Consideration of Bill, as amended in the Public Bill Committee
New Clause 2
Entering or remaining in a designated area
“(1) The Terrorism Act 2000 is amended as follows.
(2) After section 58A insert—
‘Entering or remaining in designated areas overseas
58B Entering or remaining in a designated area
“(1) A person commits an offence if—
(a) the person enters, or remains in, a designated area, and
(b) the person is a United Kingdom national, or a United Kingdom resident, at the time of entering the area or at any time during which the person remains there.
(2) It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area.
(3) A person does not commit an offence under this section of entering, or remaining in, a designated area if—
(a) the person is already travelling to, or is already in, the area on the day on which it becomes a designated area, and
(b) the person leaves the area before the end of the period of one month beginning with that day.
(4) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding 10 years, or to a fine, or to both.
(5) In this section—
‘designated area’ means an area outside the United Kingdom that is for the time being designated for the purposes of this section in regulations under section 58C;
‘United Kingdom national’ means an individual who is—
(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,
(b) a person who under the British Nationality Act 1981 is a British subject, or
(c) a British protected person within the meaning of that Act;
‘United Kingdom resident’ means an individual who is resident in the United Kingdom.
(6) The reference in subsection (3) to the day on which an area becomes a designated area is a reference to the day on which regulations under section 58C come into force designating the area for the purposes of this section.
(7) Nothing in this section imposes criminal liability on any person acting on behalf of, or holding office under, the Crown.”
58C Section 58B: designated areas
“(1) The Secretary of State may by regulations designate an area outside the United Kingdom as a designated area for the purposes of section 58B if the following condition is met.
(2) The condition is that the Secretary of State is satisfied that it is necessary, for the purpose of protecting members of the public from a risk of terrorism, to restrict United Kingdom nationals and United Kingdom residents from entering, or remaining in, the area.
(3) The reference in subsection (2) to the public includes a reference to the public of a country other than the United Kingdom.
(4) Where an area is designated by regulations under this section, the Secretary of State must—
(a) keep under review whether the condition in subsection (2) continues to be met in relation to the area, and
(b) if the Secretary of State determines that the condition is no longer met, revoke the regulations (or revoke them so far as they have effect in relation to that area if the regulations designate more than one area).
(5) In this section ‘designated area’, ‘United Kingdom national’ and ‘United Kingdom resident’ have the same meaning as in section 58B.”’
(3) In section 123 (orders and regulations), after subsection (6) insert—
‘(6ZA) Regulations under section 58C—
(a) must be laid before Parliament after being made, and
(b) cease to have effect at the end of the period of 40 days beginning with the day on which they are made unless before the end of that period the regulations are approved by a resolution of each House of Parliament.
(6ZB) For the purposes of subsection (6ZA) the period of 40 days is to be computed in accordance with section 7(1) of the Statutory Instruments Act 1946.
(6ZC) Subsection (6ZA)(b)—
(a) is without prejudice to anything previously done or to the power of the Secretary of State to make new regulations under section 58C;
(b) does not apply to regulations that only revoke previous regulations under that section.’”—(Mr Wallace.)
This new clause would provide for an offence under the Terrorism Act 2000 of entering, or remaining in, an area outside the United Kingdom that has been designated in regulations made by the Secretary of State. In making such regulations the Secretary of State would need to be satisfied that it is necessary to restrict UK nationals and residents from entering or remaining in the area for the purpose of protecting the public from a risk of terrorism.
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following:
Government amendments 1 to 5 and 15 to 18.
Amendment 13, in clause 18, page 19, line 14, at end insert—
“(8) After section 39 (Power to amend Chapter 2), insert—
‘39AA Review of support for people vulnerable to being drawn into terrorism
(1) The Secretary of State must within 6 months of the passing of the Counter-Terrorism and Border Security Act 2018 make arrangements for an independent review and report on the Government strategy for supporting people vulnerable to being drawn into terrorism.
(2) The report and any recommendations of the review under subsection (1) must be laid before the House of Commons within 18 months of the passing of the Counter-Terrorism and Border Security Act 2018.
(3) The laying of the report and recommendations under subsection (2) must be accompanied by a statement by the Secretary of State responding to each recommendation made as part of the independent review.’”
Today is obviously the anniversary of 9/11, a devastating terrorist attack that happened on the soil of our ally the United States and ended in the deaths of 77 United Kingdom citizens who were working in New York at the time. Today is also one of the first days of the inquest into the Westminster Bridge attack, when we lost PC Keith Palmer and four other people.
Let me deal as succinctly as I can with the Government amendment in this group, beginning with new clause 2. Since the phenomenon of UK-linked individuals travelling to join terrorist organisations in Syria and Iraq began in earnest in 2014, the Government have kept under review various options for banning or requiring notification of travel to conflict zones overseas, underpinned by criminal sanctions. The essential feature of new clause 2 is to make it an offence for a UK national or resident to enter or remain in an area overseas that has been designated by the Home Secretary. The designation of an area will be given effect by regulations, and any such regulation would necessarily need to come into force quickly, but we recognise the need for full parliamentary scrutiny of any designation. Accordingly, such regulations will be subject to the affirmative procedure.
Once an area has been designated, there will be a grace period of one month, enabling persons already in the designated area to leave before the offence takes effect. Of course, there will be individuals who have a valid reason to enter and remain in a designated area, such as to provide humanitarian aid, to work as a journalist, or to attend a funeral of a close relative. To cover such cases, we have provided for a reasonable excuse defence. Once such a defence has been raised, the burden of proof, to the criminal standard, will rest with the prosecution to disprove the defence. The new offence carries a maximum penalty of 10 years’ imprisonment, and it will be open to the court to impose an extended sentence.
The new offence is necessary for two primary reasons. First, to strengthen the Government’s consistent travel advice to British nationals, which has advised against all travel to areas of conflict where there is a risk of terrorism. And secondly, breaching a travel ban and triggering the offence will provide the police and the Crown Prosecution Service with a further tool to investigate and prosecute those who return to the United Kingdom from designated areas, thereby protecting the public from wider harm.
The Minister said a few moments ago that it will be for the prosecution to show that a person does not have a reasonable defence, but that is not what new clause 2 says:
“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area.”
I disagree with the right hon. Gentleman. If a person produces a reasonable defence, as it would play in court, we would have to say, “That is not a valid defence,” and therefore we would have to prove why it is not. In addition, the public interest consideration will be involved when the CPS seeks to bring charges.
It is also important to inform the House that, obviously, reasonable excuses will include those in line with the European convention on human rights, such as access to family, the right to visit and all those things that give people their rights, but we are trying to introduce an important tool to make sure we deal with the scourge of the foreign fighter threat we now face here.
I do not want to digress too much but, under those circumstances, at which point could a person lose their British citizenship? Will that come into play at all?
The decision to deprive a person of their British citizenship would not be affected by this at all, one way or the other. The factors involved in making that decision range from intelligence to criminal behaviour and whether that person poses a threat to the United Kingdom. The decision would not be linked. Obviously some people who have been deprived of their citizenship have been foreign fighters overseas engaged in fighting for ISIS or al-Qaeda, and this measure is aimed at stopping exactly that type of offence.
Everyone recognises the challenge we have in Europe. I was at the G7, and every member state has a cadre of foreign fighters who are a challenge when they come back. It is important to get a statute book that can deal with that. It is often the case that we have evidence that foreign fighters have travelled to, say, Raqqa, and we may have evidence to some extent that they have supported or been engaged in areas of terrorism, but it has been very hard to prosecute. That is what this Bill is trying to do. The Danish Government have similar legislation, as do the Australian Government.
The Minister is obviously right. We have to deal with the issue of foreign fighters, and the best way to do that is to prevent them from going in the first place. Will he confirm that no aspect of new clause 2 or the Bill will specifically address the issue of citizenship, and that even if a British citizen travels to a designated area, they will not have their British citizenship taken from them?
What I can say is that if a British citizen goes to a designated area and commits an offence, it will depend on what they were doing. If a British citizen who is a dual national goes to one of these areas to fight for ISIS or al-Qaeda, and if we cannot prosecute them, deprivation becomes more of an option. I would prefer to see these people put on trial in a British court, convicted and sent to prison. That is my preference, and all these other measures have been introduced to try to deal with these very difficult issues.
The Bill also extends the jurisdictional reach of some offences, such as under the Explosive Substances Act 1883, to try to ensure that people committing offences over there can be tried.
As the Minister says, we already have quite a lot of offences with extraterritorial jurisdiction, and clause 5 would add to them. What can he do to convince us that the amendment is necessary and proportionate, given the plethora of extraterritorial offences that already exist?
We have 400 people in this country who have returned from activity in hotspots, many of whom we believe, from intelligence, have been active, but whom we have been unable to prosecute. That is a serious number of people. A number of them continue to pose a threat, and we have not been able, despite quite a lot of effort and looking, to find evidence to bring to court to prosecute them for the terrorist activity they may have been involved in.
If I was talking about one or two people, it might be a different issue. The French and the Germans have the same problem. It is a growing phenomenon that people are travelling in this world to commit offences. They are tech-savvy; they are capable of sometimes masking some of their behaviour. The grooming that has gone on to seduce people into these locations is a big challenge, and I fear that if we do not legislate, we will not be able to be in a position to prosecute those people coming back. Do I think the legislation will prosecute hundreds of people? No, I do not, but I think there will be a few people that we can prosecute if they did this. As I said to the shadow Home Secretary yesterday, I recognise that we have introduced this measure into the Bill late, and I apologise for that. However, we are in the Commons, and the Bill will no doubt go to the other place, and I am happy to discuss further how we can clarify it and safeguard it and make sure that it is not abused as a system, and that the reasonable excuse issue is further explored. I think that is appropriate.
Can the Minister say where else in British law it is an offence to be located somewhere, rather than to act in a certain way in that place?
I would have to speculate; I am not a barrister or lawyer, so I dare not venture down that road. A court may grant an injunction on an area. A stalker often faces injunctions—they are not allowed within 100 metres of a house, and if they go within 100 metres of it, they have committed an offence.
Because they have done something wrong.
The question was, is there anywhere else in law where going somewhere becomes the offence? There clearly is if you break an injunction. I think there are injunctions not just against someone who has done something wrong, but I shall not pilot off down that course.
As I said earlier, obviously there is the further safeguard that breaching a travel ban and triggering the offence will provide the CPS with a further tool to investigate and prosecute those who return, thereby providing protection. Government amendments 15 to 25 are consequential on new clause 2.
I congratulate the Minister and the Government for—although belatedly—bringing in this power, for which I and many others have long been calling. It was patently obvious that many of the Brits who we knew were travelling to Iraq and Syria had no other reason to be there than to support terror, but there was not sufficient evidence to prosecute, hence 400 of them, by the Government’s own estimate, are coming back largely without prosecution. Do the Government have an estimate of how many of those 800 Brits who we know went over to Raqqa during the recent conflict could have been prosecuted under this legislation, had it been on the statute book at the time?
I am happy to write to the hon. Gentleman with a specific number, if we trawl through the whole lot. I certainly see cases where we have footage of people in certain locations. They may not necessarily be carrying a black flag, but they are dressed in combats and they are standing in front of an iconic building somewhere. I cannot express how frustrating it is to see what I see, with some very dangerous people coming back to our communities, and I long to be able to prosecute them. Very often the “You done nothing” critics do not provide an alternative suggestion. This is an alternative suggestion. I have not heard other suggestions.
I have taken my time on this. When I was in Singapore last year, I met my Australian counterpart, who talked about such legislation. I spoke to the people who use it on the ground—the Australian police force and security services—and we have explored other ideas. It is incredibly frustrating to know that in our communities are people who pose a real risk and who we have struggled to be able to prosecute. That is not because of resource, but because of statute, and that is what we are trying to fix.
I place on record that the hon. Member for Barrow and Furness (John Woodcock) has done a lot on this issue. Unlike many people who speak on these things, he has met detainees in Turkey and other places. He will know the challenges that the Turkish Government and our Government face. He has been supportive and made suggestions on this type of measure, which will make a difference. While Syria is tragically coming to a place where there are endless horrors on the horizon in terms of Idlib that we must all unite to try to stop, the groomers are encouraging people to go to new places and new safe spaces. We have seen aspirant travellers into parts of Africa. We have seen aspirant travellers to the conflict in parts of the Philippines. They are out there now encouraging our young people to go into a safe space, so they can indoctrinate them to become terrorists. That is why I passionately feel and the Government feel that we need to put this measure on our statue book.
My right hon. Friend and I have had quite a lot of discussions on this issue. I have also had discussions with the former Home Secretary, now Prime Minister, on the subject as long ago as 2015. The Minister knows what I am going to say, because I gave a speech during the proceedings of the Counter-Terrorism and Security Act 2015 on 6 January 2015—more than three years ago—on whether we could stop these terrorists coming back to kill people. Since the events I referred to in that speech, many have been killed. The issue is about making people stateless. I know my right hon. Friend will have considered that; will he please comment on it?
My hon. Friend knows that making people stateless is a hefty measure. From our legal advice, we cannot make someone stateless. If they are a dual citizen, we can deprive them of citizenship. I understand the point that my hon. Friend makes, but in an international community, we cannot entirely pass our problems around. Part of the offence with designated areas is that other countries do not like us unilaterally saying, “It is not our problem anymore. We do not have any offences to charge them with, so we are going to deprive them of citizenship and off they go to you. It is your problem now.” Our preference is to bring them back, charge them and put them in prison. We think very hard about the international consequence of deprivation.
Will the Minister allow me one further point? I had referred to the international convention, article 8 of which clearly states that if a person who is effectively in a designated area under the new clause has sworn allegiance to, or acted in a manner such that he is giving his allegiance to, another state and is also saying by implication that he no longer regards himself as a British citizen, it is possible to make them stateless. For that reason, I wish I could get a more emphatic answer to my question.
As ever, my hon. Friend makes an articulate and knowledgeable point. My disagreement is that, no matter how it may take allegiance, I do not recognise ISIS to be a state. It is a non-state. It is a fabrication of pretty awful people. We should not give it credibility: just because some poor, weak, often exploited people, but also some pretty nasty people, have sworn allegiance to it, it does not make them part of a state. It is one thing for someone to renounce citizenship and say, “I am now going to be a citizen of country X”, but Islamic State is a fiction of many people’s imagination, as we have seen. It is in rapid decline.
I would like to push on to amendment 1, the flag seizure power, which would confer on the police a power to seize flags or other articles associated with a proscribed organisation. Under section 13 of the Terrorism Act 2000, it is an offence for a person to wear, carry or display an item of clothing or other article in such a way as to arouse reasonable suspicion that they are a member or supporter of a proscribed organisation. By conferring on the police the power to seize such articles, we will ensure that they and the Crown Prosecution Service have the best evidence to pursue a prosecution under section 13.
Of course, the police already have the powers to seize evidence following an arrest, but in the context of policing a march or demonstration, arresting an individual may not always be an option if the tests for making an arrests are not satisfied. Even if arrest is an option, it may not be an appropriate policing response at that time. Obviously, the decision would be at the discretion of the police. In such cases, if the police wish to take action against a person displaying such a flag, then instead of arresting the individual, the officer may choose to report the person for summons on suspicion of committing an offence under section 13 of the Terrorism Act. This new power would enable the officer in these circumstances to seize items such as flags that are reasonably in evidence under the section 13 offence without there having been an arrest, provided that the officer is satisfied that it is necessary to seize such items to prevent the evidence being concealed, lost, altered or destroyed. By preventing the loss and destruction of such items and articles, this approach will better support investigations and prosecutions by providing more evidence to help take forward prosecutions.
The Minister will know that there are particular issues around flags and their association with proscribed organisations in Northern Ireland. Will he outline for our benefit what engagement he has had with the Police Service of Northern Ireland, or indeed with the Public Prosecution Service in Northern Ireland, around this clause, the associated difficulties in pursuing such prosecutions and the ancillary arguments that are made that a modern-day flag associated with a proscribed organisation actually has roots in the legitimate historical associate group?
