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House of Lords Hansard
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Counter-Terrorism and Border Security Bill
15 January 2019
Volume 795

Third Reading

Clause 4: Entering or remaining in a designated area

Amendment 1

Moved by

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1: Clause 4, page 3, line 11, at beginning insert “Subject to subsections (3) and (4),”

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My Lords, I will also speak to the other government amendments in this group.

Government Amendments 1 to 4 return to the issue of the proper scope of the new designated area offence provided for in Clause 4. I thank the Opposition for their constructive approach to this provision. It was clear from our earlier debates that there was general support for the principle of a designated area offence to help protect the public from a real terrorist threat, such as we have seen as a result of UK nationals and residents travelling to conflict zones in Syria and Iraq. The area of dispute was how we protect those who have a legitimate reason for travelling to a designated area.

On Report, the Government sought to provide greater reassurance by building on the existing reasonable excuse defence and setting out an indicative list of such excuses. However, your Lordships preferred an alternative approach, put forward by the noble Lord, Lord Rosser, which excludes from the scope of the offence travel to a designated area for one or more specified purposes. The list of such specified purposes matched the Government’s list of indicative reasonable excuses, but with a power to amend the list of specified purposes by regulations.

It is clear that, while the Opposition and the Government took different approaches to the challenge, we were ultimately striving to achieve the same result. I am pleased to say that, on reflection, the Government are content to accept the approach put forward in the Opposition’s amendment. Having consulted our operational partners, we consider that this change would not materially affect the operation of the offence. Indeed, noble Lords will recall that, on Report, I indicated that, from the perspective of an individual returning to the UK from a designated area, the two approaches would, in one sense, not look very different. Either way, the police would still need to investigate to determine whether, under one approach, an exclusion from the offence applied or, under the other, whether the subject of the investigation had a reasonable excuse.

I also reminded your Lordships that the police have made very clear that they will investigate any person returning from Syria to establish what risk they may pose to the public, given the high level of terrorist threat associated with that region. It seems reasonable to expect that this is likely to be the position in relation to any area that might be designated in the future under this power, as part of the police’s basic responsibility for protecting the public. This is aside from the question of whether a person returning from such an area may have had a legitimate reason for travelling under Clause 4. I accept, however, that an individual with a legitimate reason for travelling to a designated area would take greater comfort from knowing that they had not committed the offence in the first place than from knowing that they had a defence to the offence.

The Government must ensure that the law is as clear as it can be. These four amendments will help to achieve this. Amendment 1 is intended to make explicit in the Bill that there are exemptions from the offence—namely that an individual would not commit an offence if they leave a designated area within one month of the area being designated; that an individual enters or remains in a designated area involuntarily; or that an individual enters or remains in such an area in connection with one or more specified purposes.

Amendments 2 and 4 simply ensure that, consistent with the drafting of the Terrorism Act 2000, the parliamentary procedure for the new regulation-making power is set out in Section 123 of that Act rather than in new Section 58B. This in no way changes the operation of the regulation-making power or the parliamentary process for approving regulations made under it.

Finally, Amendment 3 provides for a definition of “terminally ill” where a person enters a designated area to visit a terminally ill relative. This point was raised by the noble Baroness, Lady Hamwee, on Report. This amendment will provide greater clarity for individuals who may pray in aid this reason for travelling to a designated area.

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Before the Minister sits down, I want to raise a particular point about the amendment: why six months? Why was six months chosen rather than three months, a year or any other period? I wondered whether there was a clear medical or legal reason for that or whether it was just taken out of the hat. What is behind the choice of six months in particular?

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My Lords, I am advised that it is in line with provisions in other Acts. If the noble Lord will allow, I will write to him on which they are, as I do not have that information. Essentially, it was a matter of drawing a line at some point. One cannot legislate for every type of terminal illness; it seemed a reasonable line to draw.

In summary, these changes are merely intended to refine and polish the amendment agreed by the House on Report. I hope noble Lords will agree that they reflect the collaborative approach that has characterised the passage of the Bill. I beg to move.

