House of Lords
Monday 29 October 2018
Prayers—read by the Lord Bishop of Portsmouth.
Brexit: Article 50
To ask Her Majesty’s Government whether they will (1) withdraw their notice under clauses 2 to 5 of Article 50 of the Treaty on European Union, and (2) offer through the Council of Ministers continuing free trade under the World Trade Organisation, and residence and security to European Union citizens, before agreeing any financial settlement in the Brexit negotiations.
My Lords, the clear position of the Government is that our notice under Article 50 will not be withdrawn. We will be leaving the EU on 29 March 2019, and are negotiating to that timeline. We remain on track to deliver the withdrawal agreement and the future framework, ensuring that there is clarity about the terms of our exit and our shared ambition for the future relationship.
My Lords, I thank the noble Lord for that reply, which suggests that the Government have not understood the superior strength of our hand in Brussels, or how to play it.
Are the Government aware that many states, including the United Kingdom, have unilaterally left international treaties some 225 times since 1945? So why do we feel bound by these clauses of Article 50, when they are being used against us?
Can the Government not even see that the—
This is my second question. Can the Government not even see that the Commission’s main aim is to keep the EU project afloat, which our successful exit would further threaten? So why do we go on negotiating with the Commission—
Why do we not try to talk to the real people of Europe, who would benefit far more from the offers in this Question than would we?
That is a slightly strange question from the noble Lord, because of course if we withdrew our notice under Article 50 we would remain members of the EU—which the last time I looked at it, was not the policy of his party. Therefore his other options do not really hold water. We do not unilaterally abrogate treaties in this country. We are a law-abiding nation, we abide by our legal agreements and commitments; and the proper and correct legal way to withdraw from the EU is under Article 50, and that is the process that we are following.
Does my noble friend agree that the Question from the noble Lord seems to be opening the way to a departure from the European Union with no deal at all? Is it not clear that that is not supported not only by your Lordships’ House but by Her Majesty’s Government either?
The noble Lord’s Question would result in us remaining in the EU, if we withdrew our notification under Article 50. Of course the Government do not support a no-deal exit. We are preparing for that unlikely eventuality, as is the responsible thing to do, but we hope to negotiate a good and ambitious deal with the European Union.
My Lords, since the Question is from the noble Lord, Lord Pearson, I would like to know from the Minister whether there has been any progress since the noble Lord, Lord Ahmad, told my noble friend Lady Northover last Wednesday:
“It is important that we review our procedures to ensure that individuals such as Tommy Robinson do not enter the heart of democracy”.—[Official Report, 24/10/18; col. 859.]
It was the noble Lord, Lord Pearson, who hosted this racist, Islamophobic character, who has multiple convictions, to a celebratory lunch after Robinson was released on bail—not acquitted—on a contempt of court charge that has been referred to the Attorney-General, which concerns actions which threatened to derail the Huddersfield trials. Can the Minister tell me when we will see action to ban Tommy Robinson from this House, not least to protect House of Lords staff from having to wait on this man?
My Lords, as far as I am aware, the Government have no policy on the dining companions of the noble Lord, Lord Pearson. I understand that the opinions of the House were made very clear last week but ultimately this is a matter not for the Government but for the House authorities.
My Lords, to return to the Question on the Order Paper—if the House will allow me—do the Government expect to adopt a differing negotiating position on Brexit as a result of the significant number of states which are querying the terms we have with the WTO?
No, our negotiating position remains exactly as set out in the White Paper.
My Lords, back in June the Prime Minister assured us that the transition period in the withdrawal agreement would be time-limited, saying that it would give,
“everyone the certainty that this will not go on for ever”.
Last Monday, however, the Prime Minister told Parliament that we need,
“to create an option to extend the implementation period”.—[Official Report, Commons, 22/10/18; col. 47.]
Given that the Prime Minister wants to bring certainty to the situation, how does the option to extend the transition do that?
As the noble Lord will be aware, the extent and length of the implementation period was agreed. It was green text in the withdrawal agreement. I understand that the possibility of extending it has been raised in the discussions in Brussels but no agreement has been made and discussions on such matters are continuing.
My Lords, since we know that Brexit is valued by the Government at only 50p—which is what they are going to produce on exit day—the question just raised about the WTO schedules is vital. We understand that only 14 of the deals that we have as part of the EU have so far been rolled over. The prospect of the crisis if we crash out without a deal is so serious that is it not time that the Government started paying more attention to getting a deal which is good for the country and acceptable to the House of Commons, rather than spending £150 million on consultants on how to deal with no deal?
We are able to multitask as a Government and we are doing both. We are concentrating all our efforts on getting a good deal but we are also mindful that it may not be possible to get a deal and therefore we are stepping up our preparations for no deal. Actually, the EU is doing the same. I really do not understand the position of the Opposition that we should do nothing at all to prepare for something that has a possibility of happening.
My Lords, is my noble friend able to tell the House whether we have sufficient parliamentary time to scrutinise the primary legislation and the up to 1,000 Brexit-related instruments that the House has to consider and pay proper scrutiny to before 29 March?
Of course, we will not know how much time we have until we actually get a deal but I am sure the Leader and the Chief Whip are paying close attention to the words of my noble friend.
Is it not helpful for the noble Lord, Lord Pearson, to raise these matters in this House? The Government are under attack from all quarters for their handling of the EU negotiations. Indeed, we are now talking about it being six years before the deal is finally completed. It is time that the Government take note of what the people and the press are saying and get on with the job and get us out.
We are taking note of what everyone in this House and in the media are saying. I can assure the noble Lord that we are getting on with the job. We are trying to negotiate the best possible deal and arrangements for our departure from the European Union.
To ask Her Majesty’s Government what steps they are taking to modernise rail fares.
My Lords, the Government are taking steps to modernise rail fares, including making smart ticketing available for most journeys by the end of this year and requiring alternative, more flexible ticket products to be offered to part-time commuters through recent franchise competitions. We also welcome the industry’s plans to roll out the 26-30 railcard, while the rail review’s recommendations will support the delivery of a railway that is able to offer good-value fares for passengers while keeping costs down for taxpayers.
My Lords, I welcome that progress so far but we are told that in the Budget there is to be £30 billion for roads, while there is no hint of relief for beleaguered train passengers. Does the Minister agree that the Government should abandon the RPI-related hike in regulated fares, which comes as an unwelcome annual new year gift, and maintain fares—at least until the efficiency of the railway improves—by freezing them at their current level? The Chancellor is apparently holding fuel duty for the ninth successive year. If he can freeze fuel duty, surely he can freeze rail fares.
My Lords, I certainly do not want to predict what my right honourable friend will say in the Budget shortly but we are well aware that rail fares take a large part of people’s income. That is why we are capping fares in line with RPI for the sixth year running. We want to see fares linked with CPI in future but we do not think it is fair to ask people who do not use trains to pay more than those who do. Taxpayers already subsidise the network by more than £4 billion a year, meaning that 54% of our transport budget is spent on the 2% of journeys that the railway accounts for.
My Lords, the Government say that they have cheap rail tickets for young people and for old people. What about the hard-pressed people who are trying to get to work and paying extortionate rail fares?
My Lords, we all want to see a fares system that delivers tickets at a reasonable price for everyone. The noble Lord rightly highlights the 26-30 railcard and the discounts for older people. We are looking at how we can make fares fairer. The Rail Delivery Group recently consulted on easier fares, looking at fare structures and ticketing to simplify things for passengers; it received over 20,000 responses and is currently analysing those findings. We look forward to seeing its report.
Will my noble friend clarify the situation? Her Majesty’s Treasury announced recently that for those of us who have savings certificates— many millions in the country—the interest on them is no longer to be done on the basis of RPI but CPI. Against that background, is it not sensible for Her Majesty’s Government to consider any rail increases based solely on CPI in the future?
My Lords, as I said, we certainly want to move towards the more commonly used CPI measure of inflation but, to be sustainable, income and costs to the rail industry must change in parallel. We are seeing increasing costs across the whole network but for the sixth year running, as I said, we are capping regulated fares in line with RPI. The Secretary of State has written to the rail industry and the unions, asking for their help to move rail to CPI and reduce costs, so that those savings can be passed on to rail users and to taxpayers.
My Lords, the modernising of rail fares is one aspect of a range of changes needed in our rail service. The Transport Secretary has announced £1.3 billion of investment in spacious trains yet despite this there is still overcrowding, cancellation and delay. Staff operating train services are also unhappy and just last week, on the South Western Railway line that I use regularly, I am afraid that there were regular cancellations and further overcrowding. Can the Minister outline what action will be taken between now and the implementation of the rail review reforms in 2020 to address the urgent issues of rail cancellations, delays and significant overcrowding?
My Lords, since privatisation, UK railways have seen a period of incredible growth and passenger journeys have more than doubled. The industry has not been able to keep up with that demand, which is why we are looking at the rail review. It will consider all parts of the rail industry, from the current franchising system to industry structures. That will not stop us continuing to invest in the meantime and seeing more trains with more capacity come on to our lines.
As has been said, the issue is the level of fares. The Government’s line is that their annual new year present to rail users of a fare increase is to finance their rail investment programme. In fact, that is not the case. The reason for the Government’s high level of fare increases each year is to ensure that we remain the European railway network with the highest, or nearly the highest, percentage contribution towards the running costs of our network coming from fares paid by passengers and the lowest, or nearly the lowest, percentage from the Government. That is why our fares are so high. Will the Government confirm that in any new modernised rail fare structure that will unfortunately continue to be the position?
My Lords, as I said, we are aiming to move from RPI to CPI. We are continuing with record levels of funding, with around £48 billion expected to be spent on the network from 2019 to 24, but rail fares will continue to play a role in delivering improvements. We are delivering the biggest rail modernisation for more than a century, and it is meaning faster journeys, longer trains, longer platforms and more seats.
Will the Minister say whether the Government have any plans to standardise rail fares for people with disabilities? At the moment adults with epilepsy, for example, have free rail travel in London but in many other parts of the United Kingdom they have to pay the full fare. I declare an interest as the national president of Epilepsy Action. Will any action be taken to standardise policy and make it more consistent across the country?
I agree with the noble Baroness that consistency will be very important. The Rail Delivery Group is looking at how we can simplify fares. I will take the point the noble Baroness raised back to the department and will perhaps write to her.
My Lords, we usually try to go around the House, and it is the Liberal Democrats’ turn.
The Minister said that fares for those from 26 to 30 will be reduced by one-third with the new young people’s railcard. This is an example of the industry at last realising there is such a thing as market pricing and elasticity of demand. Instead of having a tariff which fits everybody, it should fit the market.
My Lords, I absolutely agree. This is an excellent example of industry and government working together to deliver a new product that will benefit passengers.
Brexit: Border Control
To ask Her Majesty’s Government what assessment they have made of whether sufficient personnel will be trained and equipment will be ready to take full control of the United Kingdom's borders by the end of March 2019.
My Lords, we will always ensure that we have the resources and the workforce that we need to keep the border secure. In addition to the creation of 300 Readiness Task Force, approximately 600 Border Force officers are being recruited in 2018-19 to respond to future requirements as a result of EU exit and to provide operational resilience at the border.
My Lords, the NAO report states that for a deal we will need 1,000 more Border Force members, who will have to be fully trained, which takes 12 months, and 2,000 more for no deal and that as of 8 October 2018 we had managed to recruit 149. Perhaps a few more will arrive in the next few months. It also states that there will be an acute shortage of vets for hygiene border controls. On resources, HMRC reports that it will take up to three years for it to get its new systems in order. As we heard last week in the Answer to the Question asked by the noble Lord, Lord West, we now have, as I understand it, two offshore patrol boats to protect our maritime borders, a third is on station in the Falklands Islands and it might be agreed to build some new ones over the next several years. The tone of the NAO report is of uncertainty and insufficient time. Do the Government think that we can take back control as was promised in the referendum?
I shall address the two areas of the noble Lord’s question. The first was on the recruitment of sufficient numbers of staff. The EU exit recruitment strategy for 2018-19 is actually deal-agnostic. It is being taken forward in three broad phases: before Christmas with a flexible workforce of 300; an additional 300 leading up to Brexit; and another 300 post Brexit. Secondly, the noble Lord asked about the border patrol service. It operates a fleet of five cutters and six coastal patrol vessels around the UK coastline. They are deployed on a risk or intelligence basis and fulfil a number of tasks.
My Lords, the Minister referred to the craft of the Border Force but she knows very well that at any given time only two or maybe sometimes three of them are actually able to operate. For comparison, Holland and France operate well over 100 craft to do a similar task. The NAO study itself refused to even spot the fact that we are an island. I must say that I am beginning to feel rather depressed by this. There is a huge coastline to look after. Does the Minister not agree that we really need to do something to ensure that we have enough vessels to look after our territorial seas?
I completely agree with the noble Lord. We have a border delivery group in place ensuring that it looks at the risks and the commitments made to maintain flow and security. The boats that we are talking about are flexible to a number of needs. We have always been an island—that is nothing new—but the noble Lord is right that we have to have sufficient infrastructure to patrol it.
My Lords, if I may return to dry land, will the Minister confirm that it is the Government’s intention to offer visa-free access to EU citizens unless they wish to come here to work? If they were to do that, it would enormously reduce the extra burden on the Border Force and on the borders in general.
We have visa-free access for many countries. The exact look of our immigration system as we leave the EU is of course subject to the negotiations, but to have people flow as freely as possible through our borders is the ultimate aim.
My Lords, if we are to change the number of border officers, will the Minister consider changing the passenger survey method of counting immigration, which currently asks 0.6% of people arriving in this country whether they are tourists or immigrants? The answers are not verified, and the statistics produced do not tally with other statistics such as national insurance costs.
My noble friend is absolutely right to raise the issue of getting better and richer statistical data. For the last few years we have been introducing exit checks, which add to the picture of what our immigration and emigration system looks like.
My Lords, we will hear from Plaid Cymru.
I am very grateful. Does the Minister appreciate the worries in the port of Holyhead, expressed very strongly by people from Stena Line and from the port authority itself, that there are inadequate numbers of staff to cope with the very high volumes that come from Ireland? Unless something is done urgently, there is no chance of being in a position by 29 March. Can she give some assurance to the House?
I certainly appreciate any concern that we have sufficient numbers of staff to meet demand at the border. People coming from Ireland are often not subject to those sorts of checks but it is important that we have the right number of border staff in place as we leave the European Union.
My Lords, this is really not appropriate during Questions. We will hear quickly from the Liberal Democrat Benches.
My Lords, the Minister talked about an additional 600 staff being recruited in 2018-19. Does she not agree that there were in fact 450 fewer full-time equivalents in Border Force in 2017-18 than there were five years ago, despite a significant increase in the number of people coming across the border?
I did not actually talk about 600 staff; I talked about 900 in three lots of 300. In fact, the number permanently employed in Border Force at the end of 2017-18 was 7,700, and the forecast for 2019 is 8,600.
Railways Investment: North of England
To ask Her Majesty's Government what proposals they have for new investment in the railway network in the north of England.
My Lords, through projects such as HS2 and Northern Powerhouse Rail, we are investing in the economy of the north by bringing its cities closer together and improving the region’s link to the Midlands and the south. Alongside an increase in funding for maintenance and renewals in 2019 to 2024, we have committed substantial funding for new enhancements to provide more capacity and improve journey times.
My Lords, but when improvements take place in the north, they run many months late and cause chaos. Meanwhile, the railways in the north of England are near breaking point. They are utterly congested, with tiny trains at peak periods often running late and too often not turning up at all. Do the Government not understand that people in the north are losing all confidence in the ability of the Department for Transport, based 200 miles away down here in London, to sort out our problems? Is it not time that the decision-making and resources to run our railways in the north were transferred to Transport for the North, which at least consists of people who live and work in the north and even use the trains?
My Lords, I am sorry that that is the noble Lord’s experience. Between 2015 and 2020, the Government will have spent more than £13 billion improving and modernising northern transport, which is a record level of investment. However, I agree that passengers in the north have suffered unacceptable disruption and delay in recent times. We continue closely to monitor performance and, where operators are at fault, we will not hesitate to act. We have appointed Richard George, who previously served as the chairman of the board of many franchises, to oversee implementation and changes to improve the current situation in the north. On devolution of powers, we set up Transport for the North, which co-manages the Northern and TransPennine Express franchises alongside the Department for Transport as part of the Rail North Partnership, to ensure that decisions are taken in the north.
My Lords, is the Minister aware that, even before the bungled timetable was implemented on Northern services, it had become abundantly clear that the project was in deep trouble? Up to 310 trains each day were then cancelled, the regulator concluding that nobody took charge. Why was it that nobody took charge? Who will be held responsible for those failures, and how will she build capacity in the north of England to ensure that this does not occur again?
My Lords, we have commissioned the independent Glaister review to look into those issues. The interim report made clear that a key cause of the Northern Rail timetable disruption over the summer was delays to Network Rail’s engineering works, but I agree that there are lessons to be learnt, and we look forward to the final report so that we can act to improve matters.
My Lords, as a Yorkshireman and someone who represented a seat in Greater Manchester in the other place, I have been a consistent supporter of improved investment in rail infrastructure in the north. Does my noble friend agree that this cannot be done entirely without regard to key projects in East Anglia, particularly those affecting the Great Eastern and West Anglian lines, which are key to the region being able further to the contribution it makes to the national economy, which in turn directly and indirectly affects the north as well?
My Lords, the new East Anglia rail franchise has seen £1.4 billion invested to deliver more carriages and faster, more frequent journeys in that part of the world. I very much agree with my noble friend that transport investment is indeed a wealth generator, and that is why we are investing record amounts in transport across the country. That is without taking into account any transport announcements we may hear from my right honourable friend the Chancellor in the Budget shortly.
My Lords, will the Minister reflect on the point made by the noble Lord, Lord Greaves, on the future resources and funding for Transport for the North? For that matter, will she look at the passenger transport authorities in other conurbations as well, which would also seek the same powers and funding as those enjoyed by Transport for London? After all, people travel on trains outside the Greater London area, whether or not Ministers and civil servants actually realise that.
I can reassure the noble Lord that we are well aware that people travel on trains and use transport outside London. Our record on devolution is strong; we have established Transport for the North and have devolved significant powers to metro mayors across the country. That ensures that the north has more influence than ever on crucial decisions on transport investment. We have given TfN unprecedented powers to influence decisions on transport investment in the north and to set out the north’s unified strategic transport plan, which the Secretary of State must take into account.
My Lords, to bring matters back to the north, the Minister mentioned Northern Powerhouse Rail. I have the feeling that the northern powerhouse is something akin to the American dream. Can we understand what it really means, and is there anything such as a route yet planned as to where it will go, which places may be served and when it may happen?
My Lords, we are working closely with Transport for the North to help transform the economy of the north of England through Northern Powerhouse Rail. That will significantly improve the capacity, frequency and journey time. I can reassure the noble Lord that we are fully committed to Northern Powerhouse Rail. We have invested money into Transport for the North, and are looking forward to its business case which will be published at the end of this year, and which will set out details of routes and indeed costs.
My Lords, I have some very good experience of travelling by train in the north. However, does my noble friend agree that the pricing of rail tickets is very confusing—even making it difficult for our excellent parliamentary travel office? There are different levels of service and different interpretations, for example, relating to what represents “off-peak” in different franchise areas. Could new investment, whether in the north or elsewhere, include sorting that out?
My Lords, I agree with my noble friend that we need to do more to simplify rail fares. I mentioned in the earlier Question the easier fares consultation carried out by the Rail Delivery Group. Train operators are obligated to sell the most appropriate fare available, but there is a wide range of tickets on offer and we have made a commitment to removing that complexity and the perverse pricing we sometimes see from ticketing. We would like to see online retailers give passengers much clearer information at the point of purchase and, as I said, we look forward to the findings of the RDG consultation.
Pittsburgh: Synagogue Attack
Private Notice Question
To ask Her Majesty’s Government following the murder of 11 worshippers at the Tree of Life Synagogue in Pittsburgh, what action they are taking to protect and reassure the Jewish Community here in the United Kingdom.
My Lords, I beg leave to ask a Question of which I have given private notice.
My Lords, we have all been appalled by the horrific attack on worshipers at the Tree of Life Synagogue in Pittsburgh, and the consequent dreadful loss of life. We stand in solidarity against this hatred and have committed to provide over £50 million since 2015, including £13.4 million this year to the Community Security Trust, to ensure that people can pray and live without fear at over 500 Jewish institutions across the country. I pay tribute to their outstanding work. No one should be afraid to practise their faith, and our places of worship should not engender fear. We will not let fear overcome us. Hatred will not win.
I thank my noble friend for his reply, and I am certain that the Jewish community will be comforted by his words and actions. It was an unspeakable act—the cold-blooded murder of 11 Jews on Shabbat—and Jewish communities throughout the world are afraid. Have we learned nothing from history? For me, it is nice to stand shoulder to shoulder and offer sympathy, but it is action that is now required. Has the Minister read the editorial in the Times today, which is spot on? It ends:
“The Jewish people have withstood pogroms and prejudice for millennia based on fakery, fraud and myths. There will always be people gripped by ideological wickedness but the context matters and responsible politicians set that context”.
We in the UK cannot mend the world, but we can take action here. If there were anti-Semitism in my party, I would call it out. If there is anti-Semitism in no party, I will call it out. I hope that all noble Lords will do the same if they encounter it in their own parties. It is often said that anti-Semitism is a problem for the Jewish community. Yes, it does affect that community, but does my noble friend agree that it should be seen as a grave threat to British values and British decency and to all that we hold dear?
My Lords, I agree with the sentiments expressed so well by my noble friend. This morning I spoke to the Chief Rabbi’s office, which has described the response of British communities around the country as, “heartening and reassuring”. It is important that we stand united against this hatred. It has been heartening that other religious communities, particularly the Muslim one, have been leading crowd funding for the victims of Pittsburgh. I repeat: we will not let hatred win.
My Lords, the House will congratulate the noble Lord for tabling this Question. All noble Lords, and most of the population of this country, were horrified at the tragic loss of life and the irrational hatred which inspired it. Thankfully, this country does not have a gun culture, nor a Government who believe that the answer is to equip places of worship with weapons—in a country which has more guns than people. We welcome the support that the Government currently give to the Community Security Trust, which helps to achieve safety and security not only for the Jewish community but for the Muslim community and other minority communities. I invite the Government to consider making statutory provision for something which is now Labour Party policy and would be acceptable across our political system: an emphatic repudiation of the violence and hatred which have disfigured life in America and taken so many lives.
My Lords, I thank the noble Lord for his contribution. The Community Security Trust is specifically for the Jewish community. Other vulnerable places of worship fund their own protection, but the noble Lord is right that we look at this across the piece. We are well aware of the importance of that protection and the Government have given particular heed to it over the years. He is also right about arming people: let there be no doubt that the more arms there are, the more danger there is. This was pure evil and it needs to be called out as such.
My Lords, there is no excuse for trying to justify or explain the Pittsburgh killings, and I echo the words spoken by other noble Lords. The Minister talked about physical protection from the Community Security Trust—but protection is surely also needed from those who condone and incite anti-Semitism in postings on social media. What is his response to that?
My Lords, I thank the noble Lord for his contribution. He will be well aware that the whole House recognises the importance of tackling the issues arising from social media as they relate to hate crime across the piece and to anti-Semitism specifically. He will also be aware of the globalisation of that problem. The Government are resolute on this issue and my department, along with that of my noble friend Lady Williams, intends to proceed with it and to push harder to get concrete results.
My Lords, will the Minister join me, along with the Palestine Solidarity Campaign, in condemning the words of the noble Baroness, Lady Tonge, in suggesting that the murders in Pittsburgh were caused by the actions of the Israeli Government? That suggestion will clearly cause great pain in Pittsburgh, and falls foul of the International Holocaust Remembrance Alliance definition of anti-Semitism.
My Lords, I do so unreservedly. These issues must not be conflated in the way that the noble Baroness sought to conflate them.
