Counter-Terrorism and Border Security Bill - Second Reading

– in the House of Lords at 3:17 pm on 9th October 2018.

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Moved by Baroness Williams of Trafford

That the Bill be now read a Second Time.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, no Government take any pleasure in having to put before your Lordships’ House another counterterrorism Bill. Like its predecessors, this Bill is borne out of necessity. Regrettably, the threat to this country from terrorism is ever present. Indeed, the threat level has been at severe or higher for over four years, meaning that a terrorist attack is highly likely. The police and security services now assess that over the last two years we have seen an enduring shift in the threat, rather than simply a spike.

It is easy to reel off statistics. Seventeen Islamist or far-right terrorist plots have been thwarted since March 2017; as of June, there were some 3,000 subjects of interest known to the police and intelligence agencies, and 412 arrests for terrorism-related offences in 2017. But dry statistics can never bring home the pain and sorrow suffered by individual victims of terrorism. Over recent weeks, we have heard the harrowing testimony at the inquest into the deaths of the five victims of last year’s terrorist attack on Westminster Bridge and at the gates of this very building. In this and the four subsequent attacks in 2017, in Manchester, London Bridge, Finsbury Park and Parsons Green, a further 31 innocent victims lost their lives, and in total over 200 others were injured. The family and friends of those who lost their lives will have to live with this painful loss for the rest of their lives, while the victims who survive have to deal with the ongoing mental anguish and, in some cases, life-changing physical injuries.

As a Government, we must do all we can to prevent such tragedies happening again, although regrettably there can be no guarantee that every plot will be foiled. One way we can do this is to make sure that our counterterrorism legislation remains fit for purpose. Much of the current legislation dates back to Acts passed in 2000 or 2006. In the intervening years, the nature of the threat has evolved. We have seen new patterns of radicalisation, the widespread use of social media to spread hateful ideology, and the draw of the so-called caliphate in Syria. We have also seen more rapidly evolving plots using everyday items such as vehicles and knives as weapons, which although still deadly are less sophisticated and complex than the plots of previous years. This has led to a lowering of the barriers to entry and a decrease in the time taken to plan and prepare by those with murderous intent.

Against this evolving threat, it is only right that we should bring our counterterrorism legislation up to date so that our law enforcement and intelligence agencies have the necessary, but proportionate, powers to help counter the threat as it manifests itself today, and not the one they had to contend with nearly 20 years ago. The provisions in Part 1 are directed to this end. In reviewing existing legislation, we have listened carefully to our operational partners: the police, prosecutors and the intelligence services, but also the current and former Independent Reviewers of Terrorism Legislation—I am pleased to see the noble Lord, Lord Anderson of Ipswich, in his place. We have also listened and responded to the debates on these provisions during the passage of the Bill in the House of Commons.

The Bill closes a number of gaps in existing terrorism offences. Under Section 12 of the Terrorism Act 2000 it is already an offence deliberately to invite support for a proscribed terrorist organisation, whether expressly or by implication. However, there are demagogues who, without intending to encourage others to support such groups, or at least without the prosecution being able to prove such an intention, nevertheless recklessly choose to voice their own support, knowing full well that the effect of their words will be to do just that. It is right that the criminal law should bite in such cases.

The Bill also updates Section 13 of the 2000 Act which criminalises the display, in public places, of a flag or other emblem of a proscribed organisation in such a way, or in such circumstances, as to arouse a reasonable suspicion that the person is a member or supporter of a proscribed organisation. The provision in Clause 2 makes it clear that the publication of an image of such a flag or emblem online, in circumstances which arouse that reasonable suspicion, comes within the ambit of Section 13. So, for example, a person would commit the offence if he or she posted on social media a picture of themselves taken in their bedroom and displaying a Daesh flag in the background, thereby making the image available to the public, and, if taking all the surrounding circumstances into account, such a display aroused a reasonable suspicion that he or she was a member or supporter of Daesh.

We are also strengthening the existing offence, in Section 58 of the 2000 Act, of collecting or possessing information likely to be of use to a terrorist. Here again, we need to ensure that the criminal law reflects how people now make use of the internet. If someone were to download a document containing information likely to be useful to a terrorist, it would be in their possession and they would therefore be committing the Section 58 offence. If, instead of downloading the document, they were to view it online or to stream a video or audio recording containing the information, without any record being made on their device, the offence would not apply. This cannot be right. This loophole is a clear illustration of how criminal law has not kept pace with the digital age. Clause 3 therefore provides that a person who views or otherwise accesses terrorist material online is within the ambit of the Section 58 offence. But it is not the intention here to criminalise a person who unintentionally views such material, so the clause provides that it is a defence for a person to show that they did not know, or had no reason to believe, that the material is likely to be useful to a person preparing or committing an act of terrorism.

This part of the Bill also helps us to respond more effectively to the threat posed by foreign terrorist fighters—an issue which I know is of great interest to my noble friend Lord Marlesford. We already have a number of powers to disrupt travel to conflict zones overseas but here, as elsewhere, we need to ensure that the coverage is as comprehensive as it should be. Accordingly, the Bill provides for a new offence of entering or remaining in a designated area overseas. The Home Secretary may make such a designation where he or she is satisfied that it is necessary to restrict UK nationals and residents from travelling to, or remaining in, the area for the purpose of protecting the public from risk of terrorism. Any regulations designating an area will be subject to the affirmative procedure; consequently, after they have been made and come into force, they will need to be debated and approved by both Houses if the designation is to remain in effect.

The designated area offence will be subject to a reasonable excuse defence. We are clear, for example, that the defence would apply to a person travelling to a designated area for the purpose of providing humanitarian aid or to carry out work as a journalist. This defence will operate in the same way as the existing reasonable excuse defences in the Terrorism Act 2000. Accordingly, once a defendant has raised the defence, the onus will be on the prosecution to disprove the defence to the criminal standard.

The Bill also seeks to tackle the phenomenon of foreign terrorist fighters by extending the reach of the UK courts. It is not for the law enforcement agencies in this country to police the world but, when someone has travelled from the UK and committed a terrorist offence abroad, it is right that they should be brought to justice if they return here. Many terrorist offences are already subject to extraterritorial jurisdiction. We are now extending the jurisdiction of the UK courts to cover further terrorism offences committed abroad, including activity that we have seen conducted by those who have joined Daesh, such as the dissemination of terrorist publications to individuals back in the UK and the possession of explosives for the purposes of an act of terrorism.

It is not enough that we prosecute and convict those who commit terrorist offences; we also need to ensure that the punishment properly reflects the seriousness of the crime and that our communities are protected by the courts having the scope to hand down appropriately lengthy sentences. New sentencing guidelines which came into force in April will go some way in this direction, but the Sentencing Council and the courts necessarily have to operate within the current maximum penalties set out by Parliament.

Having reviewed the maximum penalties for some terrorism offences, we are satisfied that they no longer adequately reflect the seriousness of the offending behaviour and the high level of harm that can be caused. Accordingly, the Bill increases to 15 years’ imprisonment the maximum penalty for four offences, namely: collecting terrorist information; eliciting, communicating or publishing information likely to be useful to a terrorist about a member of the Armed Forces; encouragement of terrorism; and dissemination of terrorist publications. In response to representations from Max Hill QC, the outgoing Independent Reviewer of Terrorism Legislation, we are also increasing to 10 years’ imprisonment the maximum penalty for the offence of failure to disclose information about acts of terrorism. As now, it will be for the courts to determine the appropriate sentence in each individual case.

In addition, we are bringing preparatory terrorism offences within the scope of the extended sentence regimes in England and Wales, Scotland and Northern Ireland. Where an extended sentence is imposed by the court, the offender is not released automatically at the halfway point of the custodial term, and is instead only released ahead of the end of the custodial term when the independent Parole Board considers it safe to do so. They are then subject to an extended period on licence.

These changes to the sentencing regime will be further reinforced by a strengthening of the notification requirements, which can apply for up to 30 years following conviction. Registered terrorist offenders will be required to notify the police of a wider range of information, including banking and passport details and details of any vehicle they have use of, to enable the police to better manage the risk of reoffending.

As I said, the Government greatly value the work of the Independent Reviewer of Terrorism Legislation, and we are fortunate to have in this House two former occupants of that office. I look forward to hearing the speech of the noble Lord, Lord Anderson, and I hope that we will also be able to hear from the noble Lord, Lord Carlile, during the course of the Bill.

I am pleased that this part of the Bill gives effect to two recommendations made by the noble Lord, Lord Anderson, when he was the independent reviewer. First, it introduces a statutory bar on the admissibility in criminal trials of verbal admissions made during an examination at a port under Schedule 7 to the Terrorism Act 2000. Secondly, it provides for the “detention clock” to be paused where a person arrested or detained under the Terrorism Act 2000 is taken to hospital for treatment. This brings the 2000 Act into line with the long-standing provisions in the Police and Criminal Evidence Act. It is right that the police should have the full time allowed under the law to question a suspect before they are released or charged.

Clause 19 is further evidence that this Government are receptive to reasoned arguments for changes to counterterrorism legislation. Noble Lords will recall that what is now the Counter-Terrorism and Security Act 2015 put the Prevent duty and Channel panels on to a statutory footing. I have no doubt that we will hear more about the Prevent programme during the debate today and subsequently, but for now I just pay tribute to the prescience of the noble Baroness, Lady Hamwee, who argued back in 2015 that local authorities, as well as the police, should be able to refer to a Channel panel a person at risk of being drawn into terrorism. It might have taken us three years to take on board that suggestion but I hope that she can take some satisfaction from the fact that her proposal is now being given effect.

Finally on this Part of the Bill, I want to mention the amendment to the Reinsurance (Acts of Terrorism) Act 1993 made by Clause 20. That Act enables the Government to extend an unlimited guarantee to the terrorism reinsurer, Pool Re. This in turn enables the insurance market to provide insurance to businesses for loss caused by damage to commercial property from terrorist attacks. The Bill will amend the 1993 Act to enable Pool Re to extend its business interruption cover to include losses from terrorist attacks that are not contingent on damage to commercial property.

The threats to our national security are not confined to terrorism; they also come from hostile state activity, and we have seen recent devastating evidence of this threat in our communities. In March, we saw the poisoning in Salisbury of Sergei and Yulia Skripal and Detective Sergeant Nick Bailey using a military-grade nerve agent. The Crown Prosecution Service has now charged two men for this attack, and the Government have concluded that they are officers in the Russian military intelligence service, the GRU. This was not a rogue operation. It was almost certainly approved outside the GRU at a senior level in the Russian state. The same two men are now the prime suspects in the case of Dawn Sturgess and Charlie Rowley.

The events in Salisbury are part of a pattern of behaviour by the Russian Government, and they are not alone in engaging in hostile activity that threatens the United Kingdom. Given this, the time has come to harden our defences against hostile state activity. As a first step, Part 2 of the Bill provides for a new power to stop, question, search and detain persons at ports, airports and the Northern Ireland border area to determine whether they are, or have been, engaged in hostile activity by or on behalf of a foreign state.

These provisions will serve to address a current gap in our ability to tackle the threat posed by hostile state actors and will mirror in many respects the existing powers to stop and question persons at the border for counterterrorism purposes. Indeed, this is another area where the Bill reflects a proposal made by the noble Lord, Lord Anderson, in his previous role as independent reviewer. In his report on the terrorism Acts in 2015 and subsequently in evidence to the Home Affairs Select Committee, he argued for a power to determine whether a port user is engaged in national security threats such as espionage or proliferation.

