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“(1) The Terrorism Act 2000 is amended as follows.
(2) After section 58A insert—
‘Entering or remaining in designated areas overseas
58B Entering or remaining in a designated area
“(1) A person commits an offence if—
(a) the person enters, or remains in, a designated area, and
(b) the person is a United Kingdom national, or a United Kingdom resident, at the time of entering the area or at any time during which the person remains there.
(2) It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area.
(3) A person does not commit an offence under this section of entering, or remaining in, a designated area if—
(a) the person is already travelling to, or is already in, the area on the day on which it becomes a designated area, and
(b) the person leaves the area before the end of the period of one month beginning with that day.
(4) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding 10 years, or to a fine, or to both.
(5) In this section—
‘designated area’ means an area outside the United Kingdom that is for the time being designated for the purposes of this section in regulations under section 58C;
‘United Kingdom national’ means an individual who is—
(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,
(b) a person who under the British Nationality Act 1981 is a British subject, or
(c) a British protected person within the meaning of that Act;
‘United Kingdom resident’ means an individual who is resident in the United Kingdom.
(6) The reference in subsection (3) to the day on which an area becomes a designated area is a reference to the day on which regulations under section 58C come into force designating the area for the purposes of this section.
(7) Nothing in this section imposes criminal liability on any person acting on behalf of, or holding office under, the Crown.”
58C Section 58B: designated areas
“(1) The Secretary of State may by regulations designate an area outside the United Kingdom as a designated area for the purposes of section 58B if the following condition is met.
(2) The condition is that the Secretary of State is satisfied that it is necessary, for the purpose of protecting members of the public from a risk of terrorism, to restrict United Kingdom nationals and United Kingdom residents from entering, or remaining in, the area.
(3) The reference in subsection (2) to the public includes a reference to the public of a country other than the United Kingdom.
(4) Where an area is designated by regulations under this section, the Secretary of State must—
(a) keep under review whether the condition in subsection (2) continues to be met in relation to the area, and
(b) if the Secretary of State determines that the condition is no longer met, revoke the regulations (or revoke them so far as they have effect in relation to that area if the regulations designate more than one area).
(5) In this section ‘designated area’, ‘United Kingdom national’ and ‘United Kingdom resident’ have the same meaning as in section 58B.”’
(3) In section 123 (orders and regulations), after subsection (6) insert—
‘(6ZA) Regulations under section 58C—
(a) must be laid before Parliament after being made, and
(b) cease to have effect at the end of the period of 40 days beginning with the day on which they are made unless before the end of that period the regulations are approved by a resolution of each House of Parliament.
(6ZB) For the purposes of subsection (6ZA) the period of 40 days is to be computed in accordance with section 7(1) of the Statutory Instruments Act 1946.
(6ZC) Subsection (6ZA)(b)—
(a) is without prejudice to anything previously done or to the power of the Secretary of State to make new regulations under section 58C;
(b) does not apply to regulations that only revoke previous regulations under that section.’”—(Mr Wallace.)
This new clause would provide for an offence under the Terrorism Act 2000 of entering, or remaining in, an area outside the United Kingdom that has been designated in regulations made by the Secretary of State. In making such regulations the Secretary of State would need to be satisfied that it is necessary to restrict UK nationals and residents from entering or remaining in the area for the purpose of protecting the public from a risk of terrorism.
Brought up, and read the First time.
With this it will be convenient to discuss the following:
Government amendments 1 to 5 and 15 to 18.
“(8) After section 39 (Power to amend Chapter 2), insert—
‘39AA Review of support for people vulnerable to being drawn into terrorism
(1) The Secretary of State must within 6 months of the passing of the Counter-Terrorism and Border Security Act 2018 make arrangements for an independent review and report on the Government strategy for supporting people vulnerable to being drawn into terrorism.
(2) The report and any recommendations of the review under subsection (1) must be laid before the House of Commons within 18 months of the passing of the Counter-Terrorism and Border Security Act 2018.
(3) The laying of the report and recommendations under subsection (2) must be accompanied by a statement by the Secretary of State responding to each recommendation made as part of the independent review.’”
Today is obviously the anniversary of 9/11, a devastating terrorist attack that happened on the soil of our ally the United States and ended in the deaths of 77 United Kingdom citizens who were working in New York at the time. Today is also one of the first days of the inquest into the Westminster Bridge attack, when we lost PC Keith Palmer and four other people.
Let me deal as succinctly as I can with the Government amendment in this group, beginning with new clause 2. Since the phenomenon of UK-linked individuals travelling to join terrorist organisations in Syria and Iraq began in earnest in 2014, the Government have kept under review various options for banning or requiring notification of travel to conflict zones overseas, underpinned by criminal sanctions. The essential feature of new clause 2 is to make it an offence for a UK national or resident to enter or remain in an area overseas that has been designated by the Home Secretary. The designation of an area will be given effect by regulations, and any such regulation would necessarily need to come into force quickly, but we recognise the need for full parliamentary scrutiny of any designation. Accordingly, such regulations will be subject to the affirmative procedure.
Once an area has been designated, there will be a grace period of one month, enabling persons already in the designated area to leave before the offence takes effect. Of course, there will be individuals who have a valid reason to enter and remain in a designated area, such as to provide humanitarian aid, to work as a journalist, or to attend a funeral of a close relative. To cover such cases, we have provided for a reasonable excuse defence. Once such a defence has been raised, the burden of proof, to the criminal standard, will rest with the prosecution to disprove the defence. The new offence carries a maximum penalty of 10 years’ imprisonment, and it will be open to the court to impose an extended sentence.
The new offence is necessary for two primary reasons. First, to strengthen the Government’s consistent travel advice to British nationals, which has advised against all travel to areas of conflict where there is a risk of terrorism. And secondly, breaching a travel ban and triggering the offence will provide the police and the Crown Prosecution Service with a further tool to investigate and prosecute those who return to the United Kingdom from designated areas, thereby protecting the public from wider harm.
“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area.”
I disagree with the right hon. Gentleman. If a person produces a reasonable defence, as it would play in court, we would have to say, “That is not a valid defence,” and therefore we would have to prove why it is not. In addition, the public interest consideration will be involved when the CPS seeks to bring charges.
It is also important to inform the House that, obviously, reasonable excuses will include those in line with the European convention on human rights, such as access to family, the right to visit and all those things that give people their rights, but we are trying to introduce an important tool to make sure we deal with the scourge of the foreign fighter threat we now face here.
The decision to deprive a person of their British citizenship would not be affected by this at all, one way or the other. The factors involved in making that decision range from intelligence to criminal behaviour and whether that person poses a threat to the United Kingdom. The decision would not be linked. Obviously some people who have been deprived of their citizenship have been foreign fighters overseas engaged in fighting for ISIS or al-Qaeda, and this measure is aimed at stopping exactly that type of offence.
Everyone recognises the challenge we have in Europe. I was at the G7, and every member state has a cadre of foreign fighters who are a challenge when they come back. It is important to get a statute book that can deal with that. It is often the case that we have evidence that foreign fighters have travelled to, say, Raqqa, and we may have evidence to some extent that they have supported or been engaged in areas of terrorism, but it has been very hard to prosecute. That is what this Bill is trying to do. The Danish Government have similar legislation, as do the Australian Government.
The Minister is obviously right. We have to deal with the issue of foreign fighters, and the best way to do that is to prevent them from going in the first place. Will he confirm that no aspect of new clause 2 or the Bill will specifically address the issue of citizenship, and that even if a British citizen travels to a designated area, they will not have their British citizenship taken from them?
What I can say is that if a British citizen goes to a designated area and commits an offence, it will depend on what they were doing. If a British citizen who is a dual national goes to one of these areas to fight for ISIS or al-Qaeda, and if we cannot prosecute them, deprivation becomes more of an option. I would prefer to see these people put on trial in a British court, convicted and sent to prison. That is my preference, and all these other measures have been introduced to try to deal with these very difficult issues.