I know that throughout the passage of the Bill we spent days with the PSNI. On the point about the DPP, I will make sure that the hon. Gentleman gets an exact answer on that from officials. As he will know, I have first-hand experience of what can go wrong and of the consequences of trying to take a flag or something from a proscribed organisation. Certainly, taking away a flag in certain parts of Northern Ireland has, in the past, acted as an instant lightning rod for a riot or a breakdown in civil order, and there were definitely better methods that could be used to police a parade. There is also an obligation on the police to make sure that policing is done in a way that allows a legitimate march to go ahead, but that does not provoke a public order disaster. That is why police discretion is important.
I understand the point that the hon. Gentleman is trying to get at, which is that, in Northern Ireland, the matter is not straightforward. A flag does not have pure terrorist content. Different parts of the community will interpret other people’s flags. There is also a historical basis in organisations having a flag which links to the first world war. Things are not as straightforward as people think. I have been very cautious in introducing this amendment to make sure that my experience—and, obviously, the hon. Gentleman greater experience—of Northern Ireland is not forgotten. I do not want to see flag protests becoming more and more polarised than they were in the past. I will happily get back to the hon. Gentleman in relation to the DPP in Northern Ireland.
I turn now to Government amendments 2 to 4 to clause 3, which close a widely recognised gap in the law with regard to the viewing of terrorist material online. Following the helpful debate in Committee and considerable discussions with the Labour party and its Front-Bench Members, I took the decision that it was best to drop the concept of the three clicks. Throughout the passage of this Bill, I have been open to suggestions from all parts of the House. I agreed completely that, first, the three clicks would not survive the test of time and that, secondly, we would not end up with good law or achieve our aim. I undertook to see how we could improve on this, and I listened to the hon. Member for Torfaen (Nick Thomas-Symonds) . I am 48—just about a kid of the ’80s—so I remember the Spectrum and the ZX81, but I think it is best that legislation in the digital age looks like us, sounds like us and is not written by people who probably switch on a computer once a year.
Instead of splitting hairs about clicks and everything else, we came to the view that it was right in principle for the Government to update legislation for the digital age with provisions on the collection or recording of information that is likely to be useful to terrorists. The provision applies consistently to information that is accessed online, rather than as under the current measure, which only covers information that is downloaded. When the previous legislation was written regarding downloading content or taking copies, broadband was very slow—if it existed at all—so the only way people could watch content was by downloading it first. Now with superfast or fast broadband, people are streaming everything. This creates a loophole that can be exploited and that we have to close.
I am a little puzzled. The Government have conceded that clause 3, as originally drafted, was imperfect and lacked sufficient clarity, but do they not make the problem worse by removing the requirement for three clicks, so that only one click will suffice, and broadening the offence to include not just viewing but accessing material in any way? I do not understand how these amendments address the imperfection and lack of clarity.
The intention behind the three clicks provision was an ambition to ensure proportionality and provide a safeguard for those who might inadvertently access such material, but we recognise the underlying difficulties of this approach and the uncertainty regarding how it will be implemented. That is why we tabled amendment 2.
Amendment 4 complements amendment 2. It is intended to provide a similar safeguard, but in a clearer and more certain way, without relying on a blunt instrument. These amendments will make it clear on the face of the legislation that the reasonable excuse defence would apply if the person does not know, and has no reason to believe, that the information they are accessing is likely to be useful to terrorism. This means that a person would be able to defend themselves on that basis in court. As a result of section 118 of the Terrorism Act 2000, if such a defence is raised the court and jury must assume it to be satisfactory, unless the prosecution is able to disprove it beyond reasonable doubt.
I am not satisfied with that explanation, because the reasonable excuse defence is only there for somebody who does not know what they are doing. What if somebody legitimately accesses the material, knowing its content, but without any intent to commit harm—for example, an academic or a researcher? They would not be protected by that defence, would they? [Interruption.]
The hon. Member for Torfaen is absolutely right; it is set out quite clearly in the 2000 Act. The reasonable excuse defence is a good defence. It will cover journalists and academics, which is important. It would also mean that the prosecution is unlikely to commence in those circumstances, because it would not pass the Crown Prosecution Service threshold test of being in the public interest and of there being a realistic prospect of conviction. The police and the CPS are rightly focused on those who pose a genuine threat, and have no interest in wasting their valuable time investigating and prosecuting people who pose no threat, where there is no public interest and no prospect of conviction.
Amendment 3 expands the offence of viewing information likely to be useful to a terrorist, so that it also includes otherwise accessing such material through the internet. This is simply intended to ensure that the offence captures non-visual means of accessing information such as audio recordings, in addition to video, written information or other material that can be viewed.
The Government recognise the sensitivities of the issues, and the need to ensure proportionality and to provide appropriate safeguards. We have been open to exploring how clause 3 can be improved in order to do so in a clearer and more certain way. But we make no apologies for sending a clear message that it is unacceptable to view or stream such serious and harmful terrorist material without a reasonable excuse, nor for having in place robust penalties for those who abuse modern online technology to do so. We consider that clause 3, as amended, is both proportionate and necessary in order to allow the police to take action to protect the public from potentially very serious threats.
Government amendment 5 responds to the oral evidence heard by the Public Bill Committee about the maximum penalty for the offence of failure to disclose information about acts of terrorism. Section 38B of the Terrorism Act 2000 makes it an offence to fail to disclose to the police information that might be of material assistance in preventing an act of terrorism or in securing the apprehension, prosecution or conviction of terrorism. This offence might apply in a case where a person, not themselves a terrorist, knows that a family member or a friend is planning or has committed an act of terrorism and fails to inform the police. In his evidence to the Committee, the independent reviewer of terrorism legislation, Max Hill QC, argued that the maximum penalty for this offence is too low and should be increased. Having considered the issue further in the light of recent cases, we agree. Those who know that others are engaging in, or planning, terrorist activity have a clear duty to inform the police about such actions. Where people do have information about attack planning or other terrorist activity and they fail to inform the police, it is right that we have appropriately stringent sentencing options in place. An increase in the maximum penalty from five to 10 years’ imprisonment will send a clear signal about the seriousness of this offence.
This group of amendments also includes amendment 13, in the name of the hon. Member for Torfaen, which seeks to provide for an independent review of the Prevent programme. I shall wait to hear what he has to say about that amendment.
I am grateful to the Minister for setting out the issue of the designated area offence.
Before I turn to that, I join entirely with the Minister in his opening remarks marking the anniversary today of the terrible attacks on the twin towers on 9/11 in 2001, and indeed his remarks about the inquest on the Westminster bridge attack. We all join together in paying tribute to our emergency services, to the first responders in the United States, and to all the families who were affected by those terrible events. Of course, as we debate this legislation today we bear in mind that experience, and indeed the experience of other terror attacks.
I am pleased by and accept what the Minister said in apology for the late arrival of this new clause. I am sure he will appreciate that it was disappointing that we were not able to subject it to scrutiny in Committee, because it would obviously have been more useful had we been able to do so. Of course, that does not mean that we will not want to put it to scrutiny in the other place, and we certainly will do that, but I would have liked to have been a position to give it more scrutiny before today. None the less, I accept that, as legislators, we have to look to deal with the threat that foreign fighters pose to this country when they return, and I am not proposing that the Opposition oppose this measure. However imperfect legislation can be, the rule of law is paramount. If we ever sacrifice the rule of law—if we undermine our own values in dealing with those who seek to destroy them—then we lower ourselves to the level of their barbarism.
I am pleased that, in dealing with this, the Minister has rejected calls to update the law of treason, which, after all, reached our statute book in 1351, has not been used since 1945, and was meant for a different age. We are also pleased that the Minister has rejected calls simply to dole out justice summarily and arbitrarily, which would undermine the rule of law. Unfortunately, other members of the Government—not least the Defence Secretary, I am afraid, last December—have previously suggested that. I am glad that those courses for dealing with this have clearly been rejected by the Minister.
As the Minister set out, new clause 2 designates in a statutory instrument laid before Parliament an area for the purpose of protecting members of the public from terrorism. In a letter to me, the Minister made it clear that such a statutory instrument would be introduced via the affirmative procedure, so that whenever an area was to be designated, it would be done on the Floor of the House. I hope he can confirm that that will be the case.
As the new clause sets out,
“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area.”
That reasonable excuse defence will be an extremely important safeguard. I also draw attention to what Max Hill QC, the current Independent Reviewer of Terrorism Legislation, said in October 2017:
“those who travelled out of a sense of naivety, possibly with some brainwashing along the way, possibly in their mid-teens and who return in a state of utter disillusionment…we have to leave space for those individuals to be diverted away from the criminal courts.”
Prosecutorial discretion and whether prosecution is in the public interest will, of course, be vital in this area.
While it is essential to deal with this matter by legislation, we will want to look at it in more detail, particularly in the other place. I welcome what the Minister said about being willing to work constructively on this, as he has on other parts of the Bill. We clearly cannot guarantee where future conflicts will take place, but we have to be prepared for those eventualities. We will want to look at the mechanism by which the Home Secretary designates these areas and ensure that we have appropriate safeguards. I am sure that nobody in this House would want to discourage aid workers and other people who we want to be in these areas from going to them. That clearly is not the intention of this law, and we will have to look at how we can ensure that that is the case.
I turn to the issue of seizing flags. In evidence to the Committee, Assistant Commissioner Basu mentioned the absence of this power from the Bill. I have looked carefully at amendment 1, and I am grateful to the Minister for his briefing on the context of how this power will be used. The issue of the sensitivity with regard to Northern Ireland was raised in interventions on the Minister. I am grateful to hear that he has been in contact with the Police Service of Northern Ireland, and I hope that that will continue.
At present, the issue is that police can only seize material with an arrest at the scene. Amendment 1 allows material to be seized where notice is given of a summons—in other words, the person does not have to be arrested at the scene, and a summons can follow within the prescribed six-month period. The person will still have to appear in court, but there will not have been an arrest at the scene. There is a suggestion of the power being used where there is not quite enough evidence to arrest someone at the scene, but I suspect that that would be extraordinarily rare in practice, because if a flag is in support of a proscribed organisation, it is difficult to see how someone would not be committing a criminal offence in those circumstances.
I tend to see this amendment in terms of how large protests will be managed. This power provides police at the scene with an additional option. It may well be the case that trying to arrest someone at the scene can either cause a public order problem or exacerbate one, and the summons method might be easier. It is not, of course, for us to comment on an operational matter. That would have to be a judgment of the police officer at the scene, but we can set out the framework. I expect that we will have to review how the power works in practice, but it is not my intention to oppose the amendment in principle.
I turn to the Government amendments on the three clicks offence, which has been raised in interventions on the Minister. I raised a number of concerns about this in Committee and tabled a total of five amendments on it. First, let me say that I understand why the law needs to be updated in this area. It was designed for a different internet age, when people tended to download content and watch it. It does not cover those who stream it, and clearly it must cover those who do so. The difficulty in my view is that the three clicks approach simply creates more problems than it solves, and I am grateful to the Minister for listening in that regard.
However—this point was raised in an intervention by the hon. and learned Member for Edinburgh South West (Joanna Cherry)—research into terrorism and its ideology is obviously hugely beneficial in understanding the reasons why people are drawn into terrorism, if nothing else. We should not be penalising those who conduct legitimate research or investigative journalism, nor should we be penalising legislators, including those on our own Home Affairs Committee who may well wish to look at some of this content over time for particular reports that they are considering.
On the reasonable excuse defence, such a defence was already in the original Act—the Terrorism Act 2000—and it has of course been interpreted by the courts since. In Committee, I asked the Minister to look at amplifying that, if possible. I clearly would not want the Minister to set out in statute every single version of the reasonable excuse defence, because there may well be additional new reasons that the courts will themselves want to interpret, and the courts should have the freedom to do so. However, I wanted the Minister to try to cover what I would describe as inadvertence, where somebody simply clicks on something without any intention of viewing terrorist material.
That is what the new provision being introduced to the Bill will actually do, rather than have the arbitrary three clicks, given that nobody could tell over what period the three clicks were to be made and all the rest of it. This method of taking out the three clicks and amplifying the reasonable excuse defence so that it covers cases where there is no intention to look at terror material, while at the same time keeping all the different aspects of the reasonable excuse defence—journalism, research and other reasons, such as for those conducting investigative journalism—is a better balance than was struck in the original version of clause 3. I am not suggesting for a moment that any piece of legislation is perfect, and the Bill will have its imperfections that the courts will no doubt pick up when it goes on to our statute book. At the same time, however, we have to try to deal with the issue of streaming, and I think this is a better attempt at doing so than the original version of the clause.
I will turn to the issue of the maximum sentence. A single instance of an increase in the maximum sentence will now be added to the Bill for the offence of failing to disclose information about acts of terrorism. The evidence from the independent reviewer of terrorism legislation was important. On this, I just want to press the Minister on what he said in Committee. He said:
“we have kept the Sentencing Council apprised of the provisions in the Bill, and the chairman has indicated that the council plans to revisit the guidelines once the Bill has completed its parliamentary passage.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 3 July 2018; c. 105.]
It is absolutely vital that the Minister again goes back to the Sentencing Council both about the other increased sentences in the Bill that we have already discussed and, in addition, about this other increased sentence. I hope that the Minister will be able to give an undertaking on that.
Finally, I come to amendment 13, in my name, regarding an independent statutory review of the Prevent programme. Let me make it clear at the outset that I have visited the Prevent programme—I am very grateful to the Minister, who has always assisted me in facilitating such visits, and indeed to the Home Office civil servants, who accompanied me—and I have seen some of the excellent work that goes on. I do not for a moment denigrate the work that is being done to divert people from a life of terrorism to a far more constructive life—that is absolutely to be praised—but I suggest that it is part of good governance regularly to review whether policies are working as they should be, and if improvements can be made on the basis of those reviews, they should be made.
The Minister will of course be aware that concerns have been expressed about the Prevent programme, and these could be considered within the scope of the review. The first concern is with regard to its aims. I have seen the Prevent programme in action in schools, for example, and in dealing with particular individuals. I have heard the previous independent reviewer of the terrorism legislation, David Anderson, speak about it, and I have interviewed people who feel they have benefited from the programme. I would describe that sort of work as the welfarist aspect of Prevent. We have to be clear about its aims, because it is perceived by some communities as an intelligence gathering exercise. If we feel that certain communities have lost confidence in the programme, of course we have to deal with that.
Prevent also has the aim of community cohesion. I have seen some very good work on that within the narrow confines of the programme, but there is concern about whether there is scope for the kind of community cohesion activity that is required, given the swingeing cuts we see to local government services, and specifically to children’s services and youth clubs—something that local authorities have highlighted to me when I have been out looking at Prevent programmes.
I am not saying that there is not excellent work going on as well, but we have to accept that some communities find it difficult to be confident in the programme. In those circumstances, it is sensible and reasonable to want to review it, ensure that it has wide community support, and make improvements if necessary. That does not undermine the counter-terrorism strategy—far from it; that is about improving it, and about good governance.
In Committee, the Minister spoke about internal reviews of Prevent. Fine, but let us have a full statutory review as well, and make the improvements that are needed to our efforts to tackle counter-terrorism.
I hear what the hon. Gentleman says about Prevent, and welcome his warm support for its principles. I am glad that he has been to see its programmes, as I did when I was Minister for Security. He makes a useful point about oversight of Prevent and about measuring the implementation of the Prevent duty. He will remember that we introduced that duty when I was the Minister. The duty affects a wide range of organisations, but the evidence suggests that its effectiveness varies across them. It would seem to be useful to take a look at that, but I would not call that a wholesale review; rather it is measuring its effect.
I am grateful to the right hon. Gentleman for his intervention. I know the work that he did in this area. I have seen the Prevent duty in operation, both on visits as a shadow Minister, and in my constituency, as it happens. I appreciate his point about whether a statutory review is justified. Clearly, we are talking about an aspect that could be taken into account in a statutory review, but wider issues to which I have already referred could also be taken into account. A statutory review would give us the opportunity to re-evaluate the programme fully, to look at those communities that have lost confidence in it and why, and to improve our ability to tackle counter-terrorism.