My Lords, I have four grandchildren, who had to go to school this morning—to two Jewish schools—with a guard. The youngest is four, the next is six, one is seven and one eight; this is a close issue for me. I am grateful to the Government for the Statement that the Minister has made today. I think the Jewish community will be very pleased. Does the Minister not agree, however, that the real issue is hate speech and not guns?
My Lords, the noble Lord is absolutely right: hate speech is at the root of this. He will be aware that we have just refreshed the hate crime action plan for the next two years. We are determined to take whatever action is necessary, whether it is hate crime expressed orally, online, or, as I indicated to the noble Lord, Lord Palmer, on social media. The noble Lord is absolutely right: it is central to our efforts to combat anti-Semitism and other forms of hatred.
My Lords, I am president of a progressive synagogue which is similar to the Tree of Life synagogue. We have lent them a Torah scroll. When news came through on Saturday, I was with a rabbi from another progressive synagogue who had come to see me because he is so upset with the current situation that he is planning to leave the country. He is advising a number of his congregants to do the same. We discussed an article by Colin Appleby, who was a Labour Party member and went to the conference in Liverpool. Colin Appleby wrote:
“At breakfast on Monday, I was joined by two people I’d not met before. They hadn’t met each other before”.
They agreed, he wrote,
“that Jews were ‘subhuman’, ‘didn’t deserve to be allowed to define what constitutes antisemitism’ and should ‘be grateful we don’t make them eat bacon for breakfast every day.’”
He published the article. Would the Minister agree with me that this level of anti-Semitism, and that found in a recent tweet from a Member of this House, must be addressed now before we find a similar situation to that in Pittsburgh arising in the United Kingdom?
My Lords, the whole House will have great sympathy with the words my noble friend has just uttered. However, I repeat the point that the Chief Rabbi’s office has felt—correctly, I believe—that there has been outstanding support from all communities in Britain with regard to what has happened in Pittsburgh. That is not to say there is not an issue to be addressed, but the action that the Government have taken, which is supported so clearly in the House of Lords, will help us to combat the dreadful evil of anti-Semitism.
We will hear from the Cross Benches.
My Lords, given the clear evidence that the perpetrator of the Pittsburgh outrage posted anti-Semitic comments on the internet from time to time, is it not time that the Government took the internet service providers to one side and told them that it is their responsibility to remove this kind of outrageous material, or the Government will have to do it for them, with the support of both Houses of Parliament?
My Lords, the noble Lord is right. The message will not have been lost on the providers of social media. It is something we are making them aware of—we are seeking action. Some are more willing to assist than others, but it is clear that they have an overriding responsibility, and what has happened in Pittsburgh underlines that.
European Union Committee
That Lord Ricketts be appointed a member of the Select Committee in place of Lord Crisp, resigned.
Civil Aviation (Insurance) (Amendment) (EU Exit) Regulations 2018
Merchant Shipping (Monitoring, Reporting and Verification of Carbon Dioxide Emissions) (Amendment) (EU Exit) Regulations 2018
Motions to Approve
That the draft Regulations laid before the House on 23 July be approved. Considered in Grand Committee on 24 October
European Union (Withdrawal) Act 2018 (Consequential Amendments) Regulations 2018
Motion to Approve
That the draft Regulations laid before the House on 23 July be approved. Considered in Grand Committee on 24 October
My Lords, I beg to move the Motion standing in my name on the Order Paper.
As I understand it, this Motion is debatable and divisible. Before we consider whether to divide on it, it would be helpful if the noble Lord, Lord Callanan, would explain to the House why it is necessary, and as the noble Baroness, Lady McIntosh of Pickering, said earlier, I hope that he will do the same for all the important statutory instruments that appear before us as a result of Brexit. I look forward to hearing the noble Lord’s explanation as to why the House should pass these regulations.
My Lords, I am very happy to do that, but it is slightly regrettable that the noble Lord did not take the opportunity, as other noble Lords did, to speak during the full debate on the statutory instrument last Wednesday. I remind him that the Companion to the Standing Orders is very clear. Paragraph 10.15 says:
“Notice should be given of any intention to oppose a motion or amendment concerning delegated legislation”.
That notice is usually given by way of an amendment to a Minister’s Motion, and the noble Lord kindly had a word with me as I entered the Chamber this afternoon that he might oppose the Motion. I am very happy to talk him through the details of the statutory instrument, so I hope that he is sitting comfortably.
These draft regulations make technical, consequential repeals and amendments to certain pieces of legislation using the consequential power in Section 23(1) of the European Union (Withdrawal) Act for two main purposes. First, they repeal legislation that has become redundant in consequence of the repeal of Sections 1 to 13 of the European Union Act 2011 and Section 5 of the European Union (Amendment) Act 2008, which provides mechanisms for the approval or ratification of certain EU decisions or treaty changes that would result in a transfer of power from the UK Government to the EU. Sections 1 to 13 of the 2011 Act and Section 5 of the 2008 Act were repealed on 4 July this year following the acceptance by this House and the other place that they were redundant in the context of our exit from the EU. During the Report stage of the Bill, the Government set out that the repeal of this legislation would be effective shortly after Royal Assent, and indeed that is what happened.
Secondly, in consequence of those repeals, legislation that approved matters in accordance with those Acts has become redundant. That includes Sections 1 and 2 of the European Union (Croatian Accession and Irish Protocol) Act 2013, which approved the accession of the Republic of Croatia to the EU and the protocol on the concerns of the Irish people relating to the Lisbon treaty. It also includes the European Union (Approvals) Act 2017, which approved decisions that allowed Albania and Syria to participate as observers in the work of the European Union Agency for Fundamental Rights, and an agreement between the EU and the Government of Canada regarding the application of their competition laws.
My Lords, I do not know whether any of my colleagues or others wish to participate in a debate but, first, I shall explain to the House and to the noble Lord that last Wednesday I was chairing a meeting involving Age Scotland, Age UK, Age Cymru and Age NI in my capacity as chair of Age Scotland, so I apologise for not having been able to attend the Grand Committee. However, I assure the Minister that I will be keeping a very close watch on all statutory instruments going to Grand Committee in the future, and, when I am here, I will certainly take the advice that he has now given me and come along to express my view, as I did on the matter of the British Transport Police and Police Scotland merger, when a number of my colleagues supported me.
However, as the noble Baroness, Lady McIntosh of Pickering, rightly said, there is a very large number of these statutory instruments to be considered, and it is important that this House considers them properly, whether in Grand Committee or on the Floor of the House or indeed both. Now that the noble Lord has given me that explanation, for which I am particularly grateful, on this occasion I do not intend to divide the House.
Counter-Terrorism and Border Security Bill
Committee (1st Day)
Relevant documents: 35th Report from the Delegated Powers Committee, 11th Report from the Joint Committee on Human Rights, 14th Report from the Constitution Committee
Clause 1: Expressions of support for a proscribed organisation
1: Clause 1, page 1, line 8, after “belief” insert “, as part of a pattern of behaviour,”
My Lords, this Bill creates an offence of expressing an opinion or belief that is supportive of a proscribed organisation if the person doing so is reckless as to whether a person to whom the expression is directed would be encouraged to support a proscribed organisation. Currently, encouragement of and invitation to support a terrorist organisation is a criminal offence, so what is proposed in the Bill is, in reality, an extension of this. The Bill requires not an intent to increase the ranks or membership of the proscribed organisation, but rather being reckless as to whether another person would be more likely to support the proscribed organisation as a result of the expression of an opinion or belief that is supportive of a proscribed organisation.
The Joint Committee on Human Rights has pointed out that the wording of the Bill could cover an academic debate if, for example, those taking part were speaking in favour of de-proscription of a currently proscribed organisation. The wording could also cover a similar debate taking place in the pages of national or other newspaper or journal. What also appears clear from the wording is that a person potentially commits the offence if they express their opinion or belief that is supportive of a proscribed organisation just once.
The test of the wording is presumably whether a reasonable person would regard the expression of the opinion or belief as encouragement to support a proscribed organisation rather than whether someone had actually been encouraged to join such an organisation. Perhaps the Minister can pick up or confirm that point in her reply and explain how the Government intend that “reckless” should be interpreted or defined in the context of this Bill.
It seems that one purpose of Clause 1 is to address the situation if Mr Choudary, just released from prison, continues to express his views to others, or someone with a similar outlook does likewise. There were clearly difficulties under the law as it stands in pursuing a successful prosecution against Mr Choudary, bearing in mind the length of time it took for that to happen. However, the snag is that, in seeking to address the situation to which I have just referred, we may end up criminalising, or silencing through fear of being criminalised, those who have no intention or wish to make it more likely that others will support a proscribed organisation but who are expressing an opinion in the legitimate pursuit of their employment or profession—for example, as an academic or a journalist might. We may also end up criminalising those who say something only once, and certainly not with any thought that it might encourage support for a proscribed organisation.
Amendment 1 provides that the expression of an opinion or belief that is supportive of a proscribed organisation has to be,
“as part of a pattern of behaviour”,
with the intention that only those who express such opinions or beliefs as part of a regular pattern of behaviour that is supportive of a proscribed organisation would be deemed to have committed the new offence. That should make it less likely that those involved in legitimate academic work or journalism, for example, could fall foul of Clause 1, as well as an individual expressing and directing their opinion or belief for the first occasion to others, perhaps without realising the significance of what they are doing.
If this amendment does not commend itself to the Government as a means of providing the safeguards I am seeking for innocent parties against falling foul of the new offence under Clause 1, I hope the Government in their response will set out how they intend to ensure that the necessary safeguards are in place.
I do not intend to say a great deal about Amendment 6 in this group, to which my name and that of my noble friend Lord Kennedy of Southwark are attached, as I am sure that the noble Earl, Lord Attlee, whose name heads the amendment, will wish to speak to it. Suffice it to say that it specifically provides in the Bill that the purposes of journalism cannot result in an offence under Clause 1 and is in line with the objective of Amendment 1 of removing legitimate journalism from the new offence under Clause 1.
My Lords. Clause 1 makes a neat distinction between free speech and incitement. New subsection (1A)(a) states:
“expresses an opinion or belief that is supportive of a proscribed organisation”.
That surely is free speech, depending on the context in which it occurs. New paragraph (b), which states,
“in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation”,
is incitement and infringes Article 19 of the Universal Declaration of Human Rights. However, the first paragraph does not because free speech must be maintained and protected, depending on the context. This of course goes back to the old adage that falsely crying “fire” in a crowded theatre is incitement, whereas to shout “fire”, falsely or otherwise, on a crowded corner is clearly not incitement because people are not in danger of violent disruption. It is important that that distinction is made in the Bill.
My Lords, I start by making it clear that I am completely opposed to people encouraging the membership and support of terrorist organisations. I did not need to say that but I felt that I should.
However, Clause 1 casts the net far too wide and risks criminalising perfectly innocent behaviour. There is widespread concern in this House about the fact that it is far too wide. Therefore, my Amendments 2 and 4, alongside the other amendments in the group, seek to make this new offence a reasonable one. Without making significant changes to the clause it will be in clear breach of the European Convention on Human Rights. As currently drafted, the offence is too vague to be “in accordance with the law” and too broad to be a proportionate way of achieving a legitimate aim.
From the Government’s Explanatory Notes to the Bill it is clear that this clause is a response to the case of the Crown against Choudary, as we have heard, in which the Court of Appeal considered the existing Section 12 offences. The Explanatory Notes state:
“The Court of Appeal was clear that a central ingredient of the”,
“offence was inviting support from third parties for a proscribed organisation and that the offence ‘does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs’ ... This clause therefore provides for a new offence which criminalises the expression of an opinion or belief that is supportive of a proscribed organisation”.
It is therefore necessary for this House to consider Clause 1 in light of the Court of Appeal’s judgment in Choudary.
The focus in that case was on the meaning of “inviting support” in the existing Section 12(1) offence. There were additional questions of whether that offence was a breach of the European Convention on Human Rights. The answer to the first question meant that there was no breach, but using the court’s analysis is illuminating.
Without wanting to get into a legal wrangle, as we have done so often in the past, such as on the different between “agreement” and “consensus”, I have to explain the definition “inviting support”. The court used dictionary definitions. Inviting was taken to mean making a request; support was taken to include the provision of assistance, encouragement, advocacy and endorsement—a mix of practical, tangible and intangible support. On that basis, the court held that there was not a breach of human rights. Although the right to freedom of expression was engaged, it was a legitimate aim to restrict that right when it comes to inviting support for proscribed organisations.
Next, in accordance with jurisprudence from the European Court of Human Rights, the court asked whether the Section 12(1) offence was a proportionate response to the legitimate aim. If it was, it was lawful; if not, it would be an unlawful breach of human rights. In paragraph 70 of its judgment, the court determined the following:
“When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation. To the extent that section 12(1)(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified”.
This is where it becomes obvious to me that Clause 1 would be an unlawful interference in human rights. In fact, it is so obvious that I am surprised the Government could bring a clause of this sort before the House. Making a statement in the Bill that it is compatible with the European Convention on Human Rights is plain wrong.
Clause 1 seeks to create a much broader offence than the existing statutory one but in doing so, it crosses all the red lines that were identified as making the existing offence lawful. The existing offence does not criminalise the expression of views and opinions—free speech—whereas Clause 1 does. The existing offence is limited to “support”, whereas Clause 1 uses the broader term “supportive”, and the existing offence applies only to people with the requisite intent—a guilty mind—whereas Clause 1 extends to anyone who is “reckless” whether they meant to support a terrorist group or not.
The Bill casts the net far too wide. It risks criminalising all sorts of opinions that are supportive of a proscribed organisation. The Oxford English Dictionary definition of “supportive” is something that,
“provides strength by assistance, belief, or tolerance; providing sustenance or resources; sustaining; that provides evidence or authority; confirmatory, corroborative”.
Even expressing an opinion of tolerance would fall foul of this new offence. I believe that the Government have deliberately used the broader wording, so my Amendment 2 seeks to retain the existing word “support”. I would welcome the Minister explaining the Government’s reasoning and what effect they intend by using “supportive” in its place.
My Amendment 4 aims to do the same as Amendment 3, tabled by the noble Baroness, Lady Hamwee, which I support and am supportive of. Casting the broad net of guilty intent in this offence over people who did not intend to encourage support will catch so many innocent people; it is just plain wrong. It would include any expression of tolerance where a person, perfectly innocently and sensibly, advocates a ceasefire and peace talks with a proscribed organisation, if that person identified the risk that someone might feel encouraged to support the organisation as a result. Put simply, Clause 1 criminalises the search for peace, makes innocent people guilty and is an unforgivable breach of our human rights. I will vote against its inclusion in the Bill.
My Lords, with great respect to the noble Baroness, I think that we have just heard a gross exaggeration not only about the effect of this clause but also its intention. Judgments as to whether organisations should be proscribed are of course expressions of an opinion by a Minister. They are not perfect judgments, and to that extent I support Amendment 5 tabled by the noble Baroness, Lady Hamwee, and others. The Independent Reviewer of Terrorism Legislation—I think that there are two former independent reviewers in the Chamber today—might well suggest in reports that a proscribed organisation should be deproscribed on the basis, for example, that it is better to deal with the organisation openly in debate than by proscription. I recall during my now somewhat historic time as the independent reviewer that there were strong debates about whether certain organisations should be proscribed or not.
With that reservation, it seems that this clause would achieve the following. First, it recognises that even in this relatively gun-free country, if someone expresses support in a certain way for a proscribed organisation, it may put some of our fellow citizens in mortal danger of their lives. There are plenty of examples of that having happened, and indeed there are examples of the person who has already been mentioned, Mr Choudary, himself a former lawyer, of having possibly achieved exactly that. It does not criminalise the expression of support, rather it forbids and criminalises the expression of support on certain terms as set out in proposed new Section 1A(b), and that is the test of recklessness. Recklessness requires awareness of the risk that is being taken by the speaker. I can see absolutely no reason to allow people to take a risk of which they are aware that potentially will put other people in mortal danger.
I am grateful to the noble Lord for giving way. Does he agree that the test of recklessness is a less stringent one than that of specific intent?
Of course I agree with that, but in my view, and as I thought I made clear, the test of recklessness is entirely appropriate in this situation. If, for example, somebody preaches a sermon while being aware of the risk that he knows or should expect may radicalise another into killing citizens such as Lee Rigby, that to me is a proper protection of our society and the responsibility of the Government. I do not see why that should not be criminalised. I know that the noble Lord, Lord Thomas of Gresford, is an expert on recklessness so I shall give way to him.
I rise only to criticise the use of the term “should expect”. It seems to introduce an objective test when, as he said earlier, it is subjective.
When I referred to the noble Lord as an expert on recklessness I was not making a personal slight. I believe that he appeared in the case of Caldwell, which for some years has been overruled, so he knows the law on this. But in my view, a person who makes a statement of that kind, knowing of the risk of it being taken up by a radicalised Islamist or right-wing extremist, should expect the force of the criminal law to fall upon them. That is all the Government are seeking to do. On this clause at least, in my view, the Government are meeting the legitimate expectation of citizens subject only to my reservation about Amendment 5, which I would suggest the Government should consider carefully.
Does the noble Lord agree that context is still a very important matter? If someone is preaching a sermon and is therefore in a position of authority, it is likely that they will actually persuade another person to commit a particular criminal act in a place and over time. However, expressing that view in a different context would not necessarily cause there to be violent action within the particular space and time. One therefore has to define the context.
There may be a philosophical difference between my noble friend and myself: I take what those who remember him call the Selbornian view that, of course, we have our freedom to speak, but with that freedom of speech we owe certain responsibilities to our fellow citizens. In my judgment, for what it is worth, this clause actually creates that social contract on these issues.
My Lords, I have various amendments in this group, but I start with a general point: all the amendments in the Marshalled List where mine is the first name were proposed by the Joint Committee on Human Rights, of which I am a member, and I have been tasked by the committee to raise them with your Lordships. I take this opportunity to thank not only the committee but its officials, who have done a huge amount of work on the Bill, particularly Samantha Godec. Having said that, I have no doubt that my noble friends will agree with much that I have to say, but I leave that to them. I suspect that I will not be able to refrain from commenting on some other amendments.
The committee has put forward amendments that seek to ensure that the Bill restricts rights only to the extent necessary and proportionate—terms with which noble Lords will be very familiar. I make it clear, though I hope it does not need saying, that this is by no means wholesale opposition to the Bill. We recognise that the Government need powers to defend national security, but when powers engage human rights or interfere with them, they must be clearly prescribed, necessary in pursuit of a legitimate aim and proportionate to that aim. The committee was concerned that the Bill legislates close to the line and sometimes crosses it, taking the criminal law further into private spaces. It looked, as noble Lords would expect, for the right balance between liberty and security.
Among the evidence that we received was a long paper from Professor Clive Walker, adviser to successive Independent Reviewers of Terrorism Legislation, who commented:
“It can readily be demonstrated that the United Kingdom already has the most extensive counter terrorism code in Europe if not the world”.
That was a point made by Max Hill before he became the independent reviewer; he has said several times that we have sufficient offences, we do not need any more. The obligation on us is obviously to identify whether there are gaps that need to be filled, and whether we agree with the Government about that. Professor Walker also made the point, which I think is worth repeating at this point—I am not seeking to make a Second Reading speech—that,
“criticism should be made of the failure on the part of Home Office to issue any consultation paper prior to the CT&BS Bill”.
He wrote about the value of a pre-legislation phase, allowing not only for public scrutiny but for other independent proposals, and said how well that worked in the case of the Sanctions and Anti-Money Laundering Act.
My name is attached to Amendments 3 and 5 in this group and I have also given notice that I oppose Clause 1 standing part of the Bill.
The noble Baroness has indicated to the House that she speaks, in effect, on behalf of the Joint Committee on Human Rights, and we are all grateful for its report. Can she help the House in that context with one thing? The Joint Committee on Human Rights, of course, has particular reference to the provisions of the Human Rights Act and the articles of the European Convention on Human Rights. Does she and her committee consider it important also to consider the rights of citizens affected by, or potentially affected by, acts of terrorism or encouragement to terrorism, whether it be their rights under Article 2 or Article 8 of the convention? These are, of course, also human rights.
Indeed they are, my Lords, and that was why I very deliberately mentioned security as well as liberty in my opening words. It would be wrong to give the noble Lord an assurance that we specifically discussed those rights in the same way or at the same length as other rights, but I have been in enough meetings of the committee to know that that is a backdrop to the other rights we address. I hope that reassures him. It may not, but I did say that we were not opposing this Bill in any wholesale way.
Amendment 3 would leave out paragraph (b) and instead insert a reference to intention,
“to encourage support for a proscribed organisation”.
Other noble Lords have referred to that at some length. I agree with the point about context made by the noble Baroness, Lady D’Souza—whether this is the point at which to agree with her or not, I do not know. But I do think context assists one to understand what is in the mind of a person making a statement or undertaking an act.
Regarding Amendment 5, I am grateful for the support of the noble Lord, Lord Carlile. His point about open discussion is an important one. I know that he balances the importance of transparency and free debate on these matters. I agree with the noble Baroness, Lady Jones, about “support” and “supportive”. In debate and correspondence, the Government have relied on Section 4 of the 2000 Act as providing a route to apply to the Home Secretary for de-proscription. I do not challenge that, but do not think it is by any means a complete answer to this. The defence in the 2000 Act only protects statements of support related to a de-proscription application. It is not a defence for those taking part in debate outside those proceedings.
The clause creates a new offence, and the Minister in the Public Bill Committee in the Commons said:
“Dealing effectively with the power of inspiration or incitement is not new”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 28/6/18; col. 71.]
I do not read this clause as being about incitement or inspiration. Recklessness is lesser than that.
I have a specific question for the Minister about new subsection 1A(b), which refers to a person to whom a statement, or whatever, is directed. I would like to understand the term “directed”. Are you directing something if it is not addressed to a named person or an identifiable/identified group? If you tweet or post something on Facebook, accessible to the world, are you directing that? The Minister in the Commons made a point similar to the one made by the noble Lord, Lord Carlile. He gave the example of walking down a high street swinging a baseball bat. Are the people who might see a tweet equivalent to the pedestrians in the high street?
Surely “directed at” is really equivalent to “published”, and the world at large is published, too.
My Lords, I asked what it means. The noble Lord, Lord Faulks, has given his view. If it means “published” perhaps it should say “published”, which is well understood, not only by lawyers but by ordinary people—I was going to say “normal people” but I should not say that. I hope none of us is abnormal. If that is the answer, it would be very helpful to know. I am grateful to the noble Viscount for adding to the debate.
To finish the point on direction, there was also a comment about intent meaning to invite support, as in the existing Section 12(1). Does the Minister have any comments on that term and its relationship to this new provision?
Finally, the committee was concerned about a lack of clarity in this provision on the boundaries of a debate. We agree with the Minister that it is hard to define valid debate, but we believe that the lack of clarity and the low threshold of recklessness risk a chilling effect on free speech and a disproportionate interference with the right to free speech.
My Lords, my Amendment 6 is in this group. I am grateful for the support from the Opposition Front Bench. I am confident that the Government will have thought very carefully about the need for Clauses 1 to 6, so I support them and share the view of the noble Lord, Lord Carlile. I will leave it to other noble Lords to scrutinise the principles, but I understand the concerns that have been—and will be—raised by other noble Lords when speaking to their amendments.
I have put my name to Amendment 5 and I agree with all that the noble Lord, Lord Rosser, has said. The decision to proscribe a group is not taken lightly. Nevertheless, in a free and democratic society, it is a major step to take and it should be possible to question it. One might want to suggest that proscription is acting as a recruiting sergeant for the group concerned. Under Clause 1, there would be a danger of that suggestion being regarded as a,
“belief that is supportive of a proscribed organisation”,
because it supports the de-proscription. There is also a very fine dividing line between stating that HMG’s policy is flawed and supporting a proscribed organisation.
