Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

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

Moved by

[Lord Rosser]

1: Clause 1, page 1, line 8, after “belief” insert “, as part of a pattern of behaviour,”

[Lord Rosser (Lab)]

My Lords, this Bill creates an offence of expressing an opinion or belief that is supportive of a proscribed organisation if the person doing so is reckless as to whether a person to whom the expression is directed would be encouraged to support a proscribed organisation. Currently, encouragement of and invitation to support a terrorist organisation is a criminal offence, so what is proposed in the Bill is, in reality, an extension of this. The Bill requires not an intent to increase the ranks or membership of the proscribed organisation, but rather being reckless as to whether another person would be more likely to support the proscribed organisation as a result of the expression of an opinion or belief that is supportive of a proscribed organisation.

The Joint Committee on Human Rights has pointed out that the wording of the Bill could cover an academic debate if, for example, those taking part were speaking in favour of de-proscription of a currently proscribed organisation. The wording could also cover a similar debate taking place in the pages of national or other newspaper or journal. What also appears clear from the wording is that a person potentially commits the offence if they express their opinion or belief that is supportive of a proscribed organisation just once.

The test of the wording is presumably whether a reasonable person would regard the expression of the opinion or belief as encouragement to support a proscribed organisation rather than whether someone had actually been encouraged to join such an organisation. Perhaps the Minister can pick up or confirm that point in her reply and explain how the Government intend that “reckless” should be interpreted or defined in the context of this Bill.

It seems that one purpose of Clause 1 is to address the situation if Mr Choudary, just released from prison, continues to express his views to others, or someone with a similar outlook does likewise. There were clearly difficulties under the law as it stands in pursuing a successful prosecution against Mr Choudary, bearing in mind the length of time it took for that to happen. However, the snag is that, in seeking to address the situation to which I have just referred, we may end up criminalising, or silencing through fear of being criminalised, those who have no intention or wish to make it more likely that others will support a proscribed organisation but who are expressing an opinion in the legitimate pursuit of their employment or profession—for example, as an academic or a journalist might. We may also end up criminalising those who say something only once, and certainly not with any thought that it might encourage support for a proscribed organisation.

Amendment 1 provides that the expression of an opinion or belief that is supportive of a proscribed organisation has to be,

“as part of a pattern of behaviour”,

with the intention that only those who express such opinions or beliefs as part of a regular pattern of behaviour that is supportive of a proscribed organisation would be deemed to have committed the new offence. That should make it less likely that those involved in legitimate academic work or journalism, for example, could fall foul of Clause 1, as well as an individual expressing and directing their opinion or belief for the first occasion to others, perhaps without realising the significance of what they are doing.

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I should add that this provision will fall within the statutory remit of the Independent Reviewer of Terrorism Legislation, as does the existing Section 12 offence. This robust and staunchly independent oversight will help us to ensure that the amended offence is used appropriately and will bring to Parliament’s attention any concerns that it is not. I therefore hope that the noble Lord, Lord Rosser, will be content to withdraw his Amendment 1 and that the Committee will support Clause 1 standing part of the Bill.

[Lord Rosser]

I thank all noble Lords who spoke on this group of amendments. It has been a very wide-ranging debate with a wide range of views either supportive of or opposed to Clause 1, or to specific amendments we have debated. I certainly do not intend to try to summarise what has been said or to comment on the response we have heard from the Minister. As I said, I thank her very much for her reply, which I am sure has been appreciated because it was comprehensive and addressed a number of the questions raised, albeit people will of course have different views on whether they found that reply acceptable.

As far as my amendment is concerned—it related to pattern of behaviour—I do not want to say anything that commits me one way or another to doing anything on Report, but I will certainly reflect on what the Minister said when arguing against it. One of her points was that it was not in the existing offence, but it could be that the existing offence is rather more clearly definable than the new offence that appears in Clause 1. We had similar difficulties over the three clicks issue. That was slightly more difficult than, frankly, seeking to define what a pattern of behaviour might be.

I conclude by once again thanking noble Lords who have participated in the debate on this group of amendments and genuinely thanking the Minister for her reply: I am sure the House will have appreciated the depth to which she went in explaining the Government’s position. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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Moved by

[Lord Rosser]

10: Clause 2, page 2, line 20, at end insert—
“(5) Before subsection (4) may come into force the Secretary of State must consult the Police Service of Northern Ireland and the Public Prosecution Service of Northern Ireland on the introduction of the power to seize an item of clothing or any other article in Northern Ireland.”

