Counter-Terrorism and Border Security Bill

Earl Attlee Excerpts

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

[Baroness Hamwee]

My Lords, I asked what it means. The noble Lord, Lord Faulks, has given his view. If it means “published” perhaps it should say “published”, which is well understood, not only by lawyers but by ordinary people—I was going to say “normal people” but I should not say that. I hope none of us is abnormal. If that is the answer, it would be very helpful to know. I am grateful to the noble Viscount for adding to the debate.

To finish the point on direction, there was also a comment about intent meaning to invite support, as in the existing Section 12(1). Does the Minister have any comments on that term and its relationship to this new provision?

Finally, the committee was concerned about a lack of clarity in this provision on the boundaries of a debate. We agree with the Minister that it is hard to define valid debate, but we believe that the lack of clarity and the low threshold of recklessness risk a chilling effect on free speech and a disproportionate interference with the right to free speech.

[Earl Attlee (Con)]

My Lords, my Amendment 6 is in this group. I am grateful for the support from the Opposition Front Bench. I am confident that the Government will have thought very carefully about the need for Clauses 1 to 6, so I support them and share the view of the noble Lord, Lord Carlile. I will leave it to other noble Lords to scrutinise the principles, but I understand the concerns that have been—and will be—raised by other noble Lords when speaking to their amendments.

I have put my name to Amendment 5 and I agree with all that the noble Lord, Lord Rosser, has said. The decision to proscribe a group is not taken lightly. Nevertheless, in a free and democratic society, it is a major step to take and it should be possible to question it. One might want to suggest that proscription is acting as a recruiting sergeant for the group concerned. Under Clause 1, there would be a danger of that suggestion being regarded as a,

“belief that is supportive of a proscribed organisation”,

because it supports the de-proscription. There is also a very fine dividing line between stating that HMG’s policy is flawed and supporting a proscribed organisation.

Earlier this year, I tabled amendments to the Data Protection Bill dealing with press regulation. Some thought that I and other noble Lords were somehow anti-press and against freedom of speech. Nothing could be further from the truth, as we shall see. My Amendment 6 inserts an exemption for opinions or beliefs that are,

“published or broadcast for the purposes of journalism”.

[Viscount Hailsham]

Will my noble friend tell the Committee whether he thinks there is a distinction between “for the purposes of journalism”—the phrase in his amendment—and “in the course of journalism”?

[Earl Attlee]

My Lords, that is a very technical question.

[Viscount Hailsham]

It is rather important.

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[Earl Attlee]

It might be important, but I do not know the answer.

This exemption is needed because the vagueness of the offence, combined with the absence of an intent requirement, puts journalists and news organisations in danger of wrongful prosecution and legal harassment just for doing the job of reporting what is being said and engaging in debate. As drafted, a news organisation reporting on the activities of a terrorist organisation could be ensnared by the offence for relaying to the public the words of the members of the terrorist organisation. It is easy to imagine a situation where doing so is essential for the public’s understanding of a terrorist outrage, yet in doing so the news organisation will be expressing words that are supportive of that organisation and so fulfil the elements of this new offence.

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[Lord Davies of Stamford (Lab)]

My Lords, I did not take part in the Second Reading debate because I was not able to be at the wind-up, although I heard a great deal of it. I am very concerned, as I believe everybody ought to be, about this matter. I cannot think of anything more important in a free society than freedom of speech, which should be tinkered with or eroded with the very greatest reluctance, if we do it at all.

I am concerned about a number of things in the Bill. One is the issue of recklessness, which has already been debated. To bring recklessness in here seems extremely dangerous. I know that I am about to be told by somebody that recklessness already exists in the criminal law in different contexts, but it exists in such a way that it is easily definable. Reckless driving of a motor car involves driving it too fast or taking no account of the traffic on the road, or not having one’s car checked and so forth. There are specific ways in which you can say that is reckless and define “recklessness” in such a way as to create little difficulty for judges or juries, or indeed for one’s general sense of justice. That is not the case here.

The idea that every word one speaks and every sentence one enunciates might be looked at with a view to whether it could have been reckless is quite alarming. It opens up the prospect which concerns me: that one might say something which happens to agree with something that is in the platform of a proscribed organisation and, as a result, find oneself indicted under the Act, if the Bill becomes one, without having the slightest notion that one had committed any offence, or necessarily that some terrorist or proscribed organisation shared one’s view on a matter. I am really concerned about it.