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My Lords, I beg the indulgence and forgiveness of the House because I have not been involved in previous stages of the Bill, but the amendment concerns terminal illness, and I should declare that that is my specialty. It may be helpful to the Minister if I explain that the DS1500 benefits are where the six-month definition has come from—we are going back many years. If someone is deemed likely to die within six months in this country, they become eligible for DS1500 benefits, which is a special fast-track benefit.

However, the problem with the six months that it is impossible to predict. All the evidence is that you cannot accurately predict whether someone’s prognosis is longer or shorter; it is really a best guess. Therefore, I completely accept the humanitarian rationale behind the amendment, but it is important that the Minister clarifies that this provision is six months with treatment available wherever that person is. I raise that because, to take the example of an insulin-dependent diabetic, if they stop their insulin and already have complications, they will die within six months, but if they carry on with their insulin, they may well live for many years.

It is important to clarify on the record that they are expected to be terminally ill given that they have accessed the treatment available wherever they are. I fully accept that in some parts of the world there is very little treatment available for a lot of diseases, but there is a very wide range of conditions which are fatal in a short time if they are not treated, and I should hate the Government to be caught out by any manipulation.

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I am grateful to the noble Baroness. The example she cites illustrates very well that whether the exemption applies will depend very much on the facts of the individual case and would ultimately be for a jury to determine, if a case got that far. In her example, it would need to be established whether drugs were available for the person or not and the likelihood of their being available. She will notice that the wording is very carefully drawn to say that if, at the time, the person suffers from a progressive disease and their death in consequence of that disease can reasonably be expected within six months—it is that reasonable belief that we need to focus on. It is possible, of course, that the exemption could come under one of the other headings in the amendment: for example, for aid of a humanitarian nature.

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My Lords, will the Minister contemplate another example? Megrahi was sent from a Scottish jail back to Libya and expected to die within a short period, but he lived for longer than six months. What if someone was here and the same thing applied? President Pinochet was allowed to go back. Everybody expected him to die but he walked off the plane and lived for quite some time. So the six-month period could become a problem. One needs to find a way of describing it in another way. People have died within six months but some have lived longer. Can the noble Earl help us with that quandary?

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I am grateful to the most reverend Primate. Again, we come down to the words “reasonable belief”. If it is reasonable to believe that somebody is about to die within the six-month period, I feel sure that the police will not argue that point to the nth degree.

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My Lords, I am grateful to the Minister and the Government for pursuing the point. I looked at this for some time and came to the view that the words “reasonably be expected” were the best that one could provide to cover circumstances that cannot be listed in detail. Indeed, I confess that having complained throughout the Bill’s progress that I did not want to rely on the CPS tests, the police’s common sense and all the rest of it, I will do so on this one. I thank him.

However, I want to raise another point and I hope the Minister is aware of it—I emailed the Bill team about it yesterday. I am happy with the drafting amendments, which are to do with regulations, but given the supplementary delegated powers memo, I thought that I should pursue the issue of peacebuilding as a reasonable excuse. The paragraph of the memorandum dealing with “reasonable excuse defence” gives,

“purposes of a peacebuilding nature”,

as a possible example of a purpose that can be referred to as a reasonable excuse. I referred to peacebuilding at the previous stage, on 3 December, and the noble Earl said:

“I entirely accept the importance of peacebuilding activity … the government amendment does not preclude a person advancing this or any other category of reasonable excuse. I am of the view that legitimate peacebuilding activity could very well be a reasonable excuse”—[Official Report, 3/12/18; col. 860]—

but that it was up to a jury.

The debate continued and, as the House is aware, the amendment in the name of the noble Lord, Lord Rosser, which we supported, was agreed on a Division. Therefore, the point rather floated away. Essentially, I hope the noble Earl can commit the Government today to considering adding peacebuilding when the Bill goes back to the Commons. It seems, from correspondence I have received since I emailed the Bill team, that peacebuilding may or may not be what is understood to be a humanitarian activity. There is a particular concern that—given that this is not something that we talk about and define every day—juries may be puzzled as to what it is and not understand its value. I am not sure whether that is a fair comment. However, it has been described to me as being “complementary to humanitarian aid” and covers a large range of activities, including mediation, support to the local community, justice and reconciliation, psychosocial support and research in the area. The Government have been considering this matter. It would complete the provisions in this area if it could be referred to specifically when the Bill is enacted.