I will speak about new clause 2 and the context in which it has been brought forward. The first responsibility of any Government is always to protect their citizens, and as the threats to our country evolve, so must our laws. In a speech on 17 October 2017, Andrew Parker, the director general of MI5, described the ongoing terrorist threat as
“multi-dimensional, evolving rapidly and operating at a scale and pace we’ve not seen before.”
The threat posed by terrorists and malicious actors is not going away—far from it. Last year, there was an increase of 58% in the number of arrests for terrorism-related offences. The threat is increasing and new clauses will be required to combat it.
Members have alluded to the fact that today is September 11th. No doubt we all remember where we were on this day in 2001 during the attack on the United States. I was on the wards in my first job as a hospital doctor. I was looking after an old lady who was watching television, and from behind her, I saw on the screen the aeroplane fly into the first tower.
We were all here last year when Westminster was attacked. People were tragically killed and PC Palmer gave his life protecting this House and protecting us. As we debate this topic today, we will be remembering those who were injured in those attacks, and the good work and bravery of the police and the other emergency services who protect us. Every day when we come to work, the Annunciator reminds us that the threat level is “severe”. It has been severe continually for at least the past four years. This means that at any given time an attack is considered to be highly likely. As I said, it is our first duty to protect the citizens of the country. It is important, in a free and democratic country, that we do that in a way that is both proportionate and effective.
On declared areas, my understanding is that there is a significant precedent in Australia, where a specific law states that it is a criminal offence for people to go to an area. I understand that it has been used on three separate occasions in Australia, where, as is proposed here, the maximum sentence is 10 years imprisonment. That is understandable, given what the Security Minister has said, which is that 400 people who have returned to this country are believed to have been active in fighting abroad.
Does my hon. Friend agree that one of the problems facing police and prosecutors when people come back from overseas is that if they want to investigate them for preparing acts of terrorism it is sometimes extremely difficult to get hold of evidence that may be in other parts of the world? This measure is an important way of filling that gap in the law, so that people can, when the evidence allows it, fairly be brought to account.
I thank my hon. Friend for his intervention. He puts what I was going to say much more eloquently than me. He is exactly right. The Government need to have a way to manage the threat posed by these individuals, when they are not able to gather evidence from abroad, perhaps in a country that is a very dangerous place to be. How effective does the Minister feel the measures have been, where they have been introduced in Australia, in preventing people from going to those places and prosecuting them on their return?
The Bill also serves a vital role in updating and closing the gaps in counter-terrorism legislation in the online world. As has been described eloquently by other hon. Members, the way people use the internet has changed and continues to change. Material is more likely to be shared online than as hard copy. Material is often streamed, rather than necessarily downloaded. As the growth of the internet has provided us with unprecedented ways to stay connected and share information with each other, its potential has also been harnessed by those who wish to do us harm. This is seen every day in the huge amount of terrorist propaganda that is created and shared online. This is done at a rate much quicker than our ability, at present, to remove it. The updating of the offence of obtaining information likely to be useful to a terrorist to cover terrorist material that is viewed or streamed over the internet rather than downloaded is a reflection of how internet media are consumed today. In my view, this is an overdue update of our laws.
Furthermore, the Bill makes it clear that the existing offence of displaying in public an image that arouses reasonable suspicion that a person is a member or supporter of a proscribed organisation, will now cover the display of images online. Again, that is important because if somebody on a protest march walks down a street carrying a flag or displaying an image, it will be seen by a limited number of people. Their ability to spread such images more widely and to influence more people is greatly enhanced by the ability to share them online. That is why this law is important.
It will be a criminal offence for individuals to share or publish things online, but will the Minister update the House on what is being done to encourage or mandate the social media companies on whose platforms such images may be shared to remove them rapidly? We know that such images can be shared incredibly quickly and can travel around the globe many times on Facebook. That is demonstrated by schoolchildren, who produce an image and then share it to see how far it can go. There is no doubt that such images can be shared very quickly. What is the Minister doing to ensure that images that are known to be harmful are removed rapidly? What discussions have Ministers had to ensure that those who are responsible for social media accounts must identify the people who use those accounts, so that when something is shared online, it is easy for the police and security services to identify the individual who is responsible for the images?
While part 1 of the Bill is concerned with the modern threats posed by terrorism in the digital age, part 2 is concerned with the age-old threat posed by hostile states. The chemical attack in Salisbury, which I understand we will debate further tomorrow, shocked this country and the world. It was thought that such attacks by other states on our soil belonged to a bygone era. As more details have emerged, including those that the Prime Minister informed the House of last week, the mundane nature of the attack—flying into the UK on valid passports and travelling from Waterloo station—makes it all the more terrifying.
Part 2 of the Bill seeks to strengthen our borders against such an attack in the future by creating new powers to investigate hostile state activity at the border. Police and customs officials will be able to stop, question, search and detain an individual at the point of entry to the country.
My hon. Friend is explaining to the House how terrible the attack in Salisbury has been. Does she agree that it is actually a threat to the whole of the United Kingdom, and that it is important that the provisions in the Bill are carried through not only so that action can be taken but so that information can be shared with security and police services right across the United Kingdom?
I agree that it is important in any part of police work that, where appropriate, information is shared throughout the country so that individuals who seek to do us harm can be stopped or caught if they have already committed an offence.
Being able to stop people at a border and question their intentions on coming to this country will be important in enabling the Government, the security services and the police to protect the citizens of the UK.
Does my hon. Friend agree that our constituents would expect us to be able to stop people at the border and question them in case they are a threat to this country?
I thank my hon. Friend for a great intervention. He is right that for many of our constituents, it will come as a surprise that we are not able to do this already.
To continue on that theme, does my hon. Friend agree that the security elements of the White Paper on the future relationship will be essential in guarding our borders because they will ensure that we continue to work very closely with our European Union neighbours to tackle this as 28 countries, rather than just one?
I agree. Terrorism is a global threat. It affects us in this country, but, as we remember on 11 September, it has affected the United States, and it continues to affect countries throughout the world. It is absolutely right that we share information with trusted countries. We have the “Five Eyes” security grouping, and we also have the EU. It is important that we work with all our international friends to keep our country safe.
It was said earlier from a sedentary position, “Well, that’s what the EU is for”. Does my hon. Friend agree that it is the whole international community? We are leaving the EU, but does that mean that this is any less serious a subject? As my hon. Friend has said, we will continue to work with the EU even after we leave.
I agree absolutely.
I give way to the hon. Gentleman.
I am happy for the hon. Lady to expand on her point before she gives way—I hope—again.
The hon. Gentleman looked so keen to get to his feet.
It is absolutely right that we tackle the threat to our country by co-operating with our international friends and neighbours, and those neighbours will of course include the EU. Furthermore, it will not matter that we have left the EU because it will be in our mutual interest to co-operate on security.
I am grateful to the hon. Lady for continually giving way as it allows us to develop some of the points.
This power already exists. Our authorities have the ability to stop people at our borders and airports who are suspected—or not even suspected—of terrorist offences. We discussed on Second Reading—and I engaged with the Minister subsequently on this point—how Border Force often uses the power erroneously against British citizens travelling from Belfast to Birmingham, for example, or from Glasgow down to Birmingham or London, and so on. It is not appropriate. I hope in this debate to get a sense that there will be some restrictions on a power that is worthwhile and useful from a terrorist prevention perspective, but which is being used improperly and erroneously.
I thank the hon. Gentleman for his question, although it is one for the Minister, rather than me. I would certainly expect the authorities to use the power proportionately and where necessary to keep people safe, not to stop and question people at the border without reasonable grounds.
Several hon. Members have raised the “reasonable excuse” issue in respect of people returning to this country. People who have been to a declared area will have the “reasonable excuse” defence. So people will be able to travel to these areas for legitimate purposes—for example, for journalism or to visit family for a funeral or some such important bereavement event. It will also be allowed for people delivering aid, and obviously for the armed forces. The Government have worked to ensure that these “declared areas” provisions meet the important test of protecting our citizens and are both proportionate and effective.
The hon. Lady is being very generous with taking interventions. She said a moment ago that leaving the EU would not matter in terms of our co-operation with the EU. Does she not understand that when we leave the EU we will be a third country and that third countries do not have the same access to information sharing as members of the EU? Indeed, it is why our “Five Eyes” allies like the UK being in the EU—they get access, through the UK, to information they would not otherwise have.
I disagree with the hon. and learned Lady. Each country has a duty to protect its citizens. She says the “Five Eyes” like access to the EU’s information, but is it not also reasonable to suppose that the EU likes access, through us, to information from the “Five Eyes”? I am sure that the Government would share information only with the consent of the countries that had given that information, when appropriate; it is as much in the interests of the EU to have access to our information as it is for us to have access to the EU’s information.
Can the hon. Lady name any third country that has the same access to information-trading within the EU as an EU member?
I am afraid that—[Interruption.]
It may be—I do not say this with any acrimony—that the hon. and learned Member for Edinburgh South West (Joanna Cherry) is letting her pro-European prejudices get the better of her understanding of security. The truth is that, as she will know, we draw on a variety of sources of information. It is true that we use the Schengen database, but only as part of the network of information that we gather across all kinds of borders and from all kinds of sources to help to inform our intelligence and security services. The likelihood of that changing as a result of our departure from the EU is being exaggerated by those who have a different agenda.
Name a country that has the same access.
I thank my right hon. Friend the Member for South Holland and The Deepings (Mr Hayes) for his intervention. I agree with him profoundly. I think it is scaremongering to suggest that for some reason the EU would not wish to share security information with us, and that we would somehow become less of a security partner or friend because we had left the EU.
There is not a country that has left the EU yet. We are that test case. The reality is that the EU27 will rely on us hugely when it comes to security, because we are such a great provider of that. Perhaps I could urge Opposition Members to be a little more ambitious and recognise that we have a lot to gain from this, instead of running up the white flag.
Again, I agree profoundly.
The Bill is the result of a thorough review carried out by not just the Government but the security services of how we can best protect our citizens. I believe that we can best protect them by ensuring that the Government, the police and the security services have to hand all the tools that they need to deal with the modern threats that are posed to this country.
I echo the comments made by both the Minister and the hon. Member for Torfaen (Nick Thomas-Symonds) about the anniversary of 9/11 and the Westminster Bridge inquiry, and all who have been affected by those tragic events.
As we have heard from the hon. Member for Sleaford and North Hykeham (Dr Johnson), the first job of any Government, whether in London or in Edinburgh, is to keep their citizens safe. It is clear that we need to take action to update legislation in these difficult times of high-level terrorist threat combined with the constant march of technology and online communication. I fully appreciate the difficulty of keeping legislation current, answering the calls of the police and security services for further powers, and maintaining the balance of freedom and civil liberties that we expect and enjoy. Of course, while we are supportive of the Government’s efforts, it is incumbent on any decent Opposition to offer amendments to improve the Bill and ensure that the Government get that balance right.
In Committee we submitted many amendments which, sadly, the Minister was not wise enough to accept. However, he was wise enough to make some concessions to the Opposition. Amendment 2, for instance, would remove the requirement to view documents or records containing information likely to be useful to terrorists on three or more occasions—the three-click policy. We have some serious concerns about the impact that that may have on innocent individuals who have no interest in, intent to engage in, or wish to encourage terrorist acts. I am glad that the three-click policy has been removed, but I fear that it has simply become a one-click policy.
The previous policy was arbitrary and unworkable, given that the clicks could occur in an unspecified window of time, did not have to relate to the same content on each occasion, and did not require any terrorist intent for the offence to be committed. As I did in Committee, I accept the Government’s point that more people now stream material online than download it to a computer or other device, and in that context it is vital that we continue to review our counter-terrorism approach.
The Government had argued in relation to clause 3 that the three clicks requirement was intended to identify a pattern of behaviour; this amendment runs completely counter to that objective. As had been asked for in Committee, the Minister has included a reasonable excuse defence for this new one-click offence. I would like the Minister to address concerns raised by many, not least my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who say that it is possible that the wording will have the perverse impact of narrowing the reasonable excuse defence available to people charged with the offence, as the courts are likely to reason that, in legislating for a reasonable excuse without including lack of terrorist intent within that excuse, Parliament did not intend for lack of terrorist intent to be an available excuse for this offence. We have to ensure that the clause does not criminalise people who may view these documents with no nefarious intent, such as academics and journalists.
I turn to the Government’s proposed new offence of entering, or remaining in, a designated area. The ministerial communication on this Bill has otherwise been excellent, but it was poor in relation to this new offence. The deadline for tabling amendments was the rise of the House on Thursday, yet we received the email with supporting documents about the offence at just after 7 pm on Thursday. That is poor practice.
I listened to the Minister set out his thinking on this and although I accept, as most of us will do, many of the points he made and what the new clause is trying to do, I am still not fully convinced it is necessary or proportionate. A reasonable excuse defence is included in the proposal; however, people travelling to visit family, conduct research, document human rights abuses or undertake humanitarian relief could all be criminalised and imprisoned for up to 10 years should their reasonable excuse be found wanting. Some people will simply opt not to travel, which would have a chilling effect on family relationships, academic inquiry and investigative journalism. The likes of our fantastic correspondent David Pratt of the Herald and National may think twice before travelling to war and conflict zones to bring us the real story on the ground.
The offence also risks criminalising vulnerable people who are groomed or otherwise convinced to travel under false pretences, as well as people who are unable to leave an area once it has been designated. In some circumstances, people will simply be unaware that an area has been designated, and may fear returning home once they become aware that they have committed an offence by failing to return within the requisite time period.
Reasons for travelling to volatile and even dangerous overseas locations are varied and complex, but by no means are they uniformly malign or connected with terrorism. In the short time that we have been acquainted with this proposal the Government in their correspondence and at the Dispatch Box today have not to this point convinced us of the necessity of the offence and at 6 pm we will be voting against new clause 2. I am not hopeful of success in that Division, and with that in mind I urge the Minister to commit to a review 12 months after implementation to ascertain the necessity of the offence and to evaluate whether the reasonable excuse defence has provided the appropriate level of protection to the groups I have highlighted.
Finally, I would like to speak in support of amendment 13, tabled by the hon. Member for Torfaen (Nick Thomas-Symonds), which I was delighted to support. A few months ago I, along with colleagues from the Justice Committee, visited Medway Secure Training Centre. At lunchtime we sat with some of the staff and the young adults detained there. One of the detainees I sat with and had a long conversation with was a hugely impressive young woman of 17. I am not sure of the type of person I was expecting to meet in such facilities, and that is wrong as we should not have an expectation, but I certainly was not expecting to meet someone as impressive, intelligent and articulate as this young woman. She was popular with all the children and young adults—they had voted for her to be their representative on a centre management committee—and she was popular with staff, and she had helped improve the centre’s reward and discipline system. In short, she was an impressive young lady. Thirty minutes later, I was told that the young woman we had met was Safaa Boular, who at that time was a remand prisoner awaiting trial on terrorism charges. That had a profound effect on me, and on how I view the radicalisation of young and vulnerable people.
This is not an easy issue; in fact, it is an extremely difficult and almost impossible one. Safaa, along with her mother and sister, had planned to carry out truly terrible acts. The fact that she was convicted and, just last month, sentenced to life imprisonment is testament to that. I am not saying for one second that people like Safaa should not be punished—of course they should—but I know that we have to do more to help people like her before they become radicalised. Despite the fact that the Prevent strategy is better implemented on the ground in Scotland than it is south of the border, I am pleased to support amendment 13, which I urge the Minister to accept. All it asks for is a review.
The hon. Gentleman makes an honest and powerful point about Safaa Boular, whom he met. Terrorists do not always present themselves in balaclavas or as nasty pieces of work, and they are often the victims of grooming or other troubles. The people who groom the likes of Safaa Boular are those returnee fighters who are hardened and who come back here. In the past, we have found such people difficult to put on trial and put away in order to protect the likes of her from those groomers. The designated area offence will give us the ability to do that. If returnee fighters pose a real and present threat of radicalising people in these communities, as they do—
Order. Just to help: the Minister will obviously want to come back at the end of the debate, and I want him to save something to come back with. Even those on the Front Bench are meant to make only short interventions.
