Committee (2nd 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 5 agreed.
Clause 6: Extra-territorial jurisdiction
31: Clause 6, page 5, line 16, leave out subsection (3)
My Lords, Amendment 31 is grouped with Amendment 33. Both are amendments to Clause 6, which extends the circumstances in which terrorist offending abroad may be prosecuted in the UK, whether or not the offender is a UK citizen and whether or not the conduct is also an offence in the jurisdiction in which it took place. The overall effect of the amended provisions of the Terrorism Act is that an individual committing one of the offences within the relevant section would be liable under UK law in the same way as if he or she committed the offence in the UK. In practical terms, that person would only be prosecuted if he or she was present in the UK, though that presence could, of course, be achieved through extradition.
The offences which this Bill adds are: the dissemination of terrorist material; the wearing of clothing or displaying an item in public so as to arouse reasonable suspicion the person is a member or supporter of—in view of our debate on Monday, I have written down a query about whether that should be “supportive of”—a proscribed organisation; and making or possessing explosives under suspicious circumstances. Under these provisions, it would also no longer be a requirement that the offence be listed in the Council of Europe Convention on the Prevention of Terrorism.
I very much enjoyed the tutorials, from which we all benefited, from the very senior lawyers who took part on the debate in Monday. I am tempted to let them go first but the amendment is in my name, so that would not be entirely the thing to do. I move these amendments, as I did on Monday, on behalf of the Joint Committee on Human Rights. Our report of 4 July commented on some of the evidence we had received, including that from the Independent Reviewer of Terrorism Legislation Max Hill QC. He said:
“placing an individual … on trial in this jurisdiction in front of judge and jury means that you need to prove a level of awareness as to the offence at the time the person committed it. If there is no equivalent offence abroad it is difficult, at the point of proof, to demonstrate that the offence has been committed”.
We also reported on the evidence of Professor Clive Walker who talked about creating,
“a potential clash between UK law and the law of the country where the activity occurred”.
He went on to say that,
“foreign law which has chosen not to incriminate or prosecute the display of support suggests that UK law should not intervene”.
Similar points were made about the removal of the requirement for equivalence with the convention.
The committee’s report expressed our concern:
“The extension of extraterritorial jurisdiction to certain offences such as support for a proscribed organisation may be problematic in situations where there is not an equivalent offence in the country concerned”.
We took the view that this would,
“offend the principles of natural justice and sufficient foreseeability of the effect of one’s actions. It would mean a foreign national, with few links to the UK, could be prosecuted in the UK if he/she attended a protest or waved a flag overseas, in support of an organisation that is lawful within that overseas jurisdiction … We recommend that further consideration is given as to whether it is justified to bring domestic prosecutions against those who have no (or very few) links to the UK at the relevant time for conduct overseas that was perfectly lawful in the jurisdiction where it occurred”.
The Government have argued that the oversight of the Director of Public Prosecutions or, in certain cases, the Attorney-General, is a safeguard and that prosecutions would have to be proportionate. We did not regard this as a sufficient answer, nor did we regard as sufficient the Government’s comment that we need to deal with conduct in failed states which do not have the rule of law. All this raises, among other things, the issue of how evidence is found in such a place for use in a prosecution here.
Amendment 31 would delete the extension to the Section 13 offence in respect of uniforms and flags. Amendment 33 would limit the extension to where the relevant conduct is criminal in the country concerned, or where the individual is a British national or has been present in the UK for six months or more over a period of 10 years. That was a way of expressing that the individual has significant links with the UK. I beg to move.
I should notify the Committee that, if Amendment 31 is agreed to, I cannot call Amendment 32 by reason of pre-emption.
My Lords, as the noble Baroness, Lady Hamwee, said, Amendment 33, to which both my noble friend Lord Kennedy of Southwark and I have added our names, reflects a recommendation of the Joint Committee on Human Rights—a committee whose recommendations are not always music to the ears of this Government, and indeed have not been to previous Governments. I imagine that the committee would take the view that that is just about the highest compliment any Government could pay it.
The Government have also expressed a fairly trenchant view on the extent to which the JCHR, in connection with the Bill, should have taken evidence from the police, intelligence agencies and victims. The noble Baroness, Lady Hamwee, has previously responded to the Government’s comments, but, whatever the Government’s view on that specific point, the committee’s recommendations should be considered and responded to purely on their merits, rather than on the basis of whose evidence has or has not been given.
As the noble Baroness, Lady Hamwee, and the JCHR have said, Clause 6 extends extraterritorial jurisdiction to Section 13 of the Terrorism Act 2000. Section 13 criminalises wearing an item of clothing or wearing, carrying or displaying an article in a public place so as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. The JCHR has expressed concerns over the extension of extraterritorial jurisdiction to certain offences where there is no equivalent offence in the country concerned, which could certainly apply in respect of the offences covered by Section 13 of the Terrorism Act. In such a situation, we could end up in a position under the Bill as it stands where a foreign national with no or very limited links to the UK is prosecuted for conduct that, both in fact and as far as they were concerned, was lawful at the time and in the place it occurred. That surely would not be British justice in action.
The views of the Joint Committee on Human Rights on this issue are shared by the Constitution Committee—whether, in the latter case, that was with or without having heard evidence from the police and intelligence agencies I do not know. The Constitution Committee states that the extraterritorial extension of the offences concerned,
“breaches the requirement, deriving from the principle of legal certainty, that people should have a fair opportunity to know the laws (particularly criminal laws which on conviction carry criminal penalties) which apply to them. We agree with the JCHR’s proposed amendment that extra-territorial jurisdiction should apply only where the relevant conduct is criminal in the country concerned or where the individual has sufficient links to the UK”.
Amendment 33 is designed to address the issue to which both the JCHR and the Constitution Committee have drawn attention by providing that an offence is committed under Section 13 only if the relevant acts were an offence in the country where the acts took place, or the individual was a British national or had been present in the United Kingdom for a continuous period of at least six months in the last 10 years.
My Lords, I am somewhat shocked by the implication that there is anything illiberal about the proposed extension of the law in this clause. In November 2017, the Secretary-General of the United Nations, speaking in London at the School of Oriental and African Studies, included in his speech the following sentence:
“While terrorism often starts in conflict zones, it reaches far beyond them, organizing and inspiring attacks and radicalizing people across borders and continents”.
The clause recognises exactly what the Secretary-General described. Those who have been interested in terrorism law for as long as the period since 9/11 will recall that the then Secretary-General of the United Nations, in a speech in Barcelona shortly after 9/11, made the point that the United Nations agrees in principle that terrorism should be prosecuted wherever the defendant is irrespective of where the terrorist act was committed.
If this Bill, as we are told by the Government, is intended at least in major part to modernise the law so that it faces up to the changes that have occurred at an exponential rate in electronic communications since 2001, this is exactly one of those measures that achieves just that. Let us imagine that somebody was in this country with impunity having committed an act somewhere else that is a terrorism offence in this country. We prosecute those who committed the act in this country, but not those who committed exactly the same act, which appeared on exactly the same postings on the internet and in exactly the same YouTube videos, in another country. That makes absolutely no sense.
I say to the noble Baroness—whom I much admire—who proposed the amendments that there is a danger of us losing touch also with the public view on these matters. A set of opinion polls appeared two days ago in which it was revealed that changes in the law of this kind are broadly supported by more than 80% the public. While I do not believe in legislating on the grounds of public opinion, in this instance I regard the public as being right and I urge your Lordships to reject the amendments and not to reject the principle in the clause.
My Lords, I support Amendments 31 and 33, which are in the name of my noble friend Lady Hamwee and to which I have added my name. I remind the Committee that my noble friend raises the amendments as a representative of the Joint Committee on Human Rights. I am putting forward the view of the Liberal Democrat Benches on these issues.
On Amendment 31, concerning extension of extraterritoriality to wearing a uniform and displaying an article in a country other than the UK, while I accept what the noble Lord, Lord Carlile of Berriew, said about an act of terrorism, such as blowing somebody up or that sort of serious offence, to expect somebody who lives in another country—let us say in Syria—to know that it is offence to carry an ISIS flag, and therefore that they would be prosecuted if they came to the UK for doing that in Syria, without having any connection with the UK prior to that occasion, makes, to use the noble Lord’s expression, absolutely no sense. There will be some things that are so clearly a terrorist offence that people should know that they are not acceptable.
Can the noble Lord identify any individual in Syria who is not aware that supporting ISIS is regarded as a serious offence in most countries, including Syria?
I do not think that I can answer that question, and I do not think that the noble Lord can answer it either. This is about offences which if they were committed in the UK could lead to people being radicalised or encouraged to join a particular terrorism organisation. That cannot be said about an offence committed in another country. As for Amendment 33, surely it is only common sense that a person commits an offence overseas only if their actions are an offence in that country, or they have sufficient ties to the UK that they should know that their actions would amount to an offence if committed in the UK. I therefore support these amendments.
Sitting here trying to cope with this extremely complex Bill and some very important issues, I find myself having to choose between the views of the noble Lords, Lord Paddick and Lord Carlile of Berriew. I, for one, have no hesitation whatever, looking at the records of the two men over the years, in knowing who I support. I support the Bill as it is and not as this amendment would propose.
My Lords, before I address Amendment 33 let me go back to the debate on Monday when we were discussing Amendment 18 and new Section 58B(2). I fear that during the discussions I misunderstood something said by the noble Earl, Lord Howe. I understood him to be saying that the Act produced two different ways of approaching the burden of proof. I have reread Hansard and I misunderstood him—it is entirely my fault—and I objected to that. I would go on objecting to it if that was what he said, but it was not. I have studied the Bill and I find on page 83 that he is right and that the burden of proof in relation to any offence created by Section 58B(2) is in fact on the prosecution. I therefore apologise to the noble Earl—I am sorry that I misunderstood him—and to the extent that I misled the House, I apologise to the House. However, I just add that it would be so much more helpful if Acts of Parliament said what they meant, instead of telling us to look at whatever page it is to find the answer.
I want to add a word, in spite of the difference of view expressed here: we have to be careful about this provision. I am not going to take sides in relation to what may be a very serious offence or a very minor offence, but can we just reflect on this? Every citizen is presumed to know the law; every visitor to this country is presumed to know the law that applies in this country. Of course we do not: look at me, I got new Section 58B(2) wrong and I am supposed to know the law. The more serious point is that there is a basis and a quid pro quo for this. The quid pro quo is that the criminal law should be clear. I am expected to know the law and to obey the law: it should, at least, be clear what it is I am expected to obey.
We are all supposed to know the law here; every citizen of every country, applying the same presumption, is presumed to know the law in the country of which he is a citizen or to which he is a visitor. There will be occasions—perhaps I need to be less emphatic: there may be occasions—when something is not unlawful in a different country to our own. We have different rules. Bullfighting is unlawful in this country, but would we prosecute a Spanish toreador coming here for breaking what we would regard as our law which is not unlawful under their law? The Bill risks criminalising a citizen of another country for doing something that is not unlawful in that country.
Of course terrorism is unlawful—it is unlawful everywhere, you do not need a book of law to tell you that—but there may be minor matters, in relative terms, which we criminalise here but are not unlawful by the laws of a different country. We need to be careful not to extend the criminal law further than it should go.
My Lords, as we have heard Clause 6 adds a number of further offences to the existing list at Section 17 of the Terrorism Act 2006, which extends extraterritorial jurisdiction over those offences. This will ensure that UK courts are able to prosecute foreign terrorist fighters who travel to the UK, having joined terrorist groups and become involved in conflicts or other terrorist activity overseas. It will also ensure that we are able to prosecute people who base themselves overseas and seek to radicalise people—the general public or targeted individuals—in the UK. It is this latter category of radicalisers, and propagandists on behalf of terrorist organisations, that the noble Baroness’s amendments deal with.
Section 13(1) of the Terrorism Act 2000 contains the offence of displaying in a public place an item of clothing or other article such as a flag, in circumstances which,
“arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”.
As a result of Clause 2, it will also contain, at new subsection (1A), the offence of publishing an image of such an article in the same circumstances.
Extraterritorial jurisdiction is most relevant to Section 13, and in particular to the offence the Bill will add at new subsection (1A), in a case where a person located overseas publishes images of flags or logos associated with a proscribed terrorist organisation. We have seen in the Syrian conflict that Daesh has run a slick and effective online propaganda operation, which has included exactly this type of activity—publishing images on social media and other online platforms, aimed at promoting the group, its ideology and its methods, to individuals around the world, including in the UK. Other terrorist groups, in other parts of the world, do the same.
It has been a recurring theme of the debates on the Bill that this is a downside of the rapid development of online technologies in recent years. Although people have been connected and brought together in myriad positive ways, and the world has been opened up, those who would do us harm have been equally quick to exploit the opportunities of the digital age. Terrorists are no exception, and we need to update our laws to keep pace with the evolving threat. The online world simply does not respect national boundaries in the traditional sense, nor does it pay heed to geographical distance. Where this gifts radicalisers the opportunity to reach across the world to target vulnerable people in the UK, it is absolutely right that the UK Government respond by ensuring that our courts have the ability to deal with that. There is a clear operational case to justify this measure.
The noble Baroness, Lady Hamwee, has explained that her concern is that a person could find themselves prosecuted in the UK, having acted in support of an organisation that is not proscribed in the country where the conduct took place, and therefore having no awareness or expectation that they could be held criminally responsible. I respect the principled stance taken by the noble Baroness but, respectfully, I do not agree that it would be right to either simply remove this provision, as Amendment 31 would do, or limit its application, as Amendment 33 would do. The reality is that there is no universal and internationally agreed list of proscribed organisations, and there is no realistic prospect of one being implemented. Even if there were, the kinds of countries in which terrorist organisations are most likely to be based are those that are the least likely to sign up to and implement such an international rules-based system.