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My Lords, I support very strongly indeed what has just been said. Having spent much of my life working with humanitarian agencies, I know that the importance of what has been said cannot be overemphasised. We must not slip into an attitude in which relief, when things have gone badly wrong, may be interminable and highly costly, apart from anything else. There is a real need in hot situations to be working at prevention.

In broad government statements we get very reassuring remarks about the importance of conflict resolution and peacebuilding. The humanitarian agencies frequently find themselves involved in this and I think with all possible clarity that that is valid. They should not just be tolerated, they should be supported by the Government and others. That is significant because anything that either intentionally or unintentionally detracts from the commitment in that area would be very unfortunate.

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My Lords, I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Judd. I beg your pardon. The noble Lord, Lord Kennedy, should speak first.

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My Lords, I rise briefly to say that I support the amendments before us. I am pleased that the Government have listened to the proposal put by my noble friend Lord Rosser, who is unable to be with us today. I think that the noble Baroness, Lady Finlay, has raised an important issue as regards the medical terminology used, but I think that the noble Earl has answered the point in terms of what can be expected. Generally, I support the amendments because they certainly clarify what we put forward in the first place and I thank the Government for listening in this case.

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My Lords, I am doubly grateful to all noble Lords who have spoken. I am sympathetic to the point made by the noble Baroness, Lady Hamwee, but only up to a certain point. Given that this is Third Reading, our starting point has to be that any further amendments to the Bill should be limited to those that are absolutely necessary to improve the drafting of the Bill in the light of the amendment agreed by the House at Report. I am not persuaded that adding to the list of exemptions from the offence properly falls within the category of amendments that we should now be contemplating at this late stage of the Bill, either today or when the Bill returns to the Commons to consider the Lords amendments.

However, I can assure the noble Baroness that the Government will keep the list of exempted purposes under review. The Bill now helpfully includes a power by regulations—a Henry VIII power to all intents and purposes—to add to the list of exempted purposes should it be appropriate to do so in the light of experience of operating the new offence. I am sure that officials in the Home Office will closely scrutinise the use of this power and will work with their colleagues in the Department for International Development and the Foreign and Commonwealth Office to determine if peacebuilding could usefully be added to the list of exempted reasons in the future.

But I need to make clear to all noble Lords that this is a nicety. In the absence of such an exemption the Government are clear that entering and remaining in a designated area for the purpose of engaging in peacebuilding would constitute a reasonable excuse. We have that all-encompassing provision, as the noble Baroness is aware, in the Bill. There is a problem associated with any approach that has within it a list of some kind, which is why we started out with a very short list indeed. Through our debates we persuaded ourselves that it would be helpful to augment the very short list that the Government started off with, but we have to ask ourselves where we stop.

I hope what I have said has offered some assurance to the noble Baroness and she understands that, while it would not be appropriate to add peacebuilding to the list of exemptions at the moment, that will not preclude us doing so in the future, should there be an operational imperative.

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My Lords, to be rather blunt it is always frustrating when procedure gets in the way of substance. I ask the Minister to ensure that Home Office officials appreciate that “in the light of experience” should not just be what may happen when someone comes back and says, “I have been working on peacebuilding in Syria”. It is also about deterring NGOs from going into conflict or post-conflict areas to work on peacebuilding. That could be a consequence we do not want to see from the offence we have created in the Bill.

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I entirely agree with the noble Baroness, but I hope too that she will recognise that the wording of the first purpose set out in this amendment,

“providing aid of a humanitarian nature”,

is quite broad. So humanitarian agencies of any kind could feel secure in going out for almost any humanitarian purpose one can devise.

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Before my noble friend sits down, I caution that sometimes lists can become exclusive and that some good things are easier to recognise than to define. He ought to stick to the way the Bill is currently drafted and allow himself the freedom to consider rather more carefully, despite the charming way in which the noble Baroness has advanced her case.

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My Lords, the Minister has been very helpful in the comments he has made and I most genuinely thank him for that. I just wonder whether it is possible for the Government and the Minister, when this legislation is given final consideration, to say some encouraging and positive things about the recognition of the courage and value of such work, so as to in no way whatsoever inhibit organisations that are able to make a positive contribution of this kind. Having been through this kind of situation, the trustees and leaders of the agencies concerned obviously give a great deal of deliberation to what they do and what is involved. To feel they are doing it in a climate of good will and not just acceptance is very important.