I apologise, Mr Deputy Speaker.
Thank you, Mr Deputy Speaker. I fully accept the central point that the Minister is making, but he has failed to convince us on the question of proportionality and on the necessity for the new clause. I should also point out that Safaa was not radicalised or groomed by someone who had returned; she was radicalised and groomed by someone overseas. In conclusion, I urge the Minister to commit to this review of the Prevent strategy.
Across the House, we share a determination to tackle terrorism. Seventeen years ago today, I was visiting my grandmother. She was watching the television and she showed me what was happening in the appalling attacks in the United States. We in this House also know about the atrocities that happened just 100 yards away on Westminster Bridge recently. So we all want to ensure that we can do whatever we can to keep our people safe and to fight against the scourge of international terrorism. The question tonight, however, is whether the new clause and the new Government amendments will help to protect us. We have seen a huge number of laws added to the statute book, quite rightly, to help us and our security services in the attack that we are making on terrorism and in the fight back, but I am not yet convinced that this new clause and these amendments will add to the successful work that has been going on.
I say to the Minister that I reach that conclusion reluctantly, but I should like to put forward my arguments, because I am not alone in this. Skilled independent commentators have reached a similar judgment to the one that I have reluctantly reached. My first argument in relation to new clause 2 is that it is not needed. Clause 5 of the Bill, with which we agree, will quite rightly expand extraterritorial jurisdiction. We have seen this before, and clause 5 takes those measures further to ensure that terrorist offences committed abroad can be prosecuted in the United Kingdom. That is sensible stuff. New clause 2 wants to go further, however. Rather than being primarily concerned with terrorist acts abroad, it seeks to criminalise the whole concept of going abroad. In other words, it is not about the actions of a person but about locations.
The Minister, in his usual rational way, tried to reassure us that this was not meant to apply to aid workers or journalists, and I presume that it would not apply to people who wanted to visit sick relatives and who might even risk going to a war-torn country to do so. He referred to proposed new subsection 58B(2), which is found in new clause 2, which offers that defence, but the way I read it, the person charged will have to prove that they had a reasonable excuse for entering a designated area. That is not quite what the Minister said at the Dispatch Box, and although I did not intervene at the time, I do not think that people will be innocent until proven guilty, and that should worry the House.
The other issue is one of common sense. If a terrorist or freedom fighter who has returned is accused of going to such an area, they could no doubt make a reasonable excuse defence. They could say that they were an aid worker, and the Government would then still have to prove that they have evidence that the person was doing something wrong and was not an aid worker. I am not absolutely convinced that the Government have got this right, and I will go on to quote the former independent reviewer of terrorism legislation, David Anderson QC, who supports my view.
There are obviously concerns about new clause 2 that we will have to consider in the other place; it is a shame that it arrived late. As for the idea of the reverse burden, under section 118 of the Terrorism Act 2000 a defendant has to raise it and then it is up to the prosecution to disprove it.
I am just going by what the Minister has tabled today.
David Anderson, the former independent reviewer of terrorism legislation, said in 2016 of a very similar proposal that
“this offence would not be worthwhile for the UK.”
He also complained about the burden of proof being
“on the honest and worthy to show entry into the prohibited area for a legitimate purpose.”
He said that foreign terrorist fighters
“will also cite aid purposes, so the ultimate burden of proof will still demand evidence not just of presence but also of training, logistical support, or involvement in fighting”
and went on to argue that such activities are of course already covered by the law. He also looked at the practical problems, referring to the fluidity of the
“area controlled by Islamic State (Daesh)”
and how difficult it would be to fix an area in law when the task might be like mapping the shifting sands of time and reality as the space governed by such organisations changes. There are practical problems with this legislation and, like the former independent reviewer of terrorism legislation, the Liberal Democrats do not think that the Government have made a case for it. We want to ensure that the other place scrutinises the measure given that this House has not been given sufficient time.
Finally, Government amendments 2 and 4 seek to replace their original proposal for obtaining and viewing certain material over the internet—the so-called three-click rule—with a one-click rule and a defence of ignorance about the content of the click. I spoke against the three-click proposal on Second Reading, as did many other Members on both sides of the House, and asked Ministers to go away and think again, but I did not expect them to come up with an even worse proposal. The defence for viewing such material with good cause has actually been reduced, and I am not alone in thinking that. Amnesty International fears that there is a serious risk of a chilling effect on the freedom of inquiry, whether from journalists, academics or researchers.
The right hon. Gentleman makes the same mistake that the SNP Front-Bench team made. Contrary to narrowing the definition, proposed new subsection (3A) in amendment 4 states:
“The cases in which a person has a reasonable excuse for the purposes of subsection (3) include (but are not limited to) those in which at the time of the person’s action or possession, the person did not know, and had no reason to believe”.
There is no finite list. The legislation is as broad as possible to include a whole range of reasonable excuses, including ones that we have not even thought about.
I am grateful to the Minister for trying to clarify the situation, but I will let others in the House read the words on the amendment paper and reach their own conclusions. In my opinion, there is a serious concern that the definition is not wide enough and that there will be, as Amnesty International and others have said, a serious chilling effect on independent inquiry. Let us remember that it is already an offence under legislation introduced by the previous Labour Government to collect or record such information. Anyone behaving in a way to prepare for a terrorist act or to encourage such an act already, rightly, commits an offence, and there is a reason why, under the Counter-Terrorism and Security Act 2015, viewing material, as opposed to collecting or recording it, was not made an offence—it is called evidence.
Max Hill, the current independent reviewer of terrorism legislation, says:
“the Government and researchers have repeatedly asserted that there is no clear production line from viewing extremism or even being ‘radicalised’ into becoming an active terrorist.”
In summary, he says this new mode of offence is based on the premise of a one-way or conveyor-belt radicalisation to terrorism thesis that, in other areas, the Government argue does not exist. The Government are not even following their own argument or the evidence. It is not me saying that but the independent reviewer of terrorism legislation.
Max Hill particularly criticises clause 3. He warns that
“a principled boundary line as to the legitimate usage of criminal law is being crossed.”
He has also said that:
“Given a choice—given a free hand—I would be more likely to argue that it is not necessary to legislate in this way at all.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 39, Q86.]
The Government-appointed independent reviewer of terrorism legislation is saying that we should not be legislating. The House should listen to the independent expert who has been assigned the task of advising us.
I will translate Max Hill’s very diplomatic legal language into what he is actually trying to say. I do not have to work very hard to read between the lines of this expert. He is basically saying that clause 3—and thereby Government amendments 2 and 4—is unnecessary and should be rejected. I hope the House rejects new clause 2, and with it Government amendments 2 and 4.
I rise to speak strongly in favour of new clause 2, not least because I have spent the past nine months beseeching the Government to introduce exactly this measure. I thank the Minister not only for his kind words in response to my earlier intervention but for the constructive and open way in which he has worked with me. He has been clear from day one that he had already identified this measure and was looking at following the Australian example.
It is disappointing to hear the right hon. Member for Kingston and Surbiton (Sir Edward Davey), for whom I have a great deal of respect, speak so passionately against bringing in this measure. It was less surprising to hear the hon. Member for Paisley and Renfrewshire North (Gavin Newlands) do the same. I listened carefully to both, and I am none the wiser as to what either the Liberal Democrats or the Scottish National party would do to improve the incredibly dangerous situation to which this country has been exposed through the current conflict against Daesh.
By the Government’s own figures, more than 800 British citizens of interest to the security services have travelled to Iraq and Syria during the conflict. More than 400 of them, around half, have returned to the UK, yet there have only been 40 prosecutions for terrorist offences. That one in 10 rate is absurdly low, currently, when we know that the overwhelming majority of those people are going over to Iraq and Syria with no other purpose than to support jihad—to support this evil organisation. Yes, I think the shadow Minister was right in the way that he referenced what Max Hill had said about the number of people who return who may have been coerced to go over, may be disillusioned and may be able to play a valuable role in preventing others from doing so. At the moment, though, the message that this country is sending through the laughably low prosecution rate is that it is okay to go over there, to follow that dream; that you can look for the Ummah over there, and then you will be able to come back and reintegrate into society and the police and security services cannot touch you. That is a dreadfully dangerous message to be sending to people. And the measure before us, surely, is a common-sense measure, for which safeguards can easily be provided. Those who are travelling over for legitimate purposes to do aid work clearly will do so as part of a wider group and will be able to show verification for doing so.
Will the hon. Gentleman give way?
I will in just a moment. I very much hope that this legislation will get on to the statute book, and when it does I very much hope that there are very few prosecutions. It ought to provide a deterrent effect for future generations who would otherwise be tempted to go over there. I will happily give way to the hon. Gentleman, if his colleague gets out of the way in time. Okay; he does not want to intervene.
It is disappointing to hear that the Scottish National party intends to press the new clause to a Division.
I will give way to the hon. and learned Lady, and I hope she will answer to her constituents and the people of Scotland why she thinks that her approach would make the Scottish National party, in an independent Scotland, fit to keep its citizens safe from terror.
I would just very gently say to the hon. Gentleman that it ill behoves him to question the motives of democratically elected Members who seek to test the necessity and proportionality of an amendment that was only tabled two or three days ago. I would ask him to consider his approach and his language. The reason I wanted to intervene was that the Australians have a sunset clause on this power. Does he think it might be an idea for the Government to introduce a sunset clause as a safeguard?
I cannot see any convincing argument for doing so. If the hon. and learned Lady wanted to make one, surely she or her party spokesman could have done so. To be clear, I do not think the motives—nothing that I have said about her party has suggested, I hope, that she actively wants to make the citizens of Scotland at greater risk from terror. However, I am afraid that that is what her party would do. Time and again, there is a long tradition, over many—
On a point of order, Sir Lindsay.
A point of order? Oh, for goodness’—
Is it really in order for this hon. Member to impugn my motives and suggest that I want to make the people of Scotland, or indeed the United Kingdom, unsafe simply by testing an amendment? Is that really in order? It seems to me pretty close to being out of order.
I know that would not be the case with the hon. and learned Lady, and I am sure that was not the intention of the hon. Gentleman.
I think what we are hearing today is the real lack of scrutiny that the Scottish National party has consistently had in this place, and perhaps in the Scottish Parliament, over the years.
No, I am not giving way. Sit down. Sit down. After that absurd non-point of order, I am not going to give way. The hon. and learned Lady has had her opportunity, and her party has had its opportunity, to set out why they believe that they can actually add to the security of the United Kingdom. They have just summarily failed to do that, as her party, I am afraid, has done over many years in this place.
I will of course give way to the right hon. Member for Kingston and Surbiton.
I am grateful to the hon. Gentleman and he should know that I have a lot of respect for him. Therefore I would ask him gently if he would go away and look at the words of David Anderson, QC, just two years ago, on an almost identical amendment. That very respected independent reviewer of terrorism legislation said that this type of amendment would not work and was not needed.
I am of course aware of David Anderson’s views, and I am afraid I simply do not agree with him. Will the measure solve the problem of British citizens being brainwashed into supporting jihad? Clearly it will not—I will say a little more about the Prevent strategy in a moment—but it is surely a valuable extra tool that has been shown to be severely lacking in the UK’s arsenal in the past few years, given the hundreds of people who have come back from the terror hotspot of Daesh-controlled Iraq and Syria and not been prosecuted.
I will wind up my remarks by talking about Prevent. I heard what the shadow Minister said about the official Opposition’s motion on review, and I have no doubt that those views are sincerely held, but I will not support him on the amendment, if it is pressed to a vote. I agree that Prevent should be continually under review, but I am concerned about the head of steam that has developed, sometimes from my good friends in this place, which has given the impression that there is something fundamentally at fault with Prevent. There are of course those in Muslim communities who question it, but the responsible position for people in this House and beyond is to make the case for the Prevent programme’s valuable work and to highlight the number of people who feel that their lives or the lives of their loved ones have been saved through it.
Ultimately, those who want to discredit Prevent and want it to fail are those who want to give a very different message to our young people. I hope that those on my side of the House—it remains my side of the House, at least—will reflect on the language and tone that they use when describing Prevent.
I was listening to the hon. Gentleman’s dulcet tones. He articulates the challenge with security. None of us want to ratchet up security. We want to balance our liberal open democracy and our individual freedoms with the clear and solid duty of the state to keep people safe.
In the 21st century, we have had a rapid growth in insecurity around the world, brought to our doors by such things as the internet and communications service providers. My hon. Friend the Member for Sleaford and North Hykeham (Dr Johnson) talked about the work on CSPs and what we can do to deal with the issue. That is why the offence related to streaming is so important for us. It may not satisfy the Scottish National party on streaming, but streaming is a method by which people are being radicalised and terrorist content is being spread. Streaming is a modern method of viewing terrorist content that helps to turn those young 16-year-olds into potential terrorists. People have to come up with better alternatives. They cannot say, “We are going to stick with the older legislation that is entirely predicated on downloading.” They have to recognise how these people are doing business. That is why we brought in that offence of streaming.
The right hon. Member for Kingston and Surbiton (Sir Edward Davey) made a point about designated areas and the burden of proof. I wrote to the Opposition spokesman, the hon. Member for Torfaen (Nick Thomas-Symonds), on exactly that point. He has clearly articulated it from the Dispatch Box that once the defendant has raised the defence, the burden of proof to disprove that defence to the criminal standard rests with the prosecution, as in section 118 of the 2000 Act. The burden of proof is positioned in that way, and at the moment we have decided that not having an exhaustive is the way to go. Just as with the previous issues of reasonable excuse and streaming, we think the right thing to do is to allow people to present an excuse for being there. It also allows the broad space for their human rights and everything else to be correctly regarded.
I am very grateful to the Minister for the many telephone conversations that we have had during the passage of this Bill and for keeping me up to date, albeit not on last week’s amendment. Does he understand that the reason why some of us on the SNP Benches are concerned by the designated area clause is that my very good friend and professional colleague at the Bar, David Anderson, who has expertise in this area, has expressed some concerns? Will the Minister note for the record that that is why some of us want to put this measure to the test—not for any reasons of frivolity, but for reasons based on sound legal concerns about necessity and proportionality?
Of course we listen to and respect current and former reviewers of terrorism. Lord Carlile, the former Liberal Democrat, has often had different opinions from Lord Anderson. Indeed, the current reviewer of terrorism, Lord Hill, has different views. They all do an amazing and thorough job, and they will, for example, have oversight of the use of this offence. They will be able to review the use of this offence as part of their role. I have no doubt that, Max Hill, who has gone to be the next Director of Public Prosecutions, will be able to carry out the prosecution’s discretion, which is so important when deciding on the public interest test in some of these offences in the Crown Prosecution Service. The hon. and learned Lady may have confidence in those reviewers of terrorism, but I have confidence in Max Hill as the next DPP, coming from the review of terrorism, to make those sound judgments about when it is in the public interest to prosecute or not.
I can give assurances to Members about the Sentencing Council. Absolutely, we shall continue to work with it, and we will write to its members to make sure. When it comes to the naming of the designated areas, I will seek to bring the matter to the Floor of the House. It is an affirmative motion, and I am absolutely open to that; I do not oppose it in any way.
The hon. and learned Member for Edinburgh South West (Joanna Cherry) made a point about data and the European Union. She will know that national security is not in the jurisdiction of the European Commission or the European Union. What a country chooses to share in data for national security purposes is entirely the business of the member state. We can choose what we want to do with our intelligence, and it is not for someone else to pass that on. Her point about the “Five Eyes”, therefore, is not correct. Even when we share intelligence in the “Five Eyes”, if the intelligence comes from another partner in the “Five Eyes”, we do not have the authority to share that with our European partners because it does not belong to us; it belongs to that sharing partner.