No one wants their travel plans disrupted, or to be subjected to intrusive questioning as they enter or leave the country. As with existing border powers in the Terrorism Act, those afforded by Schedule 3 to the Bill will be subject to a number of checks and balances to ensure that they are not used in an arbitrary fashion, but are subject to rigorous independent oversight—in this case by the Investigatory Powers Commissioner. The important safeguards on the face of the Bill will be augmented in a statutory code of practice, and I can give an undertaking to the House today to publish a draft of the Schedule 3 code of practice before we reach Part 2 of the Bill in Committee.

It is incumbent on the Government of the day to keep the people of this country safe and secure from the threats posed by terrorism and hostile state activity. As part of this, it is inevitable that from time to time we need to refresh our laws to ensure they remain up to date for present-day threats. Faced with the horrors of the five terrorist attacks last year, it is inevitable that such events can act as a catalyst for change. It is right, however, that your Lordships’ House should consider the provisions in this Bill dispassionately. Such individual tragedies should not cloud our judgment, but we must remain alive to the fact that the decisions we make as legislators have real world consequences. This Bill will help reduce the risk of tragedies similar to the ones we saw in London, Manchester, Salisbury and Amesbury from happening again, and on that basis, I commend this Bill to the House.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 3:36 pm, 9th October 2018

My Lords, I thank the Minister for her explanation of the content and purpose of the Bill, and of the thinking behind the Government’s proposals. We too would like to take this opportunity to express our thanks to our security agencies and the police for the work undertaken to protect us from acts of terrorism. We are aware of the significant number of major acts of terrorism—potential and intended—that have been prevented. We also express our thanks to the staff of the emergency services, including hospital staff, who are called into action when incidents—perhaps one should say atrocities—occur. Our thoughts remain with the victims of those atrocities and their families. We accept the need for the Government to update counterterrorism legislation to reflect changing situations and circumstances as well as technological changes and developments.

We expressed our broad support for the Bill in the House of Commons, did not divide on it at Second Reading and supported it at Third Reading. We did, however, table substantial amendments, some of which led to alterations in the Government’s position and government amendments to the Bill, to address concerns we had raised, including those in respect of human rights, which cannot simply be brushed aside.

One feature of the passage of the Bill to date has been the Government laying down amendments of some import just prior to Report stage and Third Reading in the House of Commons. That did not suggest that counterterrorism and security legislation is always being considered and evaluated by the Government in quite the calm and measured way they would like us to believe, but in some areas is being rushed to meet deadlines—even though the events that have weighed most heavily on the Government’s mind in formulating the Bill have not all occurred within the last few weeks or months.

We have no objection to late amendments when the case for their wording and intent is clear. However, it is hardly satisfactory if such amendments are to a Bill that has been through the Commons without there having been time for proper consideration and debate in the other place about the necessity and—equally significantly—appropriateness of the wording of those late amendments. That is the situation we are in with the Bill. A new clause was laid by the Government, with a number of consequential amendments, just prior to Report. It provides 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. There was an exchange of views in the Commons about where the burden of proof lay in the light of the wording of that new clause, which states:

“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”.

The Minister for Security and Economic Crime stated in the debate, on behalf of the Government, that,

“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”.—[Official Report, Commons, 11/9/18; col. 656.]

The Minister has, in effect, repeated that statement in her opening speech today. However, the wording of the Bill and the Minister’s statement appear to be in conflict. I say that not as a legal authority but as someone whose legal career began and ended with the apparently now steadily diminishing lay magistracy.

Will the Minister indicate why the Bill does not appear to say the same on burden of proof as was said by the Commons Minister when moving the new clause on Report in the Commons and again by the Minister here today? Will she also tell us, assuming that the Commons Minister’s statement is correct on burden of proof under the new clause, whether it will be sufficient for the prosecution to prove that the individual was not in reality engaged in a claimed valid activity for a reasonable excuse defence or whether the prosecution will also have to prove that the individual was also involved in a terrorist or terrorist-related activity, which I thought was something that the prosecution could already seek to prove under the existing law to secure a conviction?

I raise this point in the context of a further statement made on Report by the Minister for Security in the Commons that,

“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”.—[Official Report, Commons, 11/9/18; col. 656.]

Can the police and the Crown Prosecution Service not already investigate an individual returning to the UK from a potential future designated area if they have reasonable doubts as to the true reasons for their being in those areas or countries, or will it, under this Bill, be sufficient for imposing up to 10 years’ imprisonment to show that the individual concerned was not there for a claimed reasonable excuse defence activity or purpose?

The Government appear to have some reservations of their own about this late new clause, which they expect will lead to only a “few people” being prosecuted. In the Commons on Report, the Minister for Security said that,

“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”.—[Official Report, Commons, 11/9/18; col. 658.]

We will indeed need to look at the process, procedures and criteria against which the Government seek, by affirmative statutory instrument, to designate these areas, and consider the adequacy or otherwise of the safeguards for those with legitimate business in these designated areas, such as aid workers and journalists or those who went there without appreciating what they were getting involved in and came back disillusioned.

In the Commons, the Government were asked by John Woodcock MP if they had,

“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”.—[Official Report, Commons, 11/9/18; col. 658.]

The Minister for Security said that he would write to the Member with a specific number—will the Minister tell us what that figure is? I assume that the figure will also, by definition, be for those who could not be prosecuted under existing legislation. Will the Government also indicate how many designated areas or countries they anticipate there will be under the new clause? It looks as though there will be quite a few, since the Commons Minister, during his opening speech on Report, referred to Turkey, Syria, Iraq, “parts of Africa”, “parts of the Philippines” and,

“areas of conflict where there is a risk of terrorism”.—[Official Report, Commons, 11/9/18; col. 656.]

A further government amendment on Report relates to the seizure of flags or other activities associated with a proscribed organisation, and would give the police the option of seizing such items on suspicion of an offence being committed under the Terrorism Act 2000 without having to make an arrest, subject to that course of action being needed to prevent the evidence for a potential subsequent prosecution being concealed, lost, altered or destroyed. Such a course of action could still have the effect of raising the temperature at a march or demonstration, even though that is what the provision is designed to avoid, and not least in Northern Ireland. We will need to consider how the proposed course of action might work out in practice.

Further government amendments on Report changed the Bill’s original provisions on the viewing of terrorist material online so that the provision applies to information that is accessed online rather than covering only information that is downloaded first. We will need to consider that issue further since the Bill now provides, instead of the much-criticised three clicks test, for a reasonable excuse defence if the person does not know and has no reason to believe that the information they are accessing is likely to be useful in connection with terrorism or terrorist-related activities. We will need to probe the position of those who might look at such material for legitimate and non-terrorist or terrorist-related intent, such as journalists or academics, or those who look at it inadvertently. The issue of proportionality has to be considered.

A further government amendment on Report increased from five to 10 years, as the Minister said, the maximum penalty for failing to disclose information about acts of terrorism. It would be helpful if the Minister could expand on the reasons that led the Government to believe that the original maximum penalty of five years should be increased to 10 years, apart from it being also the view of Max Hill QC.

Apart from legislation, a further aspect of the Government’s approach to addressing the threat of terrorism is the Prevent programme. It has been in operation for some time now and has been the subject of both positive and negative comments. On the latter point, there is some doubt about whether all sections of the community have confidence in the programme and whether its aims and objectives, which include diverting people from involvement in terrorism and terrorist activity and strengthening community cohesion are always being achieved. Some appear to regard Prevent as primarily an intelligence-gathering exercise.

There is also an issue about the impact on the Prevent programme and its ability to deliver its stated aims and objectives of the cuts in local government services, including those for younger people. As part of the counterterrorism strategy, there should be provision in the Bill for an independent statutory review of the Prevent programme to look at and evaluate the extent to which it is or is not achieving its objectives and the support that it has or does not have across the community, with a view to making changes and improvements to the programme where deemed necessary to enhance our ability to counter the threat and reality of terrorism. Counterterrorism, after all, is not just about creating new offences and fixing maximum penalties.

We will wish to pursue other matters during the passage of the Bill. The European arrest warrant is an important weapon in countering terrorism. Following the attacks in Salisbury and the identification of the two suspects, we have recently obtained a European arrest warrant and either already have or are about to issue an Interpol red notice. Yet the Government opposed an amendment on Report in the Commons that simply required them to adopt the continued participation of the UK in the European arrest warrant in relation to people suspected of terrorist offences as a negotiating objective in the withdrawal negotiations with the European Union.

On Report in the Commons, the Government, in response to the shadow Minister’s concerns in relation to border stops where there is no reasonable suspicion in relation to an individual said that they would look the situation in Northern Ireland and accountability for the number of stops. That border represents 3% of the passenger numbers for the whole of the UK, but 18% of the stops. There has to be transparency in how the stop power is used—a power to stop, question and detain without reasonable suspicion exercised by officials. We do not want to create a situation that looks like something akin to a hard border on this aspect between the north and south. When do the Government intend to come back with the results of their further consideration on this point? Perhaps the Minister will say.

A further issue raised on Report by the shadow Minister concerned legal professional privacy and the provision in the Bill for an officer not only to watch someone receiving legal advice, which is not new, but to hear that legal advice being given. The shadow Minister suggested that to overcome the government concerns that have led to this provision, there should be a panel of lawyers regulated by the Solicitors Regulation Authority and the Law Society. The Minister for Security said that he would look at the proposal before the Bill’s introduction into this House. It would be helpful if the Minister could say what the Government’s position now is on this issue.

While we supported the Bill at Third Reading in the Commons, there are a number of outstanding issues that we flagged up on Report, many of which I have referred to, including the need to look in more detail in this House at the significant late amendments tabled by the Government just prior to Report, which could not receive the consideration they should have done in the Commons. We will wish to pursue these points during the passage of the Bill through this House; nevertheless, it would be helpful if the Minister could respond to the specific points and questions I have raised. Surely we all have an interest in ensuring that the Bill is balanced and proportionate, that its provisions are all necessary, and that it strengthens our hand in countering terrorism and terrorist activity while safeguarding human rights.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 3:50 pm, 9th October 2018

My Lords, I am grateful to the Minister for the clear and helpful way in which she opened the debate on this very difficult subject—and indeed I agree with much of what the noble Lord, Lord Rosser, said, and I join with him and the noble Baroness in paying tribute to the work of the police and security services in combating terrorism. I also look forward to the maiden speeches of my long-standing friend the noble and learned Lord, Lord Garnier, and of the noble Lord, Lord Tyrie.

On these Benches we agree with the Government in acknowledging the need for strong legislation to counter terrorism and to protect the public, so we accept the principles underlying many of the measures in the Bill. However, the approach we take to this legislation, as to all counterterrorist legislation, is that we must balance the security imperatives to protect the public and to combat terrorism against the liberal imperative to safeguard our freedoms as citizens in a democratic society. We assess each of the measures proposed with the following questions in mind. First, what is the purpose of the measure and what is the mischief it seeks to address? Secondly, is the measure necessary to achieve that purpose? Thirdly, is the measure a proportionate response to the mischief, having regard to the restrictions on liberty that it entails, and in particular would a more limited response achieve the purpose in a more proportionate way? Fourthly, will the measure be effective in achieving its purpose?

I also suggest that we should approach these new powers having in mind that we may in the future have not a Government with genuine respect for liberty and democratic values but a Government who are prepared to ride roughshod over our freedoms as citizens. If the tests I set out are not met in the context of such a Government, the powers proposed should be opposed or limited by Parliament. In a number of areas we believe that these tests are not met in this Bill. Some measures may be capable of amendment while others, we believe, are irredeemably bad.

Clause 1, creating a broad offence of expressing support for terrorist organisations, is drawn in very wide terms. We share the concerns of the Joint Committee on Human Rights that the offence must be restricted so as not to criminalise legitimate freedom of expression. As presently drafted the clause is demonstrably not proportionate or sufficiently limited. I would add at this stage that Parliament has every reason to be extremely grateful to the Joint Committee on Human Rights for its careful work on this Bill. Its existence and thoroughness help us to ensure that human rights are respected when we consider legislation and its reports deserve our closest attention.