The Bill also extends the jurisdictional reach of some offences, such as under the Explosive Substances Act 1883, to try to ensure that people committing offences over there can be tried.
We have 400 people in this country who have returned from activity in hotspots, many of whom we believe, from intelligence, have been active, but whom we have been unable to prosecute. That is a serious number of people. A number of them continue to pose a threat, and we have not been able, despite quite a lot of effort and looking, to find evidence to bring to court to prosecute them for the terrorist activity they may have been involved in.
If I was talking about one or two people, it might be a different issue. The French and the Germans have the same problem. It is a growing phenomenon that people are travelling in this world to commit offences. They are tech-savvy; they are capable of sometimes masking some of their behaviour. The grooming that has gone on to seduce people into these locations is a big challenge, and I fear that if we do not legislate, we will not be able to be in a position to prosecute those people coming back. Do I think the legislation will prosecute hundreds of people? No, I do not, but I think there will be a few people that we can prosecute if they did this. As I said to the shadow Home Secretary yesterday, I recognise that we have introduced this measure into the Bill late, and I apologise for that. However, we are in the Commons, and the Bill will no doubt go to the other place, and I am happy to discuss further how we can clarify it and safeguard it and make sure that it is not abused as a system, and that the reasonable excuse issue is further explored. I think that is appropriate.
I would have to speculate; I am not a barrister or lawyer, so I dare not venture down that road. A court may grant an injunction on an area. A stalker often faces injunctions—they are not allowed within 100 metres of a house, and if they go within 100 metres of it, they have committed an offence.
The question was, is there anywhere else in law where going somewhere becomes the offence? There clearly is if you break an injunction. I think there are injunctions not just against someone who has done something wrong, but I shall not pilot off down that course.
As I said earlier, obviously there is the further safeguard that breaching a travel ban and triggering the offence will provide the CPS with a further tool to investigate and prosecute those who return, thereby providing protection. Government amendments 15 to 25 are consequential on new clause 2.
I congratulate the Minister and the Government for—although belatedly—bringing in this power, for which I and many others have long been calling. It was patently obvious that many of the Brits who we knew were travelling to Iraq and Syria had no other reason to be there than to support terror, but there was not sufficient evidence to prosecute, hence 400 of them, by the Government’s own estimate, are coming back largely without prosecution. Do the Government have an estimate of how many of those 800 Brits who we know went over to Raqqa during the recent conflict could have been prosecuted under this legislation, had it been on the statute book at the time?
I am happy to write to the hon. Gentleman with a specific number, if we trawl through the whole lot. I certainly see cases where we have footage of people in certain locations. They may not necessarily be carrying a black flag, but they are dressed in combats and they are standing in front of an iconic building somewhere. I cannot express how frustrating it is to see what I see, with some very dangerous people coming back to our communities, and I long to be able to prosecute them. Very often the “You done nothing” critics do not provide an alternative suggestion. This is an alternative suggestion. I have not heard other suggestions.
I have taken my time on this. When I was in Singapore last year, I met my Australian counterpart, who talked about such legislation. I spoke to the people who use it on the ground—the Australian police force and security services—and we have explored other ideas. It is incredibly frustrating to know that in our communities are people who pose a real risk and who we have struggled to be able to prosecute. That is not because of resource, but because of statute, and that is what we are trying to fix.
I place on record that John Woodcock has done a lot on this issue. Unlike many people who speak on these things, he has met detainees in Turkey and other places. He will know the challenges that the Turkish Government and our Government face. He has been supportive and made suggestions on this type of measure, which will make a difference. While Syria is tragically coming to a place where there are endless horrors on the horizon in terms of Idlib that we must all unite to try to stop, the groomers are encouraging people to go to new places and new safe spaces. We have seen aspirant travellers into parts of Africa. We have seen aspirant travellers to the conflict in parts of the Philippines. They are out there now encouraging our young people to go into a safe space, so they can indoctrinate them to become terrorists. That is why I passionately feel and the Government feel that we need to put this measure on our statue book.
My right hon. Friend and I have had quite a lot of discussions on this issue. I have also had discussions with the former Home Secretary, now Prime Minister, on the subject as long ago as 2015. The Minister knows what I am going to say, because I gave a speech during the proceedings of the Counter-Terrorism and Security Act 2015 on
My hon. Friend knows that making people stateless is a hefty measure. From our legal advice, we cannot make someone stateless. If they are a dual citizen, we can deprive them of citizenship. I understand the point that my hon. Friend makes, but in an international community, we cannot entirely pass our problems around. Part of the offence with designated areas is that other countries do not like us unilaterally saying, “It is not our problem anymore. We do not have any offences to charge them with, so we are going to deprive them of citizenship and off they go to you. It is your problem now.” Our preference is to bring them back, charge them and put them in prison. We think very hard about the international consequence of deprivation.
Will the Minister allow me one further point? I had referred to the international convention, article 8 of which clearly states that if a person who is effectively in a designated area under the new clause has sworn allegiance to, or acted in a manner such that he is giving his allegiance to, another state and is also saying by implication that he no longer regards himself as a British citizen, it is possible to make them stateless. For that reason, I wish I could get a more emphatic answer to my question.
As ever, my hon. Friend makes an articulate and knowledgeable point. My disagreement is that, no matter how it may take allegiance, I do not recognise ISIS to be a state. It is a non-state. It is a fabrication of pretty awful people. We should not give it credibility: just because some poor, weak, often exploited people, but also some pretty nasty people, have sworn allegiance to it, it does not make them part of a state. It is one thing for someone to renounce citizenship and say, “I am now going to be a citizen of country X”, but Islamic State is a fiction of many people’s imagination, as we have seen. It is in rapid decline.
I would like to push on to amendment 1, the flag seizure power, which would confer on the police a power to seize flags or other articles associated with a proscribed organisation. Under section 13 of the Terrorism Act 2000, it is an offence for a person to wear, carry or display an item of clothing or other article in such a way as to arouse reasonable suspicion that they are a member or supporter of a proscribed organisation. By conferring on the police the power to seize such articles, we will ensure that they and the Crown Prosecution Service have the best evidence to pursue a prosecution under section 13.
Of course, the police already have the powers to seize evidence following an arrest, but in the context of policing a march or demonstration, arresting an individual may not always be an option if the tests for making an arrests are not satisfied. Even if arrest is an option, it may not be an appropriate policing response at that time. Obviously, the decision would be at the discretion of the police. In such cases, if the police wish to take action against a person displaying such a flag, then instead of arresting the individual, the officer may choose to report the person for summons on suspicion of committing an offence under section 13 of the Terrorism Act. This new power would enable the officer in these circumstances to seize items such as flags that are reasonably in evidence under the section 13 offence without there having been an arrest, provided that the officer is satisfied that it is necessary to seize such items to prevent the evidence being concealed, lost, altered or destroyed. By preventing the loss and destruction of such items and articles, this approach will better support investigations and prosecutions by providing more evidence to help take forward prosecutions.
The Minister will know that there are particular issues around flags and their association with proscribed organisations in Northern Ireland. Will he outline for our benefit what engagement he has had with the Police Service of Northern Ireland, or indeed with the Public Prosecution Service in Northern Ireland, around this clause, the associated difficulties in pursuing such prosecutions and the ancillary arguments that are made that a modern-day flag associated with a proscribed organisation actually has roots in the legitimate historical associate group?
I know that throughout the passage of the Bill we spent days with the PSNI. On the point about the DPP, I will make sure that the hon. Gentleman gets an exact answer on that from officials. As he will know, I have first-hand experience of what can go wrong and of the consequences of trying to take a flag or something from a proscribed organisation. Certainly, taking away a flag in certain parts of Northern Ireland has, in the past, acted as an instant lightning rod for a riot or a breakdown in civil order, and there were definitely better methods that could be used to police a parade. There is also an obligation on the police to make sure that policing is done in a way that allows a legitimate march to go ahead, but that does not provoke a public order disaster. That is why police discretion is important.