Furthermore, on that data sharing point of the European Union, that is a negotiation that we are seeking to secure. Such a negotiation is in the interests of both the United Kingdom and the European Commission. If they want to keep their people safe, security is a partnership; it is not a competition. That is why our offer on negotiation of security is an unconditional open offer, which seeks to share in a way that we have done in the past.
I am sorry, but I want to press on, because I want to get to the final point and address Labour’s amendment on Prevent. I hear what the hon. Member for Torfaen says and I in no way question his motives.
Since I have been the Security Minister, I have made sure that we have published more and more statistics on Prevent; they did not previously exist. These statistics enable all of us in the public realm to scrutinise the results of Prevent referrals, including information on where they come from, people’s ages and the accuracy of the referrals. Without any statutory review, after some time—I think we have published two bulletins so far—we will be able to see whether the accuracy of Prevent referrals from different sectors is producing the results that we want. That is, we will know how many people are being correctly identified as vulnerable and exploited. At the same time, we regularly review Prevent within Government and the Department, and through engaging with the 80-odd community groups that deliver some of the Prevent programmes.
If the Government or I felt that Prevent was not producing a result and diverting many people from the path of violence, I would be the first to come to the House and say, “We have to get it right.” The critics of Prevent—which the hon. Member for Torfaen is not—never set out an alternative. They criticise its title, but always set out a provision that is exactly the same as Prevent.
It is not necessary to have a statutory review of Prevent at this time. It is improving and becoming more accurate, and people are absolutely becoming champions of it across every sector. Today I saw, I think in The Daily Telegraph, a letter by a long list of academics about the chilling effect of Prevent. Never mind that the Higher Education Funding Council for England said in its evidence to this House that it had yet to see any evidence of the chilling effect. In fact, a judge in a recent challenge about the Prevent duty said the same thing—that the defendant had yet to prove any chilling effect. I have not seen a letter from academics about the chilling effect on universities of no platforming, whereby people are shut out of debates entirely. The Prevent duty is about having balance in debate and due regard to the impact.
I understand the hon. Gentleman’s motives and, to some extent, what the Opposition want to achieve. I would say that the publication and transparency that we are increasingly moving towards with Prevent, and the assurances that Prevent is not an inward reporting system—that is, people do not go into Prevent and get reported to the intelligence services; it is deliberately kept as a separate safeguarding activity—means that the best way forward is to continue improving Prevent as it is. We can discuss its accuracy and success rates, but until someone comes up with an alternative policy to what we and the Labour Government had, it is unnecessary to put a review in statute. Therefore, despite our collaborative working on the Bill, I ask the House to reject the hon. Gentleman’s amendment.
Question put, That the clause be read a Second time.
The House proceeded to a Division.
I ask the Serjeant at Arms to investigate a delay in the Aye Lobby.
11 September 2018
The House having divided:
Question accordingly agreed to.View Details
New clause 2 read a Second time, and added to the Bill.
Publication of images
Amendment made: 1, page 2, line 9, at end insert—
‘( ) After subsection (3) insert—
“(4) A constable may seize an item of clothing or any other article if the constable—
(a) reasonably suspects that it is evidence in relation to an offence under subsection (1), and
(b) is satisfied that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.
(5) In connection with exercising the power in subsection (4), a constable may require a person to remove the item of clothing or other article if the person is wearing it.
(6) But the powers conferred by subsections (4) and (5) may not be exercised so as to seize, or require a person to remove, an item of clothing being worn next to the skin or immediately over a garment being worn as underwear.””—(Mr Wallace.)
Section 13 of the Terrorism Act 2000 provides for an offence of wearing, carrying or displaying an item of clothing or other article in such a way as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. This amendment would further amend that section so as to confer a power on constables in certain circumstances to seize such items or articles.
Obtaining or viewing material over the internet
Amendments made: 2, page 2, line 16, leave out
“on three or more different occasions”.
Clause 3 amends section 58 of the Terrorism Act 2000 so as to make it an offence to view on 3 or more occasions over the internet documents or records containing information likely to be useful to terrorists. This amendment would remove the requirement for the material to be viewed 3 or more times. Instead Amendment 4 makes it clear that the circumstances in which a reasonable excuse defence will apply include those where the person did not know that the document would contain such information.
Amendment 3, page 2, line 16, after “views” insert “, or otherwise accesses,”.
This amendment would broaden the offence of viewing material (see the explanatory statement to Amendment 2) so that it also includes accessing the material in any other way.
Amendment 4, page 2, line 19, leave out subsection (3) and insert—
“(3) After subsection (1) insert—
“(1A) The cases in which a person collects or makes a record for the purposes of subsection (1)(a) include (but are not limited to) those where the person does so by means of the internet (whether by downloading the record or otherwise).”
(4) After subsection (3) insert—
“(3A) The cases in which a person has a reasonable excuse for the purposes of subsection (3) include (but are not limited to) those in which at the time of the person’s action or possession, the person did not know, and had no reason to believe, that the document or record in question contained, or was likely to contain, information of a kind likely to be useful to a person committing or preparing an act of terrorism.”— (Mr Wallace.)
See the explanatory statement for Amendment 2.
Increase in maximum sentences
Amendment made: 5, page 3, line 28, at end insert—
‘( ) In section 38B (information about acts of terrorism), in subsection (5)(a), for “five years” substitute “10 years.”— (Mr Wallace.)
It is an offence under section 38B of the Terrorism Act 2000 to fail to disclose information that might be of material assistance in preventing an act of terrorism or in securing the apprehension, prosecution or conviction of a terrorist. This amendment would increase the maximum sentence for this offence from 5 years to 10 years.
Extended sentences etc for terrorism offences: England and Wales
Amendments made: 15, page 5, line 37, at end insert—
“160A An offence under section 58B of that Act (entering or remaining in a designated area).”
This amendment is consequential on NC2. It would provide for the new offence of entering or remaining in a designated area to be included in the list of specified terrorism offences in Schedule 15 to the Criminal Justice Act 2003.
Amendment 16, page 6, line 38, at end insert—
“9C An offence under section 58B of that Act (entering or remaining in a designated area).”—(Mr Wallace.)
This amendment is consequential on NC2. It would provide for the new offence of entering or remaining in a designated area to be included in the list of offences that may trigger a special custodial sentence under section 236A of the Criminal Justice Act 2003.
Extended sentences for terrorism offences: Scotland
Amendment made: 17, page 7, line 37, at end insert—
“(viia) section 58B (entering or remaining in a designated area),”—(Mr Wallace.)
This amendment is consequential on NC2. It would provide for the new offence of entering or remaining in a designated area to be included in the definition of “terrorism offence” in section 210A(10) of the Criminal Procedure (Scotland) Act 1995.
Extended sentences for terrorism offences: Northern Ireland
Amendment made: 18, page 9, line 5, after “etc),” insert—
“section 58B (entering or remaining in a designated area),”—(Mr Wallace.)
This amendment is consequential on NC2. It would provide for the new offence of entering or remaining in a designated area to be included in the list of specified terrorism offences in Schedule 2 to the Criminal Justice (Northern Ireland) Order 2008.
Persons vulnerable to being drawn into terrorism
Amendment proposed: 13, page 19, line 14, at end insert—
‘(8) After section 39 (Power to amend Chapter 2), insert—
“39A Review of support for people vulnerable to being drawn into terrorism
(1) The Secretary of State must within 6 months of the passing of the Counter-Terrorism and Border Security Act 2018 make arrangements for an independent review and report on the Government strategy for supporting people vulnerable to being drawn into terrorism.
(2) The report and any recommendations of the review under subsection (1) must be laid before the House of Commons within 18 months of the passing of the Counter-Terrorism and Border Security Act 2018.
(3) The laying of the report and recommendations under subsection (2) must be accompanied by a statement by the Secretary of State responding to each recommendation made as part of the independent review.””—(Nick Thomas-Symonds.)
Question put, That the amendment be made.
The House proceeded to a Division.
I ask the Serjeant at Arms to investigate the delay in the No Lobby.
11 September 2018
The House having divided:
Question accordingly negatived.View Details
New Clause 1
Continued participation in the European Arrest Warrant
“(1) It is an objective of the Government, in negotiating the withdrawal of the United Kingdom from the European Union, to seek continued United Kingdom participation in the European Arrest Warrant in relation to persons suspected of specified terrorism offences.
(2) In this section, “specified terrorism offences” has the same meaning as Schedule 15 of the Criminal Justice Act 2003.” —(Nick Thomas-Symonds.)
This new clause would require the Government to adopt the continued participation of the UK in the European Arrest Warrant in relation to people suspected of terrorist offences as a negotiating objective in the withdrawal negotiations with the European Union.
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following:
New clause 3—Access to a solicitor—
“(1) Schedule 8 of the Terrorism Act 2000 is amended as follows.
(2) In paragraph 7 leave out “Subject to paragraphs 8 and 9”.
(3) In paragraph 7A—
(a) leave out sub-paragraph (3),
(b) leave out sub-paragraph (6) and insert—
(c) in sub-paragraph (7) at end insert—
(d) leave out sub-paragraph (8).
(4) leave out paragraph 9.”
This new clause would delete provisions in the Terrorism Act 2000 which restrict access to a lawyer for those detained under Schedule 7.
Government amendments 6, 7, 19, 8 and 9.
Amendment 26, page 36, line 7, schedule 3, at end insert—
“(6A) The Investigatory Powers Commissioner (“the Commissioner”) must be informed when a person is stopped under the provisions of this paragraph.
(6B) The Commissioner must make an annual report on the use of powers under this paragraph.”
Government amendment 10.
Amendment 27, page 46, line 17, leave out “and 26”.
Amendment 28, page 46, line 26, leave out sub-paragraph (3).
Amendment 29, page 46, line 33, leave out sub-paragraph (6) and insert—
Amendment 30, page 46, line 37, at end insert—
“provided that the person is at all times able to consult with a solicitor in private.”
Amendment 31, page 47, line 29, leave out paragraph 26.
This amendment would delete provisions in the Bill which restrict access to a lawyer for those detained under Schedule 3 for the purpose of assessing whether they are or have been engaged in hostile activity.
Amendment 14, page 47, line 31, leave out “and hearing” and insert “but not hearing”.
Government amendments 11, 12 and 20 to 25.
New clause 1 would make our continued participation in the European arrest warrant a negotiating objective of the Brexit negotiations. There can be little doubt about the value of the EAW to this country. The Security Minister will be aware, for example, that it was vital to apprehending the man who helped to organise and co-ordinate the London bombings of 7/7. According to the National Crime Agency, between 2010 and 2016, the UK issued 1,773 requests to member states for extradition under the EAW and received 78,776 from member states. Of those the UK issued, 11 related to terror offences, 71 to human trafficking, 206 to child sex offences and 255 to drug trafficking.
According to the Government’s own White Paper, more than 12,000 individuals have been arrested, and for every person arrested on an EAW issued by the UK, the UK arrests eight on EAWs issued by other states. Without the EAW, extraditions can cost four times as much and take three times as long. The Security Minister will of course be aware that in counter-terror investigations speed really is of the essence, and it is therefore vital that we set the objective of continuing to play a key role on the European security scene.
I completely agree with what my hon. Friend has said, and I support the new clause. Does he share my concern that the current Brexit Secretary has a track record of voting against home affairs and justice co-operation before taking up his current post, and does he believe that that is reconcilable with the Government’s stated objective of close security co-operation? This is no-brainer stuff. We should be co-operating to deal with terrorist suspects and serious organised crime.
I entirely agree. The Brexit Secretary’s previous record is of real concern, and it is certainly inconsistent with the Government’s stated objective. Tonight the Security Minister has an opportunity to support the new clause, and to put to bed any doubts that Members may have on this matter.
On 5 September, only days ago, in a speech updating the House on the attacks in Salisbury and referring to the two suspects, the Prime Minister said:
“with respect to the two individuals, as the Crown Prosecution Service and police announced earlier today, we have obtained a European arrest warrant and will shortly issue an Interpol red notice.”—[Official Report, 5 September 2018; Vol. 646, c. 169.]
That only goes to show that the European arrest warrant is a critical tool in our security toolkit. It is vital to ensure that should those suspects set foot in the EU, they will be remanded to the UK to face justice.
Having heard what the Security Minister himself has said in the past, I think that he actually agrees with me. On 9 December last year, he told the House:
“As we have said and will continue to say, we seek tools similar to the European arrest warrant, which we find incredibly useful. It helps us and our law enforcement agencies.”—[Official Report, 19 December 2017; Vol. 633, c. 1018.]
That is his view, and I hope that it will be reflected in his approach to the new clause this evening.
On 19 June, the EU’s chief negotiator, Michael Barnier, said that there was room for manoeuvre on the European arrest warrant. He said that if the UK
“cannot take part in the European Arrest Warrant”
in the way that it does now,
“This does not mean that we”
—the EU and the UK—
“cannot work together on extradition.”
The Government’s own White Paper stressed the difficulty in which the Government now find themselves, stating:
“Existing extradition arrangements between the EU and third countries do not provide the same level of capability as the EAW.”
Continued participation in the European arrest warrant really should be an objective of our negotiations. As we all know, organised crime knows no borders. To keep our country safe, we must co-operate with the EU27 and, indeed, other countries around the world.
My new clause does not bind the hands of negotiators. It simply says clearly that continued participation in the European arrest warrant is a negotiating objective. If it were passed tonight, it would send a signal to Brussels, reassuring those who are concerned about the Government’s approach to security in the negotiations—my hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) picked up that point in his intervention—and would also send a signal to the Security Minister’s colleagues.
We are not seeking to send signals this evening; we are seeking to create an Act, and inserting the new clause would create a part of that Act that would become irrelevant within months. Does the hon. Gentleman not agree that it would merely litter the legislation? While I accept some of his points, the Government have already made continued co-operation an objective. Why should we litter a permanent piece of legislation with a clause that would be defunct within months?
With great respect to the hon. Gentleman, his argument seems to be circular. He will not vote for the new clause because he agrees with it: that appears to be his position. The idea that any piece of legislation is immune from becoming out of date, given time, is simply not credible.
I have a great deal of respect for the hon. Gentleman, and I understand the substance of where he is trying to get to, but in fairness to my hon. Friend the Member for Torbay (Kevin Foster), will the hon. Gentleman accept that there is a difference between what might be termed Brexit-facing legislation, such as the Trade Bill—and I myself have sometimes not been afraid to push a point because I thought it relevant—and a Bill that does not face in that direction? Given that the Government have made very clear their desire to replicate as closely as possible our arrangements under the European arrest warrant, I cannot, in this instance, agree with the hon. Gentleman that this is the right route for the Bill, although I accept his objective.
As the hon. Gentleman knows, I have a great deal of respect for the work he does as Chair of the Justice Committee, but I simply say to him that security, which is what this Bill is about, is very much engaged in the issue of the European arrest warrant. As we look in the round at our security position, which we must do and are doing in the context of this Bill, I believe the EAW and the tools it gives us cannot be excluded from our consideration of security. That is why in my view this new clause belongs in this Bill, and why I hope that still, even at this late stage, the Security Minister might support it, because I think that deep down he agrees with it and I would like to see that reflected in the Division lobby.
I think the Security Minister and I do agree on the original clause 14. The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) and I both tabled amendments to it in Committee. This is the part of the Bill that gives the power to impose charges on the organisers of an event for the purpose of protecting a relevant event or site from danger or damage connected to terrorism. The concern I and many others had in relation to that clause was to do with article 10 of the European convention on human rights, on freedom of expression, and arguably article 11 and the right to peaceful assembly. We did not wish to get to a position where somehow people were priced out of the right to peaceful protest. I am glad that the Government listened on that and have amended this clause so as not to impose any potential charges on those organisations that wish to gather and protest peacefully. I understand of course that the priority must be to keep citizens safe when people gather together, and that that sometimes requires infrastructure in terms of policing events, but we must strike a balance between these charges and the right to assemble. On that basis, I am pleased that the Minister has made the concession and can support that amendment.