Clause 2 would criminalise the publication of images of clothing or articles arousing reasonable suspicion of membership of a proscribed organisation. Again, this is insufficiently restricted and disproportionate. It could catch honest and fair reporting, cultural work and international and political study, and stifle genuine discussion. Clause 3, relating to use of the internet, is targeted at the legitimate objective of preventing the internet being used for terrorist purposes. But again, it is insufficiently limited. In spite of the reasonable excuse defence, there is a risk that the clause will operate to restrict innocent and harmless research and journalism.

As was pointed out by the noble Lord, Lord Rosser, Clause 4 was added late by an amendment in the House of Commons. It gives the Government power to designate areas outside the UK and prohibit travel to such areas by UK citizens—a radical restriction of individual liberty. Outside wartime, such a curtailment of citizens’ rights is very difficult to justify. I do not believe that the availability of a reasonable excuse defence adequately mitigates the violence that the creation of this offence would do to our liberties.

The provisions in Clause 6 on extraterritorial jurisdiction seem to risk injustice to both UK citizens returning to this country and foreign nationals travelling here. Much more thought needs to be given to the proper limits on the ability to prosecute here for offences committed abroad.

I turn next to the sentencing provisions, starting with Clause 7. I and many others in this House, in the senior judiciary and throughout the criminal justice system have pointed out many times the dangers of sentence inflation, yet elements of the populist press still urge their readers and politicians to push for longer sentences. No one would argue that prison is not the proper punishment for terrorist offences, but longer and longer sentences are not the answer. Our prisons are overcrowded, understaffed and violent. They do not function as places of reform and rehabilitation. Educational facilities are limited or non-existent. It is a fact that our prisons tend to radicalise their inmates. Sending those guilty of terrorist offences there for ever-longer terms is more likely to encourage others to commit such offences than to reduce the threat to the public. The Government will need to produce a stronger case before I will be prepared to support these provisions. We will look at the numerous other powers and requirements proposed in the Bill in the same spirit, seeking to ensure that any new powers meet the tests I outlined earlier. Where they do not, we will oppose or seek to amend them.

Finally, it is one of the ultimate contradictions of this extremely difficult period that while our Government struggle to improve domestic counterterrorist legislation, they nevertheless risk through Brexit abandoning most of the UK’s international work in this area over decades. With our active participation, the EU has painstakingly constructed the most comprehensive and effective international network ever devised, certainly in a democratic context, to combat terrorism and safeguard public security. It has achieved this with great sensitivity to protecting democratic freedoms, supported by the requirements that EU legislation have regard to the Charter of Fundamental Rights and that its implementation be monitored by the Court of Justice of the European Union.

The Government prepared Part 2 of the Bill in response to the poisoning of Sergei and Yulia Skripal, as the Minister pointed out. We should remember the co-operation of our friends and neighbours across Europe in resisting Russian aggression in the wake of the Salisbury poisoning. Is it not ironic that on 5 September the Prime Minister pointed out in the House of Commons that although Russia resisted any extradition, we obtained a European arrest warrant to ensure that, if the two suspects ever travelled to Europe, we would be able to secure their arrest and bring them swiftly to justice in the United Kingdom?

We hope that the Government will get a deal to retain the European arrest warrant system, but they are also planning for no deal. In those circumstances, it is not just the European arrest warrant system that is at risk. Access to the Prüm database, which was secured in 2016 just before the referendum, would also be at risk. An Interpol DNA search takes 143 days on average. Through Prüm, it takes 15 minutes, a fingerprint match comes back within 24 hours and car registration numbers are searched in just 10 seconds.

Europol, the European law enforcement agency, which was led until May by an energetic and effective British director, Rob Wainwright, and into which we opted back in December 2016, is also at risk. So is Eurojust, the network for co-operation between judges and prosecutors across the EU to combat serious cross-border crime. Then there is the Schengen Information System, which enables enforcement agencies to exchange information about risks presented by serious criminals and suspected terrorists. Although the UK is not part of the Schengen agreement, under the treaty of Amsterdam it has access to the Schengen Information System for law enforcement purposes.

By this Bill the Government seek to introduce new measures to protect the security of the UK public. Yet by risking our co-operation with the EU on terrorism and cross-border security through the imposition of arbitrary and indefensible red lines—for example, on the role of the European Court of Justice—the Government threaten to undermine the very security they seek to protect.

Photo of Baroness Manningham-Buller Baroness Manningham-Buller Crossbench 4:00 pm, 9th October 2018

My Lords, as the Minister said in her introduction, it is sad in a way that we are here again dealing with counterterrorism legislation. In the 10 years that I have been in your Lordships’ House, I have lost count of how many times we have come back to this subject. Indeed, in my maiden speech 10 years ago, I spoke against detention without charge for 90 days for terrorist suspects, then a government proposal. I very much look forward to hearing the maiden speeches of the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Tyrie, on this subject. The need for this legislation is well argued and, during the course of the Bill’s passage through this House, we will certainly want to pick up on a number of the details of it.

In the wake of last year’s attacks there was serious scrutiny of my former organisation and, indeed, of the police and their performance in responding to those attacks. A number of lessons were learned and changes were made. Scrutiny of my former service was overseen by the noble Lord, Lord Anderson. This legislation attempts to fill various gaps arising from some of that scrutiny. It covers a pretty wide range of things, from detection, sentencing, management of offenders, borders, territorial scope, DNA retention and others. What is different is that, for the first time that I can recall, there is specific information about the rise of extreme right-wing terrorism, which I am sure we will come back to in the course of our discussions, and of course—I have some familiarity with this from my past, which I thought was over—Russian activity and criminality in this country. I spent a year of my life interviewing a defector from the GRU 30 years ago; I did not expect that that information would still be current.

The issues that will give rise to scrutiny in this House are very familiar to us. The noble Lord, Lord Marks, mentioned some of them. I do not always acknowledge a balance between security and liberty. I think that there is no liberty without security—I would say that, of course—and the right to life in the first section of the European convention argues that we should look very carefully at the suggestions being made to try to improve that. We will think about what the threats are—as I said, they are not just terrorism, but the affairs of state—what is necessary and what is proportionate, and where our state should draw the line. These are important issues.

I could go on. During the course of our discussions, I will certainly pick up on the points from the noble Lord, Lord Marks, on our relationship with our European friends on these subjects, which was of critical importance throughout my former career and which I am sure people are working hard to ensure is not damaged.

At this early stage, I will touch on what the Home Office calls the contemporary pattern of radicalisation. We know that the terrorist threat from Islamist terrorism is severe. We also know that the pace of radicalisation is quite different from what it was a decade ago. It is very rapid indeed. It can be between breakfast and lunch. When I was in charge of a number of operations with my noble friend Lord Blair of Boughton, the colleague on my right, we often had plenty of time to consult the Crown Prosecution Service, to decide who was chargeable, to develop operations over weeks and indeed months. That is now rare, as I understand it, and that makes the life of those trying to detect these attacks in advance much more difficult. So the pace has changed and the scale has changed.

I have said in this House before that I can scarcely imagine the figures: 3,000 people of security interest is way beyond the capacity of any security service or police force to monitor on a regular basis, and there are at least 500 active investigations into terrorist plots. It is also worth remembering—some of the questions already raised are key—that a great deal is stopped that we do not hear about. Unless we are paying attention to when cases come up in the courts, we do not know how many are stopped, but it is substantially more than occur. One question has to be: will the provisions of the Bill increase the opportunities of preventing more of them? I think that is what we will be focusing on later in the debates.

Photo of The Bishop of Newcastle The Bishop of Newcastle Bishop 4:06 pm, 9th October 2018

My Lords, first I too want to say how much I am looking forward to the maiden speeches of the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Tyrie. The noble Lord, Lord Tyrie, will be well acquainted with these Benches, having worked closely with my most reverend brother the Archbishop of Canterbury on the Parliamentary Commission on Banking Standards, which the noble Lord so ably chaired.

In opening this debate, the Minister spoke powerfully and movingly about the terrible consequences of terror, the effect on people’s lives, the suffering that is lifelong for people. It is in this context that I broadly welcome the Bill. I certainly recognise the difficulty of drafting and steering this kind of legislation. It is to walk something of a tightrope, as described by the noble Lord, Lord Marks. The current national security situation is complex, as is seen so sharply in our news headlines this morning. At Second Reading, I would like us to stay alert to that tightrope we walk, to proportionality and, perhaps especially, to the danger of unintended consequences.

For example, I echo the concern of the noble Lord, Lord Marks, that in implementing Clause 1 we may end up criminalising the mere expression of a thought or a belief, as opposed to action. Freedom of thought and expression is a treasured value in this country. As a Bishop in the Church of England, it is perhaps not surprising that I hold dear Elizabeth I’s assurance in relation to religious freedom that,

“I would not open windows into men’s souls”.

We need to keep a watchful eye so as not to imperil something that is so precious to us.

On Clause 3, as well as the questions raised by the noble Lord, Lord Rosser, I ask a genuine question: are these powers responsive enough to keep pace with technology and communication channels, or are we giving powers to the Secretary of State and judges that are designed to fight the last, rather than the current, battle?

Finally, I raise a wider concern. As we work to ensure that we are safe from something, are we thinking enough about what we want to be safe for? As we work to ensure that we are safe from terror, we need to check that we put an equal emphasis on being safe for a compassionate society. Safety from terrorism is of absolute importance and, when we get this wrong, the consequences are disastrous. However, it is equally important that we foster a society in which all our citizens are able to feel safe and secure and can be free to flourish.

Just last week, I met with Tyne & Wear Citizens. We met in Newcastle Central Mosque and what we heard was distressing. We heard from some women in the mosque that, over the last period, there has been a sharp rise in the instances of women wearing hijabs being abused on public transport in Newcastle and the surrounding area. They are having to gather up a lot of courage to travel on the Metro. This abuse is unacceptable in our society. Our desire to keep our borders secure should never jeopardise the safety of any of our citizens as they go about their day-to-day lives. In all the complexities of the Bill—and I do not underestimate the complexity of the issues—it is important that we carefully nuance our discussions to avoid any religious or ethnic group being associated with those who wish to do our country and its citizens harm.

My prayers continue to be for those who draft our legislation and those who will administer justice in the light of it for years to come. I also pray for those who keep this nation secure. It is my hope that we will continue to build a country which will allow all our citizens to feel safe and in which kindness, respect and courtesy abound.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative 4:11 pm, 9th October 2018

My Lords, it is a great privilege to follow the right reverend Prelate. In her relatively brief remarks I think she impressed the whole House with the quality of her contribution. I wonder whether any of her predecessors as Bishop of Newcastle would have dreamed of standing up in your Lordships’ House and saying, “I have just had a meeting in Newcastle Central Mosque”. That drew attention to the challenges and differences that we now face in our country and in the world. I am grateful to her for carrying on what has been an extremely impressive start to this important debate.

I support my noble friend the Minister, who took exactly the right approach in her introduction to this complicated and difficult issue. I will make only one criticism. The paperwork that has come out has been outstanding, explaining all the issues involved, but there is one thing there which I do not believe for a minute: the impact assessment. Some bright gentleman has said that it will cost £49.8 million over 10 years. Who came up with that wonderful figure? If the Minister cannot answer that today, will she write and tell me who worked out this calculation and what it is meant to mean?