It seems to me that we should have the good old concept of intention here. Intentionality should automatically form part of the criminal law, except in special circumstances. In strict liability, intentionality does not apply, but intentionality is a principle very much bound up with the criminal law in almost all contexts, and I think that is the right way to go. That is much more specific. We would therefore not be doing violence to the precious principle of free speech if we adopted the intentionality route. I very much agree with those in the debate who have taken that line, and I very strongly disagree with those who have not.

There is another matter which I am very concerned about, and I dare say I shall make myself very unpopular by saying this. I do not for a moment think that we ought to have some privilege for journalists in the matter of free speech. I will not only speak against that but will use any opportunity I can to vote against any such Motion. Freedom of speech belongs to every citizen in a free society. Of course journalists must not do dangerous things, any more than anybody else must not do dangerous things, but the idea that journalists have a special form of free speech which is not available to the rest of us is quite absurd. If there are indeed proscribed terrorist organisations and journalists can legitimately report on what they are saying or what they stand for, it should be equally up to any of us. I am thinking not particularly of parliamentarians. Parliamentarians and other people should be able to report on that and talk about that. A free society consists of people being able to express views or refer to views, however awful they may be, without committing a criminal offence. The suggestion is obnoxious. I understand why it has been made. It has been made for the most honourable and pure reasons, but it would not be a good idea.

I also see some difficulty in definition. Who is a journalist? If a journalist leaves a newspaper or the media channel for which he or she is working, does he or she cease to be a journalist? Does he or she cease to be a journalist after five years or 10 years if he or she ceases to practise that profession? What does “practice that profession” mean? Some of us write articles for the press from time to time. In the old days, in my case it was for money, but not at present. Does that make us journalists? If we create a special right and privilege for so-called journalists, obviously a lot of people would like to define themselves or their activities in such a way as to get the benefit of the franchise that has been created. That is an undesirable development.

[Earl Attlee]

The noble Lord raises an extremely good point about who is a journalist. When I was being briefed by the media, I asked that very question. The answer is that traditionally we do not define who is a journalist, but I am confident that it does not cause a problem in the way my amendment works.

[Lord Davies of Stamford]

I have great affection and respect for the noble Earl, but that is no good at all. The idea of creating a special category of people in the key sensitive matter of free speech is bad enough but if you then say that you do not need to define it—in other words, you do not need to restrict in any way the benefit that is being accorded or the possibilities of its misuse—you are on a hiding to nothing. I do not agree with the noble Earl on that subject.

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[Viscount Hailsham]

My Lords, the point made by the noble Lords, Lord Anderson and Lord Carlile, is entirely right. As I get the sense that the Committee wants to hear from the Minister fairly smartly, I shall now proceed to Amendment 6 and deal with it fairly swiftly. I hope my noble friend will forgive that I cannot accept Amendment 6, for this reason: the phrase used is “for the purposes of journalism”. There is no real distinction between the concepts of “in the course of journalism” and “for the purposes of journalism”: they are very close, if not the same. Many of the proponents of the cases of proscribed organisations, including Mr Choudary, often use newspapers to express their view. If you provide a specific defence to cover language in newspapers and people writing in newspapers—that is what the amendment does—you drive a coach and horses through the entirety of this part of the Bill.

The noble Lord, Lord Davies, also has a point here. I am very cautious about making distinctions between journalists and the ordinary citizen. I am very far from persuaded that, as a general proposition, a journalist should have a privileged position as contrasted with the ordinary citizen. I am not able to agree with my noble friend, but I will of course give way to him.

[Earl Attlee]

I remind the Committee that we give journalists a privileged position in the Data Protection Act and significant freedoms of manoeuvre.

[Viscount Hailsham]

That is true but there are many aspects of the law where it is not true. I look nervously at my noble friend Lord Faulks, but I think privileged communications to journalists are not covered by the definition of confidential and privileged information in the ordinary and criminal courts. I would therefore be very chary about extending the privilege to journalists qua journalists. There is also a serious point: who is a journalist? When does a career become spent and when is it still operational? There are quite a few problems along that line. I will bring my remarks to a conclusion so that the noble Baroness can respond to the points made by the noble Lords, Lord Anderson, Lord Carlile and many others.

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[Lord Hylton (CB)]

I hesitate to join this discussion, but I support the intention behind all the amendments in this group. They seem to narrow and clarify the rather wide scope of the Bill. On Amendment 4, it may or may not be right to take away the test of recklessness but the noble Viscount, Lord Hailsham, may have a good point about specific intent. I may need the protection of Amendment 5 myself, because I have previously argued that Hamas and the PKK should be removed from the list on the grounds that they have ceased to use terrorist methods and shown a willingness to enter into negotiations about the conflicts in which they have been engaged.