I understand the point that the hon. Gentleman is trying to get at, which is that, in Northern Ireland, the matter is not straightforward. A flag does not have pure terrorist content. Different parts of the community will interpret other people’s flags. There is also a historical basis in organisations having a flag which links to the first world war. Things are not as straightforward as people think. I have been very cautious in introducing this amendment to make sure that my experience—and, obviously, the hon. Gentleman greater experience—of Northern Ireland is not forgotten. I do not want to see flag protests becoming more and more polarised than they were in the past. I will happily get back to the hon. Gentleman in relation to the DPP in Northern Ireland.
I turn now to Government amendments 2 to 4 to clause 3, which close a widely recognised gap in the law with regard to the viewing of terrorist material online. Following the helpful debate in Committee and considerable discussions with the Labour party and its Front-Bench Members, I took the decision that it was best to drop the concept of the three clicks. Throughout the passage of this Bill, I have been open to suggestions from all parts of the House. I agreed completely that, first, the three clicks would not survive the test of time and that, secondly, we would not end up with good law or achieve our aim. I undertook to see how we could improve on this, and I listened to Nick Thomas-Symonds . I am 48—just about a kid of the ’80s—so I remember the Spectrum and the ZX81, but I think it is best that legislation in the digital age looks like us, sounds like us and is not written by people who probably switch on a computer once a year.
Instead of splitting hairs about clicks and everything else, we came to the view that it was right in principle for the Government to update legislation for the digital age with provisions on the collection or recording of information that is likely to be useful to terrorists. The provision applies consistently to information that is accessed online, rather than as under the current measure, which only covers information that is downloaded. When the previous legislation was written regarding downloading content or taking copies, broadband was very slow—if it existed at all—so the only way people could watch content was by downloading it first. Now with superfast or fast broadband, people are streaming everything. This creates a loophole that can be exploited and that we have to close.
I am a little puzzled. The Government have conceded that clause 3, as originally drafted, was imperfect and lacked sufficient clarity, but do they not make the problem worse by removing the requirement for three clicks, so that only one click will suffice, and broadening the offence to include not just viewing but accessing material in any way? I do not understand how these amendments address the imperfection and lack of clarity.
The intention behind the three clicks provision was an ambition to ensure proportionality and provide a safeguard for those who might inadvertently access such material, but we recognise the underlying difficulties of this approach and the uncertainty regarding how it will be implemented. That is why we tabled amendment 2.
Amendment 4 complements amendment 2. It is intended to provide a similar safeguard, but in a clearer and more certain way, without relying on a blunt instrument. These amendments will make it clear on the face of the legislation that the reasonable excuse defence would apply if the person does not know, and has no reason to believe, that the information they are accessing is likely to be useful to terrorism. This means that a person would be able to defend themselves on that basis in court. As a result of section 118 of the Terrorism Act 2000, if such a defence is raised the court and jury must assume it to be satisfactory, unless the prosecution is able to disprove it beyond reasonable doubt.
I am not satisfied with that explanation, because the reasonable excuse defence is only there for somebody who does not know what they are doing. What if somebody legitimately accesses the material, knowing its content, but without any intent to commit harm—for example, an academic or a researcher? They would not be protected by that defence, would they? [Interruption.]
The hon. Member for Torfaen is absolutely right; it is set out quite clearly in the 2000 Act. The reasonable excuse defence is a good defence. It will cover journalists and academics, which is important. It would also mean that the prosecution is unlikely to commence in those circumstances, because it would not pass the Crown Prosecution Service threshold test of being in the public interest and of there being a realistic prospect of conviction. The police and the CPS are rightly focused on those who pose a genuine threat, and have no interest in wasting their valuable time investigating and prosecuting people who pose no threat, where there is no public interest and no prospect of conviction.
Amendment 3 expands the offence of viewing information likely to be useful to a terrorist, so that it also includes otherwise accessing such material through the internet. This is simply intended to ensure that the offence captures non-visual means of accessing information such as audio recordings, in addition to video, written information or other material that can be viewed.
The Government recognise the sensitivities of the issues, and the need to ensure proportionality and to provide appropriate safeguards. We have been open to exploring how clause 3 can be improved in order to do so in a clearer and more certain way. But we make no apologies for sending a clear message that it is unacceptable to view or stream such serious and harmful terrorist material without a reasonable excuse, nor for having in place robust penalties for those who abuse modern online technology to do so. We consider that clause 3, as amended, is both proportionate and necessary in order to allow the police to take action to protect the public from potentially very serious threats.
Government amendment 5 responds to the oral evidence heard by the Public Bill Committee about the maximum penalty for the offence of failure to disclose information about acts of terrorism. Section 38B of the Terrorism Act 2000 makes it an offence to fail to disclose to the police information that might be of material assistance in preventing an act of terrorism or in securing the apprehension, prosecution or conviction of terrorism. This offence might apply in a case where a person, not themselves a terrorist, knows that a family member or a friend is planning or has committed an act of terrorism and fails to inform the police. In his evidence to the Committee, the independent reviewer of terrorism legislation, Max Hill QC, argued that the maximum penalty for this offence is too low and should be increased. Having considered the issue further in the light of recent cases, we agree. Those who know that others are engaging in, or planning, terrorist activity have a clear duty to inform the police about such actions. Where people do have information about attack planning or other terrorist activity and they fail to inform the police, it is right that we have appropriately stringent sentencing options in place. An increase in the maximum penalty from five to 10 years’ imprisonment will send a clear signal about the seriousness of this offence.
This group of amendments also includes amendment 13, in the name of the hon. Member for Torfaen, which seeks to provide for an independent review of the Prevent programme. I shall wait to hear what he has to say about that amendment.
I am grateful to the Minister for setting out the issue of the designated area offence.
Before I turn to that, I join entirely with the Minister in his opening remarks marking the anniversary today of the terrible attacks on the twin towers on 9/11 in 2001, and indeed his remarks about the inquest on the Westminster bridge attack. We all join together in paying tribute to our emergency services, to the first responders in the United States, and to all the families who were affected by those terrible events. Of course, as we debate this legislation today we bear in mind that experience, and indeed the experience of other terror attacks.
I am pleased by and accept what the Minister said in apology for the late arrival of this new clause. I am sure he will appreciate that it was disappointing that we were not able to subject it to scrutiny in Committee, because it would obviously have been more useful had we been able to do so. Of course, that does not mean that we will not want to put it to scrutiny in the other place, and we certainly will do that, but I would have liked to have been a position to give it more scrutiny before today. None the less, I accept that, as legislators, we have to look to deal with the threat that foreign fighters pose to this country when they return, and I am not proposing that the Opposition oppose this measure. However imperfect legislation can be, the rule of law is paramount. If we ever sacrifice the rule of law—if we undermine our own values in dealing with those who seek to destroy them—then we lower ourselves to the level of their barbarism.
I am pleased that, in dealing with this, the Minister has rejected calls to update the law of treason, which, after all, reached our statute book in 1351, has not been used since 1945, and was meant for a different age. We are also pleased that the Minister has rejected calls simply to dole out justice summarily and arbitrarily, which would undermine the rule of law. Unfortunately, other members of the Government—not least the Defence Secretary, I am afraid, last December—have previously suggested that. I am glad that those courses for dealing with this have clearly been rejected by the Minister.
As the Minister set out, new clause 2 designates in a statutory instrument laid before Parliament an area for the purpose of protecting members of the public from terrorism. In a letter to me, the Minister made it clear that such a statutory instrument would be introduced via the affirmative procedure, so that whenever an area was to be designated, it would be done on the Floor of the House. I hope he can confirm that that will be the case.
As the new clause sets out,
“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area.”
“those who travelled out of a sense of naivety, possibly with some brainwashing along the way, possibly in their mid-teens and who return in a state of utter disillusionment…we have to leave space for those individuals to be diverted away from the criminal courts.”
Prosecutorial discretion and whether prosecution is in the public interest will, of course, be vital in this area.