[Lord Rosser]

Clause 2(4) confers on the police power to seize clothing or any other article, including flags, associated with a proscribed organisation. The Bill would enable the officer in the circumstances to seize items such as flags, provided that the officer was satisfied that it was necessary to seize such an item to prevent the evidence being concealed, lost, altered or destroyed—evidence that could well be crucial in pursuing an investigation and bringing a successful prosecution.

When this matter was discussed during the passage of the Bill through the Commons, the Government were asked what engagement there had been with the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland about the terms of Clause 2 and the difficulties in pursuing such prosecutions. In response, the Government accepted that taking away a flag in certain parts of Northern Ireland had on occasions acted as something of a lightning rod for a riot or a breakdown in civil order, and that in Northern Ireland a flag does not necessarily, in the context of the provisions of this Bill, have pure terrorist content. The Commons Minister said he did not want to see,

“flag protests becoming more and more polarised than they were in the past”.—[Official Report, Commons, 11/9/18; col. 661.]

In view of the potentially sensitive nature of this issue in Northern Ireland, the amendment would ensure that Clause 2(4) on seizures could not come into force until the Secretary of State had consulted the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland on the introduction of the new provisions in the Bill in relation to the power to seize.

It would be helpful if the Minister could say how the Government envisage the power to seize working across the UK generally. Presumably, there will still be the same potential confrontation over seizing an item, whether on arrest or subsequently reporting the person for summons, with an indication of that course of action being given to the individual concerned at the time. On the basis of what evidence do the Government believe that the likelihood of confrontation will be reduced? Presumably, those on marches or demonstrations will soon know that court proceedings are still likely or possible under reporting a person for summons. Or is the purpose of this option of seizure—of, for example, a flag—in reality a reason to do it this way and then not pursue the matter any further through the courts?

Presumably, there will still be a need to obtain an individual’s name and address on the street at the march or demonstration before or after the seizure of the flag or other item in question, and that information may or may not be given. Both issues—namely, trying to seek such details and the seizure of the flag before or afterwards—might still provoke confrontation. It would be helpful if the Minister could address that point in her response, as well as the more specific issue of the application of the clause in Northern Ireland. I beg to move.

[Lord Paddick]

My Lords, briefly, I support the amendment. Judging from the Minister’s non-verbal reaction to it, the consultation proposed seems extremely sensible given the history in Northern Ireland. On whether or not the police will use these powers in a public order situation, the police are very experienced—I declare an interest as a former advanced public order trained police officer who dealt with such situations—and, clearly, a decision has to be made on the basis of the circumstances at the time whether items can be safely seized without escalating the situation. The police service is very well equipped in deploying professional photographers and others gathering video evidence which can be used instead of, or in addition to, seizing those items. So although I agree with the sentiment behind the amendment concerning Northern Ireland, I do not share the concerns of the noble Lord, Lord Rosser, about the seizure of items potentially escalating a situation.

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[Baroness Williams of Trafford]

Ignoring what I just said—I am not sure how that happened—I hope that, with the explanation I have given, the noble Lord will feel happy to withdraw the amendment.

[Lord Rosser]

I thank the Minister for her response and thank other noble Lords who participated in this brief debate. Can she confirm that the reason for changing seizure provisions so that seizure can be dealt with by having a person reporting for summons is not meant to be taken as meaning that, where clothing or flags are seized under these provisions, in reality the matter would not be pursued through the courts?

I probably have not made myself clear. There will now be a procedure where clothing, or a flag in particular, could be seized in circumstances where the person could be reported for summons. I asked whether in reality that procedure meant that, once the flag had been seized, the chances were that the matter would not be pursued any further through the courts or whether it was still likely that matters would be pursued through the courts.

[Baroness Williams of Trafford]

Generally, the seizure would be with a view to prosecution, yes.

[Lord Rosser]

I am grateful to the Minister for that clarification, and in thanking her once again for her response, I beg leave to withdraw my amendment.

Amendment 10 withdrawn.

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Moved by

[Lord Rosser]

11: Clause 3, page 2, line 27, after “accesses,” insert “as part of a pattern of behaviour,”

[Lord Rosser]

Clause 3 provides for a new offence of obtaining or viewing information online of a kind that is likely to be useful for committing or preparing an act of terrorism. Section 58 of the Terrorism Act 2000 already criminalises collecting, recording and downloading such material. The new offence broadens the type of activity that is potentially criminalised from actively downloading to simply having sight of information, and attracts a maximum of 15 years in prison.

The difficulty once again is that while those we want to catch may well fall foul of the new offence, it is a distinct possibility that those we do not may also get caught up when pursuing their legitimate business, or will be deterred from undertaking some of their legitimate business at all by the thought of getting caught up. As with the previous debate, this could include journalists, academics and those engaged in other research activity, as well as those looking by mistake at information online of the kind likely to be useful for committing or preparing an act of terrorism, or without any intent to act on the material in a criminal manner.

