Reasonable excuse is a defence. What thought have the Government given to getting their defence in first? I doubt that a comprehensive list could be assembled, but some situations are obviously relevant. If your objective is journalism or humanitarian work, the clauses provide for the designation of areas but there is no arrangement for licensing travel, if I can use that term rather broadly.

I have one specific example which I do not think has been mentioned: funerals. Certain faiths require funerals to take place very soon after a death, and families will be in some difficulty in that situation. This seems to be a provision which makes it an offence to think and to be, as distinct from doing.

My noble friend Lord Marks has been very persuasive about sentences and sentence inflation. Is there any evidence of a deterrent effect of such increases, which seems to be part of the rationale here? Conversely, should we not be aware of the potential for people to be presented as martyrs?

Border control provisions take up about half of the Bill’s length, although they may not take up half of our time in the Chamber. I look forward to hearing the analysis of the noble Lord, Lord Anderson, of the restrictions on the use of what someone says when he is stopped at the border and the limits of those restrictions, both in the Bill and as applied to the continuing Schedule 7 procedures.

We shall need to be clear about how the Schedule 3 powers are expected to be operated. It seems that decisions to stop and search individuals will be informed—and known to be informed—by intelligence of travel patterns, which seems to me to weaken the argument for a no-suspicion power, which is inherently unchallengeable.

We will need very persuasive arguments about the extensive definition of a hostile act. The economic well-being of the UK in a wide sense will be discussed in other contexts at the same time as the passage of the Bill. I simply ask here whether that phrase is intended to address cybersecurity.

Serious crime is obviously not to be condoned, but is not the most serious if it attracts only a three-year sentence. As defined, it is crime which may be on behalf of another state. Are we now to have stops if there is suspicion—or no suspicion—of someone travelling while Russian or travelling while Asian?

This House has previously made clear its view of the importance of access to a lawyer and the confidentiality of the relationship between a client and his lawyer as to both advice and material. I am sure that we will do so again and ask why the existing protections against dodgy lawyers are insufficient.

I knew that the Minister would tease me about the role of local authorities on Prevent. I have looked at the exchange on my amendment during the passage of the 2015 legislation. I am very flattered that anyone recalled it and took the trouble to look it up and brief the Minister on it. I have to say that I do not understand why my amendments were resisted then but are now in the Bill. They put local authorities and the police on a similar footing. There are a lot of issues about the powers, duties and functions in what I would call a safeguarding as well as a security activity, as well as resources, of which local authorities have a good deal less than they did in 2015. That thread runs through everything.

In conclusion, it is not surprising that lawyers, academics, journalists and people generally concerned with free thought, free speech and human rights have raised issues about the Bill. These Benches and the Joint Committee on Human Rights on a cross-party basis look forward to a vigorous Committee aimed at achieving a balanced Bill.