Despite this, terrorists are travelling and communicating across international boundaries, in a way which poses a direct threat to the safety of the public in the UK and elsewhere. Given this, we should not deny our courts the ability to act against such individuals if they return or travel to the UK, pending the adoption of such an international list, and we should ensure that the powers available are flexible and not unduly restricted. To proceed as the noble Baroness advocates would risk sacrificing public safety and justice in the pursuit of a frankly unrealistic ideal.
It is right that we should be able to prosecute those who travel overseas to join terrorist organisations, and who publish propaganda in support of those groups, seeking to radicalise others back in the UK or elsewhere. That is the nub of the matter. The noble Lord, Lord Carlile, was absolutely spot on in the way that he characterised these provisions. Such crimes are most likely to be committed in areas of conflict and instability, within failed states that may not have functioning systems of government with effective jurisdiction over their own territory, or in countries where there may not be clearly defined or well-developed terrorism laws equivalent to those in the UK, or which may simply take a different approach. Those are not good reasons to ignore the threat posed on UK soil by people who have published propaganda in support of terrorist groups while overseas. Simply put, foreign terrorist fighters should not be able to evade justice because the country that they travelled to, or hail from, does not have a proscription system equivalent to that of the UK.
For those who are investigated or prosecuted, there will be safeguards. These have applied to Section 17 of the 2006 Act for the past 12 years and have ensured that the ETJ powers have been used appropriately. Those provisions should give us confidence that flexible powers will be used, and indeed have been used, responsibly and fairly.
First, any decision to prosecute will be subject to the normal full code test. That means that the CPS will need to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, and that prosecution would be in the public interest.
Secondly, prosecutions under Section 17 of the Terrorism Act 2006 for an offence committed overseas may be commenced only with the personal consent of the Director of Public Prosecutions. The noble Baroness said that she and the Joint Committee on Human Rights did not consider this to count for very much, but it is a safeguard against disproportionate application of the provision.
Thirdly, given that the courts’ jurisdiction over offences to which Section 17 applies is not limited to British nationals, if it appears to the DPP that the offence was committed for a purpose wholly or partly connected with the affairs of another country, he or she may give consent to prosecute only with the permission of the Attorney-General. Similar arrangements apply in Northern Ireland and Scotland.
Finally, the operation of Section 17 falls within the statutory remit of the Independent Reviewer of Terrorism Legislation. I am confident that his robust and independent oversight will help to ensure that the amended power is used in an appropriate way, and will provide a powerful means—in addition to the normal duty of every judge to ensure a fair trial—of identifying any concerns. On that basis, I respectfully invite the noble Baroness to withdraw her amendments.
My Lords, first, I regret the personal attack on my noble friend.
The debate has assumed that the amendment has a wider impact than it does. The two amendments deal with subsection 3, which is about uniform, flags and so on. I accept that displaying a flag may be suggestive of more extreme behaviour, but I still wonder whether someone from a failed state, or a state with a different approach, who displays a flag in that country—where it is not an offence—should, if he comes to this country, be subject to prosecution. The noble Earl referred to the provision about permission from the Attorney-General. I think he said that a test would be whether or not the Attorney-General believes that the behaviour in question affects the affairs of this country. The Minister is nodding at that. I find it quite difficult to make the leap to concluding—without further evidence—that a person behaving in that way would automatically be a risk to this country.
I take the point about losing touch with the public view seriously but my experience on the Joint Committee on Human Rights is that the public really understand the importance of applying the lens of human rights to the legislation that we create. I managed to do a law degree without any module on jurisprudence. The course at Cambridge has improved considerably since then but I wonder whether there is something a bit arrogant in assuming jurisdiction when it involves other countries. I feel uneasy at that notion but, having got that off my chest, I have to beg leave to withdraw the amendment.
Amendment 31 withdrawn.
32: Clause 6, page 5, line 16, at end insert—
“(cza) an offence under section 12(1) or (1A) of that Act (inviting or expressing support for proscribed organisation);”
My Lords, Clause 6 will add a number of further terrorism offences to the list at Section 17 of the Terrorism Act 2006, as I have already explained, to which extraterritorial jurisdiction—or ETJ—applies. This means that individuals can be prosecuted in the UK courts for conduct that took place outside the UK which would have been unlawful under an offence listed at Section 17 had it taken place here.
Following further consideration, we have identified two additional offences where it would be right to extend ETJ to ensure that the full range of relevant terrorism offences is covered. These are, first, the offence of inviting support for a proscribed organisation at Section 12(1) of the Terrorism Act 2000 and, secondly, the offence of expressing an opinion or belief in support of a proscribed organisation, reckless as to whether another person will be encouraged to support the organisation, which Clause 1 will insert into the 2000 Act as new Section 12(1A). Extending ETJ to these offences will help to tackle radicalisation, particularly by people who have travelled from the UK to join a terrorist organisation and reach back to the UK to spread its propaganda and promote its aims. This will allow prosecution in a case where, for example, someone overseas is in contact with a person in the UK, who may be a vulnerable person such as a child, and is either deliberately or recklessly encouraging them to support a particular proscribed organisation, such as Daesh.
Clause 6 received broad support in the House of Commons and, with the exception of the extension of ETJ to the Section 13 offence which we have just debated, has also been supported in this House. None the less, I hope that your Lordships will be persuaded that it is the right approach to ensure that we have as comprehensive coverage as possible of terrorist offences that might be committed overseas, subject to the normal safeguards, so that we can protect the public in this country. I commend this amendment to the Committee on that basis.
My Lords, since the Joint Committee on Human Rights is meeting at this moment it has not been possible to take its view on this amendment but I think it must follow from my comments on Clause 1 that it would not be enthusiastic, as these provisions obviously have to be read together. I was amused that the Minister said, as did the noble Baroness’s letter to noble Lords of 24 October, that the Government have identified further offences. They are not quite offences yet, are they? It would perhaps be fairer to say that the amendment is consequential on Clause, but that is a minor point.
My Lords, I oppose this amendment and, in doing so, I will seek to explain why the issues are rather different from those considered under the previous group. If Amendment 32 is passed then Section 12 of the Terrorism Act 2000, as supercharged by Clause 1, will apply to any person anywhere in the world who expresses an opinion or belief that is supportive of an organisation proscribed in the UK and who is reckless as to the consequences. The deficiencies of our deproscription regime, with which I have already wearied your Lordships, are multiplied when coupled with the indiscriminate grant of extraterritorial jurisdiction in this context.
To illustrate the point, I invite your Lordships to look to the Republic of Ireland, whose citizens would be criminalised by a law of this Parliament for expressing supportive opinions about organisations now committed to peace but in which their grandfathers or grandmothers once fought for freedom. I shall give one example: Cumann na mBan, the Irish republican women’s organisation. It was once aligned with the IRA and is still proscribed in this country, despite no evidence of which I am aware that it has been concerned in terrorism during this century at least. The commemoration of its centenary in 2014 in Dublin was a significant national event. The speakers included President Higgins of Ireland, who spoke stirringly and approvingly of the vision that animated the women of Cumann na mBan. The Minister will of course assure us that no one is going to seek extradition of Irish citizens who expressed opinions supportive of this proscribed group but, as noble Lords have done in relation to other clauses of the Bill, I must question whether this repeated heavy reliance on the discretion of our authorities is an adequate substitute for crafting a properly defined law.
This amendment comes in very late and, as the noble Baroness, Lady Hamwee, said, without the benefit of JCHR scrutiny. Whatever view noble Lords may take of Amendments 31 and 33, I strongly question the wisdom of extending extraterritorial jurisdiction unqualified by limitations of citizenship or residence to countries where conduct caught by the expanded Section 12 is not a crime. However it is applied in practice, this amendment might be thought to have a regrettably colonial flavour, not just in Ireland but in other parts of the world. I have no doubt that it is unintended, but it is no less unfortunate for that. This amendment seems to have been an afterthought. I suggest that this is one of those occasions where the first thoughts were the best. I invite the Minister to withdraw the amendment or, at the very least, to qualify it in the ways suggested in Amendment 33.
I shall be very brief. I await the Government’s response to the points made by the noble Lord, Lord Anderson of Ipswich, with interest.
I would like to pursue another point he raised in his contribution. Bearing in mind that this amendment, which adds offences, is coming in at a very late stage in proceedings, is this a result of a perceived oversight on the Government’s part or does it represent a significant rethink of policy?
My Lords, I am grateful to noble Lords who have responded to this proposed amendment. We are very conscious that it is less than ideal to bring in an amendment of this kind at this stage of the Bill’s passage. If we had been able to do so at an earlier stage, it would have been much better.
Having said that, we felt that it was, on balance, right to introduce this change rather than not introduce it. I recognise the reservation expressed by the noble Lord, Lord Anderson, on that score. He also expressed the reservation that we heard on the previous group of amendments about applying extraterritorial jurisdiction to those who are not UK citizens or UK residents. I have already said that as a general rule I respect that point of principle. However, I put it to the noble Lord and the noble Baroness that what we are seeking to do here is not any different in concept from what we sought to do at the beginning of the Bill.
It is a well-established principle in international agreements on terrorism—for example, the EU directive on combating terrorism, which was adopted in 2017—that countries should be able to, and are expected to, prosecute their nationals who travel overseas to engage in terrorism. Foreign terrorist fighters should not be able to evade justice on return, particularly where their crimes may have been committed in areas of conflict and instability where there may not be clearly defined or well-developed terrorism laws equivalent to those in the UK.
In the other place, the Official Opposition spokesman expressed his full support for this clause and the motivation behind it. I hear the call from the noble Lord, Lord Anderson, who of course I greatly respect, for the Government to take this matter away. On balance, however, I do not feel that that is the right thing to do. For the reasons that I have expressed, I invite the Committee to approve it.
Amendment 32 agreed.
Amendment 33 not moved.
Clause 6 agreed.
34: After Clause 6, insert the following new Clause—
“Treason: aiding a hostile State or organisation
(1) A person commits a treason offence if, with intent to aid—(a) a terrorist attack on the United Kingdom by any State or organisation, or(b) any State or organisation that intends to mount a terrorist attack on the United Kingdom or is engaged in a process of planning or preparing for such an attack on the United Kingdom,they engage in conduct falling within subsection (2). (2) A person engages in conduct falling within this subsection if they do an act that is designed to—(a) help carry out a terrorist attack or facilitate the carrying out of a terrorist attack on the United Kingdom, or(b) help the planning of or preparation for a terrorist attack on the United Kingdom, or(c) aid the military or intelligence operations of a State or organisation falling within subsection (1)(b).(3) This section applies—(a) in the United Kingdom, to any person who enjoys the protection of the Crown, and(b) outside the United Kingdom, to any British citizen or any person who is settled in the United Kingdom.(4) A person guilty of a treason offence shall be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.”
My Lords, this amendment in my name and those of my noble friends Lord Hodgson and Lord Bethell is to add an offence of treason to the Bill. The offence of treason, or high treason, has a rather chequered history, I readily admit. The 1351 treason offence remains on the statute book. It focuses significantly on the safety of the sovereign and prohibitions on aiding the sovereign’s enemies. Important though these matters are, it is now generally accepted that that Act is not fit for purpose, and having an offence on the statute book that cannot be used is not satisfactory.
There are now a considerable number of terrorist offences that exist to augment the criminal law. They derive mainly from the Terrorism Acts of 2000 and 2006. This Bill seeks to add to those offences, in recognition of the changing nature of the threat and to provide a nimble response, in legislative terms, to what is happening on the ground. If the nature of terrorism is changing as fast as the noble Baroness, Lady Manningham-Buller, said at Second Reading, there will inevitably be something of a legislative lag, but the Bill seems for the most part to be a sensible response. The reviewers of terrorism legislation have been vigilant in the past—two of them are Members of your Lordships’ House and are present in the Committee today—and this has very much helped the Government to consider what laws need to be updated. Ultimately, though, it is a matter for the Government how they respond to the threats and, in so far as possible, anticipate the nature of terrorist threats in future.
When I first heard the suggestion that we might need a modern law of treason, I was doubtful about either the wisdom of such a move or the need for it. Surely what was required was a much more nuanced response, and I was a little concerned about the potential risk of attracting martyrs if there was seen to be a somewhat heavy-handed response to the various threats from terrorism. I then had the opportunity to read Policy Exchange’s publication Aiding the Enemy, to which I referred at Second Reading. Its distinguished authors make a compelling case. The enthusiastic responses to the study came from a number of important sources, including the former Home Secretary, a former commander at New Scotland Yard and head of Counter Terrorism Command, and a former director-general of the Security Service.
This Bill increases sentences and creates more security at the border, together with some new offences. However, the debates we have already had in Committee illustrate how difficult it will be to satisfy Parliament, and in particular this House, that the various provisions in the Bill adequately reflect the balance between the need to protect citizens from terrorism and the need to preserve civil liberties. After all, the Liberal Democrats have given notice of their intention to oppose each of the first four clauses standing part of the Bill. In particular, I note the debate in relation to Clause 4 two days ago in this House.
It seems important to step back a little. At the heart of this new offence of treason is the question of allegiance or loyalty owed to this country by a subject or citizen of this country, or by someone who is settled here—settlement being a term of art in immigration law. Australia, Canada and New Zealand have responded to this challenge, albeit in slightly different ways. As recently as June, Australia legislated to deal with citizens or relevant others fighting Australian forces abroad. Many other countries have laws in relation to treason.
Let me make it clear that the creation of this new offence is not intended—nor would it act as—any break on free speech or the right to express dissent or criticism of the Government in relation to any of their activities, and in particular their foreign policy or decision to wage wars. Criticism and overt expressions of dissent are part of a healthy democracy. However, such dissent should not extend, in effect, to waging war against your own country, whether in the United Kingdom or elsewhere, Nor should it include helping, planning or preparing an attack, giving military or other intelligence, or in any way assisting such attacks.