[Earl Attlee]

My Lords, several noble Lords have opposed Amendment 6, in my name, partially on the grounds that it does not define what “journalism” means. That definition is going to be a problem for my noble friend the Minister in due course, because she will tell us that journalists have nothing to fear from the new Act. It would be helpful if, in due course, she writes to noble Lords to tell us what she means by “journalism”.

[Lord Judge (CB)]

I suspect that the discussion about journalism and journalists focuses the Committee’s attention on these provisions. I share the views expressed in the House that there should be no special position for journalists. When they exercise their rights to freedom of expression they are simply exercising our rights to that freedom and to looking at other people’s expression. Does the current provision in the Bill run a serious—or any—risk that a genuine, bona fide journalist, examining the issues without any criminal intent at all, may be caught? If so, the provisions need to be re-examined; if not, not.

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[Baroness Jones of Moulsecoomb]

My Lords, I speak to my Amendment 19 and support the other amendments in the group. I am aware that Amendment 19 attempts to do exactly what Amendment 17 does but, obviously, in a much inferior way. I have added environmental protection, which is a valid objective when travelling to dangerous zones.

I also support Amendment 20 in the name of the noble Earl, Lord Attlee. I declare an interest because I have daughter who is a journalist and am well aware that journalists perform the most incredible tasks when they go to dangerous areas. I have watched the situation in Syria—about which I know a little because I have worked there—which has been the most dangerous place in the world for journalists for some time. More than 100 have died there because they have tried to report on what Assad has been doing to his own people—atrocities such as gas attacks and so on. We have had a long discussion about what a journalist is and what journalism is, but it is important to remember that they fall into a category which is crucial for our understanding of what goes on—not only in Syria and war zones but in Britain, where journalists often expose wrongdoing of all sorts.

I tried to explain to the Minister about the absence of evidence. I have often been deterred from campaigning on a particular issue in a perfectly peaceful and legitimate way because I know that the policing is going to be over-heavy or for some other factor. There are times when people are deterred from doing the right thing because of legislation like this. In these debates I can offer the House a viewpoint from people who might be affected by it, who might find themselves on the wrong side of these laws. I note that other noble Lords have said that they might be on the wrong side of this law.

The Bill provides for a defence of reasonable excuse but gives nothing more than that. My concern is that too many prosecutions will take place, putting people through lengthy court processes before being acquitted by a jury. This concern is shared by the many humanitarian organisations and journalists who have contacted me regarding the Bill.

The Minister will undoubtedly tell me that these organisations have nothing to worry about—that a jury will find them innocent because they will have a reasonable excuse—but this would be to ignore the real, practical implications that the threat of prosecution has on an organisations. Humanitarian organisations already putting themselves and their people in grave danger will additionally risk being prosecuted for simply trying to help people in need. This risk will increase their insurance premiums or even make it impossible for them to get insurance at all.

Under such circumstances, people may not want to volunteer for these organisations if it risks making them personally liable to prosecution. There is also, of course, the cost of legal advice and representations—thousands of pounds which will have to be spent and will be lost even if they are found not guilty.

Personally, I feel that the Government should not put these innocent people at risk of prosecution. As with Amendments 17 and 19, putting these specific examples in the Bill will help to make it clear to prosecutors that these groups have specific, absolute defences and should not be charged. If the Government reject the amendments, I would ask why. They do nothing to undermine the Government’s intent but would allow humanitarian and environmental protection organisations to do their heroic work without fear of being persecuted and prosecuted when they return to safety in the UK.

[Earl Attlee]

My Lords, Amendment 20 in the group is in my name. The Committee has looked already at why journalism is vital so there is no need to repeat those arguments in detail. I accept that the amendment moved by the noble Lord, Lord Anderson, may be a better solution than mine, which would create an explicit exemption for journalists travelling to or remaining in a designated area.

Since the new offence does not require a person to have any harmful intent, it risks capturing those who mean no harm at all and are acting in the public interest, even if the Government of the day do not think so. Journalists travelling to an area to cover events and inform the public are one obvious such group. Following our debate on the first amendment, I accept that I will have to go away and consider carefully what I mean by journalism and journalistic purposes, but the same problem arises with the amendment of the noble Lord, Lord Anderson.