I was struck by the debates in the other place, in which a tribute was paid to Ben Wallace, the Minister, for the consensual approach that the Government took to this legislation. I pay tribute to the noble Lords, Lord Rosser and Lord Marks, for the approaches they took in recognising that there are issues. I agree with every one of the tasks that the noble Lord, Lord Marks, set out. We will not necessarily agree on the answers, but he is absolutely right that these tasks have to be addressed. We are very lucky to have my noble friend the Minister, who I think will carry on the tradition of Mr Wallace and take a consensual approach to these difficult issues, which are very important to our country.

When the House of Commons at Third Reading said—rather cheekily, I thought—that it had adopted a consensual approach and hoped the other place would as well, I thought that we were rather more likely to do that than the Commons in normal circumstances—and to bring it forward. The quality of the contributions in this House can be exceptional. We have already had the viewpoint of the noble Baroness, Lady Manningham-Buller, who is uniquely qualified. We are going to have maiden speeches from two very distinguished former Members of the other place: my noble and learned friend Lord Garnier and the noble Lord, Lord Tyrie. It is also a great pleasure to see the noble Lord, Lord Anderson, who knows more about some of this legislation than any of us will ever know. So this House is uniquely placed to carry it through.

Looking through the legislation, I have learned a lot. Having had some years in Northern Ireland and some in defence—and having chaired the ISC for seven years—I am very conscious of how much the situation has changed. The noble Baroness, Lady Manningham-Buller, referred to the pace and scale of what is happening. That absolutely sums it up. I also noted the phrase that my noble friend used at the start: this is an enduring shift in the challenges of terrorism, not a spike. I think we would all agree with that.

At the end of its Third Reading, the other place said that it had done quite a bit of work but there was still quite a bit to do. The noble Lord, Lord Rosser, spelled out the things that were not dealt with in the other place and which we now have to take on. The advantage is that we at least start from a common understanding of the threat that we face. Take the threat assessment with which we live all the time: noble Lords will know that it is at “severe”. What does “severe” mean? It means that an attack is “highly likely” and we have no excuse for not knowing that, having been through what happened tragically on Westminster Bridge and in our own Parliament. We went right on to the tragedies in Manchester, at London Bridge and in Finsbury Park. What happened at Parsons Green could have been very bad indeed, in my understanding, if the bomb had been put together correctly; we were extremely lucky in that respect. Since then, I understand that 12 serious Islamic threats have been thwarted and, I think, four right-wing threats as well. If I have the right figures, we have had 441 terrorism-related arrests and 72 people were convicted of terrorism last year. There are 228 people in prison at this stage for terrorist-connected offences.

Against that, we now have the challenge of the pace to which the noble Baroness, Lady Manningham-Buller, referred. Undoubtedly, the impact of social media is quite enormous. Some of us sat through part of the debate on the Investigatory Powers Bill, when I quickly realised that ISIS knew a lot more about WhatsApp than I ever did and was using it to great effect. The speed with which extremist propaganda and intelligence, along with the knowledge and instructions on how to make weapons and bombs, can turn up on social media is a major threat for us at this time.

Taking it on further, I see the scale of the challenge and some new complications. I understand that 74 groups are currently proscribed in this country. I have also tried to understand the phrases that turned up in the Explanatory Notes. Everybody will now know that an RTO is a “registered terrorism offender”. That is somebody at large in our community who is guilty of a terrorism offence and has to report in under certain regulations. The term SOPC means “sentences for offenders of particular concern”. The other interesting phrase is ATTROs, which refers to “antiterrorism traffic regulation orders”. We know what that means: it means putting barriers up on bridges to stop cars running into them and killing a lot of people. At the same time, there is the completely new dimension which we live with at the moment of state-sponsored terrorism. Whatever happened at the Organisation for the Prohibition of Chemical Weapons or in Salisbury, those are threats that we have faced in only the last week. I understand that the Islam Channel—a major UK-based TV channel—has been subjected to Russian hacking, causing considerable difficulty. So we have these occurrences weekly.

I think that the noble Baroness, Lady Manningham-Buller, said that she had lost track of all the Bills and Acts of Parliament that there have been. I have written them down. We have had Acts trying to address the problems of terrorism in 2000, 2006, 2008, 2010, 2011 and 2015. We are now heading for one in 2018. The noble Lord, Lord Anderson, knows much more about some of those than I do. We know there is a need for effective action to counter terrorism. We cannot allow the protection of the public to fail for lack of effective legal power, but at the same time a challenge for this House is to ensure that when this legislation comes out we have the balance right on the proper protection of individual rights and freedom of speech. This House is uniquely placed to achieve that.

I will add two further points. One interesting suggestion has been promoted by Policy Exchange to meet the challenge of those who are betraying our country and are going out to fight and kill our forces. Australia and New Zealand have already taken action against people who are aiding the enemy by adapting the ancient law of treason to give a penalty of life imprisonment for people in that situation. I imagine that during the course of our discussions this may come up. I do not expect that I am the only person to whom Policy Exchange made this suggestion.

Although I do not agree that there should be amendments on this in the Bill, I agree about Europol and the European arrest warrant. It would be a travesty if in the negotiations between us and European Union we do not come out with a satisfactory continuing arrangement for the European arrest warrant. The figures are absolutely enormous. I think that I saw 12,000 arrests. We receive eight times as many requests to find criminals who have committed offences of one sort or another in the European Union as we make. It is almost compulsory to say something about Brexit, so I will say that whatever comes out of the Brexit negotiations must include some continuing arrangement for the European arrest warrant in the interests of all the countries around that table who have benefited from the present arrangement.

This is an important Bill, there are some very important discussions, and I hope that we can now go consensually forward.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration) 4:22 pm, 9th October 2018

My Lords, I, too, thank the Minister for her introduction. I agree with the noble Lord, Lord King, that the speeches we have heard so far have given us a thoughtful and helpful context for the Bill. I speak from the Liberal Democrat Benches, but also as a member of the Joint Committee on Human Rights. The two positions are not incompatible, as my noble friend Lord Marks has indicated; indeed, the reverse is true.

As background to some of my remarks, I shall quote two paragraphs from the report on the Bill that the committee published earlier this year. It stated:

“Our Committee recognises the need for the Government to have strong powers to defend our national security, prevent individuals from being drawn into terrorism and to punish those who prepare, commit or instigate acts of terrorism, or encourage or connive with others to do so. However, when these powers interfere with human rights, they must be clearly prescribed in law, necessary in the pursuit of a legitimate aim, and proportionate to that aim”.

It went on:

“We are concerned that some of these ‘updates’”— that is, updates to existing offences—

“extend the reach of the criminal law into private spaces, and may criminalise curious minds and expressions of belief which do not carry any consequent harm or intent to cause harm. In doing so, some of these offences risk a disproportionate interference with the right to privacy, the right to freedom of thought and belief, and the right to freedom of expression”.

I think our Minister will understand that approach, but I am afraid I am not being consensual in this and I cannot let today pass without responding to comments made by the Security Minister, Mr Wallace. At Third Reading in the Commons he criticised the JCHR for not taking wider evidence. He said:

“It took evidence from Cage and other such groups”.

I do not know who he was referring to among the 13 who, in response to an open call, gave written evidence. They included such dodgy characters as the National Union of Students, the Muslim Council of Britain and Clive Walker, adviser to successive Independent Reviewers of Terrorism Legislation. The committee took oral evidence from Max Hill, still—just—the current independent reviewer, and from Liberty, and invited oral evidence from the Metropolitan Police, the Commission for Countering Extremism and the Investigatory Powers Commissioner. There was a very tight timetable and, although they were invited, they were unable to attend.

Not only did Mr Wallace impugn our witnesses, he went on to say of the committee that,

“I think its duty was to be balanced”,—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 11/9/18; col. 717.] and said in a letter to the committee that our report was not set in the context of current threats. I accept that liberty requires security, and I resent very much the suggestion that the committee was not balanced. I resent that too on behalf of our witnesses who, on the basis of their own experience and backgrounds, would have been irresponsible if they had not voiced their concerns. Max Hill went out of his way to give credit, as he put it, to the Government before his more negative comments. He said:

“There are some good, pragmatic solutions here for the modern world, but there are some aspects of the extension of existing offences that give me serious cause for concern”.

I also resent the suggestion that the committee ignored or was unaware of the threats, which have of course been referred to and described in this debate. I hope that by the end of the debate the Minister will have found a different formula to describe the committee’s work, including acknowledging that—like human rights, which are a matter of proportion and balance and are the scale against which we measure propositions—the committee’s approach has been balanced.

It is in the nature of scrutiny that we focus more on issues of concern in these debates. At this stage there is time only to give a flavour of these; we will have opportunities later. I say that particularly to those outside this place who have sent us briefings. Not referring to those briefings and organisations does not mean that they are ignored; on the contrary, they are very much appreciated.

I start with the new offence in Clause 1. We are troubled by the lack of clarity coupled with the low threshold of recklessness. I am also unclear whether expressing an opinion using social media—I might plagiarise the observation that ISIS knows more about it than I will ever do—and directing that opinion to someone when it is on social media, and open to whoever cares to look at it, comes within the offence. There is a lot of material for the lawyers who will help us on matters of construction. However, I will say now that arguments from the Government that we should be reassured by the prosecution’s sensible use of the public interest test are unlikely to convince me, because that is no substitute for getting the legislation right.

The new offence in Clause 2 also seems to have a low threshold. What if the suspicion is reasonable but wrong? We will no doubt spend time on the reasonable excuse defence to accessing material in Clause 3. The point was made in the Commons that in legislating for a reasonable excuse without including a lack of terrorist intent as an excuse, we could be thought to be intending that not to be an available excuse. Additionally, here and elsewhere we seem to be in the territory of reverse burdens, the burden being on the defendant—guilty until proved innocent.

One of the reasons given by the Minister in the Commons for Clause 4 was,

“to strengthen the Government’s … advice to British nationals … against all travel to areas of conflict where there is a risk of terrorism”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 11/9/18; col. 656.]

I am not sure that it is necessary to create an offence to make it clear that the advice is to be taken seriously. I also wonder whether there will be a correlation with what are regarded as safe places for the purposes of deportation.

Reasonable excuse is a defence. What thought have the Government given to getting their defence in first? I doubt that a comprehensive list could be assembled, but some situations are obviously relevant. If your objective is journalism or humanitarian work, the clauses provide for the designation of areas but no arrangement for licensing travel, if I can use that term rather broadly.

I have one specific example which I do not think has been mentioned: funerals. Certain faiths require funerals to take place very soon after a death, and families will be in some difficulty in that situation. This seems to be a provision which makes it an offence to think and to be, as distinct from doing.

My noble friend Lord Marks has been very persuasive about sentences and sentence inflation. Is there any evidence of a deterrent effect of such increases, which seems to be part of the rationale here? Conversely, should we not be aware of the potential for people to be presented as martyrs?

Border control provisions take up about half of the Bill’s length, although they may not take up half of our time in the Chamber. I look forward to hearing the analysis of the noble Lord, Lord Anderson, of the restrictions on the use of what someone says when he is stopped at the border and the limits of those restrictions, both in the Bill and as applied to the continuing Schedule 7 procedures.

We shall need to be clear about how the Schedule 3 powers are expected to be operated. It seems that decisions to stop and search individuals will be informed—and known to be informed—by intelligence of travel patterns, which seems to me to weaken the argument for a no-suspicion power, which is inherently unchallengeable.

We will need very persuasive arguments about the extensive definition of a hostile act. The economic well-being of the UK in a wide sense will be discussed in other contexts at the same time as the passage of the Bill. I simply ask here whether that phrase is intended to address cybersecurity.

Serious crime is obviously not to be condoned, but is not the most serious if it attracts only a three-year sentence. As defined, it is crime which may be on behalf of another state. Are we now to have stops if there is suspicion—or no suspicion—of someone travelling while Russian or travelling while Asian?