Amendment 26 in my name addresses a specific concern that I have flagged previously with the Security Minister. It relates to border stops where there is no reasonable suspicion in relation to the individual. I previously suggested that the Investigatory Powers Commissioner be informed whenever a person is stopped under the provisions of the relevant paragraph and that there be an annual report. I have suggested this amendment again on Report because of a concern about the position in Northern Ireland, which I will come back to shortly. However, the Minister justified the power in Committee by referring to an example. An aeroplane may land at one of our airports and we may have general intelligence that someone on it poses a threat, but we do not know which person it is. That is the justification for the power and the context in which the Security Minister and I had a discussion in Committee.
This evening, however, I am seeking some reassurances about how this applies to the situation in Northern Ireland, and the Security Minister will be aware that proportionately the number of border stops is high in Northern Ireland. In 2017, that border represented 3% of the passenger numbers for the whole of the UK but 18% of the stops. In other words, people are six times more likely to be stopped there than in another part of the UK. The figures show that nobody who was stopped was detained for more than an hour, and in the rest of the UK the figure for that is 9%. But this power applies to the first place a train from the Republic stops in Northern Ireland to let passengers off, and I refer the Minister specifically to paragraph 2 of schedule 3, which states that an examining officer may question a person who is in the border area for the purpose of determining whether their presence in the area is connected with the person’s entry into or departure from Northern Ireland. This applies on the border strip and at the Newry and Portadown train stations. Under the provision as it stands, people could be stopped, questioned and detained without reasonable suspicion.
As I have said, I understand the need for that power in relation to the perpetrators of hostile activity outside the United Kingdom coming in, but we do not want through this provision to somehow create a hard border for people on the island of Ireland, between the north and south. I really hope that, even if the Minister does not respond to this at the Dispatch Box tonight, he will at least go away and look at this issue before the Bill appears in the other place, and indicate what protections he envisages in relation to that power being exercised in Northern Ireland.
I know that the Security Minister needs no reminding of the sensitivity of this matter. Does my hon. Friend agree that there could not be an area of greater sensitivity than the area around Newry and Portadown? Does he also agree that we need a full, robust and transparent reporting mechanism? Otherwise, rumours will spread, and there are some people who will seek to make the situation appear worse than it is. We must have this out in the open, because this is an area of such sensitivity. I cannot stress overmuch how delicate and dangerous this situation is.
I am grateful to my hon. Friend for that intervention. He always speaks eloquently when he speaks from the Front Bench on these matters. I do not want to divide the House on this issue. My amendment proposes a robust reporting mechanism. The Minister has stated that there are other ways of doing this, and I am perfectly happy to consider them, but I hope that he will go away and look at this proposal before the Bill appears in the other place, so that we can avoid the kind of suspicion that my hon. Friend the Member for Ealing North (Stephen Pound) has just described.
Amendment 14 relates to legal professional privilege, and to a person’s ability to consult a lawyer in private. That is an important principle. In recent weeks, following the case in the UK Supreme Court of the Serious Fraud Office v. Eurasian Natural Resources Corporation, it has been stated that
“the rule of law depends on all parties being able to seek confidential legal advice without fear of disclosure”.
I do not believe that we have to balance liberty against security in these circumstances, as we have to do in so many other areas. There is a simple, practical solution to this, and I hope that the Minister will be able to go away and look at it so that I do not need to divide the House on this amendment.
This relates to stops at the border. There is a power in the Bill for an officer not only to watch someone receiving legal advice but to hear that legal advice being given. The power to watch has pertained for some time. Lawyers often give advice with an officer standing behind a glass frontage, for example. That has been a feature of our criminal justice system for many years. The Chair of the Justice Committee is nodding, and he will know that that practice can be used to protect the person being questioned, or indeed to protect the lawyer in certain circumstances. I have no issue with that. The power to overhear the advice gives rise to a major issue, however.
I heard the concerns that the Minister expressed in Committee. His first argument was that, rather than contacting a lawyer, a person might contact someone they wanted to notify of the fact that they had been stopped. He also argued that they might notify a lawyer who would not adhere to the professional standards that we would expect, and who might pass some information on. The third scenario that he mentioned was that of a lawyer inadvertently passing on a piece of information. The solution that I have suggested to the Minister, which I hope would deal with all three points, would be to have a panel of lawyers, properly regulated by the Solicitors Regulation Authority and the Law Society, just as we currently have a duty solicitor scheme in police stations. In that situation, lawyers would both have the expertise and be properly regulated, meaning that the Minister might not have the same concerns about people’s ability simply to contact who they wished.
I am interested in the shadow Minister’s suggestion. Would he have any concerns about whether sufficient lawyers could be accredited to guarantee appropriate availability? Does he propose that they undergo some sort of security vetting in addition to their accreditation through the Law Society or whichever other organisation is deemed appropriate?
I am not aware of an area of law where there is currently a shortage of lawyers, but perhaps the hon. Gentleman will be able to tell me of one—I say that based on many years’ experience of practising as a lawyer. As for the second question, I have no issue with vetting people before they can join a panel. Indeed, it is the case now that people are considered for their expertise in professional matters before they join a legal panel. I am just making a perfectly practical suggestion that would deal with the Minister’s worries while preserving that highly important principle of legal professional privilege which, as I said in my opening remarks, the Supreme Court has said in recent weeks is vital to the rule of law in this country. We should not abrogate that as we seek to tackle the real terror threat before us. I hope that the Minister will at least undertake to go away and consider whether that could realistically be looked at in the other place. It is an important principle, and I do not want to divide the House on it, but whether there is to be a concession is a matter for the Minister.
I do not want to detain the House for long, but having served as a member of the Bill Committee I wanted to put on the record some of my concerns about the new clauses and amendments in this group.
I wholeheartedly support new clause 1, tabled in the name of my hon. Friend the Member for Torfaen (Nick Thomas-Symonds). I cannot see any reason why the Government would want to reject it given that the Chequers agreement and the White Paper—I have read both carefully—point out the 40 different areas of justice and policing co-operation that are so essential to our security and our counter-terror efforts across European borders. The White Paper suggests that some of that co-operation could even be strengthened and deepened, so I cannot see any reason why setting out on the face of the Bill the importance of seeking participation in the European arrest warrant, one of the most crucial of those 40 instruments, would be a problem.
Given the transnational nature of some of the terror plots and serious organised crime that we have seen not only in my constituency, but in some tragic events over the past year at a UK level, I cannot see why we would want to diminish our security co-operation through, for example, Europol and Eurojust. As we approach the Brexit deadline that was set when the Government triggered article 50, we are potentially leaving a great deal of uncertainty around such issues. We do not want criminal or counter-terror investigations that are ongoing at the end of March next year to be jeopardised by the failure to secure participation in the European arrest warrant going forward.
As for my hon. Friend’s amendment 26, the Minister is aware of my concerns because we have discussed them both in person and in Committee. I fully support appropriate strengthening mechanisms to ensure that individuals can be detained at border points and that the police and security services have the appropriate powers to interdict those who might be trying to commit terror acts, serious organised crime or, indeed, espionage or other serious matters. However, it is important that that is balanced against ensuring that such powers are used carefully and effectively. Where problems exist, there should be appropriate appeal and oversight mechanisms to ensure that citizens feel that such matters are being used appropriately and securely and that individuals who are wrongly interdicted have appropriate restitution, which is important for confidence in the system as a whole.
My last point is an important one for the Bill as a whole. This part of the Bill includes many new powers and schedules, and there is cross-party agreement that our security services and the police need them to keep this country and other countries safe and to prevent us from experiencing terror attacks or the consequences of serious organised crime, but they can be applied only with appropriate resourcing.
We have seen what the Metropolitan Police Commissioner has had to say today about the 2% pay rise for police being a “punch on the nose.” We have seen the National Audit Office’s reports on the concerns about cuts in policing, and we on the Home Affairs Committee have been conducting an inquiry into police funding. The frontline policing community policing and specialist counter-terrorism policing that will be required to apply the provisions of the Bill, on which there is cross-party agreement, cannot happen out of thin air or by magic; it only happens if it is properly resourced.
I urge the Minister to make a strong case in the Home Office in the coming months that the police need more resources. We cannot continue cutting in this area, otherwise we put our national security at risk.
I promise to keep my remarks short. Two important matters have been raised, and I take on board the force of the shadow Minister’s arguments in favour of the value of the European arrest warrant. My right hon. Friend the Security Minister will know that, in the last Parliament, the Justice Committee produced a report on the legal implications of Brexit, which included a strong case for retaining access to the European arrest warrant and its arrangements.
It is important that we stress the value of the European arrest warrant to our crime-fighting arrangements. It is particularly significant, of course, that the National Crime Agency, giving evidence to our Select Committee at the time of the report, stressed the value of the European arrest warrant. All the legal practitioners stressed its importance, and the Minister recognises that the European arrest warrant arrangements are infinitely superior to those that were available under the Extradition Act 1989.
It has sometimes erroneously been said by one or two Members of this House that the European arrest warrant can be used disproportionately, and my right hon. Friend the Minister will know that, since the reforms to the operation of the European arrest warrant back in 2013, that disproportionality has been removed and the UK is actually an overwhelming beneficiary of the proper use of the European arrest warrant.
The Prime Minister made it clear at the beginning of this negotiation process that it is her objective to achieve this, and I am sure my right hon. Friend the Minister will be able to say that whatever the mechanism, whether in the Bill or not, the Government are committed to maintaining access to the EAW and to the rest of the supporting mechanism of criminal justice arrangements, such as data sharing, information sharing and intelligence sharing, the European criminal records information system and other schemes. All those will necessarily be a crucial part of the Government’s negotiating strategy. Whether or not it is mentioned in the Bill is not the point—the Government are reaffirming their commitment.
Legal professional privilege is an important issue to be considered. Unless I am wrong, there are sometimes arrangements for counsel, such as in relation to some of the specialist tribunals dealing with these matters, to be specially cleared and vetted. Perhaps my right hon. Friend the Minister will take that away and consider whether further application of that scheme might offer a sensible and proportionate way forward.
It is a great pleasure to follow the irrepressible Chair of the Justice Committee, of which I am a member.
Before I discuss access to lawyers under legal professional privilege, it would be churlish of me not to thank the Minister for tabling amendments 6 and 7, versions of which both the shadow Minister and I tabled in Committee. The amendments will essentially ensure that public demonstrations cannot be subject to any financial charge under the Road Traffic Regulation Act 1984. It is vital for our democracy, now more than ever, that the right to assemble, and to do so without charge, is protected.
Without going over the ground covered fairly extensively from the Labour Front Bench, I put it on the record that I share the concerns voiced by the hon. Member for Torfaen (Nick Thomas-Symonds) about the Northern Ireland border stops and the huge sensitivity of this issue. I genuinely hope that the Minister will look at that, take it away and come back having addressed it.
The Bill as it stands restricts access to a lawyer for those detained under schedule 7. Specifically, it would restrict the right of an individual to consult their legal representative in private, away from a relevant officer. Being able to speak with a legal representative in private is a fundamental right, which should not be infringed. Indeed, in oral evidence, a whole cast of people backed us up. Michael Clancy of the Law Society of Scotland spoke about the fundamental importance when he said:
“If we want people to be in a position where they can freely discuss matters with their legal representatives, we have to preserve this value. It is key to the rule of law that people can discuss matters openly with a legal representatives so that the solicitor, advocate or barrister is in a position to advise properly on what avenues are open to the person. Clearly one would want to ensure that that was adequately protected.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 49, Q103.]
Richard Atkinson from the Law Society of England and Wales also raised concerns, suggesting that the proposal risked the excellent reputation across the world of UK justice systems. He said:
“The cornerstone is legal professional privilege. That is not access to a lawyer; it is the confidential nature of discussions between a lawyer and their client. That is the cornerstone that has been in existence for hundreds of years and that is held out internationally as a gold standard that we have in this country. That is what is being undermined by this Bill saying that a police officer can stand and listen to the consultation that is going on between the client and the lawyer.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 28, Q63.]
Access to a lawyer—fundamental access to justice—is something we should not compromise on. This is not about constraining the powers of the hard-working men and women who work at our borders; it is acting on the concerns that were expressed to us, to ensure that correct and proper due process is followed.
I suspect that the schedule has been drafted as a result of concerns that lawyers and legal advisers could be exploited and manipulated in some way, as has been outlined. However, as was pointed out, it is not unknown to our criminal justice system; we already have powers in place to deal with such occasions. For example, in code H of the Police and Criminal Evidence Act 1984, which deals with counter-terrorism cases, if there is a concern about an individual lawyer, there is provision for the suspect to have the consultation with that lawyer delayed, but to be offered the services of another lawyer in the meantime, so the suspect is not devoid of legal advice. We should protect that access at all costs. I accept that the Government propose the changes with the best of intentions, but we have pointed out that there are ways for it to be done without eliminating or infringing on the basic principle under the rule of law.
I express my support for the Liberal Democrats’ new clause 1, to which I have added my name. One of the greatest threats to our national security currently is, of course, Brexit and the fact that we face losing our seamless access to multilateral information-sharing tools. As we have heard, organised crime and terrorism do not respect borders and it is essential that Police Scotland—in fact, all the police services in the United Kingdom—can access the information systems, support and technical expertise available through Europol, not only to make Scotland safe, but to contribute to making Europe safer. As the hon. Member for Torfaen said, the recent naming of two suspects in the Salisbury incident and the issuing of a European arrest warrant showed just how vital this tool is to protecting the UK from threats, and why it must, must be maintained.
Following our exit from the EU, there is a major risk that any new arrangements that are put in place will be suboptimal to those at present. Further to that, there is also an issue with data sharing between the UK and the EU, as the EU will most likely require the UK to maintain data protection and privacy laws that can be deemed equivalent to those in force in the EU. We must ensure that our law enforcement agencies can continue to have the same level of access to Europol as they currently enjoy.
There is also a need to preserve stability in the law. Repealing legislation and preparing new legislation to fill in gaps arising from leaving the EU will compromise a significant part of domestic legislation that is passed at, or following, a withdrawal. Any future arrangements must take into account the autonomy of Scottish criminal justice institutions and provide a continuing basis for the direct co-operation that currently exists between law enforcement agencies in Scotland and their counterparts.
As a matter of security, we cannot afford an operational break in our access to EU cross-border tools, because they are part of the day-to-day work of the police force. Just today, the Lord Advocate of Scotland, giving evidence to the Scottish Parliament Justice Committee, said:
“I don’t think it controversial to observe that leaving that regime without replacing that regime would significantly and adversely affect our capabilities. From a professional criminal justice point of view, the realistic issue is the extent to which this can be mitigated.”
The Government’s dangerous Brexit plans, such as they are, may well leave us outside the European arrest warrant and key agencies such as Europol. I cannot insist enough that that would be incredibly dangerous to the future security of Scotland, the United Kingdom and, potentially, the EU. We must be able to share vital information to keep people safe from terrorism, human trafficking and organised crime. Leaving the European arrest warrant is yet another potentially disastrous Brexit bonus that we could all do without. I wholeheartedly support new clause 1.
I rise partly because I have been encouraged by the speech made by the Chair of the Select Committee, the hon. Member for Bromley and Chislehurst (Robert Neill). He made the point that this issue is central to the Brexit negotiations, so the House is grateful to the Labour Front Benchers for tabling new clause 1. I also rise because although the Government wish to sign up to some new security deal and the Minister understands the importance of the European arrest warrant, there can be no doubt that these tools are at risk. Given how significant they are, not only for the fight against terrorism, but for the fight against some of the most serious criminals in our world, many people are deeply worried.
The Government have continually made the argument—I have some sympathy with it—that the other members of the European Union will want to work with us because we have some of the best security services in the world. That is undoubtedly the case. I visited Europol and Eurojust in the Hague. When I talked with the then executive director of Europol, Rob Wainwright—he has now left and been replaced by Catherine de Bolle—he made it clear that the UK was at the heart of this crime-catching set of tools and instruments. It was clear from that and the work of the Select Committee and others who have delved into the issue that co-operation has become central to our activities to tackle criminals, whether that is organised crime, terrorists or others. If that is put at risk at any level, it should worry the House greatly.