While it is essential to deal with this matter by legislation, we will want to look at it in more detail, particularly in the other place. I welcome what the Minister said about being willing to work constructively on this, as he has on other parts of the Bill. We clearly cannot guarantee where future conflicts will take place, but we have to be prepared for those eventualities. We will want to look at the mechanism by which the Home Secretary designates these areas and ensure that we have appropriate safeguards. I am sure that nobody in this House would want to discourage aid workers and other people who we want to be in these areas from going to them. That clearly is not the intention of this law, and we will have to look at how we can ensure that that is the case.
I turn to the issue of seizing flags. In evidence to the Committee, Assistant Commissioner Basu mentioned the absence of this power from the Bill. I have looked carefully at amendment 1, and I am grateful to the Minister for his briefing on the context of how this power will be used. The issue of the sensitivity with regard to Northern Ireland was raised in interventions on the Minister. I am grateful to hear that he has been in contact with the Police Service of Northern Ireland, and I hope that that will continue.
At present, the issue is that police can only seize material with an arrest at the scene. Amendment 1 allows material to be seized where notice is given of a summons—in other words, the person does not have to be arrested at the scene, and a summons can follow within the prescribed six-month period. The person will still have to appear in court, but there will not have been an arrest at the scene. There is a suggestion of the power being used where there is not quite enough evidence to arrest someone at the scene, but I suspect that that would be extraordinarily rare in practice, because if a flag is in support of a proscribed organisation, it is difficult to see how someone would not be committing a criminal offence in those circumstances.
I tend to see this amendment in terms of how large protests will be managed. This power provides police at the scene with an additional option. It may well be the case that trying to arrest someone at the scene can either cause a public order problem or exacerbate one, and the summons method might be easier. It is not, of course, for us to comment on an operational matter. That would have to be a judgment of the police officer at the scene, but we can set out the framework. I expect that we will have to review how the power works in practice, but it is not my intention to oppose the amendment in principle.
I turn to the Government amendments on the three clicks offence, which has been raised in interventions on the Minister. I raised a number of concerns about this in Committee and tabled a total of five amendments on it. First, let me say that I understand why the law needs to be updated in this area. It was designed for a different internet age, when people tended to download content and watch it. It does not cover those who stream it, and clearly it must cover those who do so. The difficulty in my view is that the three clicks approach simply creates more problems than it solves, and I am grateful to the Minister for listening in that regard.
However—this point was raised in an intervention by Joanna Cherry—research into terrorism and its ideology is obviously hugely beneficial in understanding the reasons why people are drawn into terrorism, if nothing else. We should not be penalising those who conduct legitimate research or investigative journalism, nor should we be penalising legislators, including those on our own Home Affairs Committee who may well wish to look at some of this content over time for particular reports that they are considering.
On the reasonable excuse defence, such a defence was already in the original Act—the Terrorism Act 2000—and it has of course been interpreted by the courts since. In Committee, I asked the Minister to look at amplifying that, if possible. I clearly would not want the Minister to set out in statute every single version of the reasonable excuse defence, because there may well be additional new reasons that the courts will themselves want to interpret, and the courts should have the freedom to do so. However, I wanted the Minister to try to cover what I would describe as inadvertence, where somebody simply clicks on something without any intention of viewing terrorist material.
That is what the new provision being introduced to the Bill will actually do, rather than have the arbitrary three clicks, given that nobody could tell over what period the three clicks were to be made and all the rest of it. This method of taking out the three clicks and amplifying the reasonable excuse defence so that it covers cases where there is no intention to look at terror material, while at the same time keeping all the different aspects of the reasonable excuse defence—journalism, research and other reasons, such as for those conducting investigative journalism—is a better balance than was struck in the original version of clause 3. I am not suggesting for a moment that any piece of legislation is perfect, and the Bill will have its imperfections that the courts will no doubt pick up when it goes on to our statute book. At the same time, however, we have to try to deal with the issue of streaming, and I think this is a better attempt at doing so than the original version of the clause.
I will turn to the issue of the maximum sentence. A single instance of an increase in the maximum sentence will now be added to the Bill for the offence of failing to disclose information about acts of terrorism. The evidence from the independent reviewer of terrorism legislation was important. On this, I just want to press the Minister on what he said in Committee. He said:
“we have kept the Sentencing Council apprised of the provisions in the Bill, and the chairman has indicated that the council plans to revisit the guidelines once the Bill has completed its parliamentary passage.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee,
It is absolutely vital that the Minister again goes back to the Sentencing Council both about the other increased sentences in the Bill that we have already discussed and, in addition, about this other increased sentence. I hope that the Minister will be able to give an undertaking on that.
Finally, I come to amendment 13, in my name, regarding an independent statutory review of the Prevent programme. Let me make it clear at the outset that I have visited the Prevent programme—I am very grateful to the Minister, who has always assisted me in facilitating such visits, and indeed to the Home Office civil servants, who accompanied me—and I have seen some of the excellent work that goes on. I do not for a moment denigrate the work that is being done to divert people from a life of terrorism to a far more constructive life—that is absolutely to be praised—but I suggest that it is part of good governance regularly to review whether policies are working as they should be, and if improvements can be made on the basis of those reviews, they should be made.
The Minister will of course be aware that concerns have been expressed about the Prevent programme, and these could be considered within the scope of the review. The first concern is with regard to its aims. I have seen the Prevent programme in action in schools, for example, and in dealing with particular individuals. I have heard the previous independent reviewer of the terrorism legislation, David Anderson, speak about it, and I have interviewed people who feel they have benefited from the programme. I would describe that sort of work as the welfarist aspect of Prevent. We have to be clear about its aims, because it is perceived by some communities as an intelligence gathering exercise. If we feel that certain communities have lost confidence in the programme, of course we have to deal with that.
Prevent also has the aim of community cohesion. I have seen some very good work on that within the narrow confines of the programme, but there is concern about whether there is scope for the kind of community cohesion activity that is required, given the swingeing cuts we see to local government services, and specifically to children’s services and youth clubs—something that local authorities have highlighted to me when I have been out looking at Prevent programmes.
I am not saying that there is not excellent work going on as well, but we have to accept that some communities find it difficult to be confident in the programme. In those circumstances, it is sensible and reasonable to want to review it, ensure that it has wide community support, and make improvements if necessary. That does not undermine the counter-terrorism strategy—far from it; that is about improving it, and about good governance.
In Committee, the Minister spoke about internal reviews of Prevent. Fine, but let us have a full statutory review as well, and make the improvements that are needed to our efforts to tackle counter-terrorism.
I hear what the hon. Gentleman says about Prevent, and welcome his warm support for its principles. I am glad that he has been to see its programmes, as I did when I was Minister for Security. He makes a useful point about oversight of Prevent and about measuring the implementation of the Prevent duty. He will remember that we introduced that duty when I was the Minister. The duty affects a wide range of organisations, but the evidence suggests that its effectiveness varies across them. It would seem to be useful to take a look at that, but I would not call that a wholesale review; rather it is measuring its effect.
I am grateful to the right hon. Gentleman for his intervention. I know the work that he did in this area. I have seen the Prevent duty in operation, both on visits as a shadow Minister, and in my constituency, as it happens. I appreciate his point about whether a statutory review is justified. Clearly, we are talking about an aspect that could be taken into account in a statutory review, but wider issues to which I have already referred could also be taken into account. A statutory review would give us the opportunity to re-evaluate the programme fully, to look at those communities that have lost confidence in it and why, and to improve our ability to tackle counter-terrorism.
I will speak about new clause 2 and the context in which it has been brought forward. The first responsibility of any Government is always to protect their citizens, and as the threats to our country evolve, so must our laws. In a speech on
“multi-dimensional, evolving rapidly and operating at a scale and pace we’ve not seen before.”
The threat posed by terrorists and malicious actors is not going away—far from it. Last year, there was an increase of 58% in the number of arrests for terrorism-related offences. The threat is increasing and new clauses will be required to combat it.
Members have alluded to the fact that today is September 11th. No doubt we all remember where we were on this day in 2001 during the attack on the United States. I was on the wards in my first job as a hospital doctor. I was looking after an old lady who was watching television, and from behind her, I saw on the screen the aeroplane fly into the first tower.