What is the scale of the problem? It is one with multiple dimensions, including British citizens or permanent residents who go abroad to fight with ISIS in Syria or with the Taliban, but also British citizens and others who help those groups or others who intend to attack the UK or fight UK forces in the UK itself. It is estimated that about 900 British terror suspects went to Syria and Iraq during the wars. Those who have not been killed, or who are not currently prisoners, have been described by our senior counterterrorism officer as a “big national security threat”. It is true that when they return they will—or should—face immediate arrest and questioning and will be encouraged to enter deradicalisation schemes. But it is said that prosecution will be difficult, particularly against the many women involved—the so-called brides of Jihad—who will or may claim duress or in other ways try and distance themselves from what others may have done.
What about Anjem Choudary, released from prison on 19 October, half way through his in my view inadequate sentence for supporting ISIS? Now he will be placed on a deradicalisation or anti-extremism course, and a considerable amount of our resources will be spent on monitoring his activities, having regard to the range and scope of his encouragement of so many other terrorists. What he did was undoubtedly a betrayal of his country. He acted as a recruiting agent for a group that intended to cause and has caused attacks on the United Kingdom, and which the UK faces abroad. He would be guilty of treason.
Should the authorities simply wait for a British citizen to commit serious offences—in other words, to wait for a returning traitor, as they seem to have done with Khalid Ali, a British citizen who spent five years serving with the Taliban in Afghanistan before returning to the United Kingdom in late 2016? Apprehended in Whitehall with knives in his possession, he was sentenced on 20 July to life imprisonment for preparing acts of terrorism, but he ought to have been prosecuted for treason as soon as his activities in Afghanistan came to light.
Then there is Rabar Mala, an Iraqi national who had remained in the UK unlawfully after his visa expired in 2008. He became the first person to be convicted for possession of property for the purposes of terrorism. He activated some 360 SIM cards for fighters in Iraq and Syria and co-ordinated ISIS communications. He was also planning possible attacks in the United Kingdom, inviting funds and personnel to be sent to enable an attack on a major civilian target. Being neither British nor a settled non-citizen, had Mala served ISIS outside the UK he would not have breached the offence I propose. But while voluntarily living among us he owed a duty of allegiance to the United Kingdom which he betrayed by serving ISIS, aiding its military and intelligence operations in Iraq and Syria and planning attacks on the United Kingdom. The offence for which he was convicted and sentenced to eight years manifestly fails to recognise the true nature of his wrongdoing or to provide adequate punishment for it.
May I say a bit about the drafting of this amendment? I am, as ever, indebted to the Public Bill Office for its swift and helpful engagement with my proposed amendment, although I was somewhat disappointed at the changes that it insisted I make to it—as I say, it was based on an Australian version of treason—in particular the scattering in the amendment of the word “terrorist”. This apparently was to bring the amendment within scope. If you are fighting or aiding the fight against the United Kingdom outside the United Kingdom or inside it, there does not seem to be a significant distinction.
It would be odd if a British subject assisting the fight abroad was not guilty of a terrorist attack whereas the domestic equivalent constituted one.
Could the noble Lord help me? Is he saying that his amendment covers an attack on British forces operating outside the United Kingdom? I do not read it in that way.
It does not, which is why I was expressing regret at the final form of the amendment. If we are to return to this amendment, I shall seek perhaps to expand its scope—I hope not having an undue squabble with the authorities—so that it comes squarely within what the noble Lord suggests. If it is necessary to bring the amendment back with further refinements, they may include additional conduct which might be regarded as treason, such as impeding the operation of Her Majesty’s forces or prejudicing the security and defence of the United Kingdom.
Clearly, a prosecution under this offence would be no small thing. It would need the consent of the Attorney-General to bring a prosecution since it is an offence against the state. I also accept that many offences which might be regarded as treason would be caught up in all the many other terrorist offences on the statute book, and thus I would not expect it to make a frequent appearance. Nor would I claim that the existence of this offence would be a panacea, but there is a significant gap and filling it might avoid some of the complications, say, of the designated area offence in Clause 4.
Those who live and benefit from life in the United Kingdom yet involve themselves in attacks against the United Kingdom either here or abroad are surely guilty of treason. Are we too timid to call it that? Is it because allegiance to our country is considered unfashionable? If so, that seems to me to verge on the decadent, or at the very least it shows a country lacking in self-confidence. Those who reject the values of this country have the option of relinquishing their citizenship. But while they remain here or regard it as their home, surely they owe a duty to other citizens, who have their own human rights. This new definition of treason is a way of underlining that duty. I beg to move.
My Lords, I have added my name to Amendment 34. I begin by apologising to the Committee for not having participated at Second Reading, although I have taken care to read the transcript very carefully.
My noble friend Lord Faulks has given a clear and brilliant explanation of the unsatisfactory nature of the law on treason. Not being a lawyer, I shall not attempt to follow, let alone match, his judicial exposition; I shall come at the issue from a completely different angle. Earlier in the Session, I chaired a one-year Select Committee of your Lordships’ House on citizenship and civic engagement. I am pleased to see at least one member of the committee—the noble and right reverend Lord, Lord Harries—in his place; he will be familiar with quite a lot of what I will say.
Our report was published in March and we have received the Government’s response, although we have yet to hold our concluding debate. An underlying theme of our examination of citizenship and civic engagement in the 21st century was to look at the glue that holds our society together. A major topic debated at length by the committee was values: what is the essence of what this country stands for, which needs to be defended? Of course, it was not for a committee of your Lordships’ House to define irrevocably to which values British citizens should adhere. Indeed, we recommended that the Government should encourage a vigorous debate on this issue, but we offered as a “straw man” of the values we should share,
“democracy, the rule of law, individual liberty, and respect for the inherent worth and autonomy of every person”.
I say in passing that the committee suggested that the Government’s continued use of the term “fundamental British values”, as part of the Prevent strategy, was unfortunate and, in some cases, counterproductive. Since the Government began to use this term, the word “fundamental”—because of its close association with fundamentalism—has assumed greater significance; this issue was raised by my noble friend Lady Warsi at Second Reading. As a result, rightly or wrongly, one section of our population has seen it as directed particularly at them which is an unfortunate development.
Leaving that aside, there are core values; they represent red lines that have to be defended. One of our witnesses, Dame Louise Casey, put it thus:
“You do not pick and choose the laws of this country. The laws that protect religious minorities are the same laws that say I am equal to a man. You do not pick which ones you want. It is not a chocolate box of choice; it is something you have to embrace. If you are uncomfortable with that, I now say that is tough”.
The committee concluded:
“The epithet ‘racist’ has rightly acquired particular force and opprobrium in modern day Britain. Those who seek to continue to promulgate approaches that are not in line with our values, such as the value of equality, have been known to make use of this phrase to rebut criticism of their approach. Where necessary society must be sufficiently strong and confident not to be cowed into silence and must be prepared to speak up. Fear of being labelled ‘racist’ is never a reason for those in authority not to uphold the law, or for citizens not to raise their concerns”.
It is not good enough to look the other way; civic engagement demands more. Whether my noble friend’s amendment is the only—or right—way to help defend these red lines I am not sure. But I am sure that there is an important debate to be had, a debate about the gap—as he referred to it in his remarks a moment ago—and about how we balance our country’s proud record of openness and tolerance with the views of others, often in positions of influence, who openly despise such an approach as weak and wrong and who, given their positions of influence, are able to influence the actions of others and lead them astray. People of influence are able to empower and liberate their followers. This empowerment can be put to good or less good uses. We have seen an example in recent weeks in the United States, with the delivery of letter bombs to prominent citizens whose sole defining characteristic seems to be that they oppose the current Administration.
If there was one key theme from the huge volume of evidence that my committee received, it was that people from all parts of the country and all communities considered that the ground was shifting under their feet, that they increasingly felt rootless and that they wanted to belong. They wondered whether all parts of our society were prepared, in the spirit of compromise and tolerance so essential to the well-being of this country, to subjugate some of their personal preferences and beliefs in the cause of the greater good of society as a whole, or whether, as a result of speeches or actions by those who did not share our values, too many now felt empowered and liberated to attack our society, the state or the Crown and thus, in the broadest sense, commit an act of treason.
To conclude, we took evidence from Cardinal Vincent Nichols, the Cardinal Archbishop of Westminster. He addressed us thus:
“If we keep picking the fruits of tolerance and not attending to the roots of the tree, it disappears … tolerance becomes cynicism, cynicism becomes indifference, indifference hardens and we end up going down the road that leads to hate incidents and hate crimes”.
It is to try to avoid this country going down that very sombre road outlined by the Cardinal Archbishop that I have put my name to my noble friend’s amendment.
My Lords, I too thank my noble friend Lord Faulks for moving this amendment. I also thank my noble friend Lord Hodgson for supporting it, and I am glad to support it myself.
Many Peers spoke at Second Reading about the extraordinary changes to warfare, terrorism and espionage, and the growing risk of home-grown participants and recruiters. There is clearly a need for a modern response to these challenges, and I think the Bill does a huge amount to deal with them, but I wonder whether it goes far enough.
On the legal case for a revival of the treason law, my noble friend Lord Faulks and others have put the arguments much better than I can. I also recommend the paper by Policy Exchange, Aiding the Enemy, which has an enormous amount of support from senior figures in the law and the police. However, my angle is slightly different. I am coming at it from the point of view of cohesion and the need in this country to ensure that there is a really strong sense of trust in our communities.
We are living with a huge amount of immigration—something that I am really proud of and glad to see happen. There is an almost post-modern attitude among many people towards even the concept of a nation state, and a sense of “anywhere-ness” among a lot of people. The noble and learned Lord, Lord Falconer, the former Lord Chancellor, argued in 2010 that the law of treason was no longer appropriate because people might feel their strongest allegiance to be towards their religion or even towards Greenpeace. He said that we live in an era when the freedom of the individual is put above practically everything else.
That thinking, I am afraid, has contributed to our becoming embarrassed when talking about big ideas such as treason, betrayal and allegiance. We have lost a sense of what is acceptable and what is not. It is acceptable to criticise your country and to obey your God or to follow the tenets of your ideology, but it is not acceptable to aid one’s country’s enemies in their attacks. I think this confusion has contributed to 900 people, many of them young and naive, fighting for an enemy, and we are now living with those consequences.
I was greatly struck by the story of Kimberley Miners, who travelled to Syria and recently returned. She said of her experience of living with ISIS:
“People have no idea, but ISIS is actively searching Facebook for vulnerable people. People just like me. These people befriended me, I felt accepted”.
I feel a mixture of enormous compassion for her and enormous anger that she could have been so stupid in this decision. I cannot help feeling that, if our citizens and those who chose to live here had a clearer sense of where the boundaries lay, naive young people would not have made such stupid mistakes. We could then sleep with confidence that our neighbours, whatever their views and beliefs, ultimately have a peaceful intent towards their country, and further damage to trust in our communities could be avoided.
By way of conclusion, a treason law should not become a coercive or reactionary measure, and I pay tribute to the thoughtful briefings on the Bill from Liberty and the Open Rights Group, and to the contributions of my noble friends Lady Warsi and Lord Ahmed during Second Reading. But there is social merit in a narrowly drafted measure that makes clear our duty not to aid one’s country’s enemies in their attacks. That is why I am pleased to support this amendment.
My Lords, I too support the amendment. When I read it, I was surprised that it did not include the words “take up arms against Her Majesty’s forces” or something to the same effect. It is, as my noble friend pointed out, a procedural point. I gently point out, however, that we in this House have great freedoms of manoeuvre and are able to table amendments that you simply would not be able to in the House of Commons. I hope that, in the end, the provision will include the words “taking up arms against Her Majesty’s forces”. We cannot have UK citizens attacking the UK or its forces in an organised way while still enjoying our way of life and the privileges of living in the UK. How do we think our security services and Armed Forces feel when they realise that a member of the enemy was brought up in the UK?
My Lords, Amendment 34, moved by the noble Lord, Lord Faulks, was the subject of some debate at Second Reading, and the issue has since been referred to several times. I was not persuaded then that this is the right way to proceed and, having listened to a number of noble Lords speak in favour of the amendment, I am not persuaded now.
As we have heard, the Treason Act 1351 is still in force today, although it has been amended. I believe it was last used to prosecute William Joyce in 1945 after the Second World War. As the noble Lord, Lord Faulks, said, it has a somewhat chequered history. There is ample opportunity to prosecute British citizens, and those who are not British citizens, who commit acts of terrorism for a range of offences, using legislation that is already on the statute book.
My Lords, on the prosecution of William Joyce, I do not believe that any reliance at all was placed on the Treason Act. The basis of the prosecution against him was that he had left this country holding a British passport and, as such, had relied on the guarantee of safety of this country. There was, therefore, a reciprocal duty on him, which led him of course to commit treason.
I bow to the noble Lord’s greater knowledge on the matter and would not attempt to dispute his point.
The Bill gives the Government further powers and increases the sentence for various offences, which deals with the point about adequacy of sentencing. The Bill also gives further powers to the police and the intelligence services, which is important.
Having read the amendment, I see the point noble Lords are making, but it seems rather messy to me. I do not see what it would achieve for us. It is not a question of being timid. I love my country. My family came here as immigrants and this country has been very good to us. I just do not think the amendment is appropriate.
In response to the noble Lord, Lord Hodgson of Astley Abbotts, of course the first duty of the Government is to protect their citizens, and we support the measures they take in that sense and support them in the Bill. We will question them and argue over issues, but we support the Government in their measures to do that. I just do not feel that this amendment, no matter how well intentioned, takes us any further forward.
My Lords, I thank all noble Lords who have spoken in the debate and my noble friend Lord Faulks for moving the amendment. In your Lordships’ House, every day is an education. My noble friend Lord Howe informs me that William Joyce was an Irishman falsely using a British passport, so perhaps the Irish among us should feel—
He was an American.
He was an American who took a German passport in 1940 but was nevertheless convicted when he was a German citizen.
That is a very interesting history. I know that many Americans claim to be Irish but it is not every day that we get a chance to discuss a law that goes back to 1351. It has been an interesting debate.
Perhaps I may ask a serious question. If we are debating an Act that was enacted in 1351, which has absolutely no application to today, through which, among other provisions, the Chancellor doing his job in his place of work is protected but not if he is slain at a party conference, would it not be a good idea for us to get rid of it altogether?