Originally, the Government proposed in the Bill that the new offence should be committed after material had been viewed three or more times—the so-called three clicks test. That was subsequently changed to provide instead for a reasonable excuse defence, which would include cases where the person did not know and had no reason to believe that the information was of a kind likely to be useful to a person committing or preparing an act of terrorism. However, the change could also be interpreted as meaning that an offence could be committed after one click or viewing, rather than three.

The purpose of Amendment 11, therefore, is to minimise the possibility of people carrying out their legitimate business being caught by the new offence by providing that a person commits an offence only if they view or otherwise access material,

“as part of a pattern of behaviour”,

in relation to the offence of accessing the material in question online.

As I said in an earlier debate in which the amendment in question added the words,

“as part of a pattern of behaviour”,

if this amendment does not find favour with the Government, I hope the Minister will say what steps they intend to take to ensure that those with legitimate business in relation to material covered by the clause do not find themselves in difficulty under the terms of the new offence. I beg to move.

[Baroness Hamwee]

My Lords, I have Amendments 12 and 13 in this group. The JCHR accepts that technology has moved on since 2000 but has expressed concern that viewing material online without any associated harm was an unjustified interference with the right to receive information. It was concerned too that the defence of reasonable excuse does not provide an explicit safeguard for legitimate activity. The noble Lord has rehearsed the history of this clause, and the Government’s current position, having excluded the three clicks provision, provides that a reasonable excuse includes but is not limited to situations where,

“the person did not know, and had no reason to believe”,

and so on. We are not reassured that there will be adequate protection for legitimate conduct, so we have proposed Amendment 12, on intention,

“to commit or encourage acts of terrorism”.

At the end of Committee, we will have to collate all the references to intention and recklessness to see whether each of us has been consistent in our arguments, which we may not have been. We want to insert a mens rea of intent.

Amendment 13 adds the phrase,

“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.

If that wording sounds familiar, we have just been through it in Clause 2, so I refer the Minister to my argument then in defence of adding these words.

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[Lord Rosser]

I once again thank all noble Lords who have participated in this debate and I thank the Minister for his response. I will be brief. The purpose of the amendment, as I hinted at the end of my contribution, was that, if the Government did not find favour with it, they would say what steps they intended to take to ensure that those with legitimate business in relation to material covered by the clause did not find themselves in difficulty under the terms of the new offence. I accept that the Minister has sought to address that point. The issue between us, if it turns out that there is an issue, will be whether the procedures outlined by the Minister will be sufficient to prevent anybody who is not acting with malice—not engaged in terrorist activity—being caught by this offence. With that, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

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[Lord Judge]

I am sorry. I shall not go through the various arguments. I put my name to this amendment. It is a closed list. Different aspects of it need to be considered and various points have been raised around the Committee. The principle needs be accepted by the Government that we are dealing with the designated areas legislation. The designated areas cannot be considered in relation to just new Section 58B, but to new Section 58C, which will enable the Secretary of State to decide where an area should be designated for the purposes of new Section 58B. Therefore, the imperative is not just to have a vague reasonable excuse defence, but to say that there are certain situations in which, if an individual goes to an area that has been designated by regulation by the Secretary of State, no offence would be committed. That is the end of it. It is not a question of him or her advancing a defence and saying, “This is my reasonable excuse”.

I implore the Government not be put off by the fact that this will take some sorting out. We need to sort it out. An offence will not be committed if you go on, for example, humanitarian grounds. There are plenty of different reasons, but if you are not committing an offence then that is the end of it. Given the nature of the offence that is being created related to designated areas, that is what needs to be achieved.

[Lord Rosser]

We have Amendment 23 in this group, which is very similar, certainly in intent, to that moved by the noble Lord, Lord Anderson of Ipswich. For that reason, I do not intend to speak at any great length since I support what he said.

We are aware of the reasons why the Government want to create a new offence of entering or remaining in a designated area in connection with the work of containing and combating the threat of terrorism and terrorist-related activity. However, this is once again about ensuring that those who are in a designated area on legitimate—indeed, quite possibly vital and crucial—business do not find themselves committing an offence of being or remaining in that area.

Our amendment, like that moved by the noble Lord, Lord Anderson of Ipswich, specifically provides that an offence of being or remaining in a designated area is not committed under the Bill’s terms by those carrying out specific named activities—in our amendment, journalism, humanitarian work and family visits, for example, and any other activities provided for in the subsequent regulations. Our amendment is also based on the Australian model of including exemptions in the Bill. It also provides that a person might be required to provide evidence as to their purpose in line with what we understand to be in the Australian legislation.