Earlier this year, I tabled amendments to the Data Protection Bill dealing with press regulation. Some thought that I and other noble Lords were somehow anti-press and against freedom of speech. Nothing could be further from the truth, as we shall see. My Amendment 6 inserts an exemption for opinions or beliefs that are,
“published or broadcast for the purposes of journalism”.
Will my noble friend tell the Committee whether he thinks there is a distinction between “for the purposes of journalism”—the phrase in his amendment—and “in the course of journalism”?
My Lords, that is a very technical question.
It is rather important.
It might be important, but I do not know the answer.
This exemption is needed because the vagueness of the offence, combined with the absence of an intent requirement, puts journalists and news organisations in danger of wrongful prosecution and legal harassment just for doing the job of reporting what is being said and engaging in debate. As drafted, a news organisation reporting on the activities of a terrorist organisation could be ensnared by the offence for relaying to the public the words of the members of the terrorist organisation. It is easy to imagine a situation where doing so is essential for the public’s understanding of a terrorist outrage, yet in doing so the news organisation will be expressing words that are supportive of that organisation and so fulfil the elements of this new offence.
The criminalisation of expressing beliefs,
“supportive of a proscribed organisation”,
is also problematic. It risks inhibiting journalists from explaining why a proscribed organisation appeals to its adherents or providing an objective assessment of its strengths and weaknesses. Let us say that a proscribed organisation has gained a foothold in a region and is being shielded and supported by the local population. How would a journalist explain why this has happened if they cannot allude to its strengths? Perhaps the proscribed organisation has improved healthcare in some way. Would pointing out that the group had effectively tapped into the legitimate grievances of a minority population count as a belief supportive of that group? The potential to censor, stunt and distort public discussion of terrorism, extremism and insurgencies is obvious.
I expect that my noble friend the Minister will seek to allay our concerns by pointing out that journalistic activities are not the target of this clause and that prosecutors would not press charges in such cases. However, these are serious, arrestable offences and it would be easy for law enforcement officials, who are not perfect, to get confused between journalistic activities and those that we seek to prohibit. This could result in a journalist being wrongly arrested or just harassed. How would it be if, at the very point that we are trying to convince a foreign leader such as President Erdoğan of Turkey to respect the rights and role of journalists, we in the UK accidentally arrest a journalist over a mix-up? Of course, law enforcement officials do make very serious mistakes. Your Lordships need to think only about the cases of Lord Bramall or Sir Cliff Richard. For this legislation to work as intended, we must have a carve-out for journalists.
My Lords, I did not take part in the Second Reading debate because I was not able to be at the wind-up, although I heard a great deal of it. I am very concerned, as I believe everybody ought to be, about this matter. I cannot think of anything more important in a free society than freedom of speech, which should be tinkered with or eroded with the very greatest reluctance, if we do it at all.
I am concerned about a number of things in the Bill. One is the issue of recklessness, which has already been debated. To bring recklessness in here seems extremely dangerous. I know that I am about to be told by somebody that recklessness already exists in the criminal law in different contexts, but it exists in such a way that it is easily definable. Reckless driving of a motor car involves driving it too fast or taking no account of the traffic on the road, or not having one’s car checked and so forth. There are specific ways in which you can say that is reckless and define “recklessness” in such a way as to create little difficulty for judges or juries, or indeed for one’s general sense of justice. That is not the case here.
The idea that every word one speaks and every sentence one enunciates might be looked at with a view to whether it could have been reckless is quite alarming. It opens up the prospect which concerns me: that one might say something which happens to agree with something that is in the platform of a proscribed organisation and, as a result, find oneself indicted under the Act, if the Bill becomes one, without having the slightest notion that one had committed any offence, or necessarily that some terrorist or proscribed organisation shared one’s view on a matter. I am really concerned about it.
It seems to me that we should have the good old concept of intention here. Intentionality should automatically form part of the criminal law, except in special circumstances. In strict liability, intentionality does not apply, but intentionality is a principle very much bound up with the criminal law in almost all contexts, and I think that is the right way to go. That is much more specific. We would therefore not be doing violence to the precious principle of free speech if we adopted the intentionality route. I very much agree with those in the debate who have taken that line, and I very strongly disagree with those who have not.
There is another matter which I am very concerned about, and I dare say I shall make myself very unpopular by saying this. I do not for a moment think that we ought to have some privilege for journalists in the matter of free speech. I will not only speak against that but will use any opportunity I can to vote against any such Motion. Freedom of speech belongs to every citizen in a free society. Of course journalists must not do dangerous things, any more than anybody else must not do dangerous things, but the idea that journalists have a special form of free speech which is not available to the rest of us is quite absurd. If there are indeed proscribed terrorist organisations and journalists can legitimately report on what they are saying or what they stand for, it should be equally up to any of us. I am thinking not particularly of parliamentarians. Parliamentarians and other people should be able to report on that and talk about that. A free society consists of people being able to express views or refer to views, however awful they may be, without committing a criminal offence. The suggestion is obnoxious. I understand why it has been made. It has been made for the most honourable and pure reasons, but it would not be a good idea.
I also see some difficulty in definition. Who is a journalist? If a journalist leaves a newspaper or the media channel for which he or she is working, does he or she cease to be a journalist? Does he or she cease to be a journalist after five years or 10 years if he or she ceases to practise that profession? What does “practice that profession” mean? Some of us write articles for the press from time to time. In the old days, in my case it was for money, but not at present. Does that make us journalists? If we create a special right and privilege for so-called journalists, obviously a lot of people would like to define themselves or their activities in such a way as to get the benefit of the franchise that has been created. That is an undesirable development.
The noble Lord raises an extremely good point about who is a journalist. When I was being briefed by the media, I asked that very question. The answer is that traditionally we do not define who is a journalist, but I am confident that it does not cause a problem in the way my amendment works.
I have great affection and respect for the noble Earl, but that is no good at all. The idea of creating a special category of people in the key sensitive matter of free speech is bad enough but if you then say that you do not need to define it—in other words, you do not need to restrict in any way the benefit that is being accorded or the possibilities of its misuse—you are on a hiding to nothing. I do not agree with the noble Earl on that subject.
The noble Lord’s anxieties may be further compounded by looking at the terms of the amendment, because the reference is not to journalists but to “for the purposes of journalism”. What is journalism? It is writing in a newspaper—neither more nor less. That is all it is.
The noble Viscount has reinforced my point with greater eloquence than I could have done.
My Lords, it is an uncomfortable fact that the law as it stands has not been as effective as it might have been in prosecuting radicalisers who have stopped short of inviting support for a proscribed organisation but whose words have none the less been instrumental in encouraging others to support terrorist groups, often by actions, not just words. I shall not rehearse the saga of Anjem Choudary and the many unsuccessful attempts to prosecute him over the years. Clauses 1 and 2 attempt to fill a gap in our law by extending the proscription offences. For that reason I look sympathetically on their general thrust although, like the noble Lord, Lord Carlile, I support Amendment 5.
For my part, I could not vote for an extension of the already strong proscription offences in circumstances where substantial numbers of proscribed organisations— 14 by the Home Office’s own admission, and no doubt more in Northern Ireland—are proscribed despite failing to satisfy the statutory condition for proscription, which is being concerned in terrorism. That would expose people to the risk of long prison sentences for expressing opinions supportive of organisations that have long since laid down their arms and committed to peaceful engagement, but which however remain proscribed because no one associated with them has been willing to go to the expense, or indeed attract the associated publicity, of going to court to get them de-proscribed. My support for Clauses 1 and 2 will therefore depend on the outcome of Amendment 59, which would introduce the meaningful review of proscription orders and which noble Lords will consider on another occasion.
My Lords, I shall speak briefly to Amendments 3, 4, 5 and 6. I accept that there may well be a need to further criminalise the overt support of proscribed organisations; I do not dissent from that view. However, we have to accept that what we are proposing in the Bill is an infringement of human rights—the right to free speech. The noble Baroness, Lady Hamwee, is entirely right about that. We therefore need to apply the test of proportionality: to weigh up the evil in one hand and then look at the consequences of what is proposed in the other. It is in that context that I would be very much happier—I now speak directly to my noble friend on the Front Bench—if we were to look again at the concept of specific intent. I would be very much happier if what we were providing for was that the offence was establishable only on proof of specific intent. I find myself very much in support of Amendments 3 and 4 because they seem to satisfy the test of proportionality.
To comment briefly on Amendment 5, I find myself entirely in agreement with the noble Lord, Lord Carlile. Anyone who advocates the de-proscription of a proscribed organisation seems to fall foul of the general language of this part of the Bill, and that should not be the case. It is perfectly proper as part of public debate to argue that a specific organisation should not be proscribed. I therefore hope—
May I just finish this point? Then of course I will give way to my noble friend. I hope the Government will look sympathetically at Amendment 5.
I understand what my noble friend says about Amendment 5 but I am little puzzled by why suggesting that a proscribed organisation should cease to be proscribed is supportive of a proscribed organisation. It is one thing to say that proscription should cease; it is another to be supportive of it.
I wondered that myself but came to the conclusion, having weighed up the language, that to argue that something should not be proscribed probably does constitute action supportive of the proscribed organisation. Even if I was wrong about that, though—in this context my views are shared by the noble Lord, Lord Carlile—it is certainly an arguable position, and I am in favour of clarity in law. That is why I would go with Amendment 5 in the name of my noble friend.
That brings me to Amendment 6, where I am afraid I part company with my noble friend.
I will give way. On this matter I share the views of the noble Lord, Lord Davies.
I know that the noble Lord will be very familiar with the quotation I was mindful of in what he just said, which was Voltaire’s great phrase: I disagree totally with what you say but would defend with my life your right to say it. In that situation, you might disagree totally with what an organisation stands for. I greatly disagree with what a lot of organisations stand for but would defend—I think to the death—their right to say it. Does this not resolve the matter that the noble Lord has just put to the House? You can at the same time urge the decriminalisation of an organisation that has up to then been regarded as a terrorist organisation while not agreeing whatever with the views that it holds.
I shall respond to that intervention and then revert to Amendment 6. I have a lot of sympathy with what the noble Lord, Lord Davies, has said. I have always been on the fairly extreme end of libertarianism when it comes to free speech—and, indeed, in many other aspects of life. As a general proposition, it is much better to know what your enemies are saying, not to ensure that they say it covertly. I like to know who my enemies are and what they are saying: it is then much easier to combat them than if you create a context in which everything is done covertly. In principle, I agree with his position.
Will the noble Lord give way?
I will, but I say for the avoidance of doubt that I have the misfortune to be deaf in one ear. Therefore, when people come up from behind, it is very difficult for me to know that they are there. I hope that I will be forgiven and not treated as discourteous.
The noble Viscount is fortunate to be deaf in only one ear; I and many others here are rather deaf in both. Leaving that aside, does he agree, particularly having regard to what was said by my noble friend Lord Anderson about Clause 59, that it might be helpful to hear from the Minister something about how the Government review and examine the list of proscribed organisations, so that Parliament can be reassured that it is not simply a static list that never changes? I understand that there is a regular review process, but I may be out of date.
My Lords, the point made by the noble Lords, Lord Anderson and Lord Carlile, is entirely right. As I get the sense that the Committee wants to hear from the Minister fairly smartly, I shall now proceed to Amendment 6 and deal with it fairly swiftly. I hope my noble friend will forgive that I cannot accept Amendment 6, for this reason: the phrase used is “for the purposes of journalism”. There is no real distinction between the concepts of “in the course of journalism” and “for the purposes of journalism”: they are very close, if not the same. Many of the proponents of the cases of proscribed organisations, including Mr Choudary, often use newspapers to express their view. If you provide a specific defence to cover language in newspapers and people writing in newspapers—that is what the amendment does—you drive a coach and horses through the entirety of this part of the Bill.
The noble Lord, Lord Davies, also has a point here. I am very cautious about making distinctions between journalists and the ordinary citizen. I am very far from persuaded that, as a general proposition, a journalist should have a privileged position as contrasted with the ordinary citizen. I am not able to agree with my noble friend, but I will of course give way to him.
I remind the Committee that we give journalists a privileged position in the Data Protection Act and significant freedoms of manoeuvre.
That is true but there are many aspects of the law where it is not true. I look nervously at my noble friend Lord Faulks, but I think privileged communications to journalists are not covered by the definition of confidential and privileged information in the ordinary and criminal courts. I would therefore be very chary about extending the privilege to journalists qua journalists. There is also a serious point: who is a journalist? When does a career become spent and when is it still operational? There are quite a few problems along that line. I will bring my remarks to a conclusion so that the noble Baroness can respond to the points made by the noble Lords, Lord Anderson, Lord Carlile and many others.
Just before the Minister responds, can I add a word, I hope not too tiresomely, on Amendment 5? If you suggest that it would be a good idea to deproscribe a particular organisation, can you do so only on the basis that it is better to deal with it in the open, as suggested by the noble Lord, Lord Carlile, and indeed, by the noble Earl, Lord Attlee, so as to discourage recruitment, or can you say that it is because you regard the organisation’s aims as essentially innocuous or perhaps even beneficial overall? If the latter, surely that would risk destroying much of the effect of Clause 1 as a whole. You would simply couple your remarks with a suggestion for deproscription. If the former, surely the amendment, if it is to be incorporated in this legislation, had better build in the need to make it plain that at the same time as promoting deproscription, you continue to condemn the aims of the organisation.
My Lords, I apologise for not having spoken on Second Reading, but I came to this debate on the basis that I had one point to make. Having heard such a range of views, I am afraid that I now have three or four.
To keep the flow going, I shall pick up on Amendment 5 and the argument that there should be an exemption for organisations that cease to be proscribed. I start from the same position as the noble Viscount, Lord Hailsham, that by and large it is better not to proscribe organisations, but to have them out in the open. When they are proscribed, they tend to reformulate and call themselves something else, and it all becomes a bit silly.
Amendment 5 could create a rather large hole through which those who wish to circumvent the purpose of these clauses would get through. People could say, “I am not arguing for what they want; I am simply saying that it is wrong for them to be proscribed because they are rather excellent people whose objectives are entirely understandable, which any sensible person in that part of the world would think is a good thing”. We could run the risk of providing a defence for people and allowing them to do things that we are trying to prevent them doing.
Moving on to Amendment 6, the question of who is a journalist is wider than has already been suggested. We are all citizen journalists now. We all have the option of putting stuff out on the web; we can blog and tweet; we can put things on Facebook, YouTube or whatever we want. Increasingly, people now define themselves as citizen journalists. Unless we go back to something very old-fashioned such as saying that journalism is a controlled profession and you are a journalist only if you have a card issued by the National Union of Journalists, which is probably unlikely, then anyone can say, “I’m doing this for the purposes of journalism, or to further journalism”—whatever it might be—“because I am a journalist; I am a citizen journalist and I am putting this material forward”. While I do not want to undermine what we would all regard as legitimate—we are all rooted in the past and think of journalism as being about newspapers and producing seriously researched articles and investigations—the word no longer means what it used to mean. Therefore, if we are going to say that there should be some sort of exemption for journalism, we need to define it much more closely than it is in Amendment 6.
I pity the Minister who has to pull all these threads together. I understand the concerns about freedom of speech; we all share them, in principle. This is all about proportionality: balancing that freedom against the harm that may be being done. It is apparent that, as the law stands, it has been impossible to pursue people who are palpably causing a great deal of damage. That is why the Government are seeking to amend it. I assume that they have not gone down the route of saying that someone must have the “intent” to do this because proving intent is rather difficult. Under those circumstances, if we put proving intent in we will be back where we started and not able to pursue some of the individuals who do so much harm.
This is why I rather like the phraseology of my noble friend Lord Rosser, who talked about a “pattern of behaviour”. This exempts people who just express an opinion on one occasion and suddenly find they have fallen foul of the law. However, somebody who has a systematic approach to pushing people in a certain direction would fall foul of it. For that reason, I hope that the Government will carefully consider Amendment 1, or something akin to it, which indicates that what should be prosecuted is not a simple isolated act—a mere expression of an idle opinion—but somebody pursuing a course of action which is designed to have this effect.
I hesitate to join this discussion, but I support the intention behind all the amendments in this group. They seem to narrow and clarify the rather wide scope of the Bill. On Amendment 4, it may or may not be right to take away the test of recklessness but the noble Viscount, Lord Hailsham, may have a good point about specific intent. I may need the protection of Amendment 5 myself, because I have previously argued that Hamas and the PKK should be removed from the list on the grounds that they have ceased to use terrorist methods and shown a willingness to enter into negotiations about the conflicts in which they have been engaged.
My Lords, several noble Lords have opposed Amendment 6, in my name, partially on the grounds that it does not define what “journalism” means. That definition is going to be a problem for my noble friend the Minister in due course, because she will tell us that journalists have nothing to fear from the new Act. It would be helpful if, in due course, she writes to noble Lords to tell us what she means by “journalism”.
I suspect that the discussion about journalism and journalists focuses the Committee’s attention on these provisions. I share the views expressed in the House that there should be no special position for journalists. When they exercise their rights to freedom of expression they are simply exercising our rights to that freedom and to looking at other people’s expression. Does the current provision in the Bill run a serious—or any—risk that a genuine, bona fide journalist, examining the issues without any criminal intent at all, may be caught? If so, the provisions need to be re-examined; if not, not.
My Lords, I am reminded of the words of the noble Lord, Lord King of Bridgwater, at Second Reading. He said that the provisions of the Bill must be “necessary” and “proportionate” but that we may not agree on what that means. The debate so far has reflected that.
I support all but one of the amendments in this group. I apologise to the noble Earl, Lord Attlee, for having some reservations about his amendment. Amendment 1 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, highlights the fact that this offence should be part of a pattern of behaviour—and not a single instance that could well be inadvertent, as the noble Lord, Lord Harris of Haringey, has just suggested.
Amendment 2 in the name of the noble Baroness, Lady Jones of Moulsecoomb, necessarily tightens up the very loose term “is supportive of” by substituting “supports”. I am grateful to Liberty for its briefings on this group of amendments, on which I intend, in part, to rely. As my noble friend Lady Hamwee has explained, and as the Joint Committee on Human Rights concluded in 2006:
“Speech does not naturally reside in the realm of criminality. This is why the element of intention should always be attached to speech offences”.
A reference has already been made—by the noble Baroness, Lady Jones of Moulsecoomb, for example—to the Court of Appeal case R v Choudary and Rahman, which concluded that,
“the criminality … lies in inviting support”.
It continued that,
“the expression of views and opinions, no matter how offensive”,
should not be criminalised,
“but only the knowing invitation of support from others for the proscribed organisation”,
as this would otherwise amount to interference with Article 10 of the European Convention on Human Rights, which provides the right to freedom of expression.
As my noble friend Lady Hamwee has said on Amendment 3, to which I have added my name, this amendment restores what we consider to be the vital element of knowingly encouraging support for a proscribed organisation by inserting an intention to encourage support. Amendment 4, in the name of the noble Baroness, Lady Jones, has a similar effect.
Amendment 5, in the names of my noble friend Lady Hamwee and the noble Earl, Lord Attlee, to which I have added my name, provides an exception where a person is arguing that an organisation should not be proscribed. We have just heard from the noble Lord, Lord Anderson of Ipswich, that there are currently proscribed organisations that should not be proscribed. The noble Lord seeks to bring forward an amendment that he has already referred to, later in the Bill, to ensure that proscription decisions are regularly and proactively reviewed. It cannot be right that the noble Lord—or the noble Lord, Lord Hylton, or anybody else—should be committing an offence if they argue that an organisation is wrongly proscribed.
As I have suggested, I am slightly nervous about Amendment 6 in the name of the noble Earl, Lord Attlee, and the noble Lords, Lord Rosser and Lord Kennedy. I can see their objective, but claiming that an opinion or belief was published or broadcast for the purposes of journalism could allow those deliberately expressing or encouraging support for a proscribed organisation to claim this exemption.
This clause criminalises expression of opinion or belief, contrary to the fundamental human right of free expression, despite what the noble Lord, Lord Carlile of Berriew, has said. The existing offence, under Section 12 of the Terrorism Act, is comprehensive. It covers somebody who invites any kind of support for a proscribed organisation, or arranges, or assists in arranging, a meeting in support of a proscribed organisation, or a meeting addressed by someone who belongs to, or says they belong to, a proscribed organisation.
I appreciate that the Government want to be seen to be taking further action, and I accept what the former independent reviewers of terrorism legislation have said about the gap in the legislation. But I believe that this section strays beyond a necessary and proportionate interference with freedom of speech, even where balancing the public’s right to life. I therefore agree with my noble friend Lady Hamwee that Clause 1 should not stand part of the Bill.
My Lords, I thank all noble Lords for their many and varied points on the amendments and, up front, I apologise if I take some time to respond to all of them.
This is the first of a number of clauses in the Bill that update existing terrorism offences to ensure that the police and prosecutors can respond effectively to the current terrorist threat and contemporary methods of radicalisation.
I should say at the outset that I am well aware that this clause addresses a sensitive area of the law—namely, freedom of expression—and I recognise that concerns have been raised both in the House of Commons and in this House. As has been so eloquently explained, it is such concerns that have motivated the noble Lord, Lord Rosser, the noble Baronesses, Lady Hamwee and Lady Jones of Moulsecoomb, and my noble friend Lord Attlee to table their amendments. However, I hope that I can allay such concerns and persuade the Committee to support Clause 1 as drafted by explaining exactly why the Government believe that this measure in its current form is necessary, the types of cases it is aimed at and how it will operate in practice.
Under the law as it stands, it is already an offence under Section 12(1)(a) of the Terrorism Act 2000 to invite another person to support a proscribed terrorist organisation such as Daesh or the racist neo-Nazi group National Action. What is an “invitation” in this context? The Court of Appeal addressed this question in the 2016 case concerning the extremist preacher Anjem Choudary, who was eventually convicted for the Section 12(1)(a) offence. The court made the following point:
“The use of that word means the offence in section 12(1)(a) is one where ‘the words descriptive of the prohibited act ... themselves connote the presence of a particular mental element’, as per Lord Diplock in the 1970 case of Sweet v Parsley. As the judge said, it is difficult to see how an invitation could be inadvertent”.
The invitation may be explicit or more indirect, implicit or opaque, but either way, for a conviction to be secured, the prosecution must be able to prove an intention to influence others to support the terrorist organisation. I recognise that at first blush this might appear to be the right threshold for the offence. However, having conducted a careful review of our terrorism legislation, the requirement always to prove intent to influence others has been highlighted by the police, MI5 and the CPS as a gap in their ability to act against certain individuals: those who, despite it not being possible to prove that they intend to do so, as the noble Lord, Lord Harris, said, none the less clearly and unambiguously risk harm to the public by virtue of their expressions of opinions and beliefs which have the effect of encouraging others to support proscribed groups, with the associated harm that flows from such support.
Perhaps I should have asked this question earlier of some of the noble and learned Lords here or perhaps of the former police officers, but is there another criminal offence where a person who expresses an opinion has to police themselves to make sure that there is no risk of any outcome from what they write? That seems to me utterly illogical. Are there any other criminal offences of that kind?
I look to the cavalry behind me to answer that as I am not an expert in criminal law, but noble and learned Lords might wish to say whether such offences exist.
I do not see myself as a horse and therefore I am not the cavalry, but some hate crimes are rather seriously deficient in relation to these issues.
Yes, the noble and learned Lord is quite right. Many of them would be caught, particularly in an online context, expressing an opinion quite poisonous in nature and intended to cause harm.
As a result of the gap, it has not been possible for the police to act against prolific and high-profile preachers of hate—as the noble and learned Lord has just pointed out—who have made highly inflammatory public speeches that are very clear about the speaker’s support for a terrorist organisation and that are, on any reasonable assessment, likely to cause the audience to be influenced to support the organisation. Prosecution has not been possible in these cases because the statements made cannot be proven to amount to an “invitation”—a deliberate act of encouragement—to support the group. The gap that the law needs to address concerns individuals who are reckless as to whether they will cause harm to arise.