We were all here last year when Westminster was attacked. People were tragically killed and PC Palmer gave his life protecting this House and protecting us. As we debate this topic today, we will be remembering those who were injured in those attacks, and the good work and bravery of the police and the other emergency services who protect us. Every day when we come to work, the Annunciator reminds us that the threat level is “severe”. It has been severe continually for at least the past four years. This means that at any given time an attack is considered to be highly likely. As I said, it is our first duty to protect the citizens of the country. It is important, in a free and democratic country, that we do that in a way that is both proportionate and effective.
On declared areas, my understanding is that there is a significant precedent in Australia, where a specific law states that it is a criminal offence for people to go to an area. I understand that it has been used on three separate occasions in Australia, where, as is proposed here, the maximum sentence is 10 years imprisonment. That is understandable, given what the Security Minister has said, which is that 400 people who have returned to this country are believed to have been active in fighting abroad.
Does my hon. Friend agree that one of the problems facing police and prosecutors when people come back from overseas is that if they want to investigate them for preparing acts of terrorism it is sometimes extremely difficult to get hold of evidence that may be in other parts of the world? This measure is an important way of filling that gap in the law, so that people can, when the evidence allows it, fairly be brought to account.
I thank my hon. Friend for his intervention. He puts what I was going to say much more eloquently than me. He is exactly right. The Government need to have a way to manage the threat posed by these individuals, when they are not able to gather evidence from abroad, perhaps in a country that is a very dangerous place to be. How effective does the Minister feel the measures have been, where they have been introduced in Australia, in preventing people from going to those places and prosecuting them on their return?
The Bill also serves a vital role in updating and closing the gaps in counter-terrorism legislation in the online world. As has been described eloquently by other hon. Members, the way people use the internet has changed and continues to change. Material is more likely to be shared online than as hard copy. Material is often streamed, rather than necessarily downloaded. As the growth of the internet has provided us with unprecedented ways to stay connected and share information with each other, its potential has also been harnessed by those who wish to do us harm. This is seen every day in the huge amount of terrorist propaganda that is created and shared online. This is done at a rate much quicker than our ability, at present, to remove it. The updating of the offence of obtaining information likely to be useful to a terrorist to cover terrorist material that is viewed or streamed over the internet rather than downloaded is a reflection of how internet media are consumed today. In my view, this is an overdue update of our laws.
Furthermore, the Bill makes it clear that the existing offence of displaying in public an image that arouses reasonable suspicion that a person is a member or supporter of a proscribed organisation, will now cover the display of images online. Again, that is important because if somebody on a protest march walks down a street carrying a flag or displaying an image, it will be seen by a limited number of people. Their ability to spread such images more widely and to influence more people is greatly enhanced by the ability to share them online. That is why this law is important.
It will be a criminal offence for individuals to share or publish things online, but will the Minister update the House on what is being done to encourage or mandate the social media companies on whose platforms such images may be shared to remove them rapidly? We know that such images can be shared incredibly quickly and can travel around the globe many times on Facebook. That is demonstrated by schoolchildren, who produce an image and then share it to see how far it can go. There is no doubt that such images can be shared very quickly. What is the Minister doing to ensure that images that are known to be harmful are removed rapidly? What discussions have Ministers had to ensure that those who are responsible for social media accounts must identify the people who use those accounts, so that when something is shared online, it is easy for the police and security services to identify the individual who is responsible for the images?
While part 1 of the Bill is concerned with the modern threats posed by terrorism in the digital age, part 2 is concerned with the age-old threat posed by hostile states. The chemical attack in Salisbury, which I understand we will debate further tomorrow, shocked this country and the world. It was thought that such attacks by other states on our soil belonged to a bygone era. As more details have emerged, including those that the Prime Minister informed the House of last week, the mundane nature of the attack—flying into the UK on valid passports and travelling from Waterloo station—makes it all the more terrifying.
Part 2 of the Bill seeks to strengthen our borders against such an attack in the future by creating new powers to investigate hostile state activity at the border. Police and customs officials will be able to stop, question, search and detain an individual at the point of entry to the country.
My hon. Friend is explaining to the House how terrible the attack in Salisbury has been. Does she agree that it is actually a threat to the whole of the United Kingdom, and that it is important that the provisions in the Bill are carried through not only so that action can be taken but so that information can be shared with security and police services right across the United Kingdom?
I agree that it is important in any part of police work that, where appropriate, information is shared throughout the country so that individuals who seek to do us harm can be stopped or caught if they have already committed an offence.
Being able to stop people at a border and question their intentions on coming to this country will be important in enabling the Government, the security services and the police to protect the citizens of the UK.
Does my hon. Friend agree that our constituents would expect us to be able to stop people at the border and question them in case they are a threat to this country?
I thank my hon. Friend for a great intervention. He is right that for many of our constituents, it will come as a surprise that we are not able to do this already.
To continue on that theme, does my hon. Friend agree that the security elements of the White Paper on the future relationship will be essential in guarding our borders because they will ensure that we continue to work very closely with our European Union neighbours to tackle this as 28 countries, rather than just one?
I agree. Terrorism is a global threat. It affects us in this country, but, as we remember on
It was said earlier from a sedentary position, “Well, that’s what the EU is for”. Does my hon. Friend agree that it is the whole international community? We are leaving the EU, but does that mean that this is any less serious a subject? As my hon. Friend has said, we will continue to work with the EU even after we leave.
The hon. Gentleman looked so keen to get to his feet.
It is absolutely right that we tackle the threat to our country by co-operating with our international friends and neighbours, and those neighbours will of course include the EU. Furthermore, it will not matter that we have left the EU because it will be in our mutual interest to co-operate on security.
I am grateful to the hon. Lady for continually giving way as it allows us to develop some of the points.
This power already exists. Our authorities have the ability to stop people at our borders and airports who are suspected—or not even suspected—of terrorist offences. We discussed on Second Reading—and I engaged with the Minister subsequently on this point—how Border Force often uses the power erroneously against British citizens travelling from Belfast to Birmingham, for example, or from Glasgow down to Birmingham or London, and so on. It is not appropriate. I hope in this debate to get a sense that there will be some restrictions on a power that is worthwhile and useful from a terrorist prevention perspective, but which is being used improperly and erroneously.
I thank the hon. Gentleman for his question, although it is one for the Minister, rather than me. I would certainly expect the authorities to use the power proportionately and where necessary to keep people safe, not to stop and question people at the border without reasonable grounds.
Several hon. Members have raised the “reasonable excuse” issue in respect of people returning to this country. People who have been to a declared area will have the “reasonable excuse” defence. So people will be able to travel to these areas for legitimate purposes—for example, for journalism or to visit family for a funeral or some such important bereavement event. It will also be allowed for people delivering aid, and obviously for the armed forces. The Government have worked to ensure that these “declared areas” provisions meet the important test of protecting our citizens and are both proportionate and effective.
The hon. Lady is being very generous with taking interventions. She said a moment ago that leaving the EU would not matter in terms of our co-operation with the EU. Does she not understand that when we leave the EU we will be a third country and that third countries do not have the same access to information sharing as members of the EU? Indeed, it is why our “Five Eyes” allies like the UK being in the EU—they get access, through the UK, to information they would not otherwise have.
I disagree with the hon. and learned Lady. Each country has a duty to protect its citizens. She says the “Five Eyes” like access to the EU’s information, but is it not also reasonable to suppose that the EU likes access, through us, to information from the “Five Eyes”? I am sure that the Government would share information only with the consent of the countries that had given that information, when appropriate; it is as much in the interests of the EU to have access to our information as it is for us to have access to the EU’s information.
Can the hon. Lady name any third country that has the same access to information-trading within the EU as an EU member?
It may be—I do not say this with any acrimony—that Joanna Cherry is letting her pro-European prejudices get the better of her understanding of security. The truth is that, as she will know, we draw on a variety of sources of information. It is true that we use the Schengen database, but only as part of the network of information that we gather across all kinds of borders and from all kinds of sources to help to inform our intelligence and security services. The likelihood of that changing as a result of our departure from the EU is being exaggerated by those who have a different agenda.