This House has previously made clear its view of the importance of access to a lawyer and the confidentiality of the relationship between a client and his lawyer as to both advice and material. I am sure that we will do so again and ask why the existing protections against dodgy lawyers are insufficient.

I knew that the Minister would tease me about the role of local authorities on Prevent. I have looked at the exchange on my amendment during the passage of the 2015 legislation. I am very flattered that anyone recalled it and took the trouble to look it up and brief the Minister on it. I have to say that I do not understand why my amendments were resisted then but are now in the Bill. They put local authorities and the police on a similar footing. There are a lot of issues about the powers, duties and functions in what I would call a safeguarding as well as a security activity, as well as resources, of which local authorities have a good deal less than they did in 2015. That thread runs through everything.

In conclusion, it is not surprising that lawyers, academics, journalists and people generally concerned with free thought, free speech and human rights have raised issues about the Bill. These Benches and the Joint Committee on Human Rights on a cross-party basis look forward to a vigorous Committee aimed at achieving a balanced Bill.

Photo of Lord Janvrin Lord Janvrin Crossbench 4:35 pm, 9th October 2018

My Lords, it is a pleasure to follow the noble Baroness, Lady Hamwee, and I look forward to her contribution to the detailed scrutiny of this Bill, which I am sure will be extremely important. I thank the Minister for her introduction, and apologise for being a couple of minutes late for the start of her speech. I welcome this debate and especially look forward to the maiden speeches of the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Tyrie, both accomplished parliamentarians who I am sure will contribute a huge amount both to this debate and in the future.

I should begin by drawing attention to my membership of the Intelligence and Security Committee. That said, this Bill mainly concerns the work of the police and other criminal justice agencies, which are not directly scrutinised by the ISC. I am speaking for myself and not on behalf of the Committee.

I welcome the debate because I think it entirely right to look at the scope of our existing legislation covering counterterrorism and hostile state activity, particularly in the light of last year’s attacks and the Skripal attack earlier this year. I too would like to take this opportunity to express my heartfelt sympathy to those affected by these attacks. The human dimension is all too apparent.

I support the broad terms of the Bill, which is an important legislative response to recent developments in the threat both from terrorism and hostile state activity, and I look forward to detailed scrutiny of it. I would like to add my voice to those acknowledging the outstanding work of the intelligence agencies and the police at the present time. They face an unparalleled range of threats on three broad fronts: terrorism, particularly but not only in the name of radical Islamic extremism; hostile state activity, particularly but not only from Russia; and on the cyber front, this growing threat across a whole range of interests and spectra. I would like to take this opportunity to pay tribute to the leadership of the intelligence agencies and the Metropolitan Police in ensuring unprecedented collaboration between their two organisations at every level—a collaboration I judge to be world class.

In scrutinising this draft legislation, I can see that much attention will necessarily be focused on some of the legal issues to which it gives rise. There are many people in this House more qualified than me to debate these issues, and I look forward to hearing their views. I will confine myself to one general point on what is proposed, and three specific points on the detail of the legislation. My general point is, in giving powers to the police and other agencies, are we confident that they have the additional resources to carry these powers out?

The noble Lord, Lord King of Bridgwater, rightly drew attention to the impact assessment. The figure of £5.3 million a year, which caught my eye, seems on the modest side. Even if modest, it needs to be seen against other competing priorities, particularly, for example, as determined by the internal reviews the intelligence agencies conducted after last year’s terrorist attacks. Could the Minister, in winding up, say something about the resources being made available against the many other competing priorities of the intelligence community?

My first specific point concerns the internet and the new offences around obtaining or viewing material. I do not have difficulty with the new offences as drafted following the debate in the other place, but I look forward to the comments of others on some of the issues raised. However, there is another side to the story, which concerns the responsibilities of the communications service providers. In the past these providers have been slow to recognise their responsibilities in taking down extremist material—a point to which the ISC report on the murder of Fusilier Lee Rigby drew attention as long ago as 2014. Could the Minister say something about recent discussions with the CSPs around these responsibilities?

My second point concerns radicalisation in prison. The Bill proposes increasing the maximum sentences for terrorist offences. I have no difficulty with what is proposed, but has there not been evidence in the past of a serious problem of radicalisation within our prison system? There are some very real issues concerning how we tackle this—other noble Lords are more qualified than me to comment on this—for example with the creation of separation units, and problems associated with prisoners not of a Muslim background who become drawn into this world of extremist ideology while in prison. If the intention of the Bill as proposed is to convict more terrorists and for longer sentences, have we the resources and techniques to ensure that we can prevent the creation of terrorist incubators in our prisons?

My third point concerns the new designated area offence, which has already been commented upon. I entirely understand that the aim is to deter some of those who will in future try to travel abroad to support terrorist movements which threaten this country. Both Denmark and Australia have similar offences on their statute books. But despite some 900 individuals travelling from the UK to Syria, we have hitherto not pursued this option. So there is an obvious question: why now? There are also questions of detail. What kind of criteria will be used to determine both the imposition of a designated area and the lifting of that designation? How will evidence that is useable in court be obtained? And, as other speakers have mentioned, will the introduction of this offence have a chilling effect, particularly on humanitarian work? In other words, will it discourage genuine and much needed humanitarian relief activities in designated areas, if there is a risk that those engaged in supporting terrorism increasingly try to claim some humanitarian cover in case they are detected?

In conclusion, these points in many cases concern clarification of what is proposed. As I have said, others better qualified than me will wish to comment on many of the legal points. I look forward to the debate on what I see as a modest, incremental but very necessary adjustment to our current legislation to take account of dynamic developments in the threat from both terrorism and hostile state activity. But even if it is modest and incremental, it deserves our closest scrutiny.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 4:43 pm, 9th October 2018

My Lords, it is a pleasure to follow the noble Lord, Lord Janvrin. As he and other noble Lords were speaking, I began to have some sympathy for the Government on this issue. It is one of those areas where it is incredibly difficult to get the sort of balance that is needed to satisfy the whole of society. Although I have had dealings with the police in the past and I understand in some small way the problems of terrorism and the threat of terrorism, I speak as somebody who, like a lot of other people outside this place, might come out on the wrong end of this legislation through innocence and through no fault of their own, simply because the areas are just too broad.

Clause 1 is a classic example. We have to be very careful when we legislate about terrorism; we cannot throw out our values of freedom and democracy when trying to protect against those who attack them. There is a careful line to walk. We need only look at recent history to see how regularly Governments and security services have mislabelled people as terrorists—an example is the iconic image of Jeremy Corbyn being dragged away by police when carrying an “end apartheid” banner, at a time when the Government viewed Nelson Mandela as a terrorist and many on the Conservative Benches were calling for him to be hanged.

However, it is not just recent history that puts heroes up against the full force of the state; this is happening literally today, as 15 people—the Stansted 15—are in court, charged with terror offences for locking themselves to a plane to stop people being deported in the midst of the Windrush scandal. I am horrified that they are there on terrorist charges. It is totally wrong that peaceful protestors, who cannot in any way be thought of as terrorists, should be caught up in the net of terrorism legislation. It proves to me that the warnings and concerns voiced by so many of us in the activist world have come to pass. Terrorism laws are being used and abused by the state to suppress peaceful protest and political dissent.

Other laws too are being deployed against peaceful political activists and campaigners. The “Frack Free Four” have been sentenced to 16 months in prison for sitting on top of a fracking lorry. These brave activists have had their futures destroyed for taking a peaceful stand against the fracking dangers being forced on their community; these are live cases. It would be wrong if your Lordships’ House considered expanding the laws without bearing in mind the fact that these laws are being used and abused.

I believe that, if the suffragettes were to rise against patriarchy today and fight for women’s rights, they would face probably even greater violence and oppression than that levelled against them by the state 100 years ago—indeed the provisions of this Bill would be levelled against them. History celebrates the suffragettes as heroes but, at the time when they were active, they were thought of as dangerous heretics who wanted to destroy British society.

I am very concerned about Clause 1. I was delighted to hear the noble Lord, Lord Marks, the right revered Prelate the Bishop of Newcastle, and the noble Baroness, Lady Hamwee, talking about our rights and freedoms and the fact that we must not compromise them when we try to legislate against people who wish to take them away. This Bill will make it a crime to express an opinion or belief that is supportive of a proscribed organisation. When the noble Lord, Lord King, spoke about ISIS knowing more about WhatsApp, or whatever, than he does, I thought to myself that that sort of comment could actually fall within the parameters of this legislation—you do not have to intend to support a particular organisation, or intend to support terrorism, you have only to be reckless.

Would anyone who tweeted or retweeted support for an independent Kurdistan be guilty of terrorism? It would amount to a belief supportive of the proscribed organisation PKK. What about someone who says they support the withdrawal of Israeli troops from occupied Palestine? We have already seen some of the vitriol levied against people who support peace in Palestine, who are repeatedly accused of supporting Hamas and Hezbollah—both proscribed organisations. This Bill opens the door for terrorism charges to be brought against peace activists for the simple crime of advocating peace in a war-torn country.

I was looking forward to hearing noble and learned Lords talk about the slight changes in Clause 1 between “supported” and “supportive”; I look forward to hearing them in subsequent debates. These parts of the Bill curtail legitimate political debate about major geopolitical issues and risk exposing anyone who expresses a view contrary to the UK Government’s foreign policy. It is not conspiracy theory to suggest that these types of provisions could be used in an undemocratic and oppressive way. It is a simple fact that the more powers we give to the Government, the more they are used to crack down on dissent and protest.

I want to be able to speak my mind, to protest and to debate the kind of future that we want to see; I want to be able to criticise British foreign policy if necessary; I want to fight for peace at home and abroad; and I want to protect our fundamental rights against a Government who seem hell-bent on taking away our freedoms and use the cover of terrorism to do so. If I want to overthrow this Government, I want to do it peacefully through the ballot box; nevertheless, I could be accused of being a terrorist, and of course I have been accused of being a domestic extremist. There are proscribed organisations which my beliefs could be argued to support and, in expressing those beliefs, I could be said to be reckless as to whether listeners could be encouraged to support a proscribed organisation.

I will not vote for a Bill that risks people being charged with terrorism simply for expressing criticisms of British foreign policies. Protest and dissent are essential components of a well functioning democracy. I will be tabling amendments to the Bill to protect those fundamental rights and to restore the balance between the state and its critics.

Photo of Lord Garnier Lord Garnier Conservative 4:51 pm, 9th October 2018

My Lords, I made my maiden speech in the other place 26 years ago. I was not entirely sure whether I would make the right, the wrong or any impression, but I need not have worried. My turn came to speak well after midnight, and we were debating the Maastricht legislation. It seems that the relationship between the European Union and the United Kingdom has dogged my political life like two squabbling passengers at the back of a bus—no matter where you sit, you can still hear them. However, on that occasion the hour and the subject worked to my advantage because I addressed an almost empty Chamber.

The few people present were, with one exception, there only because they had to be: the Deputy Speaker; the Clerk at the Table; the Government and Opposition Whips, playing some demented game of chicken to see who would give up and go home first; the junior Minister from the Foreign Office, who sensibly was concentrating on his correspondence; and a handful of Back-Benchers, who were waiting to speak and certainly not listening to me. The exception was Douglas Hurd, my noble friend Lord Hurd of Westwell, then the Foreign Secretary, who kindly came from his room to sit on the Front Bench as I mumbled at the back. Sadly, he has retired from this House but, to me, he represents so much of what is good in our public life.

On this occasion, I find myself speaking to a fuller House at a much earlier hour than last time, following speeches of great quality and great depth. However, I do not want to try anyone’s patience, not least because of the list of speakers due to speak after me, who have far greater expertise than I do, and because I want to hear my good friend, the noble Lord, Lord Tyrie, make his maiden speech as well.