Under Amendments 3 and 4, however, in the names of the noble Baronesses, Lady Hamwee and Lady Jones, this gap would not be addressed. They would remove the recklessness test and replace it with one that effectively repeats the existing position, so it would still be necessary to prove the same deliberate act of encouragement. To be clear, Amendments 3 and 4, both of which would have the same effect, would effectively nullify the utility of this clause and, as such, if they are made we might as well strike the whole clause from the Bill—and I know that some noble Lords want to do that.
Reckless activity such as I have described can have a powerful and harmful effect in initiating or moving along the process of radicalisation. We have seen time and again that engagement with radicalisers, hate preachers and organisations such as that headed by Anjem Choudary has been a prominent feature in the backgrounds of those convicted of planning or carrying out terrorist attacks.
In giving evidence to the Bill Committee in the House of Commons, Assistant Commissioner Neil Basu provided two powerful examples—Mohammed Shamsudin and Omar Brooks—to illustrate the type of case where this gap arises. I urge noble Lords to consider carefully that evidence. Both examples are senior figures within al-Muhajiroun, both have an extensive history of involvement in radicalisation and the spreading of extremist propaganda, and one has previous terrorism convictions. Both individuals gave public speeches that were clear about the speakers’ own support for Daesh, its ideology and its actions—including, for example, throwing gay people off buildings—and both voiced their approval of past terrorist attacks, including the murder of Lee Rigby and the 2015 Sousse attack in which 30 Britons and eight others were killed.
I do not need to explain to noble Lords how such speeches can cause great harm, spreading hatred and poison and radicalising vulnerable individuals, potentially to the point of carrying out attacks. But Assistant Commissioner Basu reported that, despite this, it was not possible to prosecute either individual in relation to the public speeches he had described. This is because, on the specific facts, neither could be proved to have invited their listeners to support the proscribed organisation they were speaking so vehemently in support of. This surely is not the right answer.
It cannot be right that we do not give the police and the courts the power to take action in the face of such poisonous rhetoric and such unmasked and virulent support for terrorism, in circumstances where there is, on any objective assessment, a real risk that individuals to whom it is directed will be influenced by it. Clause 1 does just that and would close this gap. Specifically, it amends Section 12 of the Terrorism Act 2000 so that it will be an offence for an individual to express support for a proscribed terrorist organisation when that individual is reckless as to whether another person will be encouraged to support the organisation. The crux of the amended offence will be the introduction of the recklessness test, which Amendments 3 and 4 would remove.
I recognise that the test has caused concern and I would like to take this opportunity to explain to noble Lords what it means and how it will work in practice. The term “reckless” is a well-established, well-understood concept in criminal law. It is one with which the courts are familiar, particularly as a result of the clear case law established by the then Appellate Committee of this House in 2003 in the case of R v G and another. It therefore does not to be defined or further explained in the Bill, as some have suggested.
Under the terms of that judgment, a person acts recklessly where he or she is aware that, in the circumstances, there is a risk that their conduct will result in the proscribed outcome and they none the less engage in the conduct in circumstances where a reasonable person would not. In this context, a person might act recklessly if, in the course of addressing an audience consisting primarily of individuals whom he believes are of an Islamist extremist mind set, he speaks of his own support for Daesh, believing that he has a degree of influence over the audience and being aware of the risk that members of the audience will be influenced by him to support Daesh. It is uncontroversial to say that a reasonable person would not and should not proceed to make that speech in those circumstances. Clause 1 will ensure that the person who none the less recklessly does so can be held to account by the courts. Given the harm that can arise as a direct result of this type of radicalisation, the Government consider this proportionate.
The noble Baroness, Lady Hamwee, asked for a definition of “directed” in the context of the person to whom the defendant “expresses an opinion or belief”. “Directed” means conveyed to or aimed at that person or persons, who may not need to be known to the defendant. If such an expression of a belief is tweeted or otherwise uploaded on to a social media platform, it is directed to those who would see such an expression—that is, those following the defendant’s twitter feed.
The noble Baroness used the word “aimed”. I thought that “directed” may have meant “targeted” as distinct from “published”, which is a wider concept. Saying that it is “aimed” takes me, at any rate—and maybe other noble Lords—back to my same question. Of course, after today’s debate, I shall read what the noble Baroness has said. It is a difficult issue.
My Lords, we are dealing with many difficult issues here. I thank the noble Baroness. We will, of course, have further discussions.
Amendment 1 would raise the threshold for commission of the offence from a single instance of the prohibited behaviour to a pattern of behaviour. Given the seriousness of this type of behaviour and the potential harm that can be caused, I cannot agree that the amendment is appropriate. I point out that there is no requirement for there to be a pattern of behaviour in the existing Section 12(1) offence. I therefore do not see a case for adopting a different approach for the new Section 12(1)(a) offence.
I also fear that the amendment would run into similar issues with definition and certainty to those which were raised in the House of Commons in relation to the three clicks element of Clause 3, and which ultimately led to the Government’s removing that provision. For example, how many instances constitute a pattern of behaviour and how far apart can they be?
The noble Baroness says it is difficult to define. Presumably, the court would then have to interpret it and would say that this is clearly a pattern which is designed to have this effect.
The court might also say that it is evidence, along with other types of evidence, which leads it to a certain conclusion. Just as the three clicks approach was seen as arbitrary in debate in the House of Commons, this is probably similar in the sense that downloading, together with other types of evidence, would lead a court to come to its conclusions, as it would here.
I want to talk about the concept of recklessness. It involves a person being aware of the risk that what they plan to say will have the effect of encouraging support but none the less going on to say it. In such circumstances, a reasonable person would not have gone on to make that statement.
On Amendment 2, the noble Baroness, Lady Jones, explained her concerns both at Second Reading and today that statements supporting an independent Kurdistan may fall foul of the new offence on the basis that it is a political objective held also by the proscribed group the PKK. I hope I can provide some assurance. On the noble Baroness’s example, I suggest that our hypothetical person could have a very high level of confidence that they would not fall foul of the Clause 1 offence. Support for an independent Kurdistan is a view held widely across a far broader range of people than just PKK members. To put it another way, while all members and supporters of the PKK are likely to support an independent Kurdistan, it is certainly not the case that all supporters of an independent Kurdistan are members or supporters of the PKK. It certainly could not be inferred from a statement in the terms described by the noble Baroness that the speaker supports the PKK or another such organisation; rather, they support an independent Kurdistan.
Noble Lords can take further assurance from the fact that in addition to not referencing any particular organisation, our hypothetical speaker has not said anything of the methods by which they would wish to see an independent Kurdistan brought about. Were they to suggest that this should be through means of terrorist violence, a reasonable person might anticipate that such a statement might influence the listener to support a terrorist organisation, such as the PKK, which supports the same political cause. Such a statement may well be reckless and may fall foul of the new Clause 1 offence. I hope we can agree that such a statement of support for terrorist violence would be unacceptable in any event. But in this example, there is no such suggestion of support for terrorist methods to achieve a legitimate political aim.
The same would apply to a statement in support of the withdrawal of Israeli troops from Palestine that does not voice support for violent methods or any proscribed terrorist organisation. There would be no basis on which a reasonable person might equate such a statement with support for Hamas or Hezbollah or anticipate that a listener would be influenced to support those organisations. As such, the statement would not meet the recklessness test and would not be caught by Clause 1. I make it clear that none of this analysis would be any different if “is supportive of” were replaced with “supports”.
Amendment 5, in the name of the noble Baroness, Lady Hamwee, would provide an exemption from the offence for those who make statements to the effect that a particular terrorist organisation should cease to be proscribed. We will have a wider debate on deproscription when we reach Amendment 59 in the name of the noble Lord, Lord Anderson. In that context, the noble Lord, Lord Carlile, is correct in saying that the Home Secretary regularly reviews proscribed organisations.
Perhaps I may make a few observations in the context of Amendment 5. I am happy to agree that those who make neutral statements along these lines should not be caught by the criminal law. However, I am clear that this will be the position under Clause 1 as currently drafted. The amendment, while well intended, is not needed to secure this result and would risk introducing unintended consequences. It has been a long-standing feature of the proscription system that individuals and organisations will question the proscription of certain organisations. It may be suggested, for example, that a group is not really terrorist in nature but is engaged in legitimate activism in the form of resistance or freedom fighting, or that its proscription inhibits a peace process or some other form of positive engagement and should therefore be lifted as a matter of discretion. The law already provides a clear route for people who hold such views to apply to the Home Secretary for the deproscription of any organisation. Three groups have been deproscribed following such applications.
The law also provides at Section 10 of the Terrorism Act 2000 clear and unambiguous immunity from prosecution under proscription offences for anything done in relation to such an application, including any statements made in support of the organisation.
I apologise for interrupting the Minister. Can she reassure the Committee that the Home Secretary’s regular reviews are, first, regular in the sense that they take place at fixed periods and, secondly, that the reviews include looking at organisations—there may be some in Northern Ireland—which now have no members at all and have not engaged in any activity, so no one is going to apply for de-proscription and they are simply redundant? I certainly suspect that there may be some organisations of that kind.
The point the noble Lord makes moves us very much into the territory of Amendment 59. However, I can confirm absolutely that the Home Secretary regularly reviews proscribed organisations. As noble Lords will probably remember, I have advised deproscription on a number of occasions. We will come to that point in due course.
Perhaps the noble Lord would remind me of his second query.
It was simply about the deproscription of organisations that basically do not exist any more.
I have probably answered that, but I know that we will have a full debate on Amendment 59.
Section 10 intentionally does not extend a blanket immunity to situations where a person makes a statement that may generate support for a proscribed terrorist organisation and which is not connected to an application for de-proscription, but is made in the course of a debate about whether in principle the organisation ought to remain proscribed. Such statements may well be entirely legitimate and may address matters of fact and of law in neutral terms, in which case they would not be caught by Clause 1, but they may also be reckless as to whether they will encourage others to support the organisation. They may not only suggest that the proscription should be lifted but argue that this should be done because the terrorist aims and activities of the organisation are a good thing, potentially giving rise to the serious harms I have described. One noble Lord has given examples of both of those scenarios. To provide a blanket exemption for any and all such statements would undermine the fundamental purpose of the offence and would risk preventing its use in exactly the situations for which it is intended.
Finally, I turn to Amendment 6 in the name of my noble friend Lord Attlee. This would introduce a blanket exemption from the offence for any expression or belief that would otherwise be unlawful which is published or broadcast for the purposes of journalism. It is of course beyond doubt that the freedom of journalistic expression, within the law, should be sacrosanct. Given the importance of this public interest, I expect the police, the CPS and the courts to tread very carefully indeed in any case where a journalist is suspected of an offence under Clause 1, in line with the normal safeguards and tests for prosecution. However, just as the noble and learned Lord, Lord Judge, argued so succinctly, I cannot agree that there should be an absolute exception for any person engaging in journalism.
In a case where a journalist reports the expression of such an opinion or belief by a third party and publishes or broadcasts that expression in the course of reporting on it, then of course the journalist would not be liable under Clause 1. It is the person who actually expresses the opinion or belief who will be liable. In a case where the journalist expresses their own view or belief, which falls under the terms of Clause 1, as the noble and learned Lord, Lord Judge, outlined, then it is right that they should be held accountable for that. Journalists have great freedoms to express their views and are rightly protected in that respect, but they are also under a duty to carry out their activities responsibly and in accordance with the law. They are not free to cause whatever harm they might wish to individuals or to wider society. They are not immune from other criminal offences that they might commit in the course of their activities if they do not act responsibly, and they are of course subject to the law on libel. This is the normal position and I do not see a need to depart from it in Clause 1.
We should be mindful that not all those who engage in journalism will share our values and be committed to acting responsibly. A universal and unilateral exemption of this kind would risk providing a platform for those who openly hold extremist views to recklessly espouse their own support for terrorist organisations in the terms that fall under Clause 1 and are likely to result in the harms I have described.
The Government firmly believe that the measure is compatible with the European Convention on Human Rights. Indeed, I have signed a statement to this effect, which appears on the front of the Bill. The Government will not restrict freedom of speech as long as someone does not break the law and promote a proscribed group that carries out, glorifies or encourages terrorist violence.
I should add that this provision will fall within the statutory remit of the Independent Reviewer of Terrorism Legislation, as does the existing Section 12 offence. This robust and staunchly independent oversight will help us to ensure that the amended offence is used appropriately and will bring to Parliament’s attention any concerns that it is not. I therefore hope that the noble Lord, Lord Rosser, will be content to withdraw his Amendment 1 and that the Committee will support Clause 1 standing part of the Bill.
I thank all noble Lords who spoke on this group of amendments. It has been a very wide-ranging debate with a wide range of views either supportive of or opposed to Clause 1, or to specific amendments we have debated. I certainly do not intend to try to summarise what has been said or to comment on the response we have heard from the Minister. As I said, I thank her very much for her reply, which I am sure has been appreciated because it was comprehensive and addressed a number of the questions raised, albeit people will of course have different views on whether they found that reply acceptable.
As far as my amendment is concerned—it related to pattern of behaviour—I do not want to say anything that commits me one way or another to doing anything on Report, but I will certainly reflect on what the Minister said when arguing against it. One of her points was that it was not in the existing offence, but it could be that the existing offence is rather more clearly definable than the new offence that appears in Clause 1. We had similar difficulties over the three clicks issue. That was slightly more difficult than, frankly, seeking to define what a pattern of behaviour might be.
I conclude by once again thanking noble Lords who have participated in the debate on this group of amendments and genuinely thanking the Minister for her reply: I am sure the House will have appreciated the depth to which she went in explaining the Government’s position. I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Amendments 2 to 6 not moved.
Clause 1 agreed.
Clause 2: Publication of images and seizure of articles
7: Clause 2, page 1, line 15, leave out subsections (2) and (3)
My Lords, I shall also speak to Amendment 8 in this group. Clause 2 amends Section 13 of the 2000 Act to criminalise the online publication of an image depicting clothing or other articles which,
“arouse reasonable suspicion that the person is a member or supporter of”—
maybe even supportive of—“a proscribed organisation”. At least we are not taxed with whether that is directed at anyone.
In their response to the Joint Committee’s report the Government told us that they do not believe that legitimate publications will be caught, as the offence bites only where the publication arouses reasonable suspicion of membership or support. However, in our view the arousal of reasonable suspicion is a low threshold to make out an offence. We are concerned that the clause risks catching a lot of conduct that, in common-sense terms, should not be caught. The amendments are, of course, alternatives: they would either leave out subsections (2) and (3) or, in Amendment 8, amend subsection (3) rather than omitting it, to provide that there is no offence,
“if there is a reasonable excuse for the publication of that image, such as”—
whether this is the best way to give examples or not I do not know—
“historical research, academic research or family photographs”.
In other words, those are not exclusive. Amendment 8 also specifies that there be no intention,
“to support or further the activities of a proscribed organisation”.
In other words, it would create a defence of reasonable excuse.
The Minister in the Public Bill Committee relied on the “reasonable suspicion” provision. I do not think that is the whole point. He also relied on there having been no prosecutions of journalists or researchers under the existing provisions which use similar wording. Of course that is of some comfort but, as I said at Second Reading, I do not think we should rely on the public interest test for prosecutions: I hope that the collective brainpower of this House can get us to a point where the wording is correct without our having to look at the public interest test. I beg to move.
My Lords, in my view it is very important that photographs which may have a dramatic effect on the opinion of those who view them should be dealt with in the way described in this clause. They may, for example, include photographs derived from execution scenes which are both disturbing and, unfortunately, very influential.
In general terms I support this clause. I have a reservation about the Northern Ireland situation, and ask the Minister to reflect on this before Report and possibly consult more widely. I have travelled extensively in Northern Ireland, both when I was Independent Reviewer of Terrorism Legislation and subsequently. I have been taken to scenes where there is imagery which is now internationally regarded as works of art. I have been taken to scenes where there is imagery which may on the face of it be very distasteful, but plays an extremely important part in the history of the community concerned and in the extraordinary settlement that has taken place in Northern Ireland as a result of the Good Friday agreement, and I would not wish anything to be done that might disrupt that. It seems that the Secretary of State for Northern Ireland and the Police Service of Northern Ireland should be consulted to determine the issues raised in those amendments, before we become too dogmatic about them.
My Lords, my noble friend Lord Thomas of Gresford and I oppose this clause standing part of this Bill. I agree with my noble friend Lady Hamwee that it goes well beyond what is necessary for the protection of the public against terrorism. While I quite understand the point just made by the noble Lord, Lord Carlile, that imagery is in many circumstances unacceptable, I disagree with him that this provision meets that problem. We have seen no evidence from the Government that persuades me that the terms of this proposed new section would reduce terrorism or make terrorists easier to catch. I believe that it departs from the sensitive balance between the protection and the security of the public, and the public’s civil liberties, in a way that is irredeemably bad.
The Government seek to define an objective—deterrence of displays encouraging terrorist groups—but offer no evidence as to why the new offence in these terms is needed. That is the first reason why it should be opposed. In other words, if we apply the first test I suggested at Second Reading for considering these measures—what is the purpose of this provision, which is a measure criminalising publication only; and what is the mischief it seeks to address—the Government leave both questions unanswered. Because the purpose is left undefined, it is not possible even to move to the second test of whether the measure is necessary to achieve that purpose.
The second reason why this clause should be opposed is that a person might be convicted of an offence under proposed new Section 1A, even if no mens rea of any kind is proved. To introduce a new offence criminalising behaviour where the prosecution is not required to establish any mental state on the part of the alleged offender is a very serious matter, and needs compelling justification. No such justification has been advanced in support of this clause. This is an absolute offence of publication, the only indicator of a guilty mind being that publication takes place,
“in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation”.
No requirement is proposed that the person charged should have deliberately, or even recklessly, given rise to such suspicion; no requirement that that person should be a member or supporter of a proscribed organisation; or even that the person should in fact have done anything to make anybody think that he or she was such a member or supporter. There is not even a requirement that the publication itself should be deliberate. A person who accidentally captures an offending image and unwittingly publishes it might be committing the offence merely because other reasonable people might regard the publication as casting suspicion on the person who publishes it. As for the images published that may be caught by this clause, the range is very wide. It follows, applying the test of proportionate response, that this measure is disproportionate, and it is no surprise that this term was used frequently in the first report on the Bill by the Joint Committee on Human Rights.
For the reasons given by my noble friend and other noble Lords who have amendments in this group, Amendments 7, 8 and 9 would make the clause considerably less offensive. However, I suggest that introducing new offences such as this is an unjustified intrusion of the criminal law into an area from which it should be excluded, in a way that is unacceptable. I agree with the Joint Committee on Human Rights that the clause,
“risks catching a vast amount of activity and risks being disproportionate, particularly given the lack of incitement to criminality in the mens rea of this offence. It risks a huge swathe of publications being caught, including historical images and journalistic articles, which should clearly not be the object of this clause … it risks a disproportionate interference with Article 10”.
Finally, there is no evidence relied on by the Government that the offence would be in any way an effective weapon in the battle against terrorism, which we all strongly support.
As for the seizure provisions relating to the offence proposed in new subsection (4), because the principal offence is too wide, so are the seizure provisions. They move some way down a road to police powers that I suggest are excessive, obtrusive, arbitrary and unnecessary. Such powers being ancillary to an absolute offence of publication such as is proposed would carry the risk of alienating exactly those whose support for the police we should be trying to win.
My Lords, I support all the amendments in this group. Amendment 7, in the name of my noble friend Lady Hamwee, to which I have added my name, removes the publication of images from this section and the new offence of publishing an image.
The existing offence under Section 13 of the Terrorism Act 2000 already outlaws the wearing of an item of clothing and the wearing, carrying or displaying of an article,
“in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”.
As I understand it, the Government want this new offence to cover photographs taken in a private place. As Liberty has pointed out in its briefing, this increases the risk that in so doing law enforcement may,
“mistake reference for endorsement, irony for sincerity, and childish misdirection for genuine threat”.
I gave the example at Second Reading of an innocent Facebook post of a selfie in a friend’s bedroom, with the subject not realising that there was an ISIS flag on the wall behind them.
Both the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights have expressed their unease with the new offence, which, like Clause 1, risks disproportionate interference with Article 10 of the European Convention on Human Rights. There is a general point here that covers both Clause 1 and Clause 2. I accept what the Minister has said—that these offences are designed to address a gap in the ability of the authorities to prosecute some people—but this runs the risk of creating a chasm into which innocent people are going to fall. Regrettably, we have seen time and again—I speak as a former police officer with more than 30 years’ experience—legislation that is too loosely drawn being abused by the police to arrest and detain people who should not be arrested or detained.
Amendment 8, in the name of my noble friend Lady Hamwee and the noble Baroness, Lady Lawrence of Clarendon, to which I have added my name, seeks to exclude those circumstances identified by the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights of,
“historical research, academic research or family photographs”,
and any publication that,
“was not intended to support or further the activities of a proscribed organisation”.
I appreciate that I have not heard from the Labour Front Bench in support of Amendment 9, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark—that has a similar intention to Amendment 8 but specifically includes journalism.
Taken together with the requirement that the publication was not intended to support, encourage support for or further the activities of a proscribed organisation, my concerns about universally exempting journalism, as in Amendment 6, do not apply to this amendment and therefore I support it.
This extension of the law risks criminalising those who have no intention of carrying out acts of terrorism or encouraging others to do so. As such, I agree with my noble friends Lord Marks of Henley-on-Thames and Lord Thomas of Gresford that Clause 2 should not stand part of the Bill.
My Lords, the amendments in this group seek to provide clarity on the issues in question before the Committee on this clause. They seek to put into the Bill the recommendations of the Joint Committee on Human Rights, which has looked at the Bill in detail. The committee has set out the position clearly. This clause is intended to criminalise the online publication of an image depicting clothing or other articles which arouse reasonable suspicion that a person is a member or supporter of a proscribed organisation. The committee has taken the view that the arousal of reasonable suspicion of support for a proscribed organisation is a low threshold under which to make an offence. I agree very much with the committee in that respect, as I do with the noble Baroness, Lady Hamwee—it may be too low a threshold.
The noble Baroness and the noble Lord, Lord Paddick, have put forward Amendments 7 and 8 in this group, as the Joint Committee suggested. Amendment 9, as proposed by myself and my noble friend Lord Rosser, is similar in effect to Amendment 8 but, as we heard from the noble Lord, Lord Paddick, we also make reference to journalism and academic research. All the amendments in this group are reasonable and proportionate. The new offence of publication of an image would be retained but through them we have created a proper defence of reasonable excuse in the Bill, which is important. The noble Lord, Lord Marks of Henley-on-Thames, has opposed Clause 2 standing part of the Bill. That gives the Minister the opportunity to justify this afternoon what is proposed in the clause.
The noble Lord, Lord Carlile, made an extremely important point in respect of images in Northern Ireland. Like the noble Lord, I have travelled extensively in the Province, where you can now visit areas with murals all over the place. Some of them can still look quite aggressive but they are also very much part of the tourist trail in certain parts of Belfast. We need to look at this issue and be careful about whether what we do here has unintended consequences. If the Minister does not accept the amendments before the Committee, can she set out how we can be satisfied that there is adequate protection in place within the clause as drafted?
My Lords, under Clause 2 it will be an offence to publish an image of an item of clothing or other article associated with a proscribed organisation,
“in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of”,
the organisation, as noble Lords have pointed out. This provision updates for the digital age the existing offence at Section 13 of the Terrorism Act 2000, which criminalises the display in a public place of such an item in such circumstances. That existing offence applies only partially in cases where a person publishes an image online. While it would be likely to catch a person who publishes an image of, for example, a Daesh flag displayed on the streets, it could be argued not to apply to publication of an image of the same flag displayed within a private home, even if both images are made available to the general public by publishing them online in the exact same way.