I thank my right hon. Friend Mr Hayes for his intervention. I agree with him profoundly. I think it is scaremongering to suggest that for some reason the EU would not wish to share security information with us, and that we would somehow become less of a security partner or friend because we had left the EU.
There is not a country that has left the EU yet. We are that test case. The reality is that the EU27 will rely on us hugely when it comes to security, because we are such a great provider of that. Perhaps I could urge Opposition Members to be a little more ambitious and recognise that we have a lot to gain from this, instead of running up the white flag.
Again, I agree profoundly.
The Bill is the result of a thorough review carried out by not just the Government but the security services of how we can best protect our citizens. I believe that we can best protect them by ensuring that the Government, the police and the security services have to hand all the tools that they need to deal with the modern threats that are posed to this country.
As we have heard from Dr Johnson, the first job of any Government, whether in London or in Edinburgh, is to keep their citizens safe. It is clear that we need to take action to update legislation in these difficult times of high-level terrorist threat combined with the constant march of technology and online communication. I fully appreciate the difficulty of keeping legislation current, answering the calls of the police and security services for further powers, and maintaining the balance of freedom and civil liberties that we expect and enjoy. Of course, while we are supportive of the Government’s efforts, it is incumbent on any decent Opposition to offer amendments to improve the Bill and ensure that the Government get that balance right.
In Committee we submitted many amendments which, sadly, the Minister was not wise enough to accept. However, he was wise enough to make some concessions to the Opposition. Amendment 2, for instance, would remove the requirement to view documents or records containing information likely to be useful to terrorists on three or more occasions—the three-click policy. We have some serious concerns about the impact that that may have on innocent individuals who have no interest in, intent to engage in, or wish to encourage terrorist acts. I am glad that the three-click policy has been removed, but I fear that it has simply become a one-click policy.
The previous policy was arbitrary and unworkable, given that the clicks could occur in an unspecified window of time, did not have to relate to the same content on each occasion, and did not require any terrorist intent for the offence to be committed. As I did in Committee, I accept the Government’s point that more people now stream material online than download it to a computer or other device, and in that context it is vital that we continue to review our counter-terrorism approach.
The Government had argued in relation to clause 3 that the three clicks requirement was intended to identify a pattern of behaviour; this amendment runs completely counter to that objective. As had been asked for in Committee, the Minister has included a reasonable excuse defence for this new one-click offence. I would like the Minister to address concerns raised by many, not least my hon. and learned Friend Joanna Cherry, who say that it is possible that the wording will have the perverse impact of narrowing the reasonable excuse defence available to people charged with the offence, as the courts are likely to reason that, in legislating for a reasonable excuse without including lack of terrorist intent within that excuse, Parliament did not intend for lack of terrorist intent to be an available excuse for this offence. We have to ensure that the clause does not criminalise people who may view these documents with no nefarious intent, such as academics and journalists.
I turn to the Government’s proposed new offence of entering, or remaining in, a designated area. The ministerial communication on this Bill has otherwise been excellent, but it was poor in relation to this new offence. The deadline for tabling amendments was the rise of the House on Thursday, yet we received the email with supporting documents about the offence at just after 7 pm on Thursday. That is poor practice.
I listened to the Minister set out his thinking on this and although I accept, as most of us will do, many of the points he made and what the new clause is trying to do, I am still not fully convinced it is necessary or proportionate. A reasonable excuse defence is included in the proposal; however, people travelling to visit family, conduct research, document human rights abuses or undertake humanitarian relief could all be criminalised and imprisoned for up to 10 years should their reasonable excuse be found wanting. Some people will simply opt not to travel, which would have a chilling effect on family relationships, academic inquiry and investigative journalism. The likes of our fantastic correspondent David Pratt of the Herald and National may think twice before travelling to war and conflict zones to bring us the real story on the ground.
The offence also risks criminalising vulnerable people who are groomed or otherwise convinced to travel under false pretences, as well as people who are unable to leave an area once it has been designated. In some circumstances, people will simply be unaware that an area has been designated, and may fear returning home once they become aware that they have committed an offence by failing to return within the requisite time period.
Reasons for travelling to volatile and even dangerous overseas locations are varied and complex, but by no means are they uniformly malign or connected with terrorism. In the short time that we have been acquainted with this proposal the Government in their correspondence and at the Dispatch Box today have not to this point convinced us of the necessity of the offence and at 6 pm we will be voting against new clause 2. I am not hopeful of success in that Division, and with that in mind I urge the Minister to commit to a review 12 months after implementation to ascertain the necessity of the offence and to evaluate whether the reasonable excuse defence has provided the appropriate level of protection to the groups I have highlighted.
Finally, I would like to speak in support of amendment 13, tabled by Nick Thomas-Symonds, which I was delighted to support. A few months ago I, along with colleagues from the Justice Committee, visited Medway Secure Training Centre. At lunchtime we sat with some of the staff and the young adults detained there. One of the detainees I sat with and had a long conversation with was a hugely impressive young woman of 17. I am not sure of the type of person I was expecting to meet in such facilities, and that is wrong as we should not have an expectation, but I certainly was not expecting to meet someone as impressive, intelligent and articulate as this young woman. She was popular with all the children and young adults—they had voted for her to be their representative on a centre management committee—and she was popular with staff, and she had helped improve the centre’s reward and discipline system. In short, she was an impressive young lady. Thirty minutes later, I was told that the young woman we had met was Safaa Boular, who at that time was a remand prisoner awaiting trial on terrorism charges. That had a profound effect on me, and on how I view the radicalisation of young and vulnerable people.
This is not an easy issue; in fact, it is an extremely difficult and almost impossible one. Safaa, along with her mother and sister, had planned to carry out truly terrible acts. The fact that she was convicted and, just last month, sentenced to life imprisonment is testament to that. I am not saying for one second that people like Safaa should not be punished—of course they should—but I know that we have to do more to help people like her before they become radicalised. Despite the fact that the Prevent strategy is better implemented on the ground in Scotland than it is south of the border, I am pleased to support amendment 13, which I urge the Minister to accept. All it asks for is a review.
The hon. Gentleman makes an honest and powerful point about Safaa Boular, whom he met. Terrorists do not always present themselves in balaclavas or as nasty pieces of work, and they are often the victims of grooming or other troubles. The people who groom the likes of Safaa Boular are those returnee fighters who are hardened and who come back here. In the past, we have found such people difficult to put on trial and put away in order to protect the likes of her from those groomers. The designated area offence will give us the ability to do that. If returnee fighters pose a real and present threat of radicalising people in these communities, as they do—
Thank you, Mr Deputy Speaker. I fully accept the central point that the Minister is making, but he has failed to convince us on the question of proportionality and on the necessity for the new clause. I should also point out that Safaa was not radicalised or groomed by someone who had returned; she was radicalised and groomed by someone overseas. In conclusion, I urge the Minister to commit to this review of the Prevent strategy.
Across the House, we share a determination to tackle terrorism. Seventeen years ago today, I was visiting my grandmother. She was watching the television and she showed me what was happening in the appalling attacks in the United States. We in this House also know about the atrocities that happened just 100 yards away on Westminster Bridge recently. So we all want to ensure that we can do whatever we can to keep our people safe and to fight against the scourge of international terrorism. The question tonight, however, is whether the new clause and the new Government amendments will help to protect us. We have seen a huge number of laws added to the statute book, quite rightly, to help us and our security services in the attack that we are making on terrorism and in the fight back, but I am not yet convinced that this new clause and these amendments will add to the successful work that has been going on.
I say to the Minister that I reach that conclusion reluctantly, but I should like to put forward my arguments, because I am not alone in this. Skilled independent commentators have reached a similar judgment to the one that I have reluctantly reached. My first argument in relation to new clause 2 is that it is not needed. Clause 5 of the Bill, with which we agree, will quite rightly expand extraterritorial jurisdiction. We have seen this before, and clause 5 takes those measures further to ensure that terrorist offences committed abroad can be prosecuted in the United Kingdom. That is sensible stuff. New clause 2 wants to go further, however. Rather than being primarily concerned with terrorist acts abroad, it seeks to criminalise the whole concept of going abroad. In other words, it is not about the actions of a person but about locations.