However, I want to record that in the very short time that I have been a Member of your Lordships’ House I have been struck by the kindness, not least during today’s debate, that I have received from noble Lords on all sides of the House and from members of staff in every department. Despite the fact that my peerage was announced on the evening before Prince Harry’s wedding, and therefore the Harborough Mail had other things to report, I was delighted to find that one or two people were expecting me when I got here. I particularly want to thank my noble friends Lord Goodlad and Lord Young of Cookham for supporting me at my introduction. They were friends in the Commons and they have stood fast to that friendship here.

I have taken my territorial designation, Harborough, from the constituency in south-east Leicestershire which I represented for 25 years. Although I come from Norfolk, my wife’s family have lived in Rutland, Leicestershire and Lincolnshire for many years, so I was delighted to be adopted by a constituency that covers most of south-east Leicestershire between the city of Leicester and Northamptonshire.

Despite my 25 years in the other place and my experience there as a Back and Front-Bencher, both in opposition and in government, there is much that is new to me here. The lines of communication between the two Houses are not always well maintained. This is a very different place, with its own characteristics, procedures and traditions, but we should celebrate these differences. Let it not be thought that because our parliamentary system is old, it must therefore be bad. Our system is old because it is good, not bad because it is old.

One of the defining features of our country is a general respect for the rule of law, and today’s debate demonstrates that justice and the rule of law remain in the forefront of our public discourse. Freedom of expression—political and otherwise—has been protected by the common law and the vigilance of Parliament every bit as much as by the European convention. Parliament and the law should be vigilant to ensure that our right to comment freely and honestly, and even offensively and idiotically, is never cut down. But terrorism—and the threat of terrorism—tests our freedoms and our tolerance of others’ opinions. The first four clauses of this Bill, with suitable safeguards, adjust the limits of acceptable conduct—where freedom of expression ends and where crime begins—just as the increased sentences in Clauses 6 to 10 make it plain how unacceptable we find these criminal acts to be.

There is no one answer to the questions posed by terrorism, by those who commit terrorism offences and by those who persuade others—or who are persuaded by others—to commit these hideous crimes. Ironically, at a time when electronic communications and information technology have allowed for the creation of highly sophisticated weapons and remote triggering systems, there is, as my noble friend the Minister indicated at the outset, a greater use of simple weapons such as vehicles and kitchen knives. The attacks are planned in days, not over months, and it is remarkably easy to buy bomb parts and chemicals, and to research targets online. This makes it harder to detect terrorist crime in advance, but with greater information sharing between those tasked with our protection, things could improve.

I understand—the Minister has indicated as much—that there are currently about 500 terrorist plots at various stages of development, and I think the noble Baroness, Lady Manningham-Buller, made the same point. I further understand there are about 3,000 people of interest, as the noble Baroness mentioned. Further, there are about 20,000 people on the fringes called closed suspects—the 2017 offenders were, I gather, in that category. We therefore need to provide the security services and the police with the resources to allow them to review everyone in that group.

As the shadow Attorney-General when my noble friend Lord Hague and David Cameron were leaders of the Opposition, and as Solicitor-General in the coalition Government when Mr Cameron was Prime Minister, I spent a good deal of time on matters to do with terrorism and the sometimes conflicting rights under the European convention. There are a number in your Lordships’ House who, like me, are members of the former law officers’ club. Forty years ago, I was led by Lord Rawlinson of Ewell, a former Solicitor-General and Attorney-General, for the Daily Mail, in a libel action brought by the Moonies. He told me that when he was appointed Solicitor-General in 1962, the Prime Minister, Harold Macmillan, gave him a learned seminar on the history and constitutional role of the law officers. It was made clear that as Solicitor-General, his first duty was to the rule of law, his second was to Parliament and only his third was to Macmillan’s Administration. Mr Cameron appointed me Solicitor-General in 2010 during a three-minute telephone call. Had he had the time to think about it, I am sure he would have agreed with Macmillan. I certainly tried to keep Harold Macmillan’s advice to Peter Rawlinson to the forefront of my mind when I was Solicitor-General.

To many Ministers, the law officers are—with the exception now of Geoffrey Cox— either mysterious, barely-known creatures, or an inconvenient reminder that the law of the land applies to them. Like lawyers in private practice, law officers cannot talk in detail about their work, which is confidential to their client: the Government. But nor should they only say “no”—they should try to be imaginative and help the Government navigate through their difficulties. Their power—if they have any at all—lies in speaking truth unto power and in resignation. The law officers are more like submarines than the ships of the line in the Cabinet: you know they are down there somewhere, unseen and unheard, quietly going about their business, but if they surface and their concerns or disagreements become known to the wider world, either the Government are in trouble or they are.

Shortly after my appointment in 2010, I was showing off to the then Lord Chief Justice, the noble and learned Lord, Lord Judge, that one of my ancestors, Sir William de Grey, had been successively Solicitor-General and Attorney-General from 1763 until 1771, under five Prime Ministers. After that, I told him, my ancestor became Lord Chief Justice of the Common Pleas. The noble and learned Lord smiled engagingly and gently reminded me that some apparent precedents are easily distinguished upon their facts.

After reading history at Oxford, I went to the Bar. In 1976, I joined a set of chambers in the Temple that specialised in media and information law—it still does. Leon Brittan, a Member of Parliament and a shadow Minister, was then the junior silk in Chambers. My friend Lord Brittan is sadly now dead, but he taught me that it is possible to be a practising barrister and a conscientious Member of Parliament and that, although lawyers are not everyone’s favourite, we have our uses. In response to my persistent questions about politics he said, “Stop talking about it; just go and do it”. He also demonstrated that it is possible to maintain one’s dignity in adversity. In the last months of his life, he was cruelly assailed by baseless allegations that would have broken healthy men. It is sad that he did not live to witness his own exoneration, but I hope it is of some comfort to his widow, Diana, that his reputation has, without question, been restored to its rightful place.

Somehow, I have arrived here among you all. I am honoured to be here and I hope to play my part in shaping the legislation that comes before us. Now is not the time for me to say much more about this Bill. Although it amends and adds to criminal law—a prospect that usually makes me worry for the judges and the lawyers who will have to apply it—for a modern statute, it is mercifully short. Its intentions are properly confined and the policy behind it is clear. I am not a fan of creating new offences, renaming existing offences or increasing sentences to send a message, when those who are hell-bent on killing police officers, soldiers and ordinary citizens, or encouraging others to do so, will pay no attention, seeing themselves as warriors for their hideous cause. Nor do I forget that, if the prison sentences set out in the Bill come to be used, we will have failed to educate, influence, inhibit or prevent those who have committed terrorist acts. However, I believe that this Bill is more than a message. It is part of a practical approach to countering terrorism and to protecting our borders; problems that we, but more acutely those whose job it is to protect us, face daily. I wish it well and I look forward to considering it further in due course.

Photo of Lord Faulks Lord Faulks Conservative 5:02 pm, 9th October 2018

My Lords, my noble and learned friend Lord Garnier has given us a taste of things to come. I have had the privilege of knowing him since we were adolescents, so it is a particular pleasure for me to see him in his place today—yes, lawyers were children once.

It is a matter for celebration that so many of our current politicians are the sons and daughters of immigrants and that people come into politics from all sorts of backgrounds. My noble and learned friend, on the other hand, comes from a family with a long tradition of public service, and this country is richer for that tradition. He has managed to combine a quarter of a century as a Member of Parliament with a successful practice at the Bar, where he has been for some time one of the leaders in the field of defamation and media law. He was also instrumental in the introduction of deferred prosecution agreements to the prosecutorial armoury; a valuable weapon against corporate economic crime. Further, he has sat for some time as a recorder of the Crown Court.

Despite all these achievements, and a term as Solicitor-General, my noble and learned friend has a quality that is all too rare in barristers: modesty. I am confident that his contributions to debates in your Lordships’ House will be relevant and brief, and that, unlike some of us, he will not consider it necessary to give the House the benefit of his views on every subject. My noble and learned friend Lord Gamier is a most welcome addition to your Lordships’ House.

I now turn to the Bill. The scale of the terrorist threat to this country can hardly be overstated, whether from extremists claiming allegiance to the Muslim faith or from state-sponsored terrorism as we witnessed in Salisbury. We should pay tribute to the contribution that the police and the security services make to keep us as safe as they can in increasingly challenging circumstances.

One fact that I took away from the Home Secretary’s recent speech in Birmingham was that an estimated 800,000 people who currently live in this country do not speak English. I am not of course suggesting for a moment that if you do not speak English you are likely to be a terrorist. However, it is a considerable challenge for our security services simply to understand what is going on in communities where English is not spoken or spoken much, and where there is little or no loyalty to British values or traditions.

In its report on the Bill, the Joint Committee on Human Rights was critical of it in a number of respects, identifying various potential violations of human rights. Of course, that is the remit of the committee, of which I was once a member, and I do not for a moment impugn the integrity of the process, as it was suggested the security Minister did in the other place. However, I wish us to bear in mind that, in this country, there was a long-established respect for free speech before Article 10 of the European Convention became part of our law through the medium of the Human Rights Act in 1996. If we must look at issues through the prism of the Human Rights Act, can we bear in mind Article 2, the right to life, and Article 8, the right to a family life, in the context of those affected by terrorism? The first duty of a Government is to keep their subjects safe. To do so, there must sometimes be restrictions on individual rights.

The primacy of individual rights is such that loyalty to one’s country seems in some quarters to be regarded as something of an option, coming below loyalty to one’s religion or even one’s football team. Many would agree with EM Forster, who wrote in 1938 that he hoped, given the choice, that he would have the guts to betray his country rather than his friends. But if you choose to live in this country, is it so unreasonable to expect you to show some loyalty to it and not to give assistance to our enemies?

The word “treason”, mentioned by my noble friend Lord King, has a dated feel about it, but may I also commend the recent Policy Exchange publication, Aiding the Enemy: How and Why to Restore the Law of Treason? Its authors include two Members of Parliament, one Labour and one Conservative, and it has a foreword by the noble and learned Lord, Lord Judge. It provides a compelling case for the return to the statute book of a modern law of treason—the 1351 statute is plainly no longer fit for purpose.

The new offence of entering or remaining in a designated area may help but clearly needs further scrutiny. For British subjects who leave this country to serve with ISIS or the Taliban, for example, is a maximum sentence of 10 years really enough? What about Anjem Choudary, sentenced to five and a half years in prison and due out this month? Even though this Bill promises, rightly, to end in certain circumstances automatic release on serving half a sentence, that is too late for Choudary and others. Does the current statutory framework adequately capture the gravity of being a recruiting sergeant for ISIS at a time when it is engaged in combat with our forces and actively trying to attack the United Kingdom? The time may well have come to update the law on treason as Australia, Canada and New Zealand have done.

As the noble Lord, Lord Janvrin, pointed out, radicalisation in prison is a real threat. Government policy is to imprison those who pose a threat to national security in separate units to minimise the risk of other prisoners being radicalised. Very few have in fact been separated, apparently because of apprehension in the Prison Service about human rights litigation. Perhaps the Minister would care to comment on that.

This Bill deserves careful scrutiny, and it is clear that there is the expertise in this House to do just that. There are certainly improvements that can be made. For example, the Law Society has made some powerful points about the erosion of legal professional privilege at border interceptions, referred to by the noble Lord, Lord Rosser. For my part, I need convincing that all those restrictions are currently justified. But, for the most part, I welcome the Bill and hope that it receives support across the House.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 5:10 pm, 9th October 2018

My Lords, I join the noble Lord, Lord Faulks, in his welcome to the noble and learned Lord and former submariner, Lord Garnier. I have a wonderful picture of the two of them as adolescents together discussing football and human rights over a pint. I welcome the noble and learned Lord’s strong expression of his belief in the rule of law and of freedom of expression. I am sure that we shall hear a lot more from him about that.