Ministers have stated that journalists are not the target of the offence and would qualify for the broad defence of reasonable excuse. I listened very carefully to what my noble friend Lord Howe said about that. However, the same problem that I described when speaking to my Amendment 6 arises, namely that journalists may be unjustly interfered with or arrested. It needs to be clear in the Bill that journalism is exempt. Amendments 21 and 22 would provide for prior authorisation from the Secretary of State. Although that may have its merits for certain sectors, it would be highly undesirable for press freedom as it would allow the Government to whitelist or blacklist journalists and could operate as a de facto licensing system which the press has, rightly, always resisted.

Although there are good reasons for an open-ended reasonable excuse defence, as my noble friend has outlined already, the amendment does not circumscribe it. Given the scope of the offence, the Bill should anticipate the most obvious scenarios where people will have good cause to travel to or remain in a designated country and provide certainty to those people. That is exactly what would be done by the amendment of the noble Lord, Lord Anderson.

The combination of the lack of an intent requirement and the vagueness of the reasonable excuse defence means that whether an offence is committed becomes a matter of prosecutorial discretion entirely. That is undesirable for legal certainty and the rule of law. In practical terms it would delay, even deter, correspondents from travelling to an area where events are unfolding. Civilians suffering humanitarian catastrophes will not be able to tell their stories to the wider world and the British public will not be able to hear them and do whatever they can to help.

Ministers and other noble Lords may push back against my arguments by pointing out how hard it is to define “journalist” or arguing that terrorists might try to pass themselves off as journalists. I argue that where there is doubt over an individual claiming to be a journalist, the police, prosecutors and the courts can test their bona fides. Some people will wrongly claim the defence; that does not mean that it should not exist. The same argument applies to Amendment 17, moved by the noble Lord, Lord Anderson.

Amendment 17 may well meet my concerns but I am slightly worried about its proposed new subsection (2)(d), which would provide an exemption for a “registered charity”. It might be worth considering restricting the exemption to either a UK registered charity or one that is accredited by the United Nations in some way, because I have been aware of some charities in an operational area being rather less than pure.

[Lord Garnier (Con)]

My Lords, I briefly return to our discussion to Amendment 17, moved so well by the noble Lord, Lord Anderson of Ipswich. He made no claims of infallibility. When we are discussing this sort of subject, he probably comes the closest in this Chamber to infallibility, at least for the moment. I understand his reasons for moving the amendment; I can see that the reasonable excuse provision in the Bill he seeks to amend is somewhat vague. None the less, I want to ask one or two questions relating to the amendment.

I can accept that the genesis of at least some of the new provision comes from other countries’ and jurisdictions’ legislation; the noble Lord mentioned Australia in particular. A few things about the amendment trouble me slightly. I can see that proposed new paragraphs (a) to (e) provide a reason for making a visit to the designated area, but I am a little troubled by the fact that proposed new paragraph (f) states simply that,

“visiting a dependent family member”,

may provide a reasonable excuse. The reason for the visit to the dependent family member needs to be explored fully. The amendment could lead us into difficulty. The purpose of the visit may be to see a bed-ridden grandparent, but it may be to see a rather ill-motivated teenager with terrorist sympathies. As long as that is not made clear, the problem I see in proposed new paragraph (f) remains.

To some extent, although not as greatly, I am troubled by proposed new paragraph (c), which gives the reason of,

“satisfying an obligation to appear before a court or other body exercising judicial power”.

I can see that in an organised state with an organised court system, complying with an obligation to appear in court to give evidence, or whatever it may be, provides one with a reasonable excuse. However, going to a designated area suggests that there may not be such an organised system there. Although one may be under some obligation to appear before it, I hesitate to suggest that in all circumstances one is likely to find in a designated area a recognisable court or other body exercising judicial power in a way that we would find acceptable in this country and this jurisdiction.

Perhaps these are quibbles. The noble Lord, Lord Anderson, expressly stated that he did not claim his amendment to be perfect. I understand where the amendment comes from and where it intends to go. I simply ask my noble friend on the Front Bench not to dismiss the amendment out of hand but perhaps to go away and rewrite it in such a way that it would be acceptable as a government amendment that would pass muster in both this House and the other place.

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[Baroness Manzoor (Con)]

My Lords, I beg to move that the House be resumed. In moving this Motion, I suggest that the Committee begin again not before 8.17 pm.

[Earl Attlee]

My Lords, surely we should return at 8.33 pm?

[Baroness Manzoor]

My Lords, it has been decided that the break will be 45 minutes.

House resumed. Committee to begin again not before 8.17 pm.