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I accept the point the noble Lord has made. That is why the whole tone and flavour of this part of the amendment carries the implication he would wish, in particular the provision that talks about,

“carrying out work for the government of a country other than the United Kingdom … carrying out work for the United Nations or an agency of the United Nations”,

and so forth. It is clear that the value of work of this kind—whether carried out by an individual, an agency or a Government—is fully recognised. I am sure that point will not be lost on those whose job it is to implement the Bill.

Amendment 1 agreed.

Amendments 2 to 4

Moved by

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2: Clause 4, page 4, leave out lines 15 to 17

3: Clause 4, page 4, line 26, at end insert—

“(c) a person is “terminally ill” at any time if at that time the person suffers from a progressive disease and the person’s death in consequence of that disease can reasonably be expected within 6 months.”

4: Clause 4, page 5, line 29, after “regulations)” insert “—

(a) in subsection (4), after paragraph (b) insert—“(ba) section 58B(7);”;(b) in subsection (5), for “or (b)” substitute “, (b) or (ba)”;(c) ”

Amendments 2 to 4 agreed.

Motion

Moved by

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That the Bill do now pass.

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My Lords, I extend my thanks for the wide range of expertise from around your Lordships’ House that has provided such a constructive and measured approach to what is a very serious Bill that has passed through the House. I thank first my noble friend Lord Howe, who has helped me through all stages of the Bill, and my two noble friends Lady Manzoor and Lady Barran for their contribution as Government Whips.

On the Opposition Front Bench, I thank the noble Lords, Lord Kennedy and, of course, Lord Rosser—I express the feeling of the whole House in wishing him well and looking forward to seeing him back in his place very soon. On the Lib Dem Benches, I thank the noble Baroness, Lady Hamwee, and the noble Lords, Lord Paddick, Lord Marks and Lord Stunell, for their contribution. Then, of course, there are the heavyweights on the Cross Benches—I refer not to their frames but to their intellects—the noble Lords, Lord Carlile and Lord Anderson, the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Manningham-Buller; I thank them all for the helpful advice they have given me in proceeding with this Bill. Finally, I thank the officials from both the Home Office and the Ministry of Justice who have supported us as the Bill proceeded.

I am very pleased at this stage that we have achieved an outcome where there is a broad consensus on all aspects of the Bill bar one: whether there should be an independent review of Prevent. We continue to reflect on that matter in advance of the Bill returning to the House of Commons. In any event, I hope that this issue will not stand in the way of the Bill securing Royal Assent. On that basis, I beg to move.

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My Lords, we thank the noble Baroness the Minister, the noble Earl, and their Whips and officials for the way in which they have, at least to some extent, listened and responded to the concerns that we have raised. It was interesting, having been completely opposed at one stage, to find a government amendment in accordance with the arguments we had made coming in at the next stage of the Bill, but surprises are sometimes good ones.

However, we are still concerned that a dangerous precedent is being perpetuated by this Bill adding to the list of criminal offences where those acting completely innocently commit an offence for which they can be arrested and charged, and only have a defence once they have been charged. We note that the Government, in accepting the Labour amendment excluding people with legitimate reasons from the scope of the designated area offence, recognise those concerns to some extent. Perhaps I should say to the noble Lord, Lord Carlile of Berriew, with whom I jousted on this issue, that this is a matter to which we will return when we debate the Offensive Weapons Bill in the coming weeks.

We are still concerned about people being criminalised by this Bill for what they think rather than what they do, or for being foolish or unwitting; that people can be detained at our borders without any reasonable grounds for suspicion; and that, in the exercise of these powers and the operation of Prevent, black and minority ethnic people and Muslims may be unfairly targeted. We believe the Bill amounts to a further erosion of civil liberties, and that is something the Liberal Democrats will continue to fight to prevent.

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Before the noble Lord sits down, I would like to ask him whether he would have been able to give that speech in exactly the same way when the Liberal Democrats were part of the coalition.

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My Lords, I am grateful for the question. All I can say is that it is a hypothetical question and I did not hold a Front-Bench position during the coalition.