If the noble and learned Lord will indulge me, I will come on to the point about hostile state activity and the place for this law in due course.
I share my noble friend’s belief that those who do harm to the United Kingdom and the people who live here should face justice. I am not entirely convinced that introducing a new offence of treason, as proposed by Amendment 34, is necessary. However, as my noble friend and the noble Lord, Lord Kennedy, have said, this country has a comprehensive range of terrorism offences and other powers that this Bill will update for the digital age—it is ironic that we are talking about the digital age and 1351 in the same debate—to reflect modern patterns of radicalisation and terrorist offending.
The updated legislation will provide the police and intelligence services with the powers they need to protect the public from terrorism, and we do not consider it necessary also to create a new treason offence for this purpose. For example, the activities covered by subsection 2(a) and (b) of the new clause are likely already to be offences under the Terrorism Acts of 2000 and 2006, in particular the offence of preparation for terrorism in Section 5 of the 2006 Act. This proposed new clause would therefore add little to the existing offences on the statute book. However, it is worth noting that the sentencing guidelines applicable to the Section 5 offence provide that where the conduct was with a view to engaging in combat with UK forces, this is to be treated as an aggravating factor when sentencing.
We are aware of the need to update legislation to keep it relevant for the contemporary and future challenges we face. I do not have to remind noble Lords of the phenomenon we have seen in recent years of people travelling overseas, most notably to Iraq and Syria, to engage in terrorist-related activity. That is why the Bill introduces a new offence of entering or remaining in a designated area: to prevent UK nationals and residents from travelling abroad to take part in or help sustain future foreign conflicts, and to protect the public from the risk of terrorism.
Furthermore, prosecuting terrorists for treason would risk giving their actions a credibility—my noble friend Lord Faulks referred to seeing them as martyrs—glamour and political status that they do not deserve. It would indicate that we recognised terrorists as being in some formal sense at war with the state, rather than merely regarding them as dangerous criminals.
As outlined by the Prime Minister on 14 March in her announcement in response to the Salisbury incident, the Home Office is currently leading a review of all legislation applicable to hostile state activity. It is considering the full scope of hostile state activity and, where relevant, treason offences may be considered as part of this work, which is currently ongoing. My noble friend will recognise the need to get the form of any new offences right. The policy exchange paper published in July was a useful contribution to the debate, but we should not rush it.
I hope that, having had the opportunity to debate this important and interesting issue, my noble friend will be content to withdraw his amendment, in the knowledge that there is ongoing work in the Home Office to examine whether there are further gaps in our law, and in order to help us counter hostile state activity.
My Lords, I am sure that the Committee is grateful to my noble friend the Minister for her comprehensive answer. She mentioned engaging Her Majesty’s Armed Forces. Does she not think that engaging them ought to attract a life sentence automatically?
As I said, it most certainly can be viewed as an aggravating factor when sentencing is taking place.
My Lords, I am grateful to all noble Lords who participated in the debate, including those who put their names to the amendment. There were some interesting diversions via the prosecution of William Joyce; whether he was correctly convicted is a matter for considerable debate many years afterwards. In fact, I think that the matter went all the way to the House of Lords, and there were dissenting speeches. There is a view that the only thing he did wrong—that is, that amounted to a criminal offence—was filling in inaccurate information on a passport application, which would normally attract a fine. Having said that, I do not think that anybody felt that the result was in any way unfair.
The question of whether other offences are adequate has been referred to. I accept that a considerable range of different criminal offences can be committed by those involved in terrorist activity. However, I respectfully suggest to the Committee that there is something more. My noble friend the Minister said that such criminals should be regarded not as at war with the state, but simply as criminals. With great respect, they are more than that: they are at war with the state. They may use criminal activities to wage that war but they are more than criminals. For example, there are those who thought that the murder of Lee Rigby was murder on any basis, but those prosecuting felt that there had to be something more by way of marking the seriousness of the attack on not only an individual but the state itself.
Similarly, one thinks of the Skripal poisonings. That was an attack on individuals; it was also an attack on our state. I am afraid that I do not accept my noble friend the Minister’s distinction in that respect. However, I am grateful for her saying that the Government are looking into the question of whether offences that currently appear on the statute book adequately reflect the very real and ever-changing threats that this country faces. Of course, I am conscious that there is always a risk that those charged with treason might elevate themselves to martyr status. That point can be made but it does not sufficiently persuade me that there is no force in the creation of an offence of treason.
I accept entirely what was said by the noble and learned Lord, Lord Judge. It is not a happy state of affairs to have a criminal offence in the 1351 Act that cannot realistically be relied on and should be repealed; indeed, he said that in his introduction to the Policy Exchange paper. However, that does not mean that it ought not to be substituted with something modern that can capture, in rare cases, an offence of sufficient gravity which reflects a total contempt for the state beyond ordinary criminal activity.
I await with interest what the Home Office and the Government decide about the future of offences in this field. Of course, I will consider whether to try to persuade the Public Bill Office that the scope of my amendment could be expanded, perhaps to bring it back on Report. In the meantime, I repeat my gratitude to all noble Lords for taking part and I beg leave to withdraw the amendment.
Amendment 34 withdrawn.
Clause 7: Increase in maximum sentences
35: Clause 7, page 5, line 31, leave out subsection (3)
My Lords, Amendment 35 takes us to the sentencing provisions in the Bill. My noble friends will raise points about sentence inflation, as my noble friend Lord Marks described it at Second Reading. This is for both general and specific offences, including referring to the current sentencing guidelines, which I believe were issued after the terrorist attacks and the consultation on them.
The Joint Committee on Human Rights commented on Clause 7 and proposed an amendment to leave out subsection (3), which increases the penalty for the collection of information offence from 10 years to 15 years. I regard that to an extent as standing proxy for the other sentence increases, but that is a personal view. The committee reported the Home Office’s comment, saying:
“Increased maximum penalties better reflect the increased risk and the seriousness of these offences”,
in question. The maximum sentences for the offences, which I have mentioned, would increase to 15 years. We were not aware of evidence to suggest that the courts are sentencing to the upper limits of their powers in respect of these offences. Indeed, we took evidence to the contrary. We heard that, recently, the worst Section 58 offenders have received sentences significantly below the 10-year maximum. The Sentencing Council, I understand, reported that between 2011 and 2016, the mean average custodial sentence length, after any reduction for a guilty plea, was three years and four months.
On Monday, we discussed what we regarded as a lack of clarity regarding the defence of reasonable excuse. That, combined with the increased penalty, may have a particularly chilling effect. We recommended that,
“the Home Office provide further evidence as to why they consider the current maximum sentences to be insufficient and how this increase is necessary and proportionate”.
The Government responded that they,
“have seen an increase in low-sophistication terrorist plots which are inspired rather than directed, and in attack operatives who are self-radicalised and self-trained without necessarily having had significant direct contact with terrorist organisations. The division between preliminary terrorist activity and attack planning is increasingly blurred”.
We did not regard this as an explanation for why existing sentencing powers are inadequate.
At Second Reading, I mentioned the risk of creating martyrs and those who project themselves as martyrs. Do the Government have any evidence of the deterrent effect of an increase in these particular sentences? In this context, clearly there is not because the increase has not happened yet. What evidence do they have that increasing a sentence from 10 years to 15 years has a deterrent impact? I beg to move.
My Lords, this group also includes the question as to whether Clause 7 should stand part of the Bill. I speak in favour of the proposition that it should not and in support of my noble friend Lady Hamwee’s amendment, to which she has just spoken.
At Second Reading I mentioned the dangers of sentence inflation. It is not just many of us in this House who, in the course of numerous debates on prisons, have talked about the dangers of overcrowding and the fact that it is caused to a very large extent by sentence inflation, both statutory and as demanded by public opinion and the press. Senior judges, including the Lord Chief Justice, the organisation Justice, the Howard League and many others have spoken about the dangers of a prison system in crisis—overcrowded, understaffed, violent beyond anything we have ever known before, with little opportunity for education and training or reform, and very little success in reforming offenders.
I echo the point made by my noble friend that there is absolutely no evidence of a deterrent effect of longer sentences when long sentences are already passed. That is as true of terrorism as other areas. However, there is plenty of evidence of the effect of prison sentences and the experience of being in prison for terrorist offences in radicalising other prisoners. A collection of studies edited by Andrew Silke, published in 2014 under the title Prisons, Terrorism and Extremism: Critical Issues in Management, Radicalisation and Reform, contains considerable evidence on the risks of imprisonment in this area. The danger, without wishing to overdramatise it, is that our prisons become academies of terrorism.
The problem has been recognised by the Government. They have introduced two so-called separation centres, the first at Frankland, the second at HMP Full Sutton. A third is opening shortly. But there is limited evidence that these centres will do anything but encourage subversive prisoners to draw strength from each other in furthering terrorism elsewhere. The number of inmates involved in the separation centres will be very small; I understand that a figure of 28 is intended. There are very large numbers of those convicted of terrorist offences in prison and a very large population of prisoners who are liable to be converted to terrorism when they might not have those tendencies so far.
The Parole Board has raised particular concern about radicalisation in prisons. I quote the report of the House of Commons Justice Committee of 21 February this year:
“The Board also raises concerns about radicalisation in prisons, a problem that it suggests will remain regardless of whether the Government decides to segregate prisoners or continues to spread them around the prison estate. In the Board’s assessment, there are concerns that increasing the penalties for less serious offenders will result in them becoming more likely to commit terrorist acts when they are released. The Board goes on to observe:
‘Most of the rest of Europe is devising interventions in the community to deradicalise less serious offenders. These programmes are more likely to be successful in the community than in prison where the influence of extremist inmates is likely to be stronger’”.
Before this legislation is introduced one would expect some evidence from the Government to support the case for longer sentences; certainly before the legislation is passed we should look for that evidence. But there is none produced by the Government. Page 14 of the Explanatory Notes merely sets out the new sentences proposed, without a word of justification. I remind your Lordships what they are. For failure to disclose information about acts of terrorism, the maximum sentence would double from five years to 10; for collection of information of a kind likely to be useful to a person committing or preparing an act of terrorism, the increase would be from 10 years to 15; for eliciting, publishing or communicating information about members of the Armed Forces of a kind likely to be useful to a person committing or preparing an act of terrorism, there would be an increase from 10 years to 15; for encouragement of terrorism, an increase from seven years to 15, and for dissemination of terrorist publications, an increase from seven years to 15. The last two represent a more-than-doubling of the existing maximum sentences. As my noble friend Lady Hamwee pointed out, the Joint Committee on Human Rights said simply that,
“the increase in sentences does not appear to be supported by evidence to suggest why it is justified or proportionate. We recommend that the Home Office provide further evidence (if they have such evidence) as to why they consider the current maximum sentences to be insufficient and how this increase is necessary and proportionate”.
We have not had it.
However, there is evidence on this subject which tends the other way. The Sentencing Council produced a definitive guideline in April this year. It considered all these sentences. Perhaps I may take as an example the offence of the encouragement of terrorism. It looked at levels of culpability, which they rated A to C; for instance, if a person was in a position of trust and had intention to provide assistance to terrorism, that would be the highest rating. It rated harm factors from one to three, so that a category 1 example was where others had either acted on or been assisted by the encouragement to carry out activities endangering life, while the lowest, category 3, example was a statement or publication with non-specific content encouraging support for terrorism activity not endangering life. So the range went from a category 3, culpability C, level of sentencing proposed—of a high-level community order to two years’ imprisonment—to, at the top, a category 1, culpability A, sentence range of four to six years, which is well below the maximum allowable at the moment and does not justify any increase. The council listed in detail aggravating factors—it is clear that such factors are always to be taken into account, whether or not they are listed in the statute—as well as mitigating factors.
The definitive guideline followed a statutory consultation under the Coroners and Justice Act 2009 and was considered by the Justice Committee, which produced in February this year the report from which I earlier quoted. There was no suggestion by the Justice Committee of any increase in the level of sentences for the offences with which this clause is concerned. Only at the top of the statutory limits proposed was there even a suggestion that consideration be given to any increase. It stated that the Sentencing Council might consider an approach where the recommended range was up to nine years when the statutory maximum was 10, but of the offences with which this clause is concerned, only failure to disclose information had a guideline range that went up to the five-year limit.
All that information was carefully considered by the Sentencing Council. It issued its definitive guideline in April and nothing has changed. There was no justification for increases in the ranges. The attacks with which we were concerned in considering the introduction of this legislation all happened before the sentencing guidelines were produced. We would be interested to hear any evidence from the Government to support these radically increased sentences in terms of better outcomes, deterrence, reform or the safety of the public. Without such evidence, we cannot support this clause.
My Lords, Ministers will know that the equivalent sentences in other European countries for the type of offences that we are talking about tend to be much lower than they are here. Perhaps that is no bad thing.
In light of these issues and the proposed very substantial increases to which the noble Lord has referred, will the Minister say what steps will be taken to address—or at any rate, given the sensitivities, to research—the disparities that have been observed by informed observers between sentencing levels for terrorism offences in England and those in Northern Ireland, where sentences imposed appear to be a great deal lower for conduct that on the face of it looks quite similar?
This amendment, moved by the noble Lady Baroness, Lady Hamwee, and to which my name and that of my noble friend Lord Kennedy of Southwark are also attached, is another which reflects a recommendation from the Joint Committee on Human Rights. One of the key aspects of the Bill is the proposed increase in maximum sentences for a number of terrorist offences. This was one—but only one—of our reasons for raising concerns about the prospect of innocent parties falling foul of some offences.
The JCHR said that the increases in sentences do not appear to be supported by evidence to suggest that they are justified or proportionate. The committee was particularly concerned that a sentence of 15 years could be imposed for an offence of viewing terrorist material online—even more so in the light of amendments on Report in the Commons that might make a single viewing sufficient for such an offence to be deemed to have been committed. As has already been said, the committee asked the Home Office for the evidence on which it based its decision that the current maximum sentences were insufficient and why it considered the proposed higher maximum sentences to be necessary and proportionate.