There are many aspects of this Bill that we shall no doubt consider in Committee, but I will confine myself to three. First, I consider Clause 1 to be unnecessary and a disproportionate interference in the right to free speech. Secondly, I want to emphasise the importance of private consultations with legal advisers. Thirdly, I have some comments about the proposed designated areas offence.

Clause 1 penalises the expression of an opinion or a belief that is supportive of a proscribed organisation. The state of mind of the accused must be that, in expressing that opinion, he is reckless as to whether a person is encouraged to support that proscribed organisation. There is already an offence, under Section 12(1) of the Terrorism Act 2000, of inviting,

“support for a proscribed organisation”.

As for hate preachers, Section 12(3) of the 2000 Act reads:

“A person commits an offence if he addresses a meeting and the purpose of his address is to encourage support for a proscribed organisation or to further its activities”.

The same words in that legislation appear in the Bill before us, so what lacuna does this new offence fill? It adds “reckless” to “purpose”, but “reckless” is a word that has caused difficulties in the past in defining its meaning.

Back in 1981, I argued the case for a Mr Caldwell against the Metropolitan Police Commissioner before the Judicial Committee of this House. Caldwell had in a drunken moment broken a window and set fire to a hotel. The flames were quickly extinguished and no serious damage was caused, but he was charged with the aggravated criminal damage offence of being reckless as to whether life was endangered. His defence was that he had been so drunk that he had given no thought as to whether life would be endangered and was therefore not reckless. The issue was whether recklessness should be judged objectively or subjectively. The problem with the subjective test is that the prosecution has to prove the defendant’s state of mind—that he foresees the risk of harm. The problem with the objective test is that it criminalises those who genuinely did not foresee a risk of harm, including young children, people whose mental capacity is impaired and indeed drunks. Lord Diplock in the Judicial Committee, contrary to my argument in favour of a subjective test, held that the defendant was reckless if he had not given any thought to a risk which he should have appreciated. At that time, the Committee plumped for the objective test. It was not until 2003, in the case of R v G and Another, that my argument succeeded and the Judicial Committee, in a rare exercise of its powers, overruled Caldwell and decided that the subjective test was appropriate. The case involved two 11 year-old boys who had set fire to a wheelie bin; the fire spread to the roof of a Co-op store and caused £1 million worth of damage. They had given no thought at all to the risk that might be involved by what they did.

So what does “reckless”, under its current definition, mean in the context of Clause 1? It means that the prosecution will have to prove that the defendant foresaw the risk that the person to whom his opinion or belief was directed would be encouraged to support a proscribed organisation but nevertheless went on to express it. What does that add to the current criminal acts of speaking or writing with the purpose of encouraging or inviting such support? The use of “reckless” does not catch a person who does not realise the effect of his words on the listener or reader of a column. The test of recklessness is no longer objective.

Simply expressing your opinion is not enough, as the right reverend Prelate the Bishop of Newcastle’s apt quotation from Elizabeth I pointed out earlier. A person at Hyde Park Corner can say, “I believe in Scottish independence, and I think the best way to achieve this is through Scottish Dawn”, which is a proscribed organisation; perhaps that could also be said by someone from a wee free pulpit. That person would not be committing an offence under the proposed clause; he is merely opening the window into his soul, as Elizabeth I put it. If what he says is an invitation to join Scottish Dawn, he would commit an existing offence under Section 12(1) of the present Act. If his purpose in so speaking is to encourage listeners to join Scottish Dawn, it is already covered by Section 12(3) of the existing law.

My noble friend Lord Marks set out a number of tests, one of which asks, very appropriately, what mischief the clause is aimed at. In the Choudary case, the Court of Appeal considered whether Section 12 of the Terrorism Act offended against the European Convention on Human Rights. The court said:

“When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation. To the extent that section 12(1)(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified”.

Clause 1 seeks to punish the expression of an opinion with up to 10 years’ imprisonment. I suggest to your Lordships, as I will argue in Committee, that it is a disproportionate interference in the right to free speech protected by Article 10.

I turn to legal professional privilege. Paragraph 26 of Schedule 3 mirrors Schedule 7 to the 2000 Act. Under paragraph 23(1) of Schedule 3, there is the right to consult a lawyer “privately … at any time”, but paragraph 26(1) states:

“A direction under this paragraph may provide that a detainee who wishes to exercise the right under paragraph 23”, to consult a lawyer privately may, if the direction is made,

“consult a solicitor only in the sight and hearing of a qualified officer”— that is, an eavesdropping officer. That direction may be made by a senior officer in certain circumstances, such as interference with evidence or the alerting of a person who is suspected of having committed an offence but has not been arrested for it. Maybe a tiny minority of legal professionals pass on illicit information—there are rogues in any profession. If caught, they will go to prison and be struck off or disbarred. The noble Lord, Lord Rosser, talked about the suggestion made in the other place of an approved panel of lawyers being set up to advise people detained under the Bill. I fully support that. I look forward to hearing more about it.

If criminal lawyers want to make a successful living, they need to get the truth from their client. There must be a firm platform on which to base a defence. Initially, the client might not be open with his own lawyer. He might tell lies through consciousness of guilt, fear or a misplaced desire to cover up for somebody else. Perhaps he says he cannot remember. But when his own lawyer rubs his nose in the evidence, the story frequently changes. It should be remarked that, of the cases that appear in the Crown Court, between 60% and 70% plead guilty, very largely due to this activity carried out by the defendant’s own lawyer. It is obvious that this sometimes subtle, sometimes vigorous process cannot take place in the presence of someone listening in from the investigating authority. The provision that appears in this schedule, as it appears in Schedule 7 to the 2000 Act, is contrary to the public interest in the wider sense.

I remember being in the Court of Appeal when we lost an appeal in a murder case. Afterwards, my client turned to me and said, “Well, now I’ll tell you the true story”. He gave me an account entirely consistent with the prosecution case, which would have provided him with a defence, but he had not told me and there was nothing I could do about it. It is important for people to realise that defence solicitors and barristers need to have professional privilege to see their client privately to carry out the sometimes rough interrogation of their own client, which can lead only to the proper result.

Finally, on Clause 4 on designated areas and the reasonable excuse defence, your Lordships should remember that, although the Minister, Ben Wallace, now says that a reasonable excuse will,

“cover persons entering or remaining in the designated area … for the purpose of providing humanitarian aid; to carry out work for a foreign government … or the UN; to work as a journalist; or to attend a funeral of a close relative”, he said:

“It would be for the defendant to demonstrate that the defence applied. Once a defendant has raised the defence the burden of proof (to the criminal standard) to disprove the defence would rest with the prosecution”.

That is right, but there has to be some evidence to support the defence. It cannot be raised simply by argument, so a burden is placed on the defendant in these circumstances to explain why he was in the designated area. I agree with Rowan Popplewell of Bond and with my noble friend Lady Hamwee that there should be a system of pre-visit authorisation of people who wish to visit designated areas for a particular purpose. Nothing could be simpler to arrange and it could avoid unnecessary prosecution of a person.

There is much further to discuss as the Bill goes through.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench 5:24 pm, 9th October 2018

My Lords, I warmly congratulate the noble and learned Lord, Lord Garnier, on his excellent maiden speech, and I look forward with equal enthusiasm to hearing that of the noble Lord, Lord Tyrie, which I am sure will be of equal quality.

Clearly, as other noble Lords have said, it is only right, after the terrorist attacks of last year, that the Government should work hard to make sure that our anti-terrorism legislation is fit for purpose, so I welcome the fact that through the Bill they are seeking to discharge this important responsibility. The challenge that they face in doing so is a difficult one. On one hand, we must do all we can to keep our citizens safe. On the other hand, we do not want to introduce changes that fundamentally change the nature of our society. It would be the supreme irony if, in seeking to preserve our society, we end up changing what it means to be British. In particular, it is very important that, in developing legislation and attendant guidance, great care is taken to ensure that it does not jeopardise the enjoyment of human rights.

In July 2018 the Joint Committee on Human Rights published a report highlighting serious concerns over the new powers in the Bill. Among other things, the report raised concerns about the Prevent programme, which is engaged by Clause 19, on which I shall concentrate. Clause 19 amends Section 36 of the Counter-Terrorism and Security Act 2015 to impose a new duty on local authorities. In addition to being responsible for assessing individuals vulnerable to being drawn into terrorism, through panels mandated by Section 36, Clause 19 also gives local authorities the power to refer people to the panel. The discharging of this new duty will be informed by the relevant guidance pertaining to the Prevent duty, namely the Prevent duty guidance of 2015, the Counter-terrorism Strategy, the newest version of which was published in June 2018, and the Counter-Extremism Strategy of 2015. My difficulty with this arrangement is that while the statute is narrowly focused on terrorism, the Prevent duty guidance, the Counter-terrorism Strategy and the Counter-Extremism Strategy engage with extremism in all its forms, including non-violent extremism, which has no statutory definition.

The lack of a definition of non-violent extremism in law, and the lack of any sanction against non-violent extremism in law, is a very good thing. If someone espouses violence, they cross a very clear threshold. I find it hard to imagine that any Member of your Lordships’ House would have any difficulty in having very robust laws against such practice. The idea, however, that we should target people espousing non-violent views seems deeply problematic to me. The only content we are left with is that the view is “extreme”, but in whose opinion? What is extreme to one person is sensible to another. Unless we are to fundamentally change the nature of the society in which we live and start policing speech in a way that would be deeply inimical to the British tradition. I do not think that we should introduce sanctions against opinions that do not espouse violence.

I appreciate that the Bill does not ask us to endorse directly the Prevent duty guidance and the Counter-Extremism Strategy. We are, however, being asked to indirectly endorse these documents because they provide the guidance according to which local authorities will be required to take on the new responsibilities that we will ask them to assume in sanctioning Clause 19.

The difficulty that this presents is compounded further by a critical development in the courts. In July 2017, in his judgment in Salman Butt v Secretary of State for the Home Department, Mr Justice Ouseley stated very clearly that the Prevent duty does not refer to all forms of extremism as defined in the Prevent duty guidance of 2015 and the Counter-Extremism Strategy of 2015. Mr Justice Ouseley rightly said that extremism is,

“the active opposition to fundamental British values”, which,

“must in some respect risk drawing others into terrorism before the guidance applies to it. If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it”.

Thus the Prevent duty does not apply to all forms of extremism, and specifically not to non-violent extremism if there is no risk of people being drawn into terrorism.

However, that is not what the Prevent duty guidance, the Counter-Extremism Strategy or the counterterrorism strategy say. Mindful of this, I very much hope that the Government will introduce an amendment in Committee to the effect that Clause 19 will not be implemented until the Prevent duty guidance, the Counter-Extremism Strategy and the Counter-terrorism Strategy have first been subjected to a review and updated in light of the judgment of Mr Justice Ouseley. Let us uphold the right to non-violent free speech and fight terrorism by preserving rather than compromising our own heritage.

Photo of Baroness Warsi Baroness Warsi Conservative 5:32 pm, 9th October 2018

My Lords, I am grateful to my noble friend Lady Williams for introducing the Bill. I could not think of anybody better to do that and it will certainly make expressing any concerns that I have much more difficult. I am also grateful to my honourable friend the Security Minister, Ben Wallace. I consider them both to be not just political colleagues but friends. I congratulate my noble and learned friend Lord Garnier on his maiden speech and look forward to my noble friend Lord Tyrie’s maiden speech. Both are unfashionably expert and inspiringly principled and have the ability to be politely awkward. They will fit in well.