The purpose of Clause 2 is to put beyond doubt the application of Section 13 to any case where a person publishes an image of something which it would be unlawful to display in person. It does this by inserting a new offence into Section 13 as its new subsection (1A). This is important to ensure that the law applies properly to contemporary online activity. In the 18 years since the Section 13 offence was enacted, we have of course seen an exponential growth in the importance of the internet in day-to-day life, and sadly its role in radicalisation and the spreading of terrorist propaganda is no different. This includes publishing images of flags and logos associated with proscribed terrorist organisations. We therefore need to update our legislation to reflect these developments and to ensure that all public spaces, including those online, are properly covered by laws which prohibit the publication of such material. Amendment 7 would simply remove this provision in its entirety, rather than seeking to amend or improve it, leaving the gap I have just described and leaving our terrorism legislation out of date and incomplete.
Amendments 8 and 9 would add a reasonable excuse defence to the new Subsection (1A) offence I have outlined. Both specify certain examples of reasonable excuse. Amendment 6 includes instances where publication of the image was not intended to be in support of a proscribed organisation, whereas Amendment 7 makes this category an absolute exemption.
Noble Lords have indicated that their intention is to ensure that the offence does not catch those with a legitimate reason to publish images of items associated with proscribed terrorist organisations, in particular in the context of historical or academic research or family photographs, or who otherwise publish such images without nefarious intent. I am very happy to support both the sentiment and the intention behind these amendments. The Government have no desire to criminalise people for simply going about their legitimate professional activities or their normal family life, but these amendments are not needed to secure that outcome. In fact, the same outcome is already secured by Clause 2.
To explain why that is so, it is important to note that the mere publication of an image associated with a proscribed organisation is not enough on its own to constitute an offence under the existing Section 13 offence or the new offence that will be added to it by Clause 2. The offence will be made out only if the image is published in such circumstances as to arouse reasonable suspicion that the individual is a member or supporter of the proscribed organisation. This provides a clear and effective safeguard. For example, in a case where a journalist features an image of a Daesh flag in a news report on the activities of the group or an academic publishes such an image in a book or research paper, it would be clear from the circumstances that they are not a member or supporter of Daesh. Similarly, where a person publishes, say, an old family photo of an ancestor standing next to an IRA flag, the offence would not bite unless all the circumstances of the publication suggest that that person is a member or supporter of the IRA.
On the point made by the noble Lord, Lord Carlile, about the sensitivity of symbolism, pictures et cetera and Northern Ireland, if he will indulge me, I will move on to the specific Northern Ireland point on the next amendment.
This approach provides no less certainty to such individuals that they will not be caught by the new offence than would the proposed reasonable excuse defence, and it offers the advantage that the same formulation—
Will the Minister address the example I gave at Second Reading and again today of somebody who does not realise when taking a selfie that there is an ISIS flag behind them on their friend’s wall? In what way would it be clear that those circumstances are not intended to lead to a reasonable suspicion that the people in the photograph are supporters of ISIS?
I was going to explain it in my own words, but I think the notes agree with me. On the innocent selfie with the ISIS flag in the background, the offence is clear: it is committed only where all the circumstances in which an image is published give rise to reasonable suspicion that the person is a member or a supporter of a terrorist organisation. The picture in and of itself is not the offence. I hope I have explained that clearly to the noble Lord.
I invite the Minister to consider that with her department, particularly in view of her concession that she does not wish to criminalise anyone who would be excused by the two amendments we have been discussing. The difficulty is that the drafting of the clause at the moment introduces an objective test of reasonable suspicion in the viewer of the image without any regard to the purpose in the mind of the person publishing the image. The offence is one of publication. The suspicion does not have to be in the mind of the publisher; the suspicion is in the mind of the observer. That is the difficulty that the Minister’s position does not grapple with.
Before the Minister responds, perhaps I could clarify that point. She is saying that in the example of the photograph with a Daesh flag in the background but where the person does not realise what the flag is, the publication of that picture would not in itself be an offence because you would take into account things such as the message that accompanied the Facebook post—for example, a message saying, “I’m here with my friend and having a drink”—so all those things would be considered together. I think that is what the Minister is saying.
As the noble Lord has just explained, it is about the whole context in which this happens. In any case, it will of course be the police and the Crown Prosecution Service that will determine those normal tests for prosecution, and of course ultimately the courts.
The noble Lord, Lord Marks, made the point about the viewer and the publisher. I had hoped that my words would explain that but they do not. I will take back what he says, and I am sure he will challenge me on it on Report. However, I hope the approach provides no less certainty to such individuals that they will not be caught by the new offence than would the proposed reasonable excuse defence, and it offers the advantage that the same formulation has been in force since 2000 in relation to the existing Section 13 offence, which would already be likely to cover many of the circumstances where the item depicted in the image is situated in a public place. As I have said, it is when the item is not located in a public place that the gap begins.
After 18 years that formulation is well understood by the police and the courts. Proof of its effectiveness lies in the simple fact that during that period we have not seen prosecutions of any journalists or academics who have published reports or books containing such images. That should give us some comfort. Nor have we seen any complaints that such people have been inhibited or discouraged from pursuing their legitimate professional activities by the existence of the Section 13 offence. I have sympathy for the objective behind the amendment but I hope that, for the reasons given, noble Lords will agree that it is not necessary. I hope that having heard the arguments for the Section 12(1A) offence and my assurances about the scope of the offence and the effectiveness of its existing safeguards, the noble Baroness will be content to withdraw the amendment.
My Lords, I thank the Minister for her response. This is not intended as a criticism, but in introducing her response the numbering of the amendments went a little awry. I suspect that her briefing was written before the Marshalled List was put together. I say that only for people who may be reading Hansard after today.
The noble Lord, Lord Carlile, made the point about consultation that I made in rather a broader way at the beginning of this afternoon’s proceedings: people who have knowledge of particular circumstances have things to contribute to the legislation that we end up with. I agree with his point about consultation. The Minister says she will deal with Northern Ireland under the next grouping. I hope that consultation, as it is considered under the grouping, can go wider than the PSNI and the prosecution service, which were specifically mentioned, because more people will have things to contribute than just those two organisations. The noble Lord makes an important point.
He used the example of scenes of execution. That is not what the amendments here are aimed at but it makes me wonder whether there is something about intention in all this that we might explore afterwards. A scene of execution is a very extreme example—much more so, I think, than a freedom fighter flag.
The Minister used the term “updating”. I wonder whether what we are talking about here is more about prompting an investigation than creating an offence in itself. I can see that one might want to pursue the sort of situations that she has referred to but, like my noble friend Lord Paddick, I think the words “in such a way” and “circumstances” are very wide.
Pretty much the Minister’s final point was that it would be for the police and the CPS to determine. When I moved my amendment, I said that I really do not want to find us continually relying on the public interest test; we ought to be able to do better than that. My noble friend Lord Campbell, who came into this debate and heard the Minister’s comment, did not hear my introduction but I absolutely agree with him that it is for the courts to determine. One should not be looking at the public interest test as a way of getting out of a difficult situation.
Of course, at this point I shall withdraw the amendment, but I am sure we will look again at the detail of this situation. I beg leave to withdraw the amendment.
Amendment 7 withdrawn.
Amendments 8 and 9 not moved.
10: Clause 2, page 2, line 20, at end insert—
“(5) Before subsection (4) may come into force the Secretary of State must consult the Police Service of Northern Ireland and the Public Prosecution Service of Northern Ireland on the introduction of the power to seize an item of clothing or any other article in Northern Ireland.”
Clause 2(4) confers on the police power to seize clothing or any other article, including flags, associated with a proscribed organisation. The Bill would enable the officer in the circumstances to seize items such as flags, provided that the officer was satisfied that it was necessary to seize such an item to prevent the evidence being concealed, lost, altered or destroyed—evidence that could well be crucial in pursuing an investigation and bringing a successful prosecution.
When this matter was discussed during the passage of the Bill through the Commons, the Government were asked what engagement there had been with the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland about the terms of Clause 2 and the difficulties in pursuing such prosecutions. In response, the Government accepted that taking away a flag in certain parts of Northern Ireland had on occasions acted as something of a lightning rod for a riot or a breakdown in civil order, and that in Northern Ireland a flag does not necessarily, in the context of the provisions of this Bill, have pure terrorist content. The Commons Minister said he did not want to see,
“flag protests becoming more and more polarised than they were in the past”.—[Official Report, Commons, 11/9/18; col. 661.]
In view of the potentially sensitive nature of this issue in Northern Ireland, the amendment would ensure that Clause 2(4) on seizures could not come into force until the Secretary of State had consulted the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland on the introduction of the new provisions in the Bill in relation to the power to seize.
It would be helpful if the Minister could say how the Government envisage the power to seize working across the UK generally. Presumably, there will still be the same potential confrontation over seizing an item, whether on arrest or subsequently reporting the person for summons, with an indication of that course of action being given to the individual concerned at the time. On the basis of what evidence do the Government believe that the likelihood of confrontation will be reduced? Presumably, those on marches or demonstrations will soon know that court proceedings are still likely or possible under reporting a person for summons. Or is the purpose of this option of seizure—of, for example, a flag—in reality a reason to do it this way and then not pursue the matter any further through the courts?
Presumably, there will still be a need to obtain an individual’s name and address on the street at the march or demonstration before or after the seizure of the flag or other item in question, and that information may or may not be given. Both issues—namely, trying to seek such details and the seizure of the flag before or afterwards—might still provoke confrontation. It would be helpful if the Minister could address that point in her response, as well as the more specific issue of the application of the clause in Northern Ireland. I beg to move.
My Lords, briefly, I support the amendment. Judging from the Minister’s non-verbal reaction to it, the consultation proposed seems extremely sensible given the history in Northern Ireland. On whether or not the police will use these powers in a public order situation, the police are very experienced—I declare an interest as a former advanced public order trained police officer who dealt with such situations—and, clearly, a decision has to be made on the basis of the circumstances at the time whether items can be safely seized without escalating the situation. The police service is very well equipped in deploying professional photographers and others gathering video evidence which can be used instead of, or in addition to, seizing those items. So although I agree with the sentiment behind the amendment concerning Northern Ireland, I do not share the concerns of the noble Lord, Lord Rosser, about the seizure of items potentially escalating a situation.
My Lords, as the noble Lord, Lord Rosser, has explained, the amendments relate to the new power to seize flags and other articles provided for in Clause 2(4). Under Section 13(1) of the 2000 Act, it is an offence to wear or display in a public place an item of clothing or other article in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. The seizure power in Clause 2 is intended to ensure that the police and the CPS have the best evidence to pursue a prosecution for a Section 13(1) offence.
Of course, the police already have powers to seize evidence following an arrest, but in some circumstances, particularly in the context of policing a march or demonstration, arresting an individual may not always be an option if the legal tests in the Police and Criminal Evidence Act 1984 for making an arrest are not satisfied; or arrest may not be the appropriate policing response at that time if, as the noble Lord, Lord Paddick, pointed out, it is judged that it would provoke further disorder. In such a case, if the police wish to take action against a person displaying an item such as a flag or banner, instead of arresting the individual, the officer may choose to report them for summons on suspicion of committing an offence under Section 13(1) of the 2000 Act.
The new power introduced by Clause 2(4) would enable the officer, in these circumstances, to seize an item such as a flag which they reasonably believe to be evidence of the Section 13(1) offence in the absence of an arrest. The officer must be satisfied that seizure is necessary to prevent the evidence being concealed, lost, altered or destroyed. By preventing the loss or destruction of such items, this power will better support investigations and will provide and better preserve more evidence to help take forward prosecutions.
As the noble Lord, Lord Rosser, highlighted, and the noble Lord, Lord Carlile, mentioned on the previous amendment, this provision will have different implications in Northern Ireland than in the rest of the UK. This is because of the unique role that flags and banners associated with certain organisations in Northern Ireland—some of which are proscribed—can have, and the particular approach taken to policing this issue in Northern Ireland. The Government are very much alive to this issue, and I am happy today to give noble Lords the assurance that they seek. We have fully consulted relevant partners in Northern Ireland, including the PSNI and the Department of Justice, in the development and introduction of this policy. Those partners are well aware of it and are content with it.
The noble Baroness, Lady Hamwee, asked whether we had consulted any other organisations, and I was not quite sure which she might have had in mind.
I was not so much asking as supporting the noble Lord, Lord Carlile, in his earlier suggestion that there should be consultation regarding works of art and works of historic value in Northern Ireland. I simply referred to the amendment suggesting that those organisations may not be the totality of those who would have views on the points he made.
After the debate, I shall go back and check, but those are the ones we have consulted on this aspect.
Of course, this will be a discretionary police power like any other, and its application in Northern Ireland will be an operational matter for the PSNI, but we will consult and update those partners further, as necessary, prior to the provision coming into force.
The change that Clause 2(4) makes to Section 13 of the 2000 Act is to confer a power on the police to seize flags or other articles associated with a proscribed terrorist organisation as evidence of an offence under Section 13(1). This is intended to ensure that the police and CPS have the best evidence to pursue a prosecution.
Of course, the police already have powers to seize evidence following an arrest, but in the context of policing a march or demonstration, it might not always be an option if the legal tests in the PACE Act 1984 for making an arrest are not satisfied, or arrest may not be the appropriate policing response at that time.
In such a case, if the police wish to take action against a person displaying such a flag, instead of arresting the individual, the officer may choose to report them for summons on suspicion of committing an offence under Section 13(1) of the 2000 Act.
I think I may have been given papers which are forcing me to repeat what I just said.
Ignoring what I just said—I am not sure how that happened—I hope that, with the explanation I have given, the noble Lord will feel happy to withdraw the amendment.
I thank the Minister for her response and thank other noble Lords who participated in this brief debate. Can she confirm that the reason for changing seizure provisions so that seizure can be dealt with by having a person reporting for summons is not meant to be taken as meaning that, where clothing or flags are seized under these provisions, in reality the matter would not be pursued through the courts?
I probably have not made myself clear. There will now be a procedure where clothing, or a flag in particular, could be seized in circumstances where the person could be reported for summons. I asked whether in reality that procedure meant that, once the flag had been seized, the chances were that the matter would not be pursued any further through the courts or whether it was still likely that matters would be pursued through the courts.
Generally, the seizure would be with a view to prosecution, yes.
I am grateful to the Minister for that clarification, and in thanking her once again for her response, I beg leave to withdraw my amendment.
Amendment 10 withdrawn.
Clause 2 agreed.
Clause 3: Obtaining or viewing material over the internet
11: Clause 3, page 2, line 27, after “accesses,” insert “as part of a pattern of behaviour,”
Clause 3 provides for a new offence of obtaining or viewing information online of a kind that is likely to be useful for committing or preparing an act of terrorism. Section 58 of the Terrorism Act 2000 already criminalises collecting, recording and downloading such material. The new offence broadens the type of activity that is potentially criminalised from actively downloading to simply having sight of information, and attracts a maximum of 15 years in prison.
The difficulty once again is that while those we want to catch may well fall foul of the new offence, it is a distinct possibility that those we do not may also get caught up when pursuing their legitimate business, or will be deterred from undertaking some of their legitimate business at all by the thought of getting caught up. As with the previous debate, this could include journalists, academics and those engaged in other research activity, as well as those looking by mistake at information online of the kind likely to be useful for committing or preparing an act of terrorism, or without any intent to act on the material in a criminal manner.
Originally, the Government proposed in the Bill that the new offence should be committed after material had been viewed three or more times—the so-called three clicks test. That was subsequently changed to provide instead for a reasonable excuse defence, which would include cases where the person did not know and had no reason to believe that the information was of a kind likely to be useful to a person committing or preparing an act of terrorism. However, the change could also be interpreted as meaning that an offence could be committed after one click or viewing, rather than three.
The purpose of Amendment 11, therefore, is to minimise the possibility of people carrying out their legitimate business being caught by the new offence by providing that a person commits an offence only if they view or otherwise access material,
“as part of a pattern of behaviour”,
in relation to the offence of accessing the material in question online.
As I said in an earlier debate in which the amendment in question added the words,
“as part of a pattern of behaviour”,
if this amendment does not find favour with the Government, I hope the Minister will say what steps they intend to take to ensure that those with legitimate business in relation to material covered by the clause do not find themselves in difficulty under the terms of the new offence. I beg to move.
My Lords, I have Amendments 12 and 13 in this group. The JCHR accepts that technology has moved on since 2000 but has expressed concern that viewing material online without any associated harm was an unjustified interference with the right to receive information. It was concerned too that the defence of reasonable excuse does not provide an explicit safeguard for legitimate activity. The noble Lord has rehearsed the history of this clause, and the Government’s current position, having excluded the three clicks provision, provides that a reasonable excuse includes but is not limited to situations where,
“the person did not know, and had no reason to believe”,
and so on. We are not reassured that there will be adequate protection for legitimate conduct, so we have proposed Amendment 12, on intention,
“to commit or encourage acts of terrorism”.
At the end of Committee, we will have to collate all the references to intention and recklessness to see whether each of us has been consistent in our arguments, which we may not have been. We want to insert a mens rea of intent.
Amendment 13 adds the phrase,
“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.
If that wording sounds familiar, we have just been through it in Clause 2, so I refer the Minister to my argument then in defence of adding these words.
My Lords, I rise to support the amendments in this group. Section 58 of the Terrorism Act 2000 already makes it an offence if a person collects or makes a record of information of the kind likely to be useful to someone committing or preparing an act of terrorism, or possesses a document or record containing such information. Some examples will be of obvious use to terrorist activity—instructions on how to make a bomb, say—but others are not so obvious.
I walk every morning from St James’s to the House around the time of the changing of the guard. It would be useful for me to know which days the ceremony is being mounted so that I could avoid the crowds, but it would also be useful to a person preparing a terrorist attack on the soldiers taking part in the ceremony. The difference between my actions and the terrorist’s actions are simply the purpose to which that information is being put.
Subsection (4) inserts a proposed new subsection (3A) after Clause 58(3) describing a reasonable excuse defence that at the time of the person’s actions, they did not know, or 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.
I know that the days on which the changing of the guard takes place is information likely to be useful to a person planning a terrorist attack on soldiers taking part in the ceremony, and I know that when I look at it. A reasonable excuse defence would not necessarily stop police being able to arrest and detain me for looking up when the changing of the guard takes place, even if the CPS decided that it was not in the public interest to charge me.
It may be considered to be a trivial excuse but it shows the breadth of this original offence. Indeed, the Independent Reviewer of Terrorism Legislation warned against Clause 3, saying that it risked criminalising those who view material such as bomb-making instructions,
“in disgust, shock and disapproval”.
Amendment 11, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, seeks to ensure that the one click offence is mitigated by providing that it must be,
“part of a pattern of behaviour”.
While I support that amendment, for the reasons I have already given, it does not go far enough. I have therefore added my name to Amendments 12 and 13, in the name of my noble friend Lady Hamwee. The former refers to an intention,
“to commit or encourage acts of terrorism”,
and the latter includes the following phrase:
“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.
My Lords, I understand that this clause is one of several in the Bill intended to deal with the speedy march of technology. The previous legislation particularly had in mind the downloading of material. There is now no need to download material at all. This is intended to deal with the practice of streaming, which not only has become ubiquitous but can now be done at lightning speed. My own internet system was uprated a couple of days ago and I am almost blinded by the speed at which, in the morning, I can get on my telephone whatever I wish to view on my exercise bike. That gives more detail than is probably welcome in this House, but it happens in moments. It is important to tackle the issue of streaming by updating the legislation.
With deference to the Opposition Front Bench, the phrase “pattern of behaviour” is breathtakingly vague and would never pass muster in any court of law as something which could be judged with any certainty. I urge the Minister to reject that phrase. I cite an example which I have seen of legitimate use being made of the kind of material the Committee is looking at. I do not want to embarrass the university concerned by naming it, but I took part in a seminar in the very good law faculty of a very good university in which second-year undergraduates had been asked to look at material online in order to assess the effect that they thought it would have on people who were looking at it out of curiosity, rather than as part of their study. The professor who was supervising this had, of course, informed the local counterterrorism unit that it was going to be done, because he wished to avoid difficulty. That unit welcomed what he was doing, because it was interested in the reaction of 18, 19 and 20 year-olds to material that is usually judged by people with PhDs, police officers or the security service. It gave a new viewpoint on this material and I was privileged to take part. However, it is an absurd notion that something like that would be prosecuted.
This clause extends the existing reasonable excuse defence under Section 58(3) to the new type of material which is available and which the Committee is considering now. As a result of the decision of your Lordships’ House in R v J and R v G in 2009, it has been made absolutely clear that,
“the defence of reasonable excuse must be an objectively verifiable reasonable excuse to be determined by the jury in the light of the particular facts and circumstances”,
of the case. Also, where the evidential burden is raised by the defence—in other words, the defendant says, “I have a reasonable excuse”—the defendant does not have to prove it. The prosecution then has to make the jury sure that the excuse that the defendant has offered is not reasonable. That in itself is a sufficient existing protection, without these amendments.
Further, and with great respect to as experienced a police officer as the noble Lord, Lord Paddick, I appeal to noble Lords who are looking for theoretical cases in which an arrest or prosecution may take place. The police do occasionally exercise their common sense and not arrest someone where it would be patently absurd to do so. Most of the time they do just that. A two-code test has just been reaffirmed in the publication—by the outgoing DPP on the last day of her period of service—of a new Code for Crown Prosecutors. It emphasises the dual-code test which requires not only that there should be evidence that a jury might accept but also that it is in the public interest to prosecute. The discretion of prosecutors is an important part of our unwritten constitution that is often overlooked but should not be, as is the protection offered by juries, which are plainly not going to convict someone like my friend the university professor who engaged his students in the very valuable exercise that I described. This provision is entirely proportionate and simply updates a piece of law that sometimes causes difficulties because we do not always keep it up to date.
My Lords, these amendments seek, in various ways, to raise the threshold for the offence of viewing material over the internet provided for in new Section 58(1)(c) of the Terrorism Act 2000. Amendment 11, in the name of the noble Lord, Lord Rosser, seeks to restore the concept of a pattern of behaviour which was, as he pointed out, inherent in the so-called three clicks version of the offence as originally introduced in the House of Commons. Amendments 12 and 13, in the name of the noble Baroness, Lady Hamwee, would introduce a requirement to prove not just that the material being accessed is likely to be useful to a terrorist but that it was accessed by the individual with the intention of using it for terrorist purposes.
In responding to Amendment 11, it may assist the Committee if I explain that the intention behind the original three clicks provision was to ensure proportionality, and to provide a safeguard for those who might inadvertently access terrorist material by ensuring that there was a pattern of behaviour in accessing such material. However, we recognised the difficulties underlying that approach, and the uncertainty around how it would be implemented. Having reflected on the concerns that were raised about the three clicks provision, we believe that the reasonable excuse defence is the better way of proceeding. Introducing a pattern of behaviour test would recreate many of the same issues we faced with the three clicks provision. I agree with what the noble Lord, Lord Carlile, has just said on that issue. For example, it would beg questions such as how many viewings were required to constitute a pattern of behaviour and over what period such viewings would need to take place. Indeed, a pattern of behaviour test arguably introduces a greater degree of legal uncertainty than the three clicks test and, for that reason, I respectfully suggest that it is best avoided.
Amendments 12 and 13 would very significantly raise the threshold for the offence, and would alter its fundamental purpose. Section 58 of the Terrorism Act 2000, which Clause 3 amends, is a preparatory offence, rather than one aimed at the actual planning or commission of terrorist acts. It has a lower maximum sentence than other offences covering more developed terrorist activity, which can attract up to life imprisonment. I suggest to the noble Baroness that, in that sense, it is not comparable to the offence in Clause 2. The Section 58 offence, as amended by the Bill, is formulated so as to catch people who make a record of, or who view online, information likely to be useful to a terrorist, without requiring them to have actually used that information for a terrorist purpose or to intend to do so. This is in itself harmful behaviour, and such people can pose a very real threat to public safety. I do not agree with the example given by the noble Lord, Lord Paddick, of the changing of the guard. The noble Lord, Lord Carlile, hit the nail on the head again when he spoke about what is reasonable for the authorities to suppose in all the circumstances.