The reply from the Home Office, as set out in the JCHR report, stated, among other things:
“The division between preliminary terrorist activity and attack planning is increasingly blurred”.
It did not, according to the committee, explain why existing sentencing powers were inadequate. I hope, like others, that the Government will address this point on existing sentencing powers in their response, as well as the specific terms of the amendment, reflecting the view of the JCHR, which deletes the increase in the maximum sentence from 10 years to 15 years for the “collection of information” offence provided for in Section 58 of the Terrorism Act 2000.
My Lords, Clause 7 increases the maximum sentences for a number of terrorism offences to ensure that the available punishment properly reflects the seriousness of the crime. That is the point that I urge noble Lords to focus on in this debate. A key aspect of the review of our terrorism laws announced by the Prime Minister following last year’s attacks, of which the Bill is the product, was looking again at the courts’ sentencing powers to ensure that they are sufficient to respond to the threat and keep the public safe. The clear conclusion was that sentencing needs to be updated and strengthened, and the Bill contains a package of measures to deliver that, including Clause 7. However, I recognise that the noble Lord, Lord Marks, and the noble Baroness, Lady Hamwee, have queried whether these changes need to be made and have suggested that such changes are unnecessary and disproportionate. However, I sincerely hope that in responding to such concerns I can explain why the Government believe that Clause 7 as drafted is a necessary, proportionate and timely response to the contemporary terrorist threat.
Since the offences in question were first introduced, in some cases 12 years ago and in others 18 years ago, the terrorist threat has evolved significantly. Its source has shifted and diversified, its methods have developed and it has been quick to exploit modern online technology. Both its extent and its severity have maintained an upwards trajectory, and the intelligence services consider that in recent years there has been an enduring shift in the nature of the threat, rather than just a spike. We can be under no illusion: the scale of the threat we face today is unprecedented and, sadly, more attacks are likely.
In particular, we have seen increases in the scale of radicalisation and changes in its methodology and patterns. The growth of the internet has brought new and powerful ways for people to connect with each other, and to share ideas and information, which have brought great benefits to the vast majority of the public. But they have also brought new opportunities to those who would do us harm, increasing the ability of terrorists both to access and to disseminate unlawful terrorist information and training material, propaganda, and incitement to hatred and violence—and to do so, potentially, to a wide audience. Indeed, those who seek to recruit and to inspire or direct individuals to carry out attacks have never found it easier to identify and connect with would-be terrorists, often across international borders, and those who are embarking on the path of radicalisation have never found it easier to access material, to communicate with terrorist individuals and organisations, and to receive encouragement or direction which will move them further and more quickly along that path.
The police and MI5 report that, as a result, people are moving increasingly quickly from the initial stages of radicalisation to planning or actually carrying out attacks—a point well made by the noble Baroness, Lady Manningham-Buller, at Second Reading. Further- more, these attacks are often less sophisticated than previous ones the UK has experienced, involving simple planning and preparation, and sometimes limited or no contact with other terrorists on the specifics of the plot. This was highlighted in a number of the attacks in 2017, in which knives and vehicles were the weapons of choice and complex planning or the acquisition of particular materials was simply not needed to have a devastating effect. All of this conspires to limit the opportunities for intelligence coverage and investigation to identify when a person is becoming radicalised to the point of planning or carrying out an attack, and therefore for the police and MI5 to intervene to protect the public.
The review concluded that, in this context, it was necessary to focus on strengthening the ability of the police, the intelligence agencies and the criminal justice system to intervene effectively with robust disruptions at an earlier stage in the process of radicalisation to violence, and that the type of criminal conduct covered by the offences addressed by Clause 7, which is preparatory to the incitement, planning or commission of a terrorist attack, should be treated as more serious and harmful than was the case in 2000 and 2006, when these offences were first enacted.
Clause 7, therefore, increases to 15 years the maximum sentences available to judges for four offences, to better reflect that seriousness and high level of harm. These offences are: the collection, making records of, or possession of, information likely to be useful to a person committing or preparing an act of terrorism, contained in Section 58 of the Terrorism Act 2000, where the current maximum penalty is 10 years; eliciting, publishing or communicating information about members of the Armed Forces, intelligence services or police, which is likely to be useful to a person committing or preparing an act of terrorism, contained in Section 58A of the Terrorism Act 2000, where the current maximum penalty is 10 years; encouragement of terrorism, contained in Section 1 of the Terrorism Act 2006, where the current maximum penalty is seven years; and dissemination of terrorist publications, covered by Section 2 of the Terrorism Act 2006, where the current maximum penalty is seven years. In addition, the clause increases to 10 years’ imprisonment the maximum penalty for the offence of failing to disclose information about acts of terrorism, contained in Section 38B of the Terrorism Act 2000, where the current maximum penalty is five years.
If the police and intelligence services are going to keep the public safe, they need sufficient powers to effectively disrupt terrorists involved in this type of activity, to do so at an earlier stage, before the risk of them planning attacks has progressed, to better manage them, and to protect the public from them after they have been convicted. The Bill contains a comprehensive package of measures to deliver this objective, of which the increases to maximum sentences are an important component. Other amendments to some of these offences are taken forward in earlier clauses. They will close gaps and update them for the modern digital age, and complement the increased sentencing powers—in other words, we should not see these powers in isolation.
In its report on the Bill, the Joint Committee on Human Rights has argued that the increase in the maximum penalty for the Section 58 offence is disproportionate. The noble Baroness, Lady Hamwee, has tabled an amendment to remove this proposed increase from the Bill, but I hope that I have been able to explain how this change is necessary to address the challenge posed by contemporary patterns of radicalisation, and the ways in which individuals can rapidly gather information useful to a terrorist over the internet.
I will try to reassure the noble Baroness that this measure is not disproportionate. The proposed increase in the maximum penalty for this and other offences is the product of a careful and detailed review, including extensive engagement with the police, the Crown Prosecution Service and the intelligence services. The changes are intended to better reflect our current analysis of the heightened threat facing the UK. Because of that threat, we need to make an emphatic public statement, in the form of increased penalties, about the seriousness of these offences. These higher maximum penalties will send a clear message and, we believe, act as a strong deterrent to those engaging in activity preparatory to acts of terrorism, or radicalising others to commit acts of terrorism. Moreover, they will provide a powerful and effective means of intervention to protect the public in cases where individuals do none the less engage in this serious and harmful activity.
These are very serious offences and it is right that judges should have the ability to send people who commit them to prison for a commensurately long period of time. This is a principle reflected in the sentencing guidelines for terrorism offences that were published earlier this year by the independent Sentencing Council, which also concluded that the seriousness of this type of offending, and the resulting harm, has increased, and that sentencing practice should increase as a result.
The noble Baroness referred to the average length of sentences passed for these offences. What we are considering today are the statutory upper limits. Sentences awarded in individual cases will continue to be a matter for the judge, taking into account all the circumstances of the case including any aggravating and mitigating factors, in line with the applicable sentencing guidelines. Sentences towards the upper limits of these ranges will continue to be reserved for the most serious cases. It will continue to be open to any person convicted to seek to appeal their sentence if they consider that the judge has got it wrong.
The noble Lord, Lord Anderson, pointed to the disparity between sentencing practice in England and Wales compared to Northern Ireland. Clause 8 is designed to address that issue directly, by extending to Northern Ireland courts the power to treat a terrorism connection as an aggravating factor when sentencing for an offence in the general criminal law, such as firearms and other violent offences—which may be particularly relevant in the Northern Ireland terrorism context.
The noble Lord, Lord Marks, made powerful points about prison overcrowding and radicalisation. I take those points completely, which is exactly why the Government’s prison estate transformation programme is attempting to get the basics right by building decent prisons, to improve rehabilitation and to create safe and secure environments for staff and offenders alike. The department is committed to delivering up to 10,000 decent prison places, providing the physical conditions for governors to achieve better educational, training and rehabilitative outcomes. As well as constructing new prisons, we are reconfiguring the existing estate so that prisoners will be held in the right place at the right time in their custodial journey, and their rehabilitation can be managed more effectively. The combination of building new prisons and the reconfiguration of the existing estate will certainly address some basic issues, such as safety and decency, reduce crowding and drive improvements in rehabilitation.
The noble Lord makes a good point on radicalisation in prison. We make every effort to ensure that individuals imprisoned under the Terrorism Act are given the best possible chance to rehabilitate while in prison and on probation. All offenders of extremist or terrorist concern are managed actively as part of a comprehensive counterterrorism case management system. As he mentioned, we have opened two separation centres, at HMP Frankland and HMP Full Sutton, to hold the most subversive extremist prisoners and protect the vulnerable from their ideology. The first separation centre opened in July last year and an early assessment of it concluded that it was operating well. This is work in progress.
As is the case for many of the measures in the Bill, the offences that Clause 7 amends are subject to oversight by the Independent Reviewer of Terrorism Legislation. The Government give careful consideration to all conclusions and recommendations made by the independent reviewer. Given the specific explanation on the Section 58 offence, and the reassurances that I have tried to give on the sentencing provisions as a whole, I hope that I am not too forward in asking the noble Baroness to consider withdrawing her objection to this clause standing part of the Bill.
I think that the noble Earl would carry the whole House in saying that terrorism has become a greater threat to our society in the last 10 years and that Parliament should do something about this serious matter. I, for one, would be open to persuasion—as, I suspect, would many others in this House—that what is required, among other things, is to strengthen the hands of the courts and to give them the ability to increase the sentences that they impose for terrorist or terrorist-related offences.
However, I have noticed that the Minister has not even begun to answer the quite significant questions asked by the noble Lords, Lord Marks and Lord Rosser, about the principle on which this increase in sentences has been decided—if you like, the multiple which is being applied to existing sentences. What is the origin of this? The Minister mentioned the review. Has the review set out exactly what the increased sentences should be, and if so, on what basis has it come to that conclusion? Did it decide on a universal multiple? From the figures of the noble Lord, Lord Marks, it sounded as though it was about 50%. Is that applied across the board, or was it decided that a different multiple should be applied to different types of sentence, and if so, on what principle? I do not sense that we have heard enough about the methodology that the Government have used to come up with the proposals that they have put before the House today.
I am sorry that the noble Lord did not take one of the central points that I was trying to convey: that the review into this area, instigated by my right honourable friend the Prime Minister, concluded that the kinds of offences that we are considering preparatory to terrorism—which in 2000 and 2006, when the previous Terrorism Acts were passed, were not considered to be as heinous as terrorism offences themselves—were given sentencing structures that reflected that point of view; but that since that time, the intensity and scope of terrorist acts has so increased that it is necessary to treat those former, lesser offences as much more serious and harmful than before. In that context, it is to enable society as a whole, through legislation, to make a more emphatic statement, through sentencing guidelines, of the seriousness of those offences.
I did not ask the noble Earl to repeat what he has said to the House before. The question I asked is very specific: on what principle had these precise multiples been arrived at?
There is always a judgment to be made. Once one has reached the conclusion that I have just articulated, there is indeed scope for argument about whether the increase should take place at all—we believe that it should—and, if so, to what extent. The Government have taken a view. We are putting it to Parliament and we believe it strikes the right balance in this context.
The guidelines which came into effect on 27 April this year, a few months ago, were arrived at following consultation and a request for comment. They were considered by the Justice Committee in the House of Commons. What is the review to which the noble Earl is referring? What was its date? Was it not before the Sentencing Council at that time?
I assume that the noble Earl would expect the Sentencing Council to go back to its guidelines in the light of what he has said and the lack of principle to which the noble Lord referred a moment ago, and review the appropriate sentencing. These sentencing guidelines set out six steps for a judge to take before he announces the sentence. They are detailed, categorise the nature of the crime and consider what aggravating or mitigating circumstances there are. There are six steps to getting to a decision. They were all set out on 27 April this year. As the Prime Minister would say, what has changed? Is it the review? If so, what is this review?
My Lords, it may be helpful to the noble Lord and the Committee if quote part of a press release which the Sentencing Council issued on 28 March this year when it launched the publication of the new sentencing guidelines for terrorism offences:
“In terms of the impact on sentencing levels, it is likely that in relation to some offences, such as the offences of preparing terrorist acts and building explosive devices, there will be increases in sentence for lower level offences. These are the kinds of situations where preparations might not be as well developed or an offender may be offering a small amount of assistance to others. The Council decided that, when considering these actions in the current climate, where a terrorist act could be planned in a very short time period, using readily available items such as vehicles as weapons, combined with online extremist material providing encouragement and inspiration, these lower-level offences are more serious than they have previously been perceived”.
Max Hill QC, the Independent Reviewer of Terrorism Legislation, when he gave evidence to the Joint Committee on Human Rights, said:
“The other aspect which is partly to do with the passage of time as well is that the sentencing powers of those few experienced senior judges who deal with terrorism cases are capable of helpful review … There are examples where a higher discretionary maximum may be appropriate. It is not my purpose to talk about individual cases, but the Choudary case, which I have mentioned, might be a case in point. Some commentators were surprised at the sentence that he received, given the gravity of his offending, but the judge applied the statutory maximum, discounted in the various ways that he is enjoined to do. It seems to me that there is an argument for a higher discretionary maximum”.
That is the context in which the Government have taken the view that they have. I hope that is helpful.
The March press statement was an explanation of the guidelines which were to come into effect on 27 April. It was not looking beyond those guidelines to some future date. Indeed, the noble Earl has not referred to the review that he quoted to us a short time ago—what it is, when it was published and whether it was before the Sentencing Council came to its conclusions. Its March justification for an increase in sentencing power was not for something that might happen now, but because it was increasing the level of sentences with its guidelines in April. What has happened since then?
My Lords, the Sentencing Council’s new guidelines for terrorism offences came into force, as the noble Lord rightly says, on 27 April. In its consultation on the draft guidelines, the council was able to anticipate the proposed increases. Consequently, we believe it will not be a difficult task for the council to modify the guidelines once the Bill is enacted, and the Government will of course work with the council on those increases. Any changes to sentencing will only be made following parliamentary debate and approval.