It may be—I suspect it will be—that there is a deal on some of the most serious crimes. I would imagine that our European friends will want to co-operate with us against terrorists and other people who seek to commit mass murder. Of course they will want that co-operation, and I wish the Government well in achieving that goal. That is why it is good to see new clause 1, but I say to the Minister that there is a whole range of other serious offences that Europol, Eurojust, the European arrest warrant and the various data-sharing systems enable our forces to use. I am not yet convinced that Europeans are going to gladly throw all those open to us. There is certainly an incentive when it comes to terrorism and mass murder, but what about financial fraud? When I was at Europol, it was pretty clear that a lot of its resources were going after financial fraud in the capitals of the European Union and beyond—in Switzerland and elsewhere. I am not so sure we will be let in on that major issue, which is of crucial importance to the British economy.
If we go down the list of activities that Europol does on a day-to-day basis, it is not clear that the incentives for the Europeans to co-operate with us are as great as they are on terrorism. I am deeply troubled, because we need to deepen co-operation in tackling these organised criminals. The Government do not quite understand how these European organisations work. When Rob Wainwright, an ex-MI6 agent, was there, Britain was leading the operation at Europol. We will no longer be leading that operation, and that means a big loss of influence. We will not be in the room.
I went to Eurojust, and I saw the one floor of this office block in the Hague where they have one delegate from each country. They sit and work together to help each other deal with the different issues with criminals crossing jurisdictions, whether they are warrants for tracking mobile phones or other legal necessities required to conduct an investigation and, in some cases, a chase. They were clear that they had to be in that room, in that building. Where will the UK delegate to Eurojust be? I think that they will be outside. Furthermore, given the Government’s red line on the European Court of Justice, one really feels that the Europeans will be slightly less flexible on many aspects of these crime- fighting tools. I know that we are rightly focusing on terrorism today, but these other aspects of security link into that. The Government need to work much harder than I have seen so far to make sure that we are fully signed up members of absolutely everything and that the Europeans have an incentive to include us in on everything.
Finally, other Members have mentioned Northern Ireland. It is absolutely clear that the use of the European arrest warrant to tackle terrorists who go across the borders there is an essential tool, and it is right at the top of the concerns of the PSNI and the Garda. Whatever the scenario in the future—whether it is a no deal and a crash-out, or some other cobbled-together deal—the real concern is the European arrest warrant and whether it will operate on all these issues. I am talking about not just on suspected terrorism, but on suspected fraud and smuggling from where the terrorist organisations get their money.
Ensuring that we get the European arrest warrant sorted out in these negotiations on terrorism and on other offences could not be more important for the security of the British people. I wish the Minister and his colleagues well on this, but the Opposition are absolutely right to press this point. This could not be more central to the security of our country.
I will start if I may by addressing the amendments in this group. First, let me turn to the Anti-Terrorism Traffic Regulation Order. Amendments 6 and 7 respond to the debate in Committee about the provisions of clause 14, which, among other things, will enable a traffic authority to impose reasonable charges in connection with the making of an Anti-Terrorism Traffic Regulation Order or Notice.
In Committee, I indicated that I would consider amendments tabled by the hon. Members for Paisley and Renfrewshire North (Gavin Newlands) and for Torfaen (Nick Thomas-Symonds) designed to prohibit charges from being imposed on the organisers of public processions and assemblies. They were quite properly concerned about protecting the right to peaceful protest. Having considered the matter further, I agree that it should not be possible to impose those charges as they have suggested, and amendments 6 and 7 ensure that that is the case.
Throughout the Bill, I have made it my business to make sure that we make changes with as much consensus as possible. I have made the point that, in my time as an Opposition Back Bencher, I rarely, if ever, saw my party or the Opposition get any concession—small or big—from the Government. I do not take that attitude in legislation, and I am delighted that we could make concessions. The Opposition and the SNP were correct in making their points, and it is right that we have put them on the statute book in the right place.
The other Government amendments in this group concern the new power in schedule 3 to stop, search, question and detain persons at a port for the purpose of determining whether they are, or have been, engaged in hostile state activity. It is important to note that this is an exact mirror of schedule 7 concerning counter-terrorism as was introduced by the previous Labour Government in 2000. Therefore, all of the questions raised by hon. and hon. and learned Members from all parts of the House should be put in context that some of those issues have been in existence for 18 years—the point on the Irish border, for example. The power was specifically introduced into the Bill to deal with the aftermath of the attack in Salisbury in March. The point is that, in an open trading liberal democracy, we are vulnerable to hostile states abusing that ability to travel and that openness to come and do harm to our society and our citizens. It is a very real threat.
This was in fact considered before last March because the Independent Reviewer of Terrorism Legislation, David Anderson—who has often been quoted by the Opposition— highlighted the fact that we were stopping people we suspected of hostile state activity under schedule 7 counter-terrorism stops, and said that hostile state activity needed its own separate stop power. We agreed with his observations and have acted on them. It was a tragic coincidence that the attack happened in March, reminding us just how hostile some states can be.
Amendment 10 is about oversight and representations to the Investigatory Powers Commissioner, as we seek to allow those representations also to be made in writing. It is incredibly important that we have these powers. We face a real challenge if a state—as opposed to an amateur or a terrorist—seeks to penetrate our border supported by the logistics of that state. An example is the recent case of GRU officers entering this country with genuine passports, logistically supported by the wider state. This type of activity is better disguised. It is not as easy as it is to stop someone with a rather dodgy back story who is coming here for the purposes of terrorism. This is serious, which is why it is important to take this power.
I know that there is concern about having no requirement for suspicion. That goes to the heart of the ability for us sometimes to action intelligence that is broad. For example, we might know about a certain route that is used or about certain flights in a period of a week, but known no more beyond that. We need to be able to act on that intelligence effectively on the spot.
I accept that point. Indeed, I set it out in my speech. Our concern is specifically in relation to Northern Ireland. How best are we going to secure accountability for how the power is used?
I agree. We have had the power regarding the Northern Ireland border, or any other border, since 2000. In theory, we able to deal with matters using a counter-terrorism stop. Over the years, I have never seen so much nonsense written about the border of Northern Ireland. I have patrolled the border. I have lived on the border. I have been on the border of Northern Ireland as the Minister for Northern Ireland. I have known the varying powers—the smugglers and the people involved—on that thing for decades.
There have always checks and stops on the border. There has been a different customs regime on the border of Northern Ireland since the 1920s. Famous smugglers have taken advantages of duty differences. There have been different tax ratios, duties and powers to make immigration stops, and we have carried these out even since the Good Friday agreement. In fact, one of the last things I did before the reshuffle that made me the Security Minister was to stand on the road near Newry doing a traffic stop of cars coming across from Ireland; they were squeezing the money out of me during my time there. These checks have always happened. This has happened for counter-terrorism for the last 18 years and we feel that should be mirrored in the case of hostile state activity.
May I take the Minister back to the point about spies from other countries and people from other security forces, whether from Russia or elsewhere? In my time in Government when I was occasionally asked, as a member of the National Security Council, to sign off warrants so that the security services could search bags, tap phones and so on—even at very short notice—it was clear to me that we had powers, if we had suspicions, to do everything required to track, trace and examine the people coming into this country with hostile intent from foreign powers, and we did that on a regular basis. Will he just explain to me why the new powers are needed, given that we already had a panoply of powers?
I can clarify briefly. If we had a line of reporting that said, in a certain week, that there was intelligence that a hostile state was seeking to come in via Heathrow airport, but we only had a certain time period, or if we had some intelligence that someone from a hostile state was coming in on a plane on a Monday through there, and we were therefore choosing to focus on those planes, that would be too broad to issue a specific warrant, and too broad for us to seek a warrant to search everybody’s bags covertly on the whole aeroplane. Everyone would be standing around worrying how long it was going to take. This is a power that reflects the operational pressure. On the Front Bench spokesman’s question about oversight, when someone is stopped under this power, a report will be taken and made to the judicial commissioner, who has the power of oversight. I can give the hon. Gentleman the assurance that it will be recorded, and if materials are retained—journalistic or legal—that, again, will involve a permission needing to be given in order to examine it.
There is another addition that is different from other detentions. Because we recognise the issue about the potential overhearing of consultation between a lawyer and the person detained, whatever is said in that detained stop, whether it is over the four hours or whatever, is not admissible in court, so it cannot be used against the person. That is different from a normal PACE arrest in a police station. That is the sort of balance that we have tried to strike. It is also the exact mirror of what we have had for the past 18 years in that space.
On the point about consultation with a lawyer, I have offered a very practical solution. Will the Minister at least undertake to look at that before this Bill goes to the other place?
I know that the hon. Gentleman absolutely means the best in making his recommendation. I certainly give him the assurance that I will take it away and look at it before the Bill’s introduction in the other place. Many of his points about giving reassurance to people are certainly valid. He accepts, I think, that there is a risk that a state that has deliberately planned to enter this country will sometimes be making sure—if they do a proper operation—that the so-called lawyer they would consult would be in a position to be tipped off. That is why his suggestion is a good one, and I promise to take a look at it.
There is really no fundamental disagreement on the objective that the Minister is trying to achieve. The idea that the Irish border could be used as a way for foreign powers, or those who would do us harm, to come into Great Britain and Northern Ireland is simply unconscionable, so we are in the same place. However, he knows Northern Ireland well and knows the border well, and he also understands the necessity of having a regime of trust. Given that background, he has gone quite a long way in what he has said about the reporting requirements. Between now and when the Bill moves to another place, will he think very long and hard to make sure that there is enough reassurance to those involved that, in the context of Northern Ireland, this could not be used in a way that leads to misunderstanding or—I do not want to use the word “frivolous”—would allow those who want to trash what lies behind his intent to so do? We are in the same place; we simply want a mechanism of accountability.
I am grateful to the hon. Gentleman for the tone of his comments. I am happy to give him as much assurance as he would like. I am very conscious as to the issue around the Irish border and its sensitivities. I will certainly seek to give him that reassurance in writing. If there is any further assurance that we can seek to give in relation to the PSNI, I will definitely do that.
SNP Members have made a similar point about their concern about the border. With all due respect to them, they make a strong point—and also with regard to the European arrest warrant—about the value of seamless sharing and the value of the Union, but there is an issue whereby they seek on a daily basis to erect barriers between our Union. It is no good their saying that they like the seamless tool of the European arrest warrant while at the same time seeking to split our great nation and erect barriers between a political and economic union. They should just remind themselves that they cannot have it both ways.
My hon. Friend the Member for Bromley and Chislehurst (Robert Neill) made a clear point on the European arrest warrant. It is very clear that the Government’s offer on security to the European Commission is unconditional. We wish to have the European arrest warrant or something as identical as possible. Some Opposition Members made a point about the current Brexit Secretary’s position. I assure them that if that was not our negotiating position, I would not be standing here as the Security Minister. The key to good security is partnership, and not just on the European arrest warrant. One fault of the new clause is, why not say the Schengen Information System II? Why not say Prüm? Why not say all the other sharing mechanisms that are really important to our security?
I do not believe that placing this in primary legislation makes sense, first because this is a counter-terrorism and hostile state Bill, and secondly because it is what we are asking for. If it was not what we were asking for, I might understand the pressing need for the new clause, to try to change the Government’s position, but it is what we are asking for. The message I urge all Members to give to the European Commission is, “How far do you want to cut off your nose to spite your face?” It is not a position of the members of the European Union. When I meet their intelligence services, police forces and Government Ministers, they all agree that they want to give us a security agreement.
It is not because we have better capabilities, which we do. It is because the sum of the parts is greater than the individual parts when it comes to security partnership, and this will benefit us both. It does not matter who has equity of capability. It benefits us both when we work together in a security partnership.
If what the Government seek to achieve is no different from new clause 1, the Minister should just vote for it. I ask him in all seriousness, what message does he have for the 80 Members on his own Back Benches who threaten to vote down the Chequers deal because of their concerns about European Court of Justice oversight of those security arrangements? I see the hon. Member for North East Somerset (Mr Rees- Mogg) in his place. What does the Minister have to say to those Members, who would wreck the security co-operation we have with Europe?
I would say to them and to anyone else that the first duty of a Government is security, and it is absolutely important that we maintain that. The message to Michel Barnier is that security is not a competition; it is a partnership. I hope he will reflect that in his negotiations with this country, but I do not believe that putting it on the face of primary legislation is the best way to go about it, especially as it is our Government’s ask to the European Union on that issue. I therefore urge the hon. Member for Torfaen (Nick Thomas-Symonds) to withdraw his new clause.
I certainly will not be withdrawing my new clause. Continued participation in the European arrest warrant is vital for the security of this country. Can the Minister name another example of a Minister failing to vote for a part of a Bill he agreed with?
I would be interested to know whether the hon. Gentleman could name a single Labour Minister who, during the passage of any European treaty or any other treaty, put the negotiating position—not the results of the negotiation, but the negotiating position—in primary legislation. I do not think he will find one. We do not intend to put it in primary legislation, especially because it is what we are asking for and we do not need to. I therefore urge hon. Members to reject the new clause.
I do not find that explanation convincing in any sense.
Question put, That the clause be read a Second time.
11 September 2018
The House divided:
Question accordingly negatived.View Details
Amendments made: 6, page 15, line 24, at end insert—
“(3A) But a charge may not be imposed in relation to the holding of a relevant event if the event is a public procession, or public assembly, held for the purpose of—
(a) demonstrating support for, or opposition to, the views or actions of any person or body of persons,
(b) publicising a cause or campaign, or
(c) marking or commemorating an event.”
Clause 14 inserts a new section 22CA into the Road Traffic Regulation Act 1984 which enables charges to be imposed in connection with traffic regulation orders or notices made or issued in order to protect a relevant event from terrorism risks. This amendment would provide that such charges cannot be imposed in relation to public processions or assemblies held for certain purposes.
Amendment 7, page 15, line 25, at end insert—
““public assembly” means an assembly of two or more persons in a public place which is wholly or partly open to the air;
“public place” means—
(a) any highway or, in Scotland, any road within the meaning of the Roads (Scotland) Act 1984, and
(b) any place to which at the material time the public, or any section of the public, has access (on payment or otherwise) as of right or by virtue of an express or implied permission;
“public procession” means a procession in a public place;” —(Mr Wallace.)
This amendment is consequential on Amendment 6.
Other transitional provisions
Amendment made: 19, page 21, line 34, leave out “1 to 5” and insert “1, 2, 3, 4 or 5”.—(Mr Wallace.)
This amendment is consequential on NC2.
Amendments made: 8, page 23, line 14, at end insert—
“() paragraph 18A of Schedule4 and section21(1) so far as relating to that paragraph,”
This amendment is consequential on Amendment 11.
Amendment 9, page 23, line 24, leave out paragraph (d) and insert—
“(d) paragraphs 17 and 18, 19 to 25 and 26 to 31 of Schedule 4 and section 21(1) so far as relating to those paragraphs.” —(Mr Wallace.)
This amendment is consequential on Amendments 8, 11 and 12.
Amendment made: 10, page 42, line 35, at end insert—
“( ) Representations under sub-paragraph (1) must be made in writing.”—(Mr Wallace.)
Paragraph 13 of Schedule 3 to the Bill provides for the making of representations by affected parties about how the powers of the Investigatory Powers Commissioner under paragraph 12 of that Schedule should be exercised. This amendment would require such representations to be made in writing.
Minor and consequential amendments
Amendments made: 11, page 73, line 29, at end insert—
“Legal Aid (Scotland) Act 1986 (c. 47)
18A In section 8A of the Legal Aid (Scotland) Act 1986 (criminal advice and assistance: automatic availability in certain circumstances), in subsection (2) at the end insert—
“(d) a person who is detained under section 41 of, or Schedule 7 to, the Terrorism Act 2000, or
(e) a person who is detained under Part 1 of Schedule3 to the Counter-Terrorism and Border Security Act 2018.””