If there is evidence that the individual is preparing or committing an act of terrorism, or is assisting another person to do so, then they would be likely to meet the threshold for a more serious offence, such as Section 5 of the Terrorism Act 2006, which covers the preparation of terrorist acts, and for which the maximum sentence is life imprisonment. As such, a requirement to prove terrorist intent would effectively render unusable the new limb of the Section 58 offence that Clause 3 will insert. This is because the offence would be moved into territory that is already well covered by existing offences and could not be used for its intended purpose so that the police and courts would remain powerless to act against individuals accessing very serious terrorist material online.
The noble Baroness, Lady Hamwee, has suggested that her amendments are intended in part to address her concern that the offence will inappropriately criminalise those who seek out terrorist information through foolishness, inquisitiveness or curiosity, without intending to do harm. I have sympathy for that concern. The Government have been clear that this offence is aimed at those of a terrorist mindset and we do not wish to cast its net unnecessarily widely. However, I cannot agree with the noble Baroness’s suggestion that this is the best way to address the concern.
For the reasons that I have set out, these amendments would fundamentally undermine the purpose of the offence, and would go much further than I believe is intended in narrowing its application. We consider that the existing “reasonable excuse” approach is a better and more appropriate means of doing so, together with the normal CPS tests of whether there is evidence that would provide a reasonable prospect of conviction, and whether prosecution would be in the public interest, as the noble Lord, Lord Carlile, said. This is particularly so, because the question of whether it is legitimate for someone to intentionally seek out serious and potentially very harmful terrorist material, through foolishness or inquisitiveness, will be very fact-specific and particularly prone to grey areas. It needs to be considered on the basis of all the circumstances and all the evidence in any particular case.
While clearly there will be cases of this type, where prosecution will not be appropriate, it will certainly not be responsible to provide a blanket exemption for any person to access any quantity of terrorist information and be able to rely on such an exemption, whatever the potential harm associated with their activities. I hope, having heard my explanation, the noble Lord, Lord Rosser, will be content to withdraw his amendment, and that the noble Baroness, when it comes to her turn, will be content not to press hers.
I would like to explain my concerns to the Minister. In order for a police officer to make an arrest, all the police officer will need is a reasonable cause to suspect that the person is committing the offence. Therefore, the “reasonable excuse” defence provided in the Bill does not come into play. I accept that no Crown prosecutor would prosecute something that is clearly an innocent mistake, for example by someone clicking on to information. But my concern is that there is nothing to stop a police officer arresting a person, and the person being detained, until there is detailed consideration about whether this is a grey area, or whether it is reasonable or not.
Can the Minister give me any reassurance, other than what the noble Lord, Lord Carlile, has said about most police officers being reasonable? The particular offence that I am thinking of, which is no longer on the statute book—Section 4 of the Vagrancy Act 1824 —of being a suspected person,
“loitering with intent to commit an indictable offence”,
was routinely abused by the police in order to arrest people who were innocently going about their business. I am concerned that offences like this, which are very widely drawn and rely on a “reasonable excuse” defence, do not protect the innocent person from arrest and detention by the police.
My Lords, I bring the noble Lord back to the issue that I flagged—that a judgment needs to be made in all the circumstances of the particular case. I turn the question back to the noble Lord. We are dealing with the viewing of material that must have a clear link to terrorism, and must be objectively capable of being useful to a person committing or preparing an act of terrorism.
One has also to bear in mind what the existing offence consists of. How does the noble Lord think the proposed new offence differs in its substance or its degree of seriousness from the offence already established in Section 58 of the Terrorism Act 2000? How does accessing this kind of harmful material by way of a streamed video differ from accessing it by way of a download or a book? Have we seen examples over the last 18 years of people being wrongfully hauled to the police station as a result of innocent activity? I am not aware that we have.
I once again thank all noble Lords who have participated in this debate and I thank the Minister for his response. I will be brief. The purpose of the amendment, as I hinted at the end of my contribution, was that, if the Government did not find favour with it, they would say what steps they intended to take to ensure that those with legitimate business in relation to material covered by the clause did not find themselves in difficulty under the terms of the new offence. I accept that the Minister has sought to address that point. The issue between us, if it turns out that there is an issue, will be whether the procedures outlined by the Minister will be sufficient to prevent anybody who is not acting with malice—not engaged in terrorist activity—being caught by this offence. With that, I beg leave to withdraw the amendment.
Amendment 11 withdrawn.
Amendments 12 and 13 not moved.
14: Clause 3, page 2, line 37, leave out from “which” to end of line 41 and insert—
“(a) 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,(b) the material in question was collected, recorded, possessed, viewed or otherwise accessed for the purposes of journalism,(c) the material in question was collected, recorded, possessed, viewed or otherwise accessed for the purposes of academic research”
My Lords, my Amendment 14 is supported by my noble friend Lord Rosser. Clause 3 seeks to create an offence of viewing material online that is likely to be useful to a person committing or preparing acts of terrorism. That is something we on these Benches can support. Our amendment seeks to build in protections that strengthen the intention of the clause. We seek to make clear in the Bill that no offence is committed if the person had no idea, did not know, or had no reason to believe that the material would be useful to someone committing or preparing for acts of terrorism, and that it could be viewed or collected for journalistic or academic research purposes. My noble friend Lord Davies of Stamford, who is not in his place, raised the important issue about journalism in a previous group of amendments. There is a point to be explored here about what defines a journalist. I am sure we will come back to that point in other debates. Do bloggers count as journalists? I actually think not, but again these are important issues which I am sure will be looked at elsewhere.
Amendments 15 and 16, which are largely the same, seek to put into the Bill the recommendations of the JCHR on page 8 of its report. My amendment would require the Secretary of State to issue guidance so that it is clear what is reasonable; we are talking here about what is and is not reasonable. It seems very sensible that the Secretary of State should issue guidance on that. When the Government respond to this group of amendments, and if they are not minded to accept what we have put forward, it would be useful for them to set out what protections are in place that would cause the amendment not to be approved.
My Lords, as the noble Lord, Lord Kennedy, has said, Amendments 15 and 16 are the same. What constitutes a reasonable excuse will obviously be a matter for the jury. I accept that one cannot identify reasonable excuses in the abstract without knowing exactly in what circumstances a person undertook a particular action, but citizens should know when it is likely that they will be committing a crime. I think that that is accepted in the ECHR memorandum on this clause, where the Government say:
“There should be some degree of latitude for a person legitimately to explore political, religious or ideological matters, and the criminal law should acknowledge that, without the person actively seeking it, this may lead him to online material that crosses the line into that which is likely to be useful to a terrorist”.
Having some guidance would give a framework for the citizen to assess the matter.
At this stage, I shall not oppose Clause 3 standing part of the Bill—the intention to do so appears in a separate group—because we have covered more ground than I had anticipated. However, I will say now that it occurred to me that there might be a point of comparison between Clause 3 and legislation on child sexual exploitation. The Criminal Justice Act 1988 creates an offence of a person having an indecent photograph or pseudo-photograph of a child in his possession, and possession includes a physical and a mental element. I understand that the CPS guidance states that a person who views an image on a device which is then automatically cached on to the device’s memory would not be in possession of that image unless it could be proved that he or she knew of it. At first blush at any rate, it looks as though Clause 3 goes further than that provision, which requires possession, control or custody of images as opposed to viewing them.
Coming back to Amendment 15, I hope that the Government can give serious consideration to some way of assisting members of the public on this whole matter. Guidance will not override the provisions of the legislation but it can be what it is intended to be—that is, helpful.
My Lords, I respectfully introduce a note of caution about Amendments 15 and 16. We are dealing with the creation or amplification of criminal offences. The issuing of guidance by the Secretary of State in legislation of this kind would be very unusual and it would not, in the end, add certainty to the situation. Guidance has no statutory force, and someone looking at guidance might nevertheless find himself being prosecuted. Alternatively, someone who could not bring themselves within guidance might be prosecuted.
The real point is this: guidance may be helpful but if it is not statutory, it has no legal effect. If we wish to introduce issues here, we should do as my noble friend Lord Anderson does in the next clause, where he seeks to define, in primary legislation, a number of situations in which an offence is not committed.
My final point—I find this extremely alarming—is the idea that a Secretary of State, using executive powers, should issue guidance about how the law should be implemented. Either the law is clear or it is not, and guidance does not make it any clearer. Such a measure would—I think probably for the first time in criminal justice legislation—give an enormous power to the Secretary of State to say, without any parliamentary control, “This may not come within the ambit of the offence but that may”, and so on. That should not happen.
My Lords, I support the amendments in this group, although I have some reservations about all of them now that the noble and learned Lord, Lord Judge, has spoken. However, I have concerns about Amendment 14, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, for the reasons I have expressed in previous groups about having a blanket exemption for journalism and academic research. A terrorist could access information with the intention of committing a terrorist act but could claim that it was for the purposes of journalism or academic research. Surely the acid test should be the intention of that person, not the content of the material.
I have added my name to Amendment 15, in the names of my noble friend Lady Hamwee and the noble Baroness, Lady Lawrence of Clarendon, although I accept what was said by the noble and learned Lord, Lord Judge, with his wisdom and legal background. Obviously the intention of the amendments is to suggest that the law is not clear here about what would amount to a reasonable excuse. Perhaps the mechanism suggested in the amendments is not the right one, and, as the noble and learned Lord, Lord Judge, has alluded to, maybe the approach outlined in amendments that we will consider shortly is the right one. However, there is concern about what would amount to a reasonable excuse under this clause.
My Lords, there have been calls both in your Lordships’ House and in the House of Commons to place on the face of the Bill a definition of legitimate activity that would not be caught by the Section 58 offence as amended or to specify categories of reasonable excuse. The Government’s position on this issue is well rehearsed, including in our response to the Joint Committee on Human Rights. Noble Lords opposite have clearly been following this debate closely, because Amendment 15 proposes a slightly different approach, and Amendment 16, in the name of the noble Lord, Lord Rosser, follows a similar path.
Rather than seek to write exemptions or examples of reasonable excuses into the Bill, as Amendment 14 seeks to do, Amendments 15 and 16 instead seek to place a requirement on the Government to publish guidance on the same matters. I commend noble Lords for their constructive approach in seeking alternative solutions, and I hope that they will find my response to their suggestions similarly constructive, even if I am not able to support these amendments.
The Government’s starting point on this issue is that Section 58 of the Terrorism Act 2000 already contains a well-established safeguard, in the form of a reasonable excuse defence, for those with a legitimate reason to access terrorist material. As a result of Section 118 of the 2000 Act, if a person raises this defence, the court must assume that it is satisfied unless the prosecution can disprove it beyond reasonable doubt. We will debate the operation of Section 118 when we come to Amendment 18 in a later group.
Where a person has a reasonable excuse, a prosecution should not in fact commence, because the case would not pass the Crown Prosecution Service threshold tests of being in the public interest and of there being a realistic prospect of conviction. This safeguard has operated successfully in relation to Section 58 since that offence was first created in 2000, and it reflects the approach taken across the criminal law, where many other offences with a similar defence also do not list specific categories of reasonable excuse. As such, it is well understood by the police, the CPS and the courts. It will continue to apply equally to the offence as amended by Clause 3, and it will not be narrowed or reduced in any way.
This is an important safeguard, and I understand the intention of the noble Lord and the noble Baroness in seeking to put its effect even further beyond doubt, whether through the amendment of Clause 3 or through guidance to be published under it. However, it is my view that, whichever route is taken, it is simply not necessary. Furthermore, such an approach could in fact have the unintended and unhelpful consequence of unsettling the current position, and of reducing rather than increasing clarity. I hope the Committee will indulge me while I explain why this could be the case.
Section 58 has been in force for 18 years, during which time it has been unlawful to collect, possess or make a record of terrorist information without a reasonable excuse. Of course, for much of this period, these have been the normal means by which an academic or journalist would have accessed such information online—downloading or otherwise making a record of it, rather than streaming it. It is only more recently that technology has outpaced the law. This would suggest that, if the safeguard is indeed inadequate, we would have seen ongoing prosecutions of academics, journalists and others who have legitimately accessed such material, but I am not aware of any such cases. Rather, the offence has been used sparingly and in a targeted way, with just 61 convictions since 2001. Similarly, despite the fears that have been raised, there have in fact been no bona fide reports of a chilling effect in relation to the offence as it currently stands, and no credible evidence that professionals in those fields have been hampered in or deterred from going about their legitimate business, which to all appearances has continued entirely uninhibited.
My challenge to those who assert that this updating of the existing Section 58 offence will suddenly bring to a halt the legitimate activities of journalists reporting on terrorism, or result in academics researching radicalisation being thrown in jail, is: where is the evidence for this? Can we point to journalists who were arrested for researching and reporting on the terrorist threat in the post-9/11 era, or to academics who were too scared of legal consequences to research and publish books on terrorism in the same period? It is undoubtedly the case that the research methods employed would, in some cases, have been clearly caught by the existing offence, yet we have seen no prosecutions.
I am sorry, but I am driven to say to the Minister that, as an ex-archaeologist, we have a saying: absence of evidence is not evidence of absence. Just because you do not have the evidence, that does not mean it has not happened. Does that help the Minister?
I expect it does, but I shall need to get my mind around the point.
Of course, the statement made by the noble Baroness has to be right, but I come back to the fact that, in practice, we have not seen any miscarriages of justice against journalists or academics, or indeed any arrests. It is therefore incumbent upon us to ask why that is so, given the certainty with which some have predicted that exactly these consequences will flow from Clause 3. Could it be because the safeguards I have outlined were operating successfully? My suggestion is that this is the case. Furthermore, as the very same safeguards will continue to apply to Section 58 as amended by Clause 3, and as Clause 3 will neither narrow them in any way nor broaden the types of material caught by Section 58, I suggest that we can take considerable comfort from this.
As well as questioning the practical necessity for these amendments, I also have some concerns about the form of Amendments 15 and 16, which require the Secretary of State to issue guidance. To place such a requirement on the Home Secretary would be novel and arguably inappropriate—the noble and learned Lord, Lord Judge, made the point extremely well. While the Home Office has issued guidance on matters such as the operation of police powers, it is not normal to do so on how to apply investigative and prosecutorial discretion in the context of a specific offence and where there are criminal consequences for individuals affected. If such guidance is to be issued, I therefore question whether this is properly a matter for the Home Secretary. This concern could, of course, be remedied by placing the duty on someone else, such as the Director of Public Prosecutions. However, as I have sought to explain, we remain to be convinced that an amendment to Section 58 of this kind is needed.
Finally, it is worth noting that Section 58 falls within the statutory remit of the Independent Reviewer of Terrorism Legislation, and this will provide a further important safeguard for its operation as amended by the Bill. I am aware that the former independent reviewer, Max Hill QC, does not agree with every aspect of the Government’s approach to Clause 3. He is, of course, an extremely eminent person whose views should be taken into account. But I would point out that successive independent reviewers have never raised a concern that Section 58 in its current form is having a chilling effect, or is otherwise not being used appropriately, despite its application, as I have said, to the bulk of journalistic and academic research into Section 58 material for much of the period it has been in force.
I hope that I have been able clearly to set out the Government’s position on these matters, and to persuade the noble Lord opposite to withdraw his well-intentioned but, in my view, unnecessary amendment.
My Lords, before the noble Lord responds, I was wondering, as the Minister was speaking, why the Government decided to include new subsection (3A). It applies only to the subsection (3) but, if it is required for that subsection, was there something in the operation of the earlier provisions of Section 58 that has prompted this? New subsection (3A) provides that:
“The cases in which a person has a reasonable excuse ... include (but are not limited to) those in which … the person did not know, and had no reason to believe, that the document or record in question contained … information … likely to be useful to a person committing or preparing an act of terrorism.”
The Minister may not be able to respond to that now, but it goes to the heart of the debate.
My Lords, I recognise the noble Baroness’s point. I understand that that provision went into the Bill when the three clicks provision came out. It was intended to provide a measure of reassurance in substitution for the three clicks idea that someone who acted in complete ignorance would not be caught. Frankly, one can argue it both ways—to leave it in the Bill or to take it out—but, on balance, we felt that it was right to put it in the Bill for that added measure of reassurance.
That is an interesting response and I will have to think about it. I share the concern of the noble and learned Lord, Lord Judge, not to involve the Executive where it should not tread. There could be parliamentary scrutiny. We have become possibly too reliant on codes of this and that to flesh out what lies underneath legislation—it is not something I much like, and I have obviously been sucked into it. So we could have parliamentary scrutiny if we had a statutory instrument, but we could also list in the Bill the sorts of examples we have talked about, in the way that the amendment from the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, seeks to do in Clause 4. I think that that is a particularly good way of going about it.
I do not suppose the Minister can answer this, but his reference to the Independent Reviewer of Terrorism Legislation prompts me to ask about progress in appointing the new reviewer. He is indicating that he cannot answer, and I did not expect him to, but it is a point that was worth making at some stage in this debate.
My Lords, I thank all noble Lords for their contributions to this debate and the noble Earl, Lord Howe, for outlining the position of the Government on this group of amendments. I appreciate his detailed response, which is beneficial to the Committee.
I will reflect on all the responses and comments—particularly the wise comments from the noble and learned Lord, Lord Judge. Those comments could be interesting for guidance on other legislation before the House on which the Government take a contrary view. However, we shall discuss that in a few weeks’ time. At this stage I beg leave to withdraw the amendment.
Amendment 14 withdrawn.
Amendments 15 and 16 not moved.
Clause 3 agreed.
Clause 4: Entering or remaining in a designated area
17: Clause 4, page 3, leave out lines 9 to 11 and insert—
“(2) A person does not commit an offence under this section if the person entered or remained in the designated area solely for one or more of the following reasons—(a) performing an official duty for the government of any country (including service in the armed forces of that government) where such performance would not otherwise contravene the law of the United Kingdom,(b) performing an official duty for the UN or an agency of the UN,(c) satisfying an obligation to appear before a court or other body exercising judicial power,(d) providing support through a registered charity for humanitarian, peacebuilding or development purposes,(e) making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist,(f) visiting a dependent family member,(g) such other reason as the Secretary of State may by regulations prescribe.”
My Lords, in moving Amendment 17, I shall speak also to consequential Amendment 30. In doing so I take comfort from the words of the Security Minister on Report that this clause, introduced late in the day, would benefit from discussion in your Lordships’ House and, in particular, from exploration of what he called the reasonable excuse issue. These amendments do not seek to remove the designated area offence but rather to render it more predictable in its application and, in addition, easier to prosecute.
There are three problems in the context of this offence with the wholly general defence of reasonable excuse. First, those few people with good reason to travel to a terrorist war zone will have no assurance in advance that they will not be prosecuted for doing so. Secondly, this troubles some of them considerably, as other noble Lords will know. Thirdly, attempts to prosecute a person for this offence are likely to be met with an ingenious array of excuses to which the jury will be invited to be sympathetic. Without any outer limits on the doctrine of reasonable excuse, the prosecution—which, as the Minister said, still bears the ultimate burden of proof—is likely in practice to have to demonstrate some malign purpose for travel, which is precisely the state of affairs that this offence is designed to avoid.
Amendment 21 contemplates a pre-authorisation system, as operates in Denmark. The Danish counter-terrorism officials, to whom I had an opportunity recently to speak to in Copenhagen, expressed themselves as broadly content with that system. However, the Australian independent national security legislation monitor—the equivalent of our independent reviewer—stated in his careful and positive review of the equivalent Australian offence that,
“an authorisation regime could only be effective to the extent that individual compliance with the authorisation could be properly monitored”.
In place of the reasonable excuse defence, I propose a series of reasons which, if they constitute the sole reason or reasons for entering or remaining in a designated area, will mean that no offence has been committed. On the method to which the noble and learned Lord, Lord Judge, referred—the method he commended to me—whatever the scope of the law, no sensible prosecutor would wish to proceed against persons who fall into any of those categories. However, by spelling them out, everyone knows where they stand.
It will be said that no one can predict all the reasons why someone may wish legitimately to travel to a designated area. I give three answers to that. First, the categories of such people are limited and relatively easily defined, in contrast to the categories of person who may have a reasonable excuse to download or access material under Section 58. Secondly, my list is closely based on that which appears in the equivalent Australian legislation, which the Security Minister referred to as a model for this clause. The Australian list was introduced in 2014 by the foreign fighters Act, and it has not been found necessary to substantively amend it since then.
I suggest amending it in only a couple of respects. Proposed new subsection (2)(d) expands on its Australian equivalent, which is providing aid of a humanitarian nature, though limits it to activities conducted through a registered charity. Proposed new subsection (2)(f) replaces the Australian formulation of making a bona fide visit to a family member on the basis that visits to brothers or sisters who are fighting are not to be encouraged and that Latin should not be inflicted upon juries more than is necessary. The third answer to the objection lies in the regulation-making power, which I propose should operate by the affirmative resolution procedure. In four years it has not been found necessary to use a similar power in the Australian law, which noble Lords may find encouraging.
The amendment does not aspire to infallibility but offers a degree of certainty appropriate to the criminal law. It will give assurance for those who travel for good reasons and assist the prosecution of those whose reasons are not so creditable. I beg to move.
I have to tell noble Lords that if Amendment 17 is agreed I cannot call Amendment 18 by reason of pre-emption.
My Lords, I speak to my Amendment 19 and support the other amendments in the group. I am aware that Amendment 19 attempts to do exactly what Amendment 17 does but, obviously, in a much inferior way. I have added environmental protection, which is a valid objective when travelling to dangerous zones.
I also support Amendment 20 in the name of the noble Earl, Lord Attlee. I declare an interest because I have daughter who is a journalist and am well aware that journalists perform the most incredible tasks when they go to dangerous areas. I have watched the situation in Syria—about which I know a little because I have worked there—which has been the most dangerous place in the world for journalists for some time. More than 100 have died there because they have tried to report on what Assad has been doing to his own people—atrocities such as gas attacks and so on. We have had a long discussion about what a journalist is and what journalism is, but it is important to remember that they fall into a category which is crucial for our understanding of what goes on—not only in Syria and war zones but in Britain, where journalists often expose wrongdoing of all sorts.
I tried to explain to the Minister about the absence of evidence. I have often been deterred from campaigning on a particular issue in a perfectly peaceful and legitimate way because I know that the policing is going to be over-heavy or for some other factor. There are times when people are deterred from doing the right thing because of legislation like this. In these debates I can offer the House a viewpoint from people who might be affected by it, who might find themselves on the wrong side of these laws. I note that other noble Lords have said that they might be on the wrong side of this law.
The Bill provides for a defence of reasonable excuse but gives nothing more than that. My concern is that too many prosecutions will take place, putting people through lengthy court processes before being acquitted by a jury. This concern is shared by the many humanitarian organisations and journalists who have contacted me regarding the Bill.
The Minister will undoubtedly tell me that these organisations have nothing to worry about—that a jury will find them innocent because they will have a reasonable excuse—but this would be to ignore the real, practical implications that the threat of prosecution has on an organisations. Humanitarian organisations already putting themselves and their people in grave danger will additionally risk being prosecuted for simply trying to help people in need. This risk will increase their insurance premiums or even make it impossible for them to get insurance at all.
Under such circumstances, people may not want to volunteer for these organisations if it risks making them personally liable to prosecution. There is also, of course, the cost of legal advice and representations—thousands of pounds which will have to be spent and will be lost even if they are found not guilty.
Personally, I feel that the Government should not put these innocent people at risk of prosecution. As with Amendments 17 and 19, putting these specific examples in the Bill will help to make it clear to prosecutors that these groups have specific, absolute defences and should not be charged. If the Government reject the amendments, I would ask why. They do nothing to undermine the Government’s intent but would allow humanitarian and environmental protection organisations to do their heroic work without fear of being persecuted and prosecuted when they return to safety in the UK.