Unless I am getting confused, which is quite possible, as I understand it the Security Minister, when the Bill was in the Commons, said,
“we have kept the Sentencing Council apprised of the provisions in the Bill, and the chairman has indicated that the council plans to revisit the guidelines once the Bill has completed its parliamentary passage”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 3/7/18; col. 105.]
Is that still the Government’s position?
That is exactly the position. I sense no resistance from the Sentencing Council to that approach and I think it is eminently practicable. To answer the question from the noble Lord, Lord Thomas, about the review, it was announced by my right honourable friend the Prime Minister in June 2017. It is an internal government review and as such was not published, but I have informed the Committee today of some of the conclusions that it reached.
It follows from that that the review was prior to the Sentencing Council coming to its decision in March and April of this year, so its members must have had that material before them. Nothing has happened between April and now that would justify this increase. From what the Minister says, I assume that he is expecting the Sentencing Council to double the sentences that it proposed in April—that is the basis of the increase in sentences from seven years to 15 years. That gives more scope for the judge to do justice, and consequently the Minister would be expecting the Sentencing Council to double its sentences.
My Lords, what I had better do is take advice on the timelines that were involved in all this and clarify that to noble Lords who have taken part in this debate; I would not wish to give the wrong impression about the sequence of events. What I am saying is that the Sentencing Council’s new guidelines, which came into force on 27 April, are capable of being updated, and we believe that that is not a difficult task for the council to do once the Bill is enacted. We will consult with the council to that end, as appropriate.
I am sorry to keep the Minister on his feet for longer than I am sure he wants. I ask that when the exercise that he has promised is undertaken, he also investigates what evidence there was to justify the sentences. He has mentioned in particular the views of the police and the CPS. Was any evidence taken from any members of the judiciary responsible for sentencing in terrorist cases where they felt that their powers were insufficient under the existing sentences?
My understanding is that the consultation that took place was a wide one, but I can clarify that point having taken advice on it. It is of course not for the Sentencing Council to comment on or recommend statutory maximums; it issues guidance on the application of currently existing maximums. That clarification is important.
The Minister has been very helpful to the Committee, but would it not solve an awful lot of problems if he were to publish the review on which these revised sentencing guidelines were based so that we could all see what arguments were adduced and how the conclusions were arrived at that are reflected in the draft Bill before us?
I am happy to take that request away with me and investigate whether it is possible.
My Lords, I too had written down not just “timelines” but “evidence to the review”. I do not think one can disregard that. The Minister also referred to lower-level offences, which were commented on by the Sentencing Council, but we seem to have slid away from that.
The Minister put great emphasis on the need to—I hope I am quoting him correctly—strengthen the ability of the police and the agencies in the criminal justice system to intervene. I do not think anyone has queried the seriousness of the offences that we are discussing, nor have we queried the powers. That has not been the thrust of the argument.
The Minister has not disputed the mean average of three years and four months. Of course, I appreciate that any average is an average, so there are much higher periods and much lower ones, but 10 years seems to send a pretty clear message, which was the term that he used, and it leaves a lot of headroom above the average. Three years and four months is quite a shortfall from 10 years. Unless there is a big increase in that, there will be an even greater shortfall from 15 years. I would have thought that that sent a rather dangerous message. The message that I take is the one from the very recent sentencing guidelines, whose consideration, as a matter of common sense, must have been taken into account in preparing the Bill—or should have been.
I think we have more discussion to come on this issue. For the moment, I beg leave to withdraw the amendment.
Amendment 35 withdrawn.
Clause 7 agreed.
Clause 8 agreed.
Clause 9: Extended sentences etc for terrorism offences: England and Wales
Debate on whether Clause 9 should stand part of the Bill.
My Lords, I was not proposing to speak to Clause 8 but I do propose to speak to Clauses 9, 10 and 11. The effect of those clauses is, in brief, to introduce a provision for extended sentences for terrorism offences where previously extended sentences were applicable for specified violent or sexual offences. Clause 9 deals with England and Wales, Clause 10 with Scotland and Clause 11 with Northern Ireland.
The provision for extended sentences involves an extension of the conditions set out in the legislation of up to eight years in England, Wales and Northern Ireland and 10 years in Scotland. The sentences have serious consequences: they extend the time for release on licence from half way through the sentence to the two-thirds point. They mean that release on licence will not follow after two-thirds of the sentence has been served unless the Parole Board has in fact recommended release. The extended term will then be served on licence after the custodial period has been served.
This is a probing opposition to the clauses standing part, on the basis that before the Government secure support for extended sentences to be used in this way we say, much as we did in respect of Clause 7, that they need to demonstrate why these very substantial extensions are necessary. Once again the Explanatory Notes explain how the extension works and how the system works, but do not seek to provide any justification. Much as I heralded in my intervention at the end of the noble Earl’s speech on the last group, we would expect to see evidence of cases where judges felt constrained to impose terms that they believed were too short, where they believed their powers were insufficient adequately to protect the public, or where these very long extended terms on licence were necessary. Again, it is not simply enough to rely on the views of the police and the Crown Prosecution Service; one really needs the evidence of judges, to show why they believe they cannot do enough under the existing law. There has been no such evidence.
Interestingly, the Home Office produced a fact sheet to justify Clauses 7 to 11. I will not read it out, but the Home Office recited many of the arguments in brief that were relied on by the noble Earl in closing the last group. As did the noble Lord, Lord Davies, we accept entirely everything that the noble Earl said about the seriousness of terrorist offences, their increasing dangers and increased prevalence. We accept many of the arguments for targeted powers for the security services and the police, and we accept that the increased sentences and increased sentencing powers, such as in respect of extended sentences, should not be taken in isolation, as the noble Earl suggested. The fact that they should not be taken in isolation does not mean that each component part of this Bill—each component extra power and each component extension of the sentencing powers of the courts—should not have to be justified individually. The job of this House is to look at everything that is done to increase the powers of the security services, the police and the courts, individually to see whether it fits as part of the whole as necessary and proportionate in every case.
Nothing has been put forward by the Government to justify the extension of these long extended sentences in this way. We are not persuaded that they have justified them. They need justification and we invite the Minister in closing this group, or at least by undertaking further research before Report, for the evidence on which he asks this House to approve that the clause should stand part of the Bill.
My Lords, although I remain largely agnostic on the increase of maximum sentences which was discussed just now, in my view there is a much stronger and clearer argument for applying extended sentences to the offences to which we are referring. The noble Lord, Lord Marks, has just suggested that there should be more evidence from the judges. In my experience, and it includes some experience of sitting as a judge, judges are not in the habit of saying, “I would have passed a much heavier sentence if I had had the opportunity to do so”. Occasionally they do, but most judges feel a great sense of self-restraint from saying that, and I know of no methodological research that has ever existed that seeks to tease out of judges whether in certain specific cases they would have wished to pass longer sentences.
I was not suggesting that we were looking for a public statement by judges that in particular cases they would have imposed longer sentences—although one has heard of that. However, surely the Government, in proposing this legislative change, should have sought out the views of the senior judiciary about the changes and whether their powers are sufficient or restricted. That sort of research is frequently done by government when considering changes that affect judicial powers.
In fact, the Government have a working relationship with the senior judiciary, which is often conducted at a fairly subtle level. The Attorney-General, it is to be hoped, has reasonably frequent conversations with the senior judiciary, but one would not expect the content of those conversations to be published. I apprehend that this matter has been considered fairly carefully in the usual way, and I am sure that we can trust Ministers when they say that there is evidence in their view for extended sentences of this kind.
I was going to add that there seems quite a clear analogy between sexual offences and terrorist offences, save that the evidence for extended sentences in terrorism offences may be much clearer than in sexual offences. When a judge is sentencing someone for a sexual offence, he will often have a clear apprehension drawn, for example, from the probation officer’s pre-sentence report and from the evidence in the case that the person concerned, usually male, represents a serious risk to children for an unknown period. The person is then sent to prison and courses are offered which they may or may not follow. The judge will often have an indication at the time of sentence as to the likely willingness of the individual to follow such a course, and that may influence the judge’s decision on whether to impose an extended sentence, usually for the protection of children.
A terrorism case may come before a court to defend someone like—he is not unique—Anjem Choudary. He has a clear intention, depicted on numerous occasions, to ignore those who criticise what he has been doing and to continue to attempt, in the subtle way that he follows, to radicalise others. There are other cases of a similar kind, but it is not very difficult for the judge to form the conclusion that the person is someone from whom the public needs to be protected by the special measure of an extended sentence. That is not only empirically defensible but meets public concern, which is reflected in the attempt to modernise these provisions in these clauses.
I urge noble Lords to support the spirit behind these clauses and to support the clauses in the knowledge that judges have never been lavish in their passing of extended sentences. In my experience and observation, when it happens it is usually done with great care and much concern by the judges, who start from an impartial standpoint before passing sentence.
My Lords, Clause 9 amends provisions in the Criminal Justice Act 2003, which, among other things, enables a criminal court in England and Wales to impose extended sentences of imprisonment and sentences for offenders of particular concern. Clause 9 adds further terrorism offences to the list of offences for which the court can impose these sentences. Similarly, Clauses 10 and 11 make analogous changes to the equivalent extended sentences provided for in Scotland and Northern Ireland. I should point out, however, that neither jurisdiction has the equivalent of sentences for offenders of particular concern.
To put the provisions of these clauses in context, it may assist the Committee if I first explain, as briefly and clearly as I can, the nature of these extended sentences as they operate in England and Wales. There are two types of sentence relevant here. The first is the extended sentence of imprisonment, usually known as an extended determinate sentence. The second is a special custodial sentence for certain offenders of particular concern. Taking the extended determinate sentence first, these sentences are available in respect of the sexual and violent offences listed in Schedule 15 to the 2003 Act. The sentence can however be imposed only if certain statutory conditions are met. The court must consider the offender “dangerous”, under a test set out in the 2003 Act. That test requires the court to find that the offender presents a significant risk of causing serious harm to the public through committing further specified offences.
If the offender commits one of the specific offences and is considered dangerous, the court may impose an extended determinate sentence. An extended determinate sentence is a custodial term which has two parts. The first is the appropriate custodial term commensurate with the seriousness of the offence, and the second is an extended licence period on supervision in the community. Under current provisions of the 2003 Act, the court may impose this extended licence for up to five years for a violent offence and up to eight years for a sexual offence.
The 2003 Act also makes particular provision about the release on licence of offenders serving an extended determinate sentence. Offenders will be considered for release on licence by the Parole Board once the offender has served two-thirds of the appropriate custodial term. This should be compared with the automatic release at the halfway point in sentence for standard determinate sentences. The offender will be released automatically at the end of the appropriate custodial term if the Parole Board has not already directed release. On release, the offender will be subject to an extended period of supervision on licence.
If a court does not find that an offender is dangerous to the point where it imposes a life sentence or an extended determinate sentence, it must impose a sentence for offenders of particular concern. This sentence must be imposed if the offender is convicted of an offence listed in Schedule 18A to the 2003 Act. The list of offences in Schedule 18A reflects why sentences for offenders of particular concern were created: to remove automatic release for terrorism and child sex offences, which would have applied to a standard determinate sentence.
A sentence for an offender of particular concern, similar to an extended determinate sentence, has two parts: first, the appropriate custodial term, and secondly, the licence period. The effect of a sentence for an offender of particular concern is that the release point set at half way through the sentence is not automatic, but is at the discretion of the Parole Board. If not released at the halfway point, the offender may serve all of their sentence in custody, and on release must serve a minimum of 12 months on licence. That is a brief but—I hope noble Lords will agree—necessary summary of the current sentences.
I turn now to how Clause 9 amends those sentences. Currently, the list of relevant violent offences for which an extended determinate sentence can be imposed—set out in Part 1 of Schedule 15 to the 2003 Act—includes a number of terrorism offences. Clause 9(5) takes those offences from Part 1 of Schedule 15 to the 2003 Act and places them in a new Part 3, created to deal specifically with terrorism offences.
As well as shifting the existing terrorism offences into a new terrorism category, Clause 9 adds additional terrorist offences to the list. These are:
“membership of a proscribed organisation”,
covered by Section 11 of the 2000 Act;
“inviting support for a proscribed organisation”,
under Section 12 of the 2000 Act; wearing the uniform of or displaying an article associated with a proscribed organisation, under Section 13 of the 2000 Act; collection of information useful to a terrorist, under Section 58 of the 2000 Act;
“publishing information about members of the armed forces etc”,
under Section 58A of the 2000 Act; encouragement of terrorism, under Section 1 of the 2006 Act; dissemination of terrorist publications, under Section 2 of the 2006 Act; and,
“attendance at a place used for terrorist training”,
under Section 8 of the 2006 Act. Clause 9 also applies an eight-year maximum extended licence period for terrorism offences. This is an increase from the five-year maximum available for violent offences but is now in line with the eight-year maximum period for sexual offences.
In summary, for extended determinate sentences, Clause 9 creates a new specific list of applicable terrorism offences, adds new terrorism offences to that list, and increases the maximum extended licence period from five to eight years.
For the sentences of particular concern, Clause 9 adds the same eight additional terrorist offences to the list in Schedule 18A to the 2003 Act, meaning that the court, if it does not impose an extended determinate sentence, must impose a sentence for an offender of particular concern.
I turn to why we are making these changes. The noble Lord, Lord Marks, made a mild criticism of the Explanatory Notes in so far as they do not justify these provisions. I should just pick him up on that point. The Explanatory Notes are essentially a parliamentary publication, albeit written by the Home Office, and as such they are not usually the place to justify the Bill; their purpose is rather to explain what it means. Having said that, I am happy to explain now why we think these provisions are important and necessary.
In keeping with the other parts of the Bill, this clause reflects the changing nature of the terrorist threat. As with the proposals to increase maximum penalties for offences, adding new offences to these extended sentences reflects the seriousness of these crimes. I stress that extended determinate sentences already cover terrorism offences, and that sentences for offenders of particular concern were specifically created to cover terrorism offences—along with child sex offences. We are not therefore creating new sentences or changing the way the courts consider these sentences, but simply adding to the list of existing terrorism offences and bolstering the powers of the court to deal appropriately with these offenders.