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My Lords, this Bill was intended to do everything necessary at present to counter terrorism and protect our borders. It does not. I have made repeated attempts to persuade the Government to evaluate—just evaluate—the need for a secure personal identity number system, with biometrics held on a secure central database with which the biometrics of any UK citizen could be compared online by those authorised to do so. The Home Office has refused point blank to even consider this suggestion. This is inexcusable. I recognise that the default position of the Home Office has long been to ignore, reject or oppose external suggestions for changing its procedures, practices or policies, but that is not a satisfactory situation. That it may get away with such behaviour can of course be a reflection on the effectiveness of Ministers, some of whom are coaxed into being mere parrots of Home Office views. I suspect that a rule of the department is, whenever necessary, to remind Ministers “Theirs not to reason why”.

On border control, I will make three points. First, the list published in Hansard, in response to Written Questions I have put down periodically since 2012, of Home Office immigration officials who have been sentenced to often long periods of imprisonment, up to eight or nine years, for misconduct in public office—that is what Hansard describes their offence as being, in most cases—now includes over 50 such cases. This is a disgrace which should have been tackled long ago. All that has happened is that the Home Office has now decided to withhold the names of those who, in open court, have been so convicted, apparently on the grounds that it infringes their privacy or human rights. Secondly, there is still no record, for online access at entry and departure points, of other passports held by UK passport holders. Thirdly, the Home Office seems to have been caught by surprise, with the Home Secretary having had to hurry back from holiday, by the sudden increase in the number of illegal immigrants who have sought to travel to the UK across the Channel in small boats. This was both predictable and predicted, and it can be expected to increase greatly next summer unless effective action is taken to halt it.

Perhaps I could end by quoting Sherlock Holmes:

“From a drop of water a logician could infer the possibility of … a Niagara”.

I am afraid there is a shortage of logicians in the Home Office.

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My Lords, I join others in thanking the Government and in particular the noble Baroness, Lady Williams of Trafford, and the noble Earl, Lord Howe, for the way they have conducted themselves in the course of this Bill. I enjoy our tussles across the Dispatch Box very much and I have great respect for both noble Lords on the way they conduct themselves in the House, as does the whole House. I thank them very much for that. I also thank Ben Wallace MP, the Security Minister, for his engagement in this Bill—he has been very helpful. I too thank my noble friend Lord Rosser. He is much missed, and I hope he will be back in the House very soon. He is certainly more forensic in dealing with the Government, and I look forward to having him back by my side shortly.

I also thank the officials from the department, the Bill team and other officials from the Home Office and elsewhere whom we met. They were able to discuss our concerns and look at the issues that we were raising, and they came back in a very positive way. That was very helpful for me and my noble friend Lord Rosser.

I thank noble Lords across the House for their contributions. As the Minister said, they have been wide-ranging and authoritative. Something that we certainly saw on this Bill was the authority that people spoke with on a variety of issues. In particular, as has been said, the contributions by the noble Lords, Lord Anderson of Ipswich and Lord Carlile, the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Manningham-Buller, helped us to understand where we were coming from.

I thank Grace Wright from the opposition office. She has been helpful and supportive in her guidance to me, and ensured that we were able to put our arguments forward well and effectively. She is a skilful member of staff and we are very appreciative of the work that she does for us all.

All sorts of claims and counterclaims have been flying around for the last hour or two about who did what or who did not in relation to the Bill. That is all quite regrettable, and I am not going to engage in it. All I will say is that my job as the opposition spokesperson here is to table amendments and put forward suggestions and ideas to engage with the Government. Hopefully, we all agree that the Bill was necessary; it is about ensuring that we keep our country safe and can deal with the threats that are posed. At the same time it is about protecting our liberties, and that is the balance that we always have to find. That is certainly my and my colleagues’ job here. I think we have got the balance right. The Government have listened on a number of issues, and I thank them very much.

I also thank the Minister for her comments on the issue of Prevent. We had certainly hoped that the Government would look at reviewing it, and clearly they will. Hopefully, in time we will have some good news about that, but if not then I am sure we will have a further debate in the House. At this stage, though, I again thank the House with respect to the Bill.

Bill passed and returned to the Commons with amendments.