My Lords, Amendment 20 in the group is in my name. The Committee has looked already at why journalism is vital so there is no need to repeat those arguments in detail. I accept that the amendment moved by the noble Lord, Lord Anderson, may be a better solution than mine, which would create an explicit exemption for journalists travelling to or remaining in a designated area.
Since the new offence does not require a person to have any harmful intent, it risks capturing those who mean no harm at all and are acting in the public interest, even if the Government of the day do not think so. Journalists travelling to an area to cover events and inform the public are one obvious such group. Following our debate on the first amendment, I accept that I will have to go away and consider carefully what I mean by journalism and journalistic purposes, but the same problem arises with the amendment of the noble Lord, Lord Anderson.
Ministers have stated that journalists are not the target of the offence and would qualify for the broad defence of reasonable excuse. I listened very carefully to what my noble friend Lord Howe said about that. However, the same problem that I described when speaking to my Amendment 6 arises, namely that journalists may be unjustly interfered with or arrested. It needs to be clear in the Bill that journalism is exempt. Amendments 21 and 22 would provide for prior authorisation from the Secretary of State. Although that may have its merits for certain sectors, it would be highly undesirable for press freedom as it would allow the Government to whitelist or blacklist journalists and could operate as a de facto licensing system which the press has, rightly, always resisted.
Although there are good reasons for an open-ended reasonable excuse defence, as my noble friend has outlined already, the amendment does not circumscribe it. Given the scope of the offence, the Bill should anticipate the most obvious scenarios where people will have good cause to travel to or remain in a designated country and provide certainty to those people. That is exactly what would be done by the amendment of the noble Lord, Lord Anderson.
The combination of the lack of an intent requirement and the vagueness of the reasonable excuse defence means that whether an offence is committed becomes a matter of prosecutorial discretion entirely. That is undesirable for legal certainty and the rule of law. In practical terms it would delay, even deter, correspondents from travelling to an area where events are unfolding. Civilians suffering humanitarian catastrophes will not be able to tell their stories to the wider world and the British public will not be able to hear them and do whatever they can to help.
Ministers and other noble Lords may push back against my arguments by pointing out how hard it is to define “journalist” or arguing that terrorists might try to pass themselves off as journalists. I argue that where there is doubt over an individual claiming to be a journalist, the police, prosecutors and the courts can test their bona fides. Some people will wrongly claim the defence; that does not mean that it should not exist. The same argument applies to Amendment 17, moved by the noble Lord, Lord Anderson.
Amendment 17 may well meet my concerns but I am slightly worried about its proposed new subsection (2)(d), which would provide an exemption for a “registered charity”. It might be worth considering restricting the exemption to either a UK registered charity or one that is accredited by the United Nations in some way, because I have been aware of some charities in an operational area being rather less than pure.
My Lords, I briefly return to our discussion to Amendment 17, moved so well by the noble Lord, Lord Anderson of Ipswich. He made no claims of infallibility. When we are discussing this sort of subject, he probably comes the closest in this Chamber to infallibility, at least for the moment. I understand his reasons for moving the amendment; I can see that the reasonable excuse provision in the Bill he seeks to amend is somewhat vague. None the less, I want to ask one or two questions relating to the amendment.
I can accept that the genesis of at least some of the new provision comes from other countries’ and jurisdictions’ legislation; the noble Lord mentioned Australia in particular. A few things about the amendment trouble me slightly. I can see that proposed new paragraphs (a) to (e) provide a reason for making a visit to the designated area, but I am a little troubled by the fact that proposed new paragraph (f) states simply that,
“visiting a dependent family member”,
may provide a reasonable excuse. The reason for the visit to the dependent family member needs to be explored fully. The amendment could lead us into difficulty. The purpose of the visit may be to see a bed-ridden grandparent, but it may be to see a rather ill-motivated teenager with terrorist sympathies. As long as that is not made clear, the problem I see in proposed new paragraph (f) remains.
To some extent, although not as greatly, I am troubled by proposed new paragraph (c), which gives the reason of,
“satisfying an obligation to appear before a court or other body exercising judicial power”.
I can see that in an organised state with an organised court system, complying with an obligation to appear in court to give evidence, or whatever it may be, provides one with a reasonable excuse. However, going to a designated area suggests that there may not be such an organised system there. Although one may be under some obligation to appear before it, I hesitate to suggest that in all circumstances one is likely to find in a designated area a recognisable court or other body exercising judicial power in a way that we would find acceptable in this country and this jurisdiction.
Perhaps these are quibbles. The noble Lord, Lord Anderson, expressly stated that he did not claim his amendment to be perfect. I understand where the amendment comes from and where it intends to go. I simply ask my noble friend on the Front Bench not to dismiss the amendment out of hand but perhaps to go away and rewrite it in such a way that it would be acceptable as a government amendment that would pass muster in both this House and the other place.
My Lords, I rise to support the amendment moved by my noble friend Lord Anderson of Ipswich. It highlights a number of extremely important points, not least that there should be clarity and definition for people who may wish to visit a designated area. I have some reservations, but in relation to proposed new paragraph (c), perhaps I may give an example of the crucial need to attend court or another body exercising judicial power. It may well be that a relative would wish to obtain the custody of a child who is in danger in the designated area and would not be able to do so without entering that designated area. I agree with the noble and learned Lord, Lord Garnier, and the noble Earl, Lord Attlee, that the definition of “journalist” will need attention because it can all too easily be both a benign and a malign term.
I want to raise one other issue not directly connected to this amendment, but to avoid the duplication of speeches I shall refer to it now. I have been approached by some Jewish groups that have expressed concern that designation orders might be made in relation, for example, to the Golan Heights where quite a number of young people go on the Aliyah to kibbutzim or to Sderot, the town that is regularly the recipient of missiles fired from the nearby Gaza Strip. I have been bold enough to reassure those who have raised these issues that it is most unlikely that the Government of the United Kingdom would designate areas such as this because of the international political and diplomatic implications of doing so. However, at some point in the debate I would invite the Minister to reassure the Committee and the people who have made representations that the normal flow of people, albeit to sometimes quite dangerous places such as Israel, will not be interrupted as a result of these provisions because that would cause tremendous difficulties, particularly for families divided between the cities of England and Wales and Israel.
My Lords, I accept entirely that it is better, if at all possible, to clarify what constitutes not so much a defence but in which circumstances there will not be an offence, which I think is the way Amendment 17 is framed. If I understand it correctly, the answer to most of the objections lies in the word “solely” because, of course, if there is evidence of mixed reasons for someone being in an area, these provisions would not have a proper ambit at all. However, I share the reservations of my noble and learned friend Lord Garnier about visiting a dependent family member.
I want to raise a more general point about what Clause 4 intends to do. It is concerned with the designated area and the Government are not concerned primarily about protecting people visiting the area and ensuring their safety. Of course, journalists and those working for humanitarian purposes risk their own safety very considerably by going into such areas. The Government are concerned—perhaps my noble friend the Minister will confirm this—to prevent the risk of terrorism, as the Bill is headed. When looking at the risk of terrorism, the Explanatory Notes state:
“Such a risk may arise, in particular, if a conflict in a foreign country, potentially involving a proscribed terrorist organisation, acted as a draw to UK nationals or residents to travel to that country to take part in the conflict or otherwise support those engaged in the conflict”.
In other words, we want to stop people fighting against the United Kingdom. That, I suggest, is what this is really about, although my noble friend may disabuse me of that. If so, this is quite a convoluted way of achieving the aim of preventing an individual or individuals assisting or fighting against the United Kingdom. I shall raise this point again on Wednesday under my own amendment concerning the possible introduction of the offence of treason, because that is what it would be. Although this is a useful provision and I can see what it is driving at, I respectfully wonder whether it is really the answer to the evil it is aimed at in this case.
My Lords, I tabled Amendments 21 and 22 in this group. I was not surprised, given the authors, to be more attracted to Amendment 17 than to my own amendment, but I have a couple of questions related to points already raised. I too wonder about the word “solely”. If, for one or more of the reasons listed, someone went for a reason authorised by the legislation or in regulations but did something outside them, might that cause a problem? Perhaps more importantly, I also have a question about the registered charity, regarding the jurisdiction in which it would have to be registered. It is important to address the position of charities, not just for charity workers but because the trustees will have a duty of care towards their staff. They will have an important interest in ensuring that what their staff are doing is appropriate within what the law allows.
I turn to the phrase,
“visiting a dependent family member”.
I wonder about the word “dependent”. A sick mother would be unlikely to be dependent if the son or daughter is not there supporting the family member. Perhaps one might look at extending that. However, I like the approach. I do not think it is an alternative to what is set out in Amendment 22. That would provide for regulations for authorisation—not just the grounds for applying for authorisation but also the “procedure for applying”, the “timescales for determining” it, which might be important in particular circumstances, and “rights of appeal”, which should be dealt with by some means or other. As I say, this is not an alternative; rather, there are procedural points in this that should be addressed.
I am grateful to the organisation Bond for briefing me about the position in Australia and Denmark, to which the noble Lord referred. It has put a note at the end of its briefing to remind me that the proposal for the restrictions was promoted at the exact time that nine people were arrested for travelling to Syria to become foreign fighters—proving that the existing legal provisions are “rather effective”, to use its words.
I am aware that in Australia there is an overarching exemption for the International Committee of the Red Cross, but I understand that it can be extended to other humanitarian organisations. I do not know whether any noble Lord taking part in this Committee knows how far that has been extended. I take the points about monitoring and, while putting forward these provisions, I am aware that we must balance that against the administrative burden, to which I suspect the Minister may refer. There will be an administrative burden but the benefits that could be achieved by amendments such as the ones we have been debating outweigh that. I simply wanted to anticipate that argument.
My Lords, I support the amendment in the name of the noble Lord, Lord Anderson. We should be grateful to the Parliaments of Australia and Denmark for the prior work they did, which he has refined.
I have only three small points to make arising out of the debate. The first relates to the point from the noble Baroness, Lady Hamwee, on prior authorisation. In addition to the point made by the noble Lord, Lord Anderson, about the difficulty of monitoring compliance, and the point made by the noble Baroness, Lady Hamwee, which I am sure is relevant, of the administrative overheads of doing that, there is a practical problem of the risk of authorising people who travel to a designated area and have no intention at all of meeting any of the criteria in the noble Lord’s list.
To make a minor point on dependent family members, later on in the Bill we will talk about the Prevent strategy. One of its purposes, whatever people think about it—views are divided—is to prevent young people being drawn to terrorism. I can absolutely imagine circumstances where a parent might wish to go to a designated area to try to retrieve a dependent family member or young person who had been drawn into this and rescue them from involvement.
Finally, the view from the noble Lord, Lord Faulks, that we are doing this only to stop them fighting us is an oversimplification. There is much more going on here. There is a real concern that people will not just come back and conduct terrorism here or elsewhere in the world, or fight us or others there, but learn techniques, radicalise and train new generations of people. It is much broader than simply attacking us. We need to bear that in mind when considering what we are trying to do here.
My Lords, it is lovely to be following somebody who has been described as almost infallible, so I cannot resist the temptation—
That was the noble Lord, Lord Anderson.
I am sorry. I shall not go through the various arguments. I put my name to this amendment. It is a closed list. Different aspects of it need to be considered and various points have been raised around the Committee. The principle needs be accepted by the Government that we are dealing with the designated areas legislation. The designated areas cannot be considered in relation to just new Section 58B, but to new Section 58C, which will enable the Secretary of State to decide where an area should be designated for the purposes of new Section 58B. Therefore, the imperative is not just to have a vague reasonable excuse defence, but to say that there are certain situations in which, if an individual goes to an area that has been designated by regulation by the Secretary of State, no offence would be committed. That is the end of it. It is not a question of him or her advancing a defence and saying, “This is my reasonable excuse”.
I implore the Government not be put off by the fact that this will take some sorting out. We need to sort it out. An offence will not be committed if you go on, for example, humanitarian grounds. There are plenty of different reasons, but if you are not committing an offence then that is the end of it. Given the nature of the offence that is being created related to designated areas, that is what needs to be achieved.
We have Amendment 23 in this group, which is very similar, certainly in intent, to that moved by the noble Lord, Lord Anderson of Ipswich. For that reason, I do not intend to speak at any great length since I support what he said.
We are aware of the reasons why the Government want to create a new offence of entering or remaining in a designated area in connection with the work of containing and combating the threat of terrorism and terrorist-related activity. However, this is once again about ensuring that those who are in a designated area on legitimate—indeed, quite possibly vital and crucial—business do not find themselves committing an offence of being or remaining in that area.
Our amendment, like that moved by the noble Lord, Lord Anderson of Ipswich, specifically provides that an offence of being or remaining in a designated area is not committed under the Bill’s terms by those carrying out specific named activities—in our amendment, journalism, humanitarian work and family visits, for example, and any other activities provided for in the subsequent regulations. Our amendment is also based on the Australian model of including exemptions in the Bill. It also provides that a person might be required to provide evidence as to their purpose in line with what we understand to be in the Australian legislation.
The Bill will provide for a reasonable excuse defence. The difference, however, between exemptions in the Bill and a reasonable excuse would appear to be that a reasonable excuse can normally be provided only after a person has been apprehended or challenged by the authorities, with the uncertainty and stress that that can involve, whereas an exemption should ensure that matters do not progress as far as that, provided the purpose of being or remaining in a designated area is a genuine one covered by the exemptions.
Max Hill QC, in his capacity as Independent Reviewer of Terrorism Legislation, said at the Commons Public Bill Committee on this Bill in connection with another clause from the one we are considering, that,
“one way of putting it is that if we are going to have a new offence, there is an imperative to define with greater precision the ways in which somebody is not guilty of that offence. That is just as important as defining and placing in statutory form the ways in which someone is, or may be, guilty”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 26/6/18; col. 39.]
The thinking behind the amendment that the noble Lord, Lord Anderson of Ipswich, has moved, and, indeed, our amendment, is in line with the sentiments expressed by Max Hill QC.
I hope that the Government will indicate support at least for the thrust of Amendment 17, and hopefully even for our Amendment 23, even if they want to consider further the exact wording they would consider appropriate.
My Lords, clearly all the amendments in this group have their merits, but we seem to be rallying to the flag of the noble Lord, Lord Anderson of Ipswich, for very good reason. As the noble and learned Lord, Lord Judge, explained, this appears to be, at least in essence, the way forward. As the noble Lord, Lord Anderson, said, it is based on a tried-and-tested system that operates under Australian law and gives a degree of certainty that the reasonable excuse defence does not give. It covers journalism as well, which could arguably make Amendment 20 unnecessary. On the definition of what journalism means, the noble Lord’s expression,
“working in a professional capacity as a journalist”,
might be an indication of the way forward as far as that definition is concerned. I have added my name to Amendments 21 and 22 in my noble friend Lady Hamwee’s name, but, as I said, perhaps Amendment 17 is a better way forward.
The noble Lord, Lord Faulks, is obviously trailing his amendment on treason, but in addition to what the noble Baroness, Lady Manningham-Buller, said, it is more than just fighting UK forces. It could be that people are going to engage in terrorist activity against allies of the UK, not necessarily against the UK itself. We would want to deter our nationals from travelling to areas for that purpose. People might travel to those areas for a legitimate purpose and then engage in terrorist activity, but there is no way that we could legislate for that. Clearly, they would then commit a substantive offence under different legislation.
Can the noble Lord help the Committee by saying what legislation they would be committing an offence under?
My understanding is that it is an offence to travel to an area to engage as a foreign fighter. I cannot remember what exactly the legislation is, but reference has been made to it by other noble Lords this evening.
Is not the Foreign Enlistment Act 1870 still extant? I think it is.
I am not sure about that, and I am grateful to the noble Lord for assisting. There is, of course, a Treason Act of 1351, but that is not often relied on—or not at all relied upon. The noble Lord may be right, but I was genuinely inquiring what legislation the noble Lord was referring to.
I am very grateful to noble Lords for their interventions. At the end of the day, the principle that the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, have put forward in this amendment needs to be very seriously considered—and potentially not just for this offence, but perhaps for the other new offences in the Bill that we have already debated.
My Lords, Clause 4 provides a new offence of entering or remaining in a designated area overseas. The offence includes a reasonable excuse defence, but these amendments seek to augment that defence, either by providing for an exhaustive list of reasonable excuses or by introducing a prior authorisation regime. I make no apology for the fact that the new offence strengthens the powers available to the police and prosecutors to tackle the phenomenon of foreign terrorist fighters: it will underline and support the Government’s travel advice, deter would-be foreign fighters and provide an additional means of prosecuting those who none the less do travel.
In framing the offence, we have sought to achieve clarity and workability alongside proportionality. As the prosecution will simply be for breach of a ban on travel to an area associated with a high level of terrorist risk, we believe we have achieved the right balance. The new measure will alleviate some of the difficulties we have seen in obtaining admissible evidence from conflict zones in unstable or failed states, and in pursuing prosecutions for terrorist offences against returning foreign fighters. The Government of course recognise that in exceptional cases, some individuals will have a legitimate reason—such as journalism, to deliver humanitarian aid or compassionate family circumstances—to enter a designated area. There is no argument about that.
This is, therefore, not a blanket ban on travel, and the offence of entering a designated area is not one of strict liability. In keeping with the long-standing approach to Section 58 of the Terrorism Act 2000, which Clause 3 of this Bill amends, and many other offences in UK criminal law where similar issues arise, the offence includes a reasonable excuse defence. I will not detain the Committee with the full details of how the burden of proof mechanism will operate and why we think it is the right approach, as we will come on to that when we debate Amendment 18 in the next group. However, I will say that we have considered these issues very carefully and listened to the points that have been made in this House and elsewhere. We want to approach this in a constructive way. We consider that our approach strikes the right balance between, on the one hand, ensuring an effective and workable power, both legally and operationally, and on the other ensuring that the power is proportionate and provides adequate safeguards.
As the noble Baroness, Lady Hamwee, explained, her Amendments 21 and 22 would introduce a different approach to dealing with cases in which a person has a legitimate reason to enter a designated area: they would introduce a power for the Secretary of State to preauthorise individuals to enter a designated area and to make regulations setting out the process and criteria for this. I am grateful to the noble Baroness for the constructive approach she has taken, and I understand her wish to ensure that individuals are able to travel for legitimate reasons without facing prosecution. As she explained, her proposal would borrow from the Danish model, which includes a similar preauthorisation scheme. That is a model we considered, and indeed discussed with the Danish Government. We also discussed with the Australian Government the approach taken in their legislation, which adopts a model which includes an exhaustive list of exemptions and a power to add to that list. The amendments of the noble Lord, Lord Anderson, seek to replicate this model.
As I said, following this consideration we concluded that the reasonable excuse approach is the most appropriate one. It already exists elsewhere in this Bill and in the Terrorism Act 2000, into which the designated area offence will be inserted, as well as in a broad range of other offences in UK criminal law. It is well understood and is routinely applied by the police, the CPS and the courts, there is clear case law on its application and it provides a proven, powerful and effective safeguard against inappropriate arrests, prosecutions and convictions. In deciding against a pre-authorisation scheme, we had in mind that any designated area is likely to be one to which the Government are recommending against travelling for any purpose. I hope the noble Baroness will agree, on reflection, that it would be inconsistent with that advice, and indeed would undermine it, if the Government none the less issued permission to travel to the area on application.
Apart from sending out those sorts of mixed messages, a system of that kind would be cumbersome and difficult to operate in a sufficiently effective and agile way to provide adequate assurance to the police and security services about a traveller’s intentions, and to provide the traveller with a sufficiently prompt and clear authorisation. Of course, it could be open to abuse, whether by those who would seek to overload and undermine the system with vexatious applications, or perhaps more particularly by those who would seek authorisation to travel under cover of legitimate purposes, but whose intentions are to engage in terrorism once they enter the area.
The Government recognise that this is a difficult issue, and we have been careful to ensure that this power does not infringe disproportionately on individuals’ rights, or on the valuable humanitarian work done by charities and NGOs. However, we are also deeply mindful of the strategic threat to public safety that can be and has been posed by individuals who travel overseas to join terrorist organisations and participate in conflicts, particularly those who have joined the Syrian conflict. It is right that we provide the police and the courts with the powers they need properly to respond to that threat, and to keep the public safe. Our firm view is that the reasonable excuse approach taken in Clause 4 is the right one. However, I have heard, loud and clear, the calls for greater certainty for humanitarian workers and others.
That said, I am concerned that the approach proposed by the noble Lords, Lord Anderson and Lord Rosser, is too rigid. The legal issue it raises is the age-old problem of the list included in statute. While I recognise that the amendment is modelled on the Australian legislation, I am instinctively uneasy about legislating for an exhaustive list of reasonable excuses—albeit one that could be amended by means of regulations. It is clear from the case law that the question of whether a particular excuse is reasonable will be highly dependent on the facts and circumstances of each individual case. The statute could offer guidance in the form of an indicative list, but it really cannot shut out what might be a legitimate reasonable excuse through an exhaustive list. The regulation-making power in the amendment does not adequately remedy this difficulty, I fear. I am therefore more receptive to the approach proposed by the noble Baroness, Lady Jones, and my noble friend Lord Attlee in their Amendments 19 and 20.
I will of course take away the concerns raised by the noble Lord, Lord Carlile, about the Golan Heights and similar areas in Israel. However, I hope he will forgive me if I do not give him a categorical assurance regarding his particular examples. What I can say is that decisions to designate areas will be based on a careful assessment of all relevant information. This will include sensitive intelligence as well as open source information, and a careful assessment of necessity and proportionality. I agree with him that it seems very unlikely that the UK would seek to designate any area within a well governed liberal democracy such as Israel. That is probably as far as I can or ought to go at the Dispatch Box.
To sum up, I recognise the strength of feeling on this issue in the Committee. I can therefore undertake, together with my Home Office colleagues, to reflect carefully on the debate on these amendments in advance of Report, and with that assurance I ask the noble Lord, Lord Anderson, to withdraw his amendment.
My Lords, I am extremely grateful to the Minister for his thorough and courteous response, and indeed to all noble Lords who have contributed to the debate on these amendments. It was intimidating when one noble and distinguished lawyer after another stood up—the noble and learned Lord, Lord Garnier, the noble Lord, Lord Carlile, the noble Lord, Lord Faulks—and rather a relief when most of them had only improvements to offer rather than outright opposition. On the point made by the noble Lord, Lord Faulks, about the ultimate purpose of this clause, with great respect, I prefer the view that the noble Baroness, Lady Manningham-Buller, put forward.
I entirely agree that there is room for discussion about the way some of these elements are phrased, particularly in relation to families and journalists, and perhaps in relation to courts—although it did seem that if there is no recognisable court in a place, then in a sense the issue does not arise of the non-application of the statute. But the fact that the scope of the exceptions is discussable does not mean it should not be done in the way that the noble and learned Lord, Lord Judge, endorsed in his short speech. The principle must surely be to define very tightly the situations in which the Act does not apply, and then allow the prosecutors to exercise their discretion in other cases. To my mind, that is the appropriate area for prosecutorial discretion. We will save the CPS and the courts a lot of trouble if we set out the broad lines now.
But I entirely accept that the Minister, in his helpful speech, has hinted at an alternative way forward, to retain reasonable excuse and perhaps couple that with an indicative list. I give no ground whatever on that, but will certainly reflect hard—and with others—on what he has very constructively suggested. The Minster kindly offered at the end of his intervention to reflect carefully on what had been said. I have not been in this place long enough to be able to decode very expertly what that means. I rather hope it is good news, but it may not be, and in any event I suspect we may be hearing more on this subject. I beg leave to withdraw the amendment.
Amendment 17 withdrawn.
My Lords, I beg to move that the House be resumed. In moving this Motion, I suggest that the Committee begin again not before 8.17 pm.
My Lords, surely we should return at 8.33 pm?