The focus of extended determinate sentences and sentences for offenders of particular concerns is public protection. We have seen understandable public concern in recent weeks about the release of Anjem Choudary half way through his sentence following his conviction for a Section 12 offence. These extended sentences are designed to ensure that offenders are not automatically released from prison without the Parole Board having considered them safe to release. They are also designed to ensure that offenders can be supervised in the community for appropriate periods, including by returning them to custody if they breach the terms of their licence.
The changes in Clauses 9 to 11 therefore build on the existing provisions, are a proportionate and measured response, and give our courts additional powers which they can exercise in appropriate cases. On those grounds, I strongly commend the clauses to the Committee.
As the noble Lord, Lord Carlile, explained, it is common practice for government to consult the senior judiciary before bringing forward sentencing legislation. We followed that practice here but, as I am sure noble Lords will understand, it is not appropriate to say more than that. It is of course for this House to determine whether these clauses are appropriate; we firmly believe that they are.
Clause 9 agreed.
Clauses 10 and 11 agreed.
Clause 12: Additional requirements
36: Clause 12, page 13, line 27, at end insert—
“( ) For the purposes of this section the right to use a motor vehicle includes the right to use it as a borrower or by renting.”
My Lords, Amendment 36 is in my name and that of my noble friend Lord Marks of Henley-on-Thames, and I will also speak to our other amendment in this group, Amendment 38.
Part 4 of the Counter-Terrorism Act 2008 requires those convicted of certain terrorism-related offences to keep the police informed of changes in their circumstances. Clause 12 sets out additional requirements by amending Section 48 (notification of changes) to include a new subsection (4)(c):
“If a person to whom the notification requirements apply becomes the registered keeper of, or acquires a right to use, a motor vehicle the identifying information of which has not previously been notified to the police, the person must notify the police of the identifying information of that motor vehicle”.
Slightly worryingly, they must give notification within three days.
We are reminded of the terrorist attacks in Westminster and London Bridge, where hire vehicles were used and—if I am right—in the case of the London Bridge attack at least, the car was hired within 24 hours of the attack. Amendment 36 adds that the right to use a motor vehicle includes the right to use it as a borrower or by renting. I expect the Minister to say that “the right to use” includes borrowing with the consent of the owner, but it is questionable whether, were the person intending to use the hire vehicle for illegal purposes, the contract with the car hire company would allow it to be used for such a purpose and therefore the person would legally not have the right to use it. In any event, it is clearer and more reassuring to include reference to borrowing and hiring of cars in the Bill. As the noble and learned Lord, Lord Judge, said earlier, it is much better if the law says what it means.
Amendment 38 addresses Schedule 1, and the new Schedule 3A to the Counter- Terrorism Act 2008 in relation to the financial information that those subject to notification requirements must provide. It requires information to be provided about each account that the person holds with a financial institution, but it does not cover accounts held by others to which the person may have access—for example being an authorised signatory to an account held by someone else.
It also does not cover a credit card account held by someone else where a second card may have been issued to the person subject to the notification requirements. We believe these to be omissions to the financial notification requirements. Amendment 38 therefore includes accounts which they are entitled to operate.
My Lords, Clause 12, as we have heard, is concerned with the notification requirements in the Counter-Terrorism Act 2008; it inserts additional matters into the Act that have to be reported in respect of motor vehicles. Amendment 36 moved by the noble Lord, Lord Paddick, sets out and includes the issue of borrowing or renting a vehicle. He rightly set out the whole issue about people renting or borrowing vehicles for use in the terrorist attacks that happened in Manchester, London and elsewhere. This is very sensible and proportionate amendment which identifies a potential loophole. I hope the Government will support it.
On Amendment 38, which amends Schedule 1 to the Bill, the noble Lord raised a very important point about the notification requirements for financial information— someone may have access to or may operate a bank account; they do not have to be the account holder. He made an important point about being the authorised signatory or being able to use a credit card. I am worried that, as it stands at present, the Bill could allow people to get around the notification requirements it proposes.
The noble Lord has raised important points on both amendments and I hope the Government can respond positively.
I thank both noble Lords for their contributions to the debate, and thank the noble Lord, Lord Paddick, for what I believe are helpful amendments. I appreciate that they are intended to ensure more comprehensive coverage of the information to be notified.
Amendment 36 relates to the notification of the details of any motor vehicle which a registered terrorist offender is the registered keeper of, or acquires the right to use. Sadly, we have seen the use of motor vehicles as weapons in a number of recent terror attacks. Here in Parliament we have seen first-hand the devastating impact that such an attack can have, in the Westminster Bridge attack which took place last year. The benefits are obvious, ensuring that convicted terrorists are required to inform the police of any vehicle of which they have use.
I therefore fully recognise and support the intention of Amendment 36. It is essential that the provision should extend properly to vehicles which are borrowed or hired, which is the point the noble Lord, Lord Paddick, made. Hired vehicles were used in both the Westminster Bridge and Finsbury Park attacks last year. The terrorists responsible for the London Bridge attack attempted to hire a much larger vehicle than the van that was eventually used in the attack. This was just in the UK. We have also seen the use of vehicles as weapons in the Nice truck attack in July 2016, the Las Ramblas attack in August 2017 and the Berlin Christmas market attack.
I assure the noble Lord that this issue was carefully considered in the drafting of Clause 12, and that the existing reference to vehicles which the terrorist offender acquires the right to use will fully cover vehicles that are borrowed or rented. The Explanatory Notes to the Bill make this point. I therefore suggest that Amendment 36 is not needed, and I hope the noble Lord will feel content to withdraw it.
Amendment 38 similarly relates to a possible gap in the information to be notified to the police, in this instance relating to financial accounts. As currently drafted, this clause specifies that an offender must provide details of any account that they hold with a financial institution, or that is held by a company through which they run a business. Amendment 38 would expand this to refer also to any financial account which the registered terrorist offender is entitled to operate. The noble Lord has explained that this is intended to cover a scenario where a terrorist seeks to use an account which is not held in their name but over which they have effective control, for example because it is held in the name of their child or a relative for whom they have a power of attorney.
I thank the noble Lord for this amendment, which may have considerable merit in ensuring that the notification requirements cover all accounts which a terrorist offender might be able to use for terrorist purposes. The amendment requires more detailed consideration but, for now, I hope the noble Lord will not press it pending that consideration, and on the assurance that I will let him know the outcome of that consideration ahead of Report.
I am very grateful to the noble Lord, Lord Kennedy of Southwark, for his support, and for the comments of the Minister. I welcome the fact that the Government will look carefully at Amendment 38. On Amendment 36, I ask that the Government also look at whether, when somebody hires a car, the contract says effectively that the person does not have the right to use that vehicle for an illegal purpose; that could be a gap in the legislation as drafted. I hope that the Minister will appreciate that we are trying to be helpful and supportive in suggesting these amendments.
I suggest to the noble Lord that the provision in the Bill is concerned with “a right to use”, which must mean any right to use. It is not confined to a right to use the vehicle for the terrorist purpose that we are concerned about. Therefore, it is not necessary to pursue an amendment here, given that there is a notification requirement if there is any right to use the vehicle; clearly the person has a right to use the vehicle.
I am very grateful to the noble Lord. I am not sure whether the point I am about to make is contrary to what he has just said but our concern is that that there could be a line in the contract, when somebody hires a car, that says, “You are not entitled to use this car—you have no right to use this car—if you intend to use it for an illegal purpose”. In other words, the contract between the renter and the company will be null and void, and therefore someone has no right to use this vehicle if they intend to use it for an illegal purpose. I am not sure whether words to that effect are part of a vehicle hire contract but it perhaps at least needs to be looked at before we come back to this issue. However, for the moment, I beg leave to withdraw the amendment.
Amendment 36 withdrawn.
37: Clause 12, page 14, line 36, at end insert—
“( ) After section 53 (period for which notification requirements apply) insert—“53A Review of the necessity and proportionality of notification(1) A person to whom the notification requirements apply may apply to the chief officer of police for the area in which that person resides for a determination that the person should no longer be subject to the notification requirements (“an application for review”).(2) An application for review may be made after a person has been subject to notification requirements for a period of 5 years and every 5 years thereafter, following a determination of the review. (3) The chief officer of police to whom an application for review is made shall review the necessity and proportionality of the notification requirements and shall make a decision as to whether that person should continue to be subject to the notification requirements.(4) Where a determination has been made under subsection (3) that the person should no longer be subject to the notification requirements, then that person is no longer subject to the notification requirements.(5) Where a determination has been made under subsection (3) that the person should continue to be subject to the notification requirements, the applicant has a full right of appeal to the Special Immigration Appeals Commission within 21 days of the date of decision.””
My Lords, as we have heard, registered terrorist offenders, after release, have to notify the police of certain details and of changes to those details. The periods for which they are required to notify range from 10 to 30 years, depending on the length of the sentence, and the reporting provisions apply automatically without the possibility of review.
In considering the provisions, the Joint Committee on Human Rights commented that this was an interference with the Article 8 right to privacy, which of course does not mean that it is always objectionable. I understand that the domestic courts heard that the current scheme, when applied to 10-year periods, is in accordance with the law, in pursuit of a legitimate aim and proportionate, and so there is not a violation of Article 8. However, the courts have previously held that indefinite reporting requirements do violate Article 8, and, importantly, the European Court of Human Rights held that notification and registration requirements for up to 30 years in very similar circumstances to the UK system were compliant with Article 8 only because a review was possible. The sex offenders register has a review at the 15-year mark. We thought that that was a comparator worth referring to.
We are concerned that the revisions to the current system are likely to be considered as disproportionate and unjustified interference with the Article 8 rights because of the lack of the possibility of a review. In the light of the increased level of intrusion into private life and the lengthy period of time for which the requirements are imposed in some cases, we think that a review should be added to the provisions—that is, a review of the necessity of the notification and registration requirements—and that each individual subject to the requirements should have the right to make representations at that review.
I understand that the Government do not regard a review as necessary to ensure proportionality because the period is not indefinite. Indeed, the requirements are not indefinite but they might last for 30 years, which, if you are the subject of them, must feel close to indefinite. What harm would be done by providing for a review and right of appeal?
We anticipated that the Government might be concerned about matters being dealt with in open court, so, as well as the review involving the police, we provide in proposed new subsection (5) that the right of appeal can be dealt with by the Special Immigration Appeals Commission.
There are very detailed notification requirements in many sections of the 2008 Act, and non-compliance carries penalties. In the Public Bill Committee in the Commons, the Minister described these as providing,
“the necessary but proportionate means to monitor the whereabouts of convicted terrorists”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 3/7/18; col. 106.]
There are two issues: the means and, separately, the period. These are linked but, in my view, are not exactly the same. The amendment deals with both but was prompted in particular by the length of the period. I beg to move.
My Lords, as I have added my name to this amendment, I should like to say briefly that we support the principle that there should be the possibility of a review to ensure that these provisions are necessary and proportionate. The appeal process appears to get round any possible issues with matters that cannot be placed in the public domain.
My Lords, I shall be very brief. My name and that of my noble friend Lord Kennedy are also attached to this amendment. As has been said, it reflects a recommendation from the Joint Committee on Human Rights. I simply comment that circumstances can change and therefore ask whether it is unreasonable that an individual covered by the enhanced notification requirements should be able to seek a review of the necessity and proportionality of those requirements, as recommended by the JCHR.
My Lords, as noble Lords have said, Clause 12 strengthens the notification requirements under the Counter-Terrorism Act 2008 which apply to individuals convicted of terrorism offences, or offences with a terrorist connection, to enable the police to better manage the risk posed by such individuals. It does so by increasing the amount of information that registered terrorist offenders must notify to the police, in many respects bringing the requirements into line with those already in place for registered sex offenders.
The length of time that a terrorist offender is subject to the notification requirements varies depending on the length of sentence they receive, up to a maximum of 30 years for a person sentenced to 10 years’ or more imprisonment. The notification requirements are not onerous and do not place restrictions on an offender’s activities, but they do provide a proportionate means for the police to monitor the ongoing risk posed by a person who has been convicted of a terrorism offence and, where appropriate, to take action to mitigate any increased risk that they might pose.
The noble Baroness, Lady Hamwee, has explained that her amendment is motivated by a concern that it is not appropriate for a convicted terrorist to be subject to the requirements for this length of time without the ongoing necessity and proportionality of this being reviewed. I understand the sentiment behind her amendment but I disagree. As I have said, the notification requirements are not disproportionately onerous, and they flow as a direct consequence of a conviction for a terrorism offence—a category of offence which is of a particular level of seriousness. The notification measures provide a real benefit to the police in providing a quite light-touch but effective means of monitoring the ongoing risk posed by such a person over an extended period of time.
There is benefit in this, as individuals who are of a sufficiently terrorist mindset that they have been convicted of a terrorism offence, particularly one serious enough to merit a lengthy sentence of 10 or more years, can retain that mindset and can disengage and then re-engage over such an extended period of time. As such, the notification requirements in their current duration are, I suggest, clearly both necessary and proportionate.
The noble Baroness has suggested that, to ensure proportionality, we should follow the approach taken for registered sex offenders, which, following the Supreme Court’s judgment in the case of R (F) vs Secretary of State for the Home Department, includes a review scheme along the lines that she has proposed. However, it is crucial to note that the Supreme Court ruled only that a review scheme was necessary in order to comply with Article 8 of the ECHR for registered sex offenders who are subject to the requirements indefinitely.