The Minister, in his usual rational way, tried to reassure us that this was not meant to apply to aid workers or journalists, and I presume that it would not apply to people who wanted to visit sick relatives and who might even risk going to a war-torn country to do so. He referred to proposed new subsection 58B(2), which is found in new clause 2, which offers that defence, but the way I read it, the person charged will have to prove that they had a reasonable excuse for entering a designated area. That is not quite what the Minister said at the Dispatch Box, and although I did not intervene at the time, I do not think that people will be innocent until proven guilty, and that should worry the House.
The other issue is one of common sense. If a terrorist or freedom fighter who has returned is accused of going to such an area, they could no doubt make a reasonable excuse defence. They could say that they were an aid worker, and the Government would then still have to prove that they have evidence that the person was doing something wrong and was not an aid worker. I am not absolutely convinced that the Government have got this right, and I will go on to quote the former independent reviewer of terrorism legislation, David Anderson QC, who supports my view.
I am just going by what the Minister has tabled today.
David Anderson, the former independent reviewer of terrorism legislation, said in 2016 of a very similar proposal that
“this offence would not be worthwhile for the UK.”
He also complained about the burden of proof being
“on the honest and worthy to show entry into the prohibited area for a legitimate purpose.”
He said that foreign terrorist fighters
“will also cite aid purposes, so the ultimate burden of proof will still demand evidence not just of presence but also of training, logistical support, or involvement in fighting” and went on to argue that such activities are of course already covered by the law. He also looked at the practical problems, referring to the fluidity of the
“area controlled by Islamic State (Daesh)” and how difficult it would be to fix an area in law when the task might be like mapping the shifting sands of time and reality as the space governed by such organisations changes. There are practical problems with this legislation and, like the former independent reviewer of terrorism legislation, the Liberal Democrats do not think that the Government have made a case for it. We want to ensure that the other place scrutinises the measure given that this House has not been given sufficient time.
Finally, Government amendments 2 and 4 seek to replace their original proposal for obtaining and viewing certain material over the internet—the so-called three-click rule—with a one-click rule and a defence of ignorance about the content of the click. I spoke against the three-click proposal on Second Reading, as did many other Members on both sides of the House, and asked Ministers to go away and think again, but I did not expect them to come up with an even worse proposal. The defence for viewing such material with good cause has actually been reduced, and I am not alone in thinking that. Amnesty International fears that there is a serious risk of a chilling effect on the freedom of inquiry, whether from journalists, academics or researchers.
“The cases in which a person has a reasonable excuse for the purposes of subsection (3) include (but are not limited to) those in which at the time of the person’s action or possession, the person did not know, and had no reason to believe”.
There is no finite list. The legislation is as broad as possible to include a whole range of reasonable excuses, including ones that we have not even thought about.
I am grateful to the Minister for trying to clarify the situation, but I will let others in the House read the words on the amendment paper and reach their own conclusions. In my opinion, there is a serious concern that the definition is not wide enough and that there will be, as Amnesty International and others have said, a serious chilling effect on independent inquiry. Let us remember that it is already an offence under legislation introduced by the previous Labour Government to collect or record such information. Anyone behaving in a way to prepare for a terrorist act or to encourage such an act already, rightly, commits an offence, and there is a reason why, under the Counter-Terrorism and Security Act 2015, viewing material, as opposed to collecting or recording it, was not made an offence—it is called evidence.
Max Hill, the current independent reviewer of terrorism legislation, says:
“the Government and researchers have repeatedly asserted that there is no clear production line from viewing extremism or even being ‘radicalised’
into becoming an active terrorist.”
In summary, he says this new mode of offence is based on the premise of a one-way or conveyor-belt radicalisation to terrorism thesis that, in other areas, the Government argue does not exist. The Government are not even following their own argument or the evidence. It is not me saying that but the independent reviewer of terrorism legislation.
Max Hill particularly criticises clause 3. He warns that
“a principled boundary line as to the legitimate usage of criminal law is being crossed.”
He has also said that:
“Given a choice—given a free hand—I would be more likely to argue that it is not necessary to legislate in this way at all.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee,
c. 39, Q86.]
The Government-appointed independent reviewer of terrorism legislation is saying that we should not be legislating. The House should listen to the independent expert who has been assigned the task of advising us.
I will translate Max Hill’s very diplomatic legal language into what he is actually trying to say. I do not have to work very hard to read between the lines of this expert. He is basically saying that clause 3—and thereby Government amendments 2 and 4—is unnecessary and should be rejected. I hope the House rejects new clause 2, and with it Government amendments 2 and 4.
I rise to speak strongly in favour of new clause 2, not least because I have spent the past nine months beseeching the Government to introduce exactly this measure. I thank the Minister not only for his kind words in response to my earlier intervention but for the constructive and open way in which he has worked with me. He has been clear from day one that he had already identified this measure and was looking at following the Australian example.
It is disappointing to hear Sir Edward Davey, for whom I have a great deal of respect, speak so passionately against bringing in this measure. It was less surprising to hear Gavin Newlands do the same. I listened carefully to both, and I am none the wiser as to what either the Liberal Democrats or the Scottish National party would do to improve the incredibly dangerous situation to which this country has been exposed through the current conflict against Daesh.
By the Government’s own figures, more than 800 British citizens of interest to the security services have travelled to Iraq and Syria during the conflict. More than 400 of them, around half, have returned to the UK, yet there have only been 40 prosecutions for terrorist offences. That one in 10 rate is absurdly low, currently, when we know that the overwhelming majority of those people are going over to Iraq and Syria with no other purpose than to support jihad—to support this evil organisation. Yes, I think the shadow Minister was right in the way that he referenced what Max Hill had said about the number of people who return who may have been coerced to go over, may be disillusioned and may be able to play a valuable role in preventing others from doing so. At the moment, though, the message that this country is sending through the laughably low prosecution rate is that it is okay to go over there, to follow that dream; that you can look for the Ummah over there, and then you will be able to come back and reintegrate into society and the police and security services cannot touch you. That is a dreadfully dangerous message to be sending to people. And the measure before us, surely, is a common-sense measure, for which safeguards can easily be provided. Those who are travelling over for legitimate purposes to do aid work clearly will do so as part of a wider group and will be able to show verification for doing so.
I will in just a moment. I very much hope that this legislation will get on to the statute book, and when it does I very much hope that there are very few prosecutions. It ought to provide a deterrent effect for future generations who would otherwise be tempted to go over there. I will happily give way to the hon. Gentleman, if his colleague gets out of the way in time. Okay; he does not want to intervene.
I would just very gently say to the hon. Gentleman that it ill behoves him to question the motives of democratically elected Members who seek to test the necessity and proportionality of an amendment that was only tabled two or three days ago. I would ask him to consider his approach and his language. The reason I wanted to intervene was that the Australians have a sunset clause on this power. Does he think it might be an idea for the Government to introduce a sunset clause as a safeguard?
I cannot see any convincing argument for doing so. If the hon. and learned Lady wanted to make one, surely she or her party spokesman could have done so. To be clear, I do not think the motives—nothing that I have said about her party has suggested, I hope, that she actively wants to make the citizens of Scotland at greater risk from terror. However, I am afraid that that is what her party would do. Time and again, there is a long tradition, over many—
Is it really in order for this hon. Member to impugn my motives and suggest that I want to make the people of Scotland, or indeed the United Kingdom, unsafe simply by testing an amendment? Is that really in order? It seems to me pretty close to being out of order.
I know that would not be the case with the hon. and learned Lady, and I am sure that was not the intention of the hon. Gentleman.