My Lords, it has been decided that the break will be 45 minutes.
House resumed. Committee to begin again not before 8.17 pm.
Homes (Fitness for Human Habitation) Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
Organ Donation (Deemed Consent) Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
Question for Short Debate
To ask Her Majesty’s Government what assessment they have made of whether there is any conflict of interest between the duties of the chair and former deputy chair of Ofcom as impartial regulators of the BBC and their parliamentary duties including their voting record on Brexit.
My Lords, Ofcom is the broadcasting regulator, and its role was significantly increased last year when it was given responsibility for regulating the BBC under the new BBC charter. It is absolutely essential that Ofcom is impartial and seen to be impartial, and that impartiality must start at the top with its chair and deputy chair. Ofcom’s own code of conduct for board members could not be clearer about this. It says:
“There should never be any legitimate reasons for people outside Ofcom to suspect that Ofcom’s decisions may be influenced by … political interests and opinions, of Members”,
of the board. It further states that members of the board should avoid,
“expressions of opinion on matters of political or public controversy which could be thought to compromise the Board’s reputation for impartiality on editorial or other decisions”.
The memorandum and the code of conduct for board members lay specific additional duties on the chair of Ofcom. It says that the chairman shall have,
“particular responsibility for leading the Board in … encouraging high standards of propriety”.
In the case of uncertainty on the part of members as to what constitutes propriety, the code of conduct says:
“Members are asked, if in doubt, to consult the Chairman”,
who therefore must be entirely above board.
The problem is that the chair and the recently retired deputy chair of Ofcom do not command general confidence for being impartial. This has undermined and continues to undermine both Ofcom and the BBC at a time of acute sensitivity and controversy—sensitivity and controversy which are set to become still more acute amid the parliamentary, media and public debates on Brexit in the months ahead.
I obviously approach this issue with reluctance, since the noble Lord, Lord Burns, the Ofcom chair, and the noble Baroness, Lady Noakes, the recently retired deputy chair, are both distinguished Members of the House, who in non-political respects I hold in high regard. But we are discussing public duties, and it is crystal clear that the public duty of the noble Lord, Lord Burns, and the noble Baroness, Lady Noakes, while they held or hold responsibilities at Ofcom, is not to damage the independence and impartiality of the regulator by taking positions on issues of political controversy.
I need hardly say that Ofcom’s requirement to abstain from all political controversy is of a level far greater than that expected of noble Lords who chair most other public bodies and who sit on the Cross Benches. It goes well beyond a requirement simply to be discreet and not court undue controversy. It is the impartiality expected of a judge to abstain completely from political engagements, because Ofcom, like a court, is a credible arbiter and enforcer only if its arbitration and enforcement command general confidence on all sides of disputed issues, which in the case of Ofcom means all disputed political issues, since all are the stuff of broadcast news and programming.
The post that most resembles the chair and deputy chair of Ofcom is the director-generalship of the BBC, which is also held by a Member of the House: the noble Lord, Lord Hall of Birkenhead. The noble Lord is a model of impartiality. He neither speaks nor votes in the House on political matters—indeed, on any matters at all since he took the helm at the BBC. The position of the noble Baroness, Lady Noakes, who retired from Ofcom in May, is in every respect the reverse. She is not only a Conservative Peer who takes the Whip and speaks and votes with the Government consistently, she is an extreme Brexiter who voices her pro-Brexit views frequently in and out of the House, and she is brutally dismissive of those holding contrary views.
I do not wish to detain the House at great length but I have a whole pile of the noble Baroness’s tweets and speeches to give substance to the points I have just made. I will give a brief selection of her tweets while she was deputy chair of Ofcom, which aroused significant controversy in the House of Commons at the time. Before the 2015 election she tweeted:
“Be afraid. Be very afraid if @Ed_Miliband and #Labour get back into power”.
Her other tweets have included:
“We can never state too often the basic fact that every Labour government in UK history has left the country in financial ruins”,
“OMG: Lord Mandelson: Britain could still join the Euro … Another good reason to keep Labour out”.
I have no idea what OMG stands for; apparently it is Twitter shorthand for something. These tweets and interventions are utterly inappropriate from the deputy chair of Ofcom.
This situation caused profound disquiet within Ofcom itself, particularly in relation to the Ofcom Content Board, the committee immediately responsible for media content regulation. Its then chair, Bill Emmott, a distinguished former editor of the Economist, left Ofcom two years ago after sharp disagreements over these very issues, and the regulator has not recovered.
In this situation it was essential that the noble Lord, Lord Burns—as the new chair of Ofcom, appointed last year—should command general confidence. But, again, I am afraid that the reverse is the case. The noble Lord, Lord Burns, came to the post with a history of support for Brexit in the House, which made it all the more important that he abstained from controversy after his appointment. Far from doing so, in the single most controversial vote in the House so far this year, in April the noble Lord voted with the Government against legislation for the UK to join a European customs union. I hardly need tell the House that this issue is at the heart of the ongoing Brexit controversy. It is especially controversial among critics of the BBC, who claim that the state broadcaster’s coverage of Brexit has been inadequate and biased. I was astonished at the time to see the noble Lord passing through the Government Lobby, and I raised the issue directly with him. I received a bland, dismissive response, and then no response at all when I pressed the matter further.
The situation is all the more serious because Ofcom’s regulation of the BBC has been notable by its absence. The rules it has put in place for considering complaints about impartiality and content at the BBC are so restrictive as to be almost inoperable. The one voice that has been totally silent throughout the controversy about the BBC and its coverage of Brexit has been Ofcom’s. As I see it, the BBC is in effect regulating itself, and when in doubt the BBC and Ofcom defer to the Government. This situation is clearly unsustainable.
The irony of the situation is that the person who has best described why it is unsustainable is the noble Lord, Lord Burns, himself. When he was giving evidence to the Digital, Culture, Media and Sport Committee of the House of Commons at his confirmation hearing on 13 December last year, he said:
“One of the distinguishing features of our broadcasting world is the requirement both for accuracy and impartiality … I get very nervous when I see broadcast journalists tweeting in the way they do, where they make it perfectly clear what their own personal view is and then they appear on television the following day seeking to arbitrate between two people taking opposing views where they have already expressed their own views in print. I am uncomfortable with that”.
The noble Lord clearly had certain senior BBC journalists in mind when he made those remarks, and with good reason. But it is even more uncomfortable that the chair of Ofcom—at the apex of the whole system of media regulation—should seek to arbitrate between people taking opposing views when he too has already expressed his own. This undermines Ofcom, it damages our democratic institutions, it is simply unacceptable and it should not continue.
My Lords, last week this House with one voice condemned an attack on a public servant, Olly Robbins. It is extraordinary, and extraordinarily sad, that we should have to go through this sort of thing again. This debate should never have happened. Since when did we in this country judge a man or a woman not by their character or their conduct but solely by the colour of their political conscience? Our fathers and grandfathers fought for better than that.
The noble Lord, Lord Adonis, stands second to no one in his passion for the European Union, but passion can sometimes mislead and make blind, and I believe he has been misled. My mind keeps returning to the words of another European—born in Dublin, lived in London, buried in France—Oscar Wilde. He wrote:
“Yet each man kills the thing he loves
By each let this be heard.
Some do it with a bitter look,
Some with a flattering word”.
I have always had the most cordial relationship with the noble Lord and I fear that what I am saying may break those bonds. But I have listened to his words and I am appalled by them, frankly. They leave any fair-minded person far behind. He is, I believe, killing the thing he loves.
The House has shown its disdain for this debate: it has preferred its dinner. I say this with immense sorrow but I believe that the noble Lord owes this House an apology for sponsoring this debate—and a far more profound apology to those whose integrity he has attacked.
My Lords, I thank the noble Lord, Lord Adonis, for raising this subject, despite its highly controversial nature, because it is part of his work anyway as a great fighter for the European cause. I admire very much the many and frequent activities of the noble Lord, Lord Adonis, in all respects in dealing with the anti-Brexit battle and the menace we see in this country of this foolish decision—I do not blame the British public at all but the decision was foolish in objective terms—made two years ago, because of the growing national dismay about what is happening now. That was one element of the great march in London last Saturday, when 700,000 people of all kinds, ages and social groups, and from all walks of life and all over the country, came together to register their feelings of dismay. I believe that that will carry on and grow even more as time goes on, as was shown in a quite spectacular fashion last Saturday. The noble Lord, Lord Adonis, and I are frequently together in various meetings and on various groups and committees and so on, dealing with the anti-Brexit battle. It is very hard work, which I am glad to do because I think it is a duty of politicians in this country to wake the public up to the menace that we face.
On the Question, I am not an expert at all on the functions of Ofcom, which has now taken over these new duties in running the BBC. I do not know the noble Lord, Lord Burns, at all, and I know the noble Baroness, Lady Noakes, only fleetingly as being quite close geographically on the Benches and as a very popular Conservative Peer. She is someone with whom I have had conversations about the joys of skiing because she is an expert and I am a very bad skier, so it is good to get advice from her.
There is a function of the BBC, however, which worries me greatly. It may be accidental or haphazard, or because it has not got used to the new scenario that has developed from the position that it took with the referendum result. The reality is that we need to remind ourselves that because it was only an advisory referendum—this is why I do not criticise the public for that decision, which we respect—its advisory nature needs to be repeated as the nation grapples with this most painful problem. Although David Cameron said that he would respect the outcome and deal with it accordingly, when the next Prime Minister came along and said, “Brexit means Brexit”, she appealed to just one segment not of the public but of her own party only—that one narrow segment being the fiercest Brexiteers in the Conservative Party. She appeared to be pretty nervous of the trouble that they would make if she did not go along with that. That needs to be dealt with as the national dismay grows now.
There is no reason to assume this. It depends on the need to restore the position, power and reputation of Parliament, which has recently been under severe pressure, with the public increasingly disengaged from and disappointed by their MPs’ behaviour on all sorts of matters, not just on Europe but for various reasons. I feel sorry for the way that MPs were persecuted over their expenses, which was most unfair in respect of the vast majority of MPs, but all those things have added to the fierceness of the press. Unfortunately, we have some very melodramatic newspapers in this country, owned by individuals who insist on not paying UK personal taxes while saying that we must all be patriotic Britons. Those arguments are therefore never properly encapsulated in the dismay that is now growing and developing, as Parliament seeks to come to a final conclusion depending on the outcome of the negotiations.
There are comments that I hear so often from other people about the BBC. I declare an interest as I live in France as well, which is proud of being a well-known member of the eurozone—that strong international reserve currency. The British newspapers never report that, as we know, and nor does the BBC. I have particularly heard many comments in recent times from British residents who live abroad in other EU countries. They do not feel that the national broadcaster, which we all love and still find to be a national treasure despite the pressures, is really giving a balanced picture. It seems to be recording the continuing, narrower position of the Government rather than the wider position of the national dismay that I have described. There is a brilliant monthly English-language newspaper in France called the Connexion, which a lot of British people read. I have had many conversations with and many emails from such people saying that they do not feel that the BBC, which they listen to a lot from France, really covers the spectrum of people’s views on these matters. That needs to be done.
For example, why does the BBC not do this? I hope this is a fair criticism because I have been told it many times by other people who have more time to listen to the BBC’s programmes than I do. Unfortunately, I am usually limited to the “Today” programme—even that programme often faces criticism, particularly of John Humphrys and the way in which he chooses words that give the impression of just one narrow stance on the outcome of what was decided two years ago, despite all the maelstrom, turbulence, contradictions and disagreements that have emanated from that decision between then and the present day.
Why does the BBC therefore, if I may give this one example, say that effectively there are the following options? One is that Theresa May’s deal will get agreed with the EU; if that is done, that is one outlet. Another is that it goes wrong and there is no deal. Another, I suppose even worse, is that it is a bad deal—although I am not sure what the logical order of those things would be. But the other option, the most important one which is beginning to develop, is that which says that we would remain in the EU. That is the substantial wish of the people who marched last Saturday 20 October; if there is another march I confidently expect it to be even bigger. I hope that there will not need to be because of common sense at the national broadcaster, which I hope will listen to this debate—to the advice of the noble Lord, Lord Adonis, and the advice of the other speakers here.
It is important for us to ensure that the BBC gets it right and gives a genuine balance of all the opinions in this country. There is an opinion now developing, if not on the Tory Benches in the Commons. I think it is strong enough already among the Peers on the Tory Benches in this House, as the House of Lords has a big European majority. That opinion is to say that that final option of staying in, because nothing else works out at all effectively and practically, not even the Canada alternative or the Norway model—by the way, there has not been a deal on Northern Ireland yet anyway, so all this is just conjecture—needs to be taken into account properly. That would ensure that we get the record straight and that people can rely on what their crucial and much-loved national broadcaster says about these matters.
My Lords, we on these Benches started by regretting this debate. We feared that it was too personal and advised that it should be withdrawn. But although I was concerned about the personal aspects, in the event, as always, the noble Lord, Lord Adonis, has used his debate as a wider canvas, particularly on the importance of the independence of Ofcom. I generally respected the way that he has gone about it tonight.
I do not want to comment on the noble Baroness, Lady Noakes, because she is obviously a Conservative Back-Bencher and a more partisan figure. However, she was appointed before Ofcom’s role was changed and her accountancy expertise and experience would have been important to Ofcom as it was. She stood down in May, so I am really not concerned about her position—except that it has to be said that Conservative Governments are very good at getting their own people into public appointments. These political appointments need to be strongly scrutinised by the public appointments authorities.
The noble Lord, Lord Burns, is a respected Member of this House. His whole career underlines a long experience in how to maintain one’s political independence while undergoing political duties. Having looked at the detail, his voting and speaking in the House suggests to me that he has adjusted to his new role as chairman of Ofcom appropriately. He has in fact voted only four times since January. One vote was to protect our Summer Recess, which is hardly a partisan matter. On the hereditary Peers’ abolition Bill, he opposed the move to widen elections for hereditary Peers, which would have undermined his proposals to reduce the size of the House. Early on, he voted on the Sanctions and Anti-Money Laundering Bill. I expect that the vote on the customs union was an aberration before he really realised that he could open himself up to criticism. It must be difficult for a former economic adviser and Permanent Secretary to the Treasury not to have an economic viewpoint. That was the first vote on the withdrawal Bill and he never voted again. Personally, over the next year, I would advise that he should not vote on Brexit issues. As the noble Lord, Lord Adonis, said, the noble Lord, Lord Hall, absents himself. No one would expect a non-executive chair to do that totally but the noble Lord, Lord Burns, needs to be circumspect, which I think he now realises he has to be.
Managing the media is challenging. Having been in the print media myself—for a long time in the local media, where you are naturally very close to your customers and readers—my one bit of advice is that you never please everyone and if you have everyone complaining, you are probably nearest to getting it right. Ofcom is a regulator; it can influence the editorial balance of the BBC but operationally editorial decisions have to be the BBC’s responsibility. We have never needed the BBC more, as we seek to combat fake news and ensure that it plays its role in helping to unify the country on the difficult issues we are confronting.
The really worrying situation is that the BBC is becoming a minnow, given the restrictions it is under. BBC revenues are partially frozen while competitors are growing vastly in scale, often as part of large American consortia. The revenue figures of our respective media companies are chilling. The BBC shows revenue of £5 billion and a £34 million surplus in its latest annual report; ITV has £3 billion; Sky has revenue of £13 billion and an operating surplus of £1.5 billion. Netflix, admittedly an international company, has revenue of $11.7 billion and grew at 30% last year. Ofcom’s principal future strategic role is seeing the country through these severe commercial developments. Having an economist with the wide experience of the noble Lord, Lord Burns, as chair of Ofcom is probably timely and relevant.
My Lords, we very much value the wealth of experience, knowledge and skills that Members from all Benches bring to the House from their current positions outside the House as well as their former ones. It is one of the strengths of the House. We very much include our noble friend Lord Adonis in that. He brings his wealth of experience to the House. Nevertheless, and with the greatest of respect to my noble friend, it is hard to see why this is a question for the House. The House has its rules, code of conduct and procedures covering matters of conflict of interest, and where my noble friend has any concerns over breaches of the code or rules, we strongly advise him that he should follow the normal pattern of dealing with them.
My Lords, I would like to provide clarification on the question asked by the noble Lord, Lord Adonis, on this matter. To begin with, it is important to point out that we all have our own views, which we are entitled to have, yet in many of the roles we hold we are expected to separate ourselves from our private views and ensure that our decisions are objective and evidence based.
This debate was first requested in April when my noble friend Lady Noakes was deputy chair of Ofcom. As has been mentioned, she has since stepped down, and I thank her for her sterling work during her time as deputy chair. The new deputy chair, Maggie Carver, has recently been appointed by the Secretary of State for Digital, Culture, Media and Sport, and I congratulate her on her new role. She brings extensive knowledge and experience of the broadcast and telecommunications industries and will be a valuable addition to the Ofcom board.
Turning to the chair, the noble Lord, Lord Burns, should be much lauded for his continuing work on reforming the size of this House. Among other roles, the noble Lord, Lord Burns, previously served as chairman of Channel 4 for six years, and I commend him for his hard work since his appointment as Ofcom chair in December 2017. He has expertly chaired the board and the nominations committee. During his time, Ofcom has delivered the auction of airwaves for 4G and 5G and, more recently, the first annual report on the BBC.
I now turn to the role of Ofcom, the independent regulator and competition authority for UK communications industries. It is crucial that Ofcom is able to regulate broadcast content in an impartial manner and that any conflicts are declared by its members and dealt with according to statutory requirements and official guidance. There must be confidence that the private views of board members do not impact on its decisions. As the noble Lord, Lord Tunnicliffe, indicated, it is for this reason that there are rigorous and transparent procedures when making appointments to Ofcom boards and committees.
As set out in the Communications Act 2003, the Secretary of State is responsible for appointing non-executive members of the Ofcom board. All candidates for public appointments go through a fair and open process, as set out in the governance code for public appointments. The current chair and deputy chair, and the former deputy chair, completed declaration of interests as part of their applications. They discussed their conflicts of interest, perceived or otherwise, at interview and have to declare any additional conflicts that occur during their time in the roles. The board members’ code of conduct also sets out a requirement for impartial, objective decision-making. In addition, the preferred candidate for the chairmanship is also subject to pre-appointment scrutiny from the DCMS Select Committee.
During the pre-appointment hearing of the noble Lord, Lord Burns, on 13 December 2017, to which the noble Lord, Lord Adonis, referred, he made clear that he understood that the process by which Ofcom interacts with the Government requires caution in order that it makes the right decisions on proposals and effectively implements legislation. He also clarified any possible conflicts between existing roles and his chairmanship of Ofcom. Following his hearing and the outlining of all his possible conflicts of interest, some of which were raised by the noble Lord, Lord Adonis, this evening, the committee was completely satisfied that the noble Lord, Lord Burns, was a suitable candidate and fully endorsed his appointment.
All board members are required to declare and maintain a register of disclosable interests, which is published on the Ofcom website, and there are restrictions on direct investments in the sectors they regulate. Furthermore, a board member cannot take part in any discussions, investigations or decision-making unless there is a unanimous vote that the interest can be disregarded.
Most importantly, day-to-day decisions on editorial standards and breaches of the Ofcom Broadcasting Code are taken not by board members but by the Ofcom executive under advice of the Ofcom content board. The chair and deputy chair are not members of the Ofcom content board and are therefore removed from matters relating to programme standards and content. Let us imagine, entirely hypothetically, that the chair or deputy chair of Ofcom were trying to influence content regulation or editorial decisions. They would not have the platform or remit to do so, and their involvement would be rejected entirely by the content board, which makes specific reference to the Ofcom Broadcasting Code when making its decisions.
But there is more. Ofcom is a retrospective regulator, so it does not engage in pre-broadcast editorial decisions. It ensures transparency by providing details on the outcomes of all potential breaches of the broadcasting code in the Ofcom Broadcast and On Demand Bulletin. Ofcom also publishes its responses to freedom of information requests relating to complaints, including those on BBC political bias and Brexit coverage. If there was any interference by the board, it would be clearly visible here. Let me be clear: there is no evidence of this whatever.
I now turn to the BBC. In the current climate, the growing importance of impartiality in preserving the BBC’s role as a trusted news provider, particularly on issues of significant national interest, cannot be underestimated. Let us acknowledge how far the BBC has now moved from when the BBC’s governance and regulation of content were not separated. Yet the noble Lord, Lord Adonis, raises concerns about the regulatory treatment of the BBC. In 2017, Ofcom became the BBC’s first independent external regulator. As required under the BBC’s royal charter, Ofcom has developed an operating framework for the BBC, covering regulation of the BBC’s performance, compliance with content standards and impact on competition.
To clarify, Ofcom does not determine the BBC’s editorial policy. The BBC unitary board governs and runs the BBC and is ultimately responsible for editorial and management decisions. Ofcom has formal procedures in place for handling potential breaches of content standards by the BBC and stipulating how investigations are carried out, how sanctions are determined and how final decisions are reached. As already highlighted, these procedures are transparent. The BBC is accountable to Ofcom, which is itself accountable to Parliament.
Finally, let me touch on the House of Lords. As I am sure the noble Lord is aware the House of Lords Code of Conduct clearly sets out how Members of this House should balance wider activities with their parliamentary responsibilities. I refer to specific Lords guidance—known as the Addison rules—which sets out clearly that, where questions affecting members are brought to Parliament, it is the Government alone who are responsible. There is absolutely no evidence that engagement in the House of Lords by board members impacts on the impartiality of Ofcom’s decision-making.
The noble Lord, Lord Adonis, asked a question about Ofcom’s code of conduct and Peers who are board members speaking in the House. Ofcom’s code of conduct for board members clearly states that taking a party whip, engaging in debates and voting in areas outside the scope of Ofcom’s activities are acceptable.
I shall go further, because the noble Lord, Lord Adonis, asked about the noble Lord, Lord Hall, who chooses, as he rightly said, not to participate in the House of Lords, whereas the noble Lord, Lord Burns, does. There are distinct differences between the two roles. They have very different roles in which they must abide by two different sets of guidelines and have very different levels of editorial control. Ofcom is an independent and, as I said, retrospective regulator of the BBC. The BBC director-general is editor-in-chief of the BBC and determines BBC editorial policy, so it is understandable that that difference has meant that the noble Lord, Lord Hall, felt that he should stand aside as opposed to the noble Lord, Lord Burns.
In conclusion—and by the way I welcome the helpful comments made by my noble friend Lord Dobbs—the noble Lord, Lord Adonis, should be in no doubt that there is no conflict of interest between the duties of the chair and deputy chair of Ofcom as impartial regulators of the BBC and their parliamentary duties.
Counter-Terrorism and Border Security Bill
Committee (1st Day) (Continued)
18: Clause 4, page 3, line 10, leave out “prove” and insert “state”
In Clause 4, new Section 58B, entitled “Entering or remaining in a designated area”, states that:
“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”.
Under Clause 4, the burden of proof would appear to be clearly on the person charged with the offence, not on the prosecution to prove the guilt of the individual charged. The Government have said that that is not the case and that once the reasonable excuse defence has been raised, the burden of proof is on the prosecution, as laid down in existing legislation—Section 118 of the Terrorism Act 2000, which would still apply.
Even with that being the case, it nevertheless appears odd that a new section should say something incorrect: that the person charged with the offence of entering or remaining in a designated area has to prove that they had a reasonable excuse for being there, rather than the prosecution having to prove that they did not have a reasonable excuse. Our amendment would rectify this apparent anomaly by removing the Bill’s requirement for the person charged to prove they had a reasonable excuse as their defence, and instead make it a defence for the person charged simply to state that they had a reasonable excuse for entering, or remaining in, the designated area.
If the wording of the amendment does not find favour with the Government, I hope that its intention does and that the Government will agree to come back with an amendment of their own to new Section 58B at Report. We surely cannot agree to a clause which says the opposite of what is intended and is in apparent conflict with the terms of the legislation. I beg to move.