Of course, the terrorism notification requirements can apply only for a finite period. The Supreme Court did not find that the sex offender notification scheme, as it applied to individuals subject to the requirements for a finite period, was incompatible with Article 8. As a result, for registered sex offenders subject to the notification requirements for a fixed period, there is no review scheme. Furthermore, and in any event, we should also note that the Court of Appeal found in the case of Irfan that terrorism offending is in a different category to sex offending in terms of ongoing risk. Notwithstanding the particularly serious nature of sex offending, terrorism offences have, in the words of the Court of Appeal,
“unique features which compound concern. A single act can cause untold damage, including loss of life, to a large number of people, by someone motivated by extreme political or religious fanaticism”.
A failed or foiled plot can also still serve to inspire many. If anything calls for a precautionary approach, it is terrorism. I hope that, in the light of this explanation, the noble Baroness feels that she can withdraw her amendment.
My Lords, just before the noble Baroness responds, does my noble friend feel that perhaps both points could be met if the period were made indefinite but with an appeal allowed after a certain time, so that this is brought into line with sex offences? I take my noble friend’s point that these offences are extremely serious and that there may be cases where indefinite alerting is absolutely necessary.
I think that my noble friend in fact agrees with my point, if I am not mistaken.
Can the Minister just confirm that, even for those terrorism offences that might be considered more minor—not that any terrorist offence is minor— there is no chance at all of rehabilitation for those individuals: that they will for ever, or for a very considerable time, pose a risk and that a complete change of behaviour is not possible?
I have to say that there is always a chance of rehabilitation, given the deradicalisation programmes that go on, but there will always be an element of risk, I would suggest.
My Lords, the element of risk to which I was in fact addressing my remarks was the risk to the Government that the provisions may be challenged. I would have thought that the Government might like to think about my amendment, which has come from the JCHR, in that light. I do not think that the Minister has answered my question as to what harm there would be in a review provision. My proposal would be to include such a provision in order to bolster the application of what the Government are proposing. I think I had better just leave that with the noble Baroness. I beg leave to withdraw the amendment.
Amendment 37 withdrawn.
Clause 12 agreed.
Schedule 1: Notification requirements: financial information and information about identification documents
Amendment 38 not moved.
Schedule 1 agreed.
Clause 13: Power to enter and search home
39: Clause 13, page 15, line 16, leave out from “assessing” to “and” in line 17 and insert “whether the person to whom the warrant relates is in breach of his or her notification requirements;”
My Lords, I will speak also to Amendments 40 and 41. Clause 13 inserts a new power of entry and the power to search the homes of registered terrorist offenders, not to look for something specific but to assess,
“the risks posed by the person to whom the warrant relates”.
This is, in our view, a severe intrusion into the private life of not just the registered terrorist offender but his family. In the days of control orders, I became very aware of the impact of certain restrictions on family members, including spouses, children and extended family. I am not suggesting that these powers are the exact equivalent, but the impact on those family members, as well as on that of the object of the order, was something of which I became very aware. Being the subject of a search—with the use of force permitted—is not the same, but I do not think that it is completely unrelated.
In response to the JCHR’s initial report, the Government argued that the power may be exercised only as a last resort. I assume that that is a description of Clause 13(2)(c) and (d) and that it requires a warrant and compliance with the powers of entry code of practice. These are safeguards indeed, but the threshold for exercising the power is low. The government response states that the power is to allow the police,
“to assure themselves that the individual does in fact reside at the address they have notified, and to monitor compliance with other aspects of the notification regime”.
Why does the Bill not reflect this, rather than containing the vague requirement of assessing risks?
We on the Committee considered that there should be a clearer requirement that the power is used when it is necessary and proportionate, and when there are grounds for suspicion that the notification requirements have been breached. That has led to the three amendments in this group, which would narrow the power by requiring a reasonable belief that the registered person had breached the notification requirements and ensure, as I have said, that the exercise of the power is both necessary and proportionate. I beg to move.
My Lords, Clause 13 provides for a search power that Professor Clive Walker—who is, without much doubt, our foremost expert on counterterrorism law and not a man given to either naivety or overstatement—described in written evidence to the Joint Committee on Human Rights as “outrageously wide”. As he pointed out, the clause is to be contrasted with paragraph 6(3) of Schedule 5 to the Terrorism Prevention and Investigation Measures Act 2011—the TPIM Act—which confines the purpose of the equivalent search power to that of determining whether there has been any contravention of the measures specified in the TPIM notice. That is essentially the approach that Amendment 39, which I support, adopts.
I echo the noble Baroness’s point that there is a human element to this. The families of convicted terrorists, through their support and influence, are often important factors in turning offenders away from violence. The extreme anxiety experienced by the wife of a control order subject whose house was subject to frequent unannounced searches, and the upset and trauma caused to her young children, were movingly conveyed in an article from which I quoted in my final report on control orders in 2012. I felt justified in doing so, not to give publicity to an unreliable witness—something which, like my predecessor as independent reviewer, the noble Lord, Lord Carlile, I was always astute not to do—but because the woman in question had recently been described in a High Court judgment by the highly experienced Mr Justice Mitting as an impressive witness and a person whose evidence he accepted without reservation.
The risk of upsetting or alienating such people is surely evident. I have never heard it suggested in several years of, I hope, careful oversight that the powers to enter and search premises occupied by potentially extremely dangerous TPIM subjects are insufficient, so I am puzzled as to what prompted this further turn of the ratchet—at least on paper, even if reassuring words are spoken about how it may be used in practice.
It is important that the power of entry and search should not be used as an instrument of harassment and destabilisation. This reasonable amendment would help to ensure that.
My Lords, I will say just a few words on this. I agree with what my noble friend Lord Anderson said to this extent: I am not convinced that the Government have got the proportionality of this right. I invite Ministers to reflect on what has been said—not so much on the words of the draft amendments but to try to achieve something that is more acceptably proportionate to those of us who have a reasonable amount of knowledge of these issues and are concerned that the law should not go too far.
My Lords, I too support the noble Lord, Lord Anderson, in what he said about the wide nature of what is suggested in the clause. Unlike the two previous speakers, my experience in this field is by acting in cases. I have acted for family members such as wives on a number of different occasions, and it is important that we maintain the trust of families and communities. Drawing legislation too widely will in many ways reduce the effectiveness of the state in seeking to deal with terrorism.
The noble Lord, Lord Anderson, was absolutely right to say that we have to be mindful of the parameters of this. Academics who have analysed what has taken place in the past and what is and is not effective have been our advisers on what is likely to work. So I hope that the Government will listen, look again and agree that Amendment 39 might be an appropriate way of restricting these powers.
My Lords, like the previous amendment, Amendment 39 comes close to the overriding, overarching issue of how we protect our security without changing the nature of our society from the society we want to protect. It is a delicate path which we have to tread carefully. I know that the Minister takes this point seriously, but the last amendment and this one come close to that consideration.
We must always remember that in these situations it is not only the people immediately involved to whom action may convey messages but the wider community. We must bust a gut in difficult situations to ensure that we always demonstrate that we are a different kind of society in which the principles of law matter and we do not lightly undermine them.
My Lords, I support the amendments in this group. I have added my name to Amendments 39 and 41 but, for some inexplicable reason, not to Amendment 40. I assure the House that that is a mistake. All I will say is that I am sure that the Minister has listened carefully to the noble Lords, Lord Anderson of Ipswich and Lord Carlile of Berriew.
My Lords, perhaps I may add my name to the long list of noble Lords concerned about the width of the provision in the Bill. I too hope that the Minister will say to the Committee that she and the Government will take this matter away, think about it and come back to it on Report.
My name and that of my noble friend Lord Kennedy of Southwark are attached to these three amendments. All that needs to be said has already been said and I just wish to indicate my support for the views that have been expressed. I hope that the Government will either accept these amendments or, alternatively, accept the spirit of what has been said, go away and come back with their own proposals on Report.
I thank all noble Lords who have spoken. On the comments of the noble Lord, Lord Carlile, about reflecting on what the Committee said, I should make the point that the Government do reflect on what is said—that is the importance of the legislative process—and that, as the noble Lord, Lord Judd, said, we always have to balance these matters.
I shall deal with the amendments and explain why, for the moment, the Government do not support them.
Clause 13 confers on the police the power to enter and search the home address of a registered terrorist offender under the authority of a warrant issued by a justice for the purpose of assessing the risk that the offender poses. We have already debated the underlying purpose of the terrorism notification requirements and their importance in helping the police to manage the risk posed by those convicted of serious terrorism offences, so I will not go over that ground again.
However, as the noble Baroness, Lady Hamwee, said, these amendments would have a number of effects. Amendment 39 would narrow the purpose for which the power of entry and search may be operated and confine it to assessing whether the offender is in breach of the notification requirements rather than, as is currently drafted, to assess the risk that they pose.
Amendment 40 would introduce a requirement for the grant of a warrant that the justice must be satisfied that there are reasonable grounds to believe that the registered offender is in breach of his or her notification requirements. Amendment 41 would provide, in addition to the current requirement, that the justice must be satisfied that it is “necessary” for the officer to enter and search the premises for the purpose of assessing the risk posed by the offender. The justice must also be satisfied that entry and search is “proportionate” to that purpose.
It may assist your Lordships if I begin by setting out the purpose of this power and why it is needed in its current form. The purpose of the power is to assess the risk posed by the offender. The police consider that home visits are an important tool in managing and risk-assessing registered terrorist offenders during their time subject to the notification regime. This power allows them to ascertain whether the offender does in fact reside at the address they have notified to the police and to check their compliance with other aspects of the notification regime. This is, of course, the purpose that the noble Baroness, Lady Hamwee, envisages in Amendment 39.
However, home visits are also helpful as they allow a broader assessment of risk to be made beyond monitoring compliance with the notification obligations. They allow the police to identify any other factors that might contribute to the overall risk an offender poses to themselves or their community and their risk of reoffending. This might include their general living conditions, as well as any signs of mental health decline or drug or alcohol misuse. They can also allow the police to identify any potential risk that the offender may cease to comply with the notification requirements and, in particular, that they may abscond from their registered address.
It is not an inappropriate purpose for the police to wish to keep in touch with a registered terrorist offender. That actually strikes me as quite responsible, given that the police are charged with protecting us all from such serious offenders. Amendment 39 would mean that the new power could not be used for that purpose, so the police may become aware of an increase in risk and potentially harmful activity only at a later stage when the opportunity to take mitigated action may have been missed.
I should add that a power of search and entry is needed because registered terrorist offenders will often not comply with such home visits voluntarily. They will often be generally hostile and will refuse to engage constructively with the police in conducting necessary checks. The police report that their experience with registered sex offenders, where such a power of entry is already available, is that offenders will normally comply voluntarily and they are able to build a far more constructive relationship. That is simply because those offenders know that if they refuse to engage on a voluntary basis, the police will be able to return if they can obtain a warrant. We anticipate this power bringing similar benefits in the management of registered terrorist offenders. The requirement that a constable must have attempted, and failed, to gain entry on a voluntary basis at least twice before they can seek a warrant will add a further safeguard for proportionality in this respect. I am sure we can all agree that it would not be appropriate for convicted terrorists to be subject to a less effective regime of monitoring than the existing one for convicted sex offenders, but that would be the effect of the noble Baroness’s amendment.
Amendment 40 would place further unhelpful limitations on the use of the power. I have explained that it will be used to assess the risk the offender poses and identify any increase in that risk. In practice, as part of that risk assessment, the police are likely to consider the question of the offender’s compliance with his or her notification requirements, since non-compliance may be an indicator of increased risk. A requirement of reasonable suspicion that the offender is not complying with the notification requirements before an officer is able to secure a warrant to enter their home to assess the risk they pose—including by assessing whether they are complying with the notification requirements—introduces a high degree of circularity. It is through the entry and search of the premises that the officer is most likely to establish any suspicion that the offender is not complying and thereby come to an informed risk assessment, as per the statutory purpose of the entry and search power.
Of course, non-compliance with the requirements is in itself a criminal offence. If an officer reasonably suspects a registered terrorist offender of committing this offence, they will be able simply to arrest the person and existing powers of entry and search will flow from that. On this basis, Amendment 40 would likely undermine fundamentally the purpose of the power, as it would merely duplicate existing powers and would not fill the gap that the police have identified.
Finally, although I fully support the intention behind Amendment 41, I hope to assure the noble Baroness, Lady Hamwee, that this amendment is not necessary to secure the outcome she seeks. The courts are very familiar with the necessity test, which appears throughout our legislation; there is absolutely no doubt that it inherently includes a proportionality element without this needing to be written in the legislation.
As public authorities, the courts are subject to the Human Rights Act 1998 and must perform their functions in compliance with that Act, which enshrines various provisions of the European Convention on Human Rights in our domestic law. It is via the incorporation of those rights in our domestic law that the concept of proportionality has become a key feature of our jurisprudence. No express wording is needed in this new power to bring about the outcome that the justice will only ever be prepared to issue a warrant if he or she is satisfied not only that it is necessary for the officer to enter and search the property for the statutory purpose, but also that the search and entry is a proportionate means of securing the objective. In the light of my explanation and assurances, I hope the noble Baroness will withdraw her amendment.
My Lords, the Government were asked to reflect. I will reflect but I suspect that when I read the debate I will become more, not less, concerned. I am overwhelmed by noble Lords’ support. I have to ask something, although perhaps it is rhetorical: are the notification requirements in themselves insufficient?
I referred to control orders not because it was a matter discussed by the JCHR but because I remembered, although I may be corrected, that on one occasion a wife attempted suicide during the course of the application of the control order. That was in my mind but the noble Lord, Lord Anderson, and the noble Baroness, Lady Kennedy, were absolutely correct—I am sorry for sounding so patronising; I hope that they understand where I am coming from—to refer to the impact on families and communities, which itself has an impact on society’s security.
On the police, the phrase “keeping in touch” does not feel like that in the way in which it has been described. The copper’s nose applied to this is getting too long. The measure is far too nosey and risks leading to more hostility, not solving a problem. We will certainly have to come back to this issue. Of course, I will read what the Minister has said. At this stage, I beg leave to withdraw the amendment.
Amendment 39 withdrawn.
Amendments 40 and 41 not moved.
Clauses 13 agreed.
Clause 14 agreed.
Sitting suspended until 7.30 pm.