No, I am not giving way. Sit down. Sit down. After that absurd non-point of order, I am not going to give way. The hon. and learned Lady has had her opportunity, and her party has had its opportunity, to set out why they believe that they can actually add to the security of the United Kingdom. They have just summarily failed to do that, as her party, I am afraid, has done over many years in this place.
I am grateful to the hon. Gentleman and he should know that I have a lot of respect for him. Therefore I would ask him gently if he would go away and look at the words of David Anderson, QC, just two years ago, on an almost identical amendment. That very respected independent reviewer of terrorism legislation said that this type of amendment would not work and was not needed.
I am of course aware of David Anderson’s views, and I am afraid I simply do not agree with him. Will the measure solve the problem of British citizens being brainwashed into supporting jihad? Clearly it will not—I will say a little more about the Prevent strategy in a moment—but it is surely a valuable extra tool that has been shown to be severely lacking in the UK’s arsenal in the past few years, given the hundreds of people who have come back from the terror hotspot of Daesh-controlled Iraq and Syria and not been prosecuted.
I will wind up my remarks by talking about Prevent. I heard what the shadow Minister said about the official Opposition’s motion on review, and I have no doubt that those views are sincerely held, but I will not support him on the amendment, if it is pressed to a vote. I agree that Prevent should be continually under review, but I am concerned about the head of steam that has developed, sometimes from my good friends in this place, which has given the impression that there is something fundamentally at fault with Prevent. There are of course those in Muslim communities who question it, but the responsible position for people in this House and beyond is to make the case for the Prevent programme’s valuable work and to highlight the number of people who feel that their lives or the lives of their loved ones have been saved through it.
Ultimately, those who want to discredit Prevent and want it to fail are those who want to give a very different message to our young people. I hope that those on my side of the House—it remains my side of the House, at least—will reflect on the language and tone that they use when describing Prevent.
I was listening to the hon. Gentleman’s dulcet tones. He articulates the challenge with security. None of us want to ratchet up security. We want to balance our liberal open democracy and our individual freedoms with the clear and solid duty of the state to keep people safe.
In the 21st century, we have had a rapid growth in insecurity around the world, brought to our doors by such things as the internet and communications service providers. My hon. Friend Dr Johnson talked about the work on CSPs and what we can do to deal with the issue. That is why the offence related to streaming is so important for us. It may not satisfy the Scottish National party on streaming, but streaming is a method by which people are being radicalised and terrorist content is being spread. Streaming is a modern method of viewing terrorist content that helps to turn those young 16-year-olds into potential terrorists. People have to come up with better alternatives. They cannot say, “We are going to stick with the older legislation that is entirely predicated on downloading.” They have to recognise how these people are doing business. That is why we brought in that offence of streaming.
Sir Edward Davey made a point about designated areas and the burden of proof. I wrote to the Opposition spokesman, Nick Thomas-Symonds, on exactly that point. He has clearly articulated it from the Dispatch Box that once the defendant has raised the defence, the burden of proof to disprove that defence to the criminal standard rests with the prosecution, as in section 118 of the 2000 Act. The burden of proof is positioned in that way, and at the moment we have decided that not having an exhaustive is the way to go. Just as with the previous issues of reasonable excuse and streaming, we think the right thing to do is to allow people to present an excuse for being there. It also allows the broad space for their human rights and everything else to be correctly regarded.
I am very grateful to the Minister for the many telephone conversations that we have had during the passage of this Bill and for keeping me up to date, albeit not on last week’s amendment. Does he understand that the reason why some of us on the SNP Benches are concerned by the designated area clause is that my very good friend and professional colleague at the Bar, David Anderson, who has expertise in this area, has expressed some concerns? Will the Minister note for the record that that is why some of us want to put this measure to the test—not for any reasons of frivolity, but for reasons based on sound legal concerns about necessity and proportionality?
Of course we listen to and respect current and former reviewers of terrorism. Lord Carlile, the former Liberal Democrat, has often had different opinions from Lord Anderson. Indeed, the current reviewer of terrorism, Lord Hill, has different views. They all do an amazing and thorough job, and they will, for example, have oversight of the use of this offence. They will be able to review the use of this offence as part of their role. I have no doubt that, Max Hill, who has gone to be the next Director of Public Prosecutions, will be able to carry out the prosecution’s discretion, which is so important when deciding on the public interest test in some of these offences in the Crown Prosecution Service. The hon. and learned Lady may have confidence in those reviewers of terrorism, but I have confidence in Max Hill as the next DPP, coming from the review of terrorism, to make those sound judgments about when it is in the public interest to prosecute or not.
I can give assurances to Members about the Sentencing Council. Absolutely, we shall continue to work with it, and we will write to its members to make sure. When it comes to the naming of the designated areas, I will seek to bring the matter to the Floor of the House. It is an affirmative motion, and I am absolutely open to that; I do not oppose it in any way.
Joanna Cherry made a point about data and the European Union. She will know that national security is not in the jurisdiction of the European Commission or the European Union. What a country chooses to share in data for national security purposes is entirely the business of the member state. We can choose what we want to do with our intelligence, and it is not for someone else to pass that on. Her point about the “Five Eyes”, therefore, is not correct. Even when we share intelligence in the “Five Eyes”, if the intelligence comes from another partner in the “Five Eyes”, we do not have the authority to share that with our European partners because it does not belong to us; it belongs to that sharing partner.
Furthermore, on that data sharing point of the European Union, that is a negotiation that we are seeking to secure. Such a negotiation is in the interests of both the United Kingdom and the European Commission. If they want to keep their people safe, security is a partnership; it is not a competition. That is why our offer on negotiation of security is an unconditional open offer, which seeks to share in a way that we have done in the past.
I am sorry, but I want to press on, because I want to get to the final point and address Labour’s amendment on Prevent. I hear what the hon. Member for Torfaen says and I in no way question his motives.
Since I have been the Security Minister, I have made sure that we have published more and more statistics on Prevent; they did not previously exist. These statistics enable all of us in the public realm to scrutinise the results of Prevent referrals, including information on where they come from, people’s ages and the accuracy of the referrals. Without any statutory review, after some time—I think we have published two bulletins so far—we will be able to see whether the accuracy of Prevent referrals from different sectors is producing the results that we want. That is, we will know how many people are being correctly identified as vulnerable and exploited. At the same time, we regularly review Prevent within Government and the Department, and through engaging with the 80-odd community groups that deliver some of the Prevent programmes.
If the Government or I felt that Prevent was not producing a result and diverting many people from the path of violence, I would be the first to come to the House and say, “We have to get it right.” The critics of Prevent—which the hon. Member for Torfaen is not—never set out an alternative. They criticise its title, but always set out a provision that is exactly the same as Prevent.
It is not necessary to have a statutory review of Prevent at this time. It is improving and becoming more accurate, and people are absolutely becoming champions of it across every sector. Today I saw, I think in The Daily Telegraph, a letter by a long list of academics about the chilling effect of Prevent. Never mind that the Higher Education Funding Council for England said in its evidence to this House that it had yet to see any evidence of the chilling effect. In fact, a judge in a recent challenge about the Prevent duty said the same thing—that the defendant had yet to prove any chilling effect. I have not seen a letter from academics about the chilling effect on universities of no platforming, whereby people are shut out of debates entirely. The Prevent duty is about having balance in debate and due regard to the impact.
I understand the hon. Gentleman’s motives and, to some extent, what the Opposition want to achieve. I would say that the publication and transparency that we are increasingly moving towards with Prevent, and the assurances that Prevent is not an inward reporting system—that is, people do not go into Prevent and get reported to the intelligence services; it is deliberately kept as a separate safeguarding activity—means that the best way forward is to continue improving Prevent as it is. We can discuss its accuracy and success rates, but until someone comes up with an alternative policy to what we and the Labour Government had, it is unnecessary to put a review in statute. Therefore, despite our collaborative working on the Bill, I ask the House to reject the hon. Gentleman’s amendment.
Question put, That the clause be read a Second time.
The House proceeded to a Division.
I ask the Serjeant at Arms to investigate a delay in the Aye Lobby.
The House divided:
Ayes 292, Noes 47.