Section 8A of the Legal Aid (Scotland) Act 1986 confers power on the Scottish Ministers to provide for legal advice and assistance in relation to criminal matters to be available, without reference to certain financial limits or criteria, to the description of clients listed in that section. This amendment would add to that description persons who are detained in Scotland under Schedule 3 to the Bill or under section 41 of, or Schedule 7 to, the Terrorism Act 2000. See also the explanatory statement to Amendment 12.
Amendment 12, page 77, line 25, at end insert—
“Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011 (S.S.I. 2011/217)
25A (1) In regulation 8 of the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011—
(a) the words from “to whom” to the end become paragraph (a), and
(b) at the end of that paragraph insert “, or
(b) who is detained—
(i) under section 41 of, or Schedule 7 to, the Terrorism Act 2000, or
(ii) under Part 1 of Schedule3 to the Counter-Terrorism and Border Security Act 2018.”
(2) Nothing in sub-paragraph (1) affects any power under the Legal Aid (Scotland) Act 1986 to revoke or amend any provision of the regulations amended by that sub-paragraph.”
This amendment would secure that legal advice and assistance will be available to persons detained in Scotland under Schedule 3 to the Bill, or under section 41 of, or Schedule 7 to, the Terrorism Act 2000, without reference to the financial limits set out in section 8 of the Legal Aid (Scotland) Act 1986. See also the explanatory statement to Amendment 11.
Amendment 20, page 79, line 21, at end insert—
“Criminal Procedure and Investigations Act 1996 (c. 25)
31A In section 29 of the Criminal Procedure and Investigations Act 1996 (power to order preparatory hearing), in subsection (6)(e), after “purposes of terrorism” insert “, eliciting information about armed forces etc, entering or remaining in a designated area”.”
This amendment is consequential on NC2.
Amendment 21, page 79, line 22, at end insert—
“31B The Terrorism Act 2000 is amended as follows.”
This amendment is consequential on Amendment 23.
Amendment 22, page 79, line 23, leave out
“of the Terrorism Act 2000”.
This amendment is consequential on Amendment 21.
Amendment 23, page 79, line 23, at end insert—
“32A In section 23A (forfeiture: other terrorism offences etc), in the list of provisions in subsection (2)(a), after the entry relating to section 57, 58 or 58A insert—
“section 58B (entering or remaining in a designated area);”.
32B In section 118 (defences), in subsection (5)(a), after “58A,” insert “58B,”.”
This amendment is consequential on NC2.
Amendment 24, page 79, line 29, at end insert—
“34A In section 27 (meaning of “terrorism offence”), in the list of provisions in subsection (1)(a), after the entry relating to sections 56 to 58A insert—
“section 58B (entering or remaining in a designated area),”.”
This amendment is consequential on NC2.
Amendment 25, page 79, line 36, at end insert—
“35A In section 41 (offences to which Part 4 applies: terrorism offences), in subsection (1)(a), in the entry relating to sections 56 to 61, after “purposes of terrorism” insert “eliciting information about members of armed forces etc, entering or remaining in a designated area”.”—(Mr Wallace.)
This amendment is consequential on NC2. It clarifies that the offence under the new section 58B is included among the offences to which Part 4 of the Counter-Terrorism Act 2008 applies (which provides for notification requirements for persons convicted of terrorism offences).
I beg to move, That the Bill be now read the Third time.
On 22 May last year, I was woken from my slumber by the tragic news of the attack on the Manchester Arena: the murder of women, children and men who had been out enjoying their day and night at the arena. A member of ISIS chose to target them ruthlessly, in a way that showed total discrimination, when they were at their least defensible. Last year, society faced numerous attacks from terrorists. In March this year, we saw the reckless and very dangerous use of the Novichok nerve agent on our streets, which sadly led to the death of a British citizen.
The Government did not knee-jerk—we did not jump, as has sometimes happened over the past few decades, to take measures. The Government considered the issues, considered our vulnerabilities and not only took strong steps to produce a Bill that will help our security forces and our police tackle the changing threats, but were determined to be as collaborative as possible throughout the legislating process. Tonight, Members will have heard how we rightly accepted the observations from the Labour Front Bench and the SNP about some of the measures. The Labour party and the Government discussed the streaming of content online and came up with a sensible solution to make sure that people who stream horrific material are brought to justice.
This is not an attention-seeking Bill; it is a Bill designed to make a difference, to make our streets safer, to make our citizens safer and to send a message that one of the reasons the United Kingdom is one of the world leaders in counter-terrorism is that we not only learn our lessons from every event, but build on the experience of previous Governments. Much of the Bill is built on the back of the Terrorism Act 2000, which was brought in by the last Labour Government. We have taken the best elements and learned from our experiences and the threats to produce a piece of legislation that in my view and that of the Government strikes the right balance between liberty, individuals’ rights and the security of this nation. It is a balance that we do not take for granted and that we review constantly.
That is why this country probably has some of the greatest oversight of its intelligence services, ably led by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the judicial commissioners, Lord Justice Fulford and the independent reviewer of terrorism legislation. All of those learned and respected individuals take a strong role, as do the Members who sit on the Intelligence and Security Committee, in scrutinising the people who are charged with delivering the security of this nation. That, coupled with our long adherence to human rights, makes me confident that the Bill does not tip the balance in the wrong way, but navigates the difficult course that we are faced with, given the emerging technologies, to keep people safe.
I am grateful for the approach that the Minister and the Secretary of State have taken, and for the fact that the loophole in terror insurance to cover non-physical damage has been addressed in the Government’s plans. However, the explanatory notes suggested that the Government would do several things to support my community, which was so badly affected last June, yet still not a penny of Government support is going to the employers in my constituency who were affected by that terror attack. Despite the fact that the Government failed to update the legislation sooner, that could have been done some time ago and was not. My constituents and their businesses are still not being compensated for the damage they have experienced—150 firms have lost more than £2 million.
The hon. Gentleman made that point in Committee. I was due to meet him last week. Unfortunately, because of the Salisbury issues, that meeting was delayed, but I will meet him. I have spoken to the Exchequer Secretary. The hon. Gentleman is right about some of the issues with the package for his community, compared with what has happened after other events. That is a discussion for us to have with the Mayor of London.
The hon. Gentleman’s points are well made but, with respect to him, I need to draw to a close.
If it is passed, this Bill, much of which has the support of all parties in this House, will leave this House doing the right thing to keep people safe, striking the right balance with our rights and allowing us to remember those people who in the last few months and years have lost their lives tragically to terrorism and, lately, to the actions of a hostile state. I am afraid we must remember that out there, there are very bad people, very bad terrorist organisation and, nowadays, some very bad states who wish to do real harm to our values. This Bill protects our values, but deals with the issues and gives our security services and police forces the tools that they need.
The UK national threat level, set by the independent Joint Terrorism Analysis Centre and the security services, has been at severe or higher since 29 August 2014. We put on the record our debt of gratitude to the police and the security services for the work they do in keeping us safe. Since the terrible murder of Fusilier Lee Rigby in May 2013, 25 terrorist attacks in the UK have been foiled. We should never forget that as we consider this Bill.
In June 2016, there was the terrorism-related murder of our late colleague in the Labour party, Jo Cox, and between March and September 2017, there were a further five terrorist outrages, at Westminster, on 22 March, at Manchester arena, on 22 May, at London Bridge, on 3 June, at Finsbury Park, on 19 June, and at Parsons Green, on 15 September—although, mercifully, no one was killed in that final attack. It is fundamental that our approach in legislation does not undermine the very values that the terrorists seek to attack. The rule of law has to be fundamental to our approach.
I am grateful for the consensual approach that the Security Minister has taken on the Bill and the concessions he has made. The concession in respect of the three clicks in clause 3 makes it a better Bill. The concession on clause 14 and the preservation of the right to peaceful protest is very important, too, and is very much a part of what he rightly said about protecting our own values as an open, liberal and tolerant democracy.
I hope that this consensual approach can now continue into the Lords. As I indicated in my speech on the first set of new clauses and amendments, I am concerned that the designated areas clause came so late, and we will therefore want to subject it to scrutiny. As I indicated, we are not opposing it, but I would like to subject it to appropriate scrutiny—and I am sure it will be so subjected in the other place. I hope that the Minister will continue to work with me in that regard.
In addition, the Minister made two concessions during our debate on the second set of new clauses and amendments. First, he said he would look at the situation in Northern Ireland and accountability for the number of stops. I appreciate what he said about that. Of course, powers have been in place since 2000, but we have to ensure transparency in how the stop power is used. The second concession was on legal professional privacy. He knows that I feel passionately about this and have set out its key importance. He said that he would look at my very practical proposal before the Bill goes to the other place. That was, I accept, a concession. I hope he will continue to work on a consensual basis. Under my proposal, we would not need to balance liberty and security; we could have the position as it is but with a very practical solution.
Before drawing my remarks to a close, I want to put on the record my thanks to the Minister, the rest of my colleagues in the shadow Home Affairs team, the Members who served on the Committee and finally the Clerks who served the Committee so well as well as all of us who wished to put down new clauses and amendments on Report.
I would like to echo the thanks expressed by the hon. Member for Torfaen (Nick Thomas-Symonds) to our police and security services and all those who put themselves in harm’s way to keep us safe. We owe them a debt of gratitude. I also thank the Clerks in the Public Bill Office for their assistance during the passage of the Bill. This is the first time I have been in charge of a Bill for the Scottish National party. I also thank the individuals and organisations that provided evidence—[Hon. Members: “We can’t hear you.”] Is that okay? Have I got you now? Right, thank you. I also thank the Opposition Front-Bench team for their collegiate approach during the Bill Committee’s deliberations.
I do not agree with it, but I want to hear it.
I appreciate that.
The Minister himself, despite the late tabling of new clause 2, has been open to improvements suggested by the Opposition, and I thank him also.
The SNP supports the Government in their attempt to modernise this crucially important legislation, and we appreciate the need to combat the constantly evolving threat from international terrorism in the modern digital world, but we must be extremely careful about how this is executed. We are fully aware of the challenges that we face from increasingly sophisticated criminals and terrorists, and we are in favour of giving law enforcement agencies and the security and intelligence agencies the powers they require to keep our communities safe, but those powers must be subject to stringent checks and safeguards if we are to maintain the balance of security and civil liberties that we currently enjoy.
While stressing that we support the Government’s aims, I remind the Minister that they have awarded themselves, and the police and security services, an enormous amount of power in the last three years, not only—potentially—in this Bill, but in the Investigatory Powers Act 2016 and the Immigration Act 2016, to name but two. Sadly, more often than not the Government have simply not got the balance right between civil liberties and the extension of intrusive powers.
If Scotland were independent—and that time is coming—we would no doubt be drafting and enacting more legislation to deal with the increased threat of terrorism. Luckily, that legislation would not be drafted by me, but I cannot help wondering how similar our measures would be. I should like to think—in fact, I am positive—that we would ensure that our Ministers, our police and our security services had the necessary powers, without impinging too much on civil liberties. That, I am sorry to say, often seems to be an afterthought in the case of this Government.
In his opening remarks, the Minister rightly reminded us of the terrorist outrages that have been inflicted on our country and our people. The response to those outrages brings the whole House together, and I know that the Minister and his colleagues do their very best, along with the skilled people in the security services, to keep us safe on a daily basis.
On Second Reading, I explained to the Minister why I had some concerns about individual measures in the Bill. The Liberal Democrats wanted to see whether or not they would pass through the House and emerge in a better form. I have to say that in our view, regrettably, the Bill has not improved as a result of that scrutiny, and if anything, it has got worse. I will not rehearse what I said on Report, but I will say that my criticisms referred to the comments of independent experts—independent reviewers of counter-terrorism legislation—and were not made in the absence of any evidence.
There are, of course, some good parts of the Bill. Clause 5, which extends extra-territorial jurisdiction, is very welcome, as is clause 19, which deals with terrorism reinsurance and which I discussed on Second Reading. Those welcome measures, however, have been packaged with a collection of ill-thought-through measures that will not work: they will not do what they promise to do. In its report, the Joint Committee on Human Rights concluded that
“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.”
The Committee—a Committee of both Houses—warned us that the Bill
“strikes the wrong balance between security and liberty”,
and doubted its compliance with the European convention on human rights.
My list of things that are wrong with the Bill has grown since Second Reading, and the more I have looked at those items, the more my concern about some of them has deepened. Clause 1, for instance, expands the offence of inviting support for a proscribed organisation to recklessly expressing support for such an organisation. I was too kind about that on Second Reading. I argued that the concept of recklessness already exists in criminal law in respect of physical actions and physical violence, but even in that context it is controversial, given the different legal versions of what “recklessness” actually means in respect of physical actions. How much more subjective is “recklessness” when applied to speech? Ministers have failed to defend this extension, and I think that they are in serious danger of criminalising innocent people and the naive.
Given that this is a Third Reading debate, I will not rehearse many of the other problems with the Bill, but I do want to end on one particular problem that I failed to mention on Second Reading. It relates to the border security powers we briefly discussed in the last part of our debate. What the Bill says in schedule 3 is quite chilling. It gives a lot of power to state officials, which goes beyond anything I have ever seen before. I refer what the Bill says to colleagues, because this is what they are voting on tonight. In giving powers to border security guards to stop, question and detain, the Bill does not require them to justify that at any level. It states:
“An examining officer may exercise the powers under this paragraph whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity.”
It says “whether or not”; not “if” there are grounds for suspecting, but “whether or not”.
As I said earlier, these are just mirrors of the powers that have been in force since 2000. When over subsequent years the right hon. Gentleman was a member of the National Security Council in the last coalition Government did he use his senior position in the Government to seek, as this power is so unjust, and “chilling” as he says, to undo it? Will he also please reflect on this? I read the Joint Committee on Human Rights report, and there was one flaw in it: it did not take evidence from the police, the intelligence services or victims. It took evidence from Cage and other such groups, but I think its duty was to be balanced. Perhaps the right hon. Gentleman will reflect on his time in government.
I am happy to reflect on that. As I said to the Minister in an earlier intervention, as a member of the NSC I was often asked to sign warrants to go after some of the most wicked people and in each case I was impressed by our security services and the systems of accountability. I signed every single warrant put before me because it was very clear that the powers were proportionate and justified. I am arguing tonight that the Government are going further. I do not think it is in the traditions of British justice that we give carte blanche powers to the border security guards, and if Members on the Opposition Benches were to read this provision in detail, I do not think they would be as comfortable as they are being lured into being.
I urge colleagues even at this late hour to actually read this part of the Bill, as I think we are in danger of losing our attachment to reason. That is a dangerous position in this very important Chamber. I hope that if some of us stand up tonight and say, “These powers are overreaching,” we can send a signal to the other place that it can do its job and scrutinise this legislation in ever more depth.
I welcome the Government’s attempt to use this Bill to close the terror insurance loophole, with the two provisos already mentioned, but there are other concerns that have not been addressed. Even if terror insurance now covers non-physical damage, the take-up of terror insurance covers only about 2.5% of UK businesses, and the Government have not addressed how to boost take-up and ensure greater coverage.
I thank the Minister for his letter, which I received today. It addresses two further issues. First, it is good that certification will be sped up, but there is no detail in the letter as to how that will be done. Secondly, there is no detail in it about how the potential for legislation to become out of date again will be addressed other than through a vague assurance. I hope that more detail will be provided in the other place.
The Bill was an opportunity to address the fact that some seek to take profits out of public generosity and public support when terror attacks occur. Sadly, giving only half a million pounds in profits, above admin costs, in the last year alone for Grenfell, Manchester and the London Bridge and Borough market attacks is appalling. That is pickpocketing from the victims of terror and it should have been addressed here. I hope the Government will look at this again before the Bill reaches the House of Lords.
Question put, That the Bill be now read the Third time.
11 September 2018
The House divided:
Question accordingly agreed to.View Details
Bill read the Third time and passed, with amendments.
That, at this day’s sitting, Standing Order No. 41A (Deferred divisions) shall not apply to the Motion in the name of Mel Stride relating to the Organ Donation (Deemed Consent) Bill: Money.—(Andrew Stephenson.)