I wholeheartedly support measures designed to keep us safe. As someone who has been targeted by extremists throughout most of my public life, from being attacked by al-Muhajiroun and its supporters in Luton to numerous threats by email and on social networks—and who for the past two and a half years has been on a target list for ISIS—I, along with my family, have had to live in the shadow of some of those who seek to cause Britain harm. So although I support some of the Bill’s provisions—for example, the increase in the custodial sentence for those who were aware of and do not disclose information on terrorist offences—as a lawyer, I am also concerned that we should make more criminal law only if the current law and policy are simply incapable of being applied or, indeed, applied better.

Sadly, I have some concerns about the drafting of the Bill, both in the mischief it seeks to remedy, as outlined by the noble Lord, Lord Marks of Henley-on-Thames, and the way in which it seeks to do so. We must not become a country that polices thought, as was explored by the right reverend Prelate the Bishop of Newcastle. As Liberty succinctly put it, the Bill,

“pushes the law even further away from actual terrorism, well into the realm of pure speech and opinion”.

We must not cite exceptional circumstances to justify a blanket law change.

Of course, we are just over a year on from a seven-month series of terror attacks on UK soil. Five attacks led to 36 deaths and dozens more injured. A further 17 both religiously inspired and far-right inspired attacks have been thwarted since. It is entirely right in these circumstances for the Government to look again at what more could be done to prevent such attacks in the future. Much commentary has taken place since the attacks and recommendations have been made, yet, interestingly, some of the most informed voices, including eminent academics such as Professor Clive Walker—who has been researching and writing about Britain’s counterterrorism laws since the 1980s, and who also happens to be my former university tutor—have argued that new laws are not the answer. Professor Walker has said:

“The failure to identify major legal gaps is further emphasised by the findings of the three weighty reports”— post the attacks—

“none of which called for major legal changes”.

There is much to concern us in the individual clauses and I hope that we will have the opportunity to scrutinise these further as the Bill passes through the House. Concerns include the proposed three clicks offence, which has become the one click offence—an offence which reverses the burden of proof and, rather than focusing on the ill-intentioned creators and well-resourced publishers of material, seeks to criminalise end users, whether innocent or not. The proposed publication of images offence creates a new offence of the publication of an image,

“in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation”.

Apart from the obvious point, as stated by the Joint Committee on Human Rights, that what this offence seeks to cover is already covered by existing legislation, it risks criminalising a broad range of legitimate behaviour by academics, journalists and human rights activists—a concern voiced by the UN special rapporteur on human rights. A person risks imprisonment not for being a member or supporter, but for merely publishing an image that could be construed as arousing reasonable suspicion. This is in a space where images can have a historical context and meaning far broader than a relatively modern and often cynical adoption by a terrorist group; the Irish flag is one such example.

Today I want to focus in detail on one aspect: the lack of debate, engagement and consultation surrounding the Bill—an issue raised by the noble Lord, Lord Rosser. Taking the example of the late-introduced proposed designated area offence, there was a lack of engagement with those groups likely to be disproportionately impacted by the Bill, such as journalists, human rights activists, British citizens with family in areas of the world that could be so designated, aid workers working in areas of acute humanitarian crisis, a community I am a part of—British Muslims—and, of course, a community which most Members of your Lordships’ House are part of: the naturally curious. Alongside the potential for mistakes and the clumsy application of this proposed offence, the scope for abuse of the use of designated area is real—as a carrot or a stick to pressurise or seek favour with foreign countries and to legitimise or deem illegitimate political disputes around the world. Selective use of this provision would leave people helpless even where there is no risk of harm to the United Kingdom and, for example, could deter the proper reporting of a conflict. The much simpler answer would be something I have advocated for many years: that in a globalised world with multiple identities, many of which overlap borders, rather than zoning no-go areas, make a simple “no fight” rule and criminalise any person who travels abroad to take up arms in any conflict for any foreign despot, group or even Government, so that if you are British you fight for and on behalf of the British Armed Forces and no one else.

Intervention at an earlier stage is one of the reasons cited for the Bill in the Government’s explanatory factsheet. This early-stage intervention is nothing new: it is the Prevent strand of the four pillars of the Contest strategy, alongside Prepare, Protect and Pursue. It is a policy which has been in play since 2003 and in the public domain since 2006. It is a policy which fundamentally was about communities leading the battle of ideas to challenge some of the views and behaviour that could become the basis for terrorism. It is a policy which has significantly shifted over the past decade. I agreed with all four strands of the original Contest strategy, including the early thinking behind Prevent. For me, the Prevent policy was—and still should and could be—a battle between violence and democracy, based on a belief that everyone has a right to their view, providing that it does not break the law or incite or encourage someone else to break the law. Democracy, if it works, should be able to temper unsavoury views—although the latest US presidential election has left many questioning that notion.

The battle of ideas about violence and the justification of it is one in which government need to be a player and quite rightly stand against groups that promote such. It is right that the battle of ideas and views on everything from tax to torture, from farming to family to foreign policy, and from welfare to wind farms is debated and accommodated through our parliamentary democracy. The battle of ideas was but one part of the Prevent work, alongside tackling discrimination, engaging communities and addressing grievances. The Prevent strategy, however, over time slowly started to shift its emphasis.

The process of understanding—not accepting, but understanding—why British Muslim communities themselves felt that people were being drawn into violent extremism became a less important issue for politicians and policymakers. The Muslim communities’ views, which themselves were varied and broad on the drivers of terrorism, were sidelined and we saw the start of a process of disengagement between government and British Muslims. Rather than doing counterterrorism with British Muslims to defeat the menace of terrorism collectively, we chose to do counterterrorism to Muslim communities. Through this approach we both created an obstacle to confronting and defeating terrorism and alienated a large community of law-abiding citizens. We “othered” them.

Putting Prevent on a statutory basis in the last months of a coalition Government, with both Labour and Liberal Democrat eyes being on an election rather than legislation, has been the subject of much criticism and mistrust. It is a policy which I as well as academics and senior police officers, along with many others including the noble Lord, Lord Anderson, as the ex-Independent Reviewer of Terrorism Legislation, have called to be independently reviewed. That policy is opaque and inconsistent—its flaws were outlined by the noble Baroness, Lady Howe—while the published statistics on referrals which lead to action act as a net, which catches and has damaged as many lives as it has potentially saved. In this climate, with much respect to the noble Baroness, Lady Hamwee, I believe that it would be entirely inappropriate and counterproductive to expand its reach. If the Government are genuinely committed to early intervention then they must start by engaging openly, honestly and transparently. A cohesive country is a more secure country. Engaged communities are more cohesive.

Let me end on an issue that I have been arguing for while inside government and since, in private conversations with colleagues and in detail in a book. I now raise it on the Floor of your Lordships’ House. It is time for the Government to end their policy of disengagement with British Muslims, which started under the last Labour Government and the leadership of the then Secretary of State for Communities and Local Government, Hazel Blears, in 2007. John Denham tried to restore sanity when he replaced Hazel Blears in 2009 but months later, when the coalition Government were formed in 2010, the policy returned. It continues to be applied today.

Successive Governments have adopted that policy of non-engagement with a wide range of Muslim community organisations and activists. More and more groups and individuals have, over time, simply been seen as beyond the pale, often for something they said or did in the past, or for what someone they were associated with said or did. Time and again the message from government is: if you are a British Muslim and have ever believed, thought, said or even flippantly commented on an issue in a way which could be seen as extremism today, then however historic your view there is no road to rehabilitation. There is no path to redemption, no meeting, no engagement. So if in your youth or your heady days of activism—or simply during your political journey—you have not believed and said exactly what we, the Government, say and believe right now on the issues of politics, faith, women, minorities or homosexuality, then you are persona non grata. Imagine if that approach was used against us politicians. Certainly, many in this House have moved on in their views on many issues: the rights of women and minorities and LGBT rights, to name a few. We have all made mistakes. I have made mistakes.

This policy is ludicrously impractical at a time when the need for engagement with and understanding of our Muslims is greater than ever before. It is also dangerously counterproductive. Over half of British Muslims are under the age of 25; a third are under the age of 15. They are in the media spotlight almost daily. They have access to more connections, information and travel than ever before. Last year, terrorist offences were either done by individuals who purported to belong to a faith that they follow, or aimed at the Muslim community itself. They are in the front line and have seen a 77% increase in attacks against them in 2017, and they are disengaged by government.

The issues around terrorism can be properly responded to only with a whole-community response. This includes the Government, the police and the communities of which British Muslims are an essential component. The policy was originally driven by a small number of politicians and commentators influenced by the now much-discredited and failed neo-conservative thinking from the United States, although the election of Donald Trump has planted this divisive thinking into the mainstream. There is real unease about it at the heart of the Civil Service, at senior police officer level and within local authorities, to name a few examples. Over a decade into this approach, I am yet to be convinced that not engaging with and not listening to a community is the best way to influence it.

I said at the outset that we should make criminal law only if the current law and policy is simply incapable of being applied, or applied better. Ending the policy of disengagement is a simple and necessary step that requires no legislation. It would be a start with immense security benefits, possibly even more so in the long term than the offences proposed in this Bill.

Photo of Lord Tyrie Lord Tyrie Non-affiliated 5:46 pm, 9th October 2018

I have just heard the latest in a long line of extremely interesting and informative speeches. The enormous expertise in this House is clearly on view and I have learnt a great deal already. It is certainly an honour to follow the noble Baroness, Lady Warsi, who spoke from considerable personal experience. This is also an opportunity to say how impressed I was, if that is permitted from one maiden to another, by the maiden speech of the noble and learned Lord, Lord Garnier. I know him as a reliable and thoughtful person—one of the most reliable and thoughtful people in public life—but much more importantly he is also a very good friend.

For me, this House is a curious mixture of the familiar and the surprisingly new. On the latter, I have benefited a great deal from the guidance of the staff: doorkeepers, librarians and clerks among them. I would particularly like to thank my sponsors, one of whom is sitting next but one to my right: the noble Lords, Lord Luce and Lord Turnbull. They have been very kind to me and are two people who have made exceptional contributions to public life, and on whose advice I have been fortunate enough to call on a good number of occasions not only in recent weeks but over many years. They are two outstanding public servants.

I am making this speech from the Cross Benches because, as chairman of the Competition and Markets Authority, that is the right place for me to be. The CMA has some major challenges ahead, not least Brexit—I have to mention it somewhere—but those will be manageable because the CMA has, as I am now discovering, some exceptionally able and dedicated people aboard. Those challenges, and competition policy more widely, are not for now; they are for another day.

I have just completed an exhilarating 20 years in the other place and it was a great privilege to represent Chichester. More important than the beauty of the area, or even the fact that it returned me five times with increased majorities, has been the chance to make many deep friendships. I hope and intend to keep those for life. As I was clearing out my office at the other end of the building last year, I came across a letter from a resident of the parish of Tyrie in Aberdeenshire, which I received shortly after I was first elected. I have it here and it reads:

“If you ever went into the House of Lords … you could become Lord Tyrie of Tyrie. And, if you moved up here”, the correspondent went on—I suppose there were perhaps some properties for sale up there—

“you would be Lord Tyrie of Tyrie, Tyrie”.

I am grateful to that citizen of Tyrie for his suggestion, but I hope he will understand that I would rather stick to Chichester, where I have put down deep roots and to which I owe a great deal.

About the same time that I got that letter 20 years ago, the Conservative Party, reduced to 165 MPs, was locked in a bitter row with itself about Europe, much as it was when the noble and learned Lord, Lord Garnier, arrived five years earlier. At about that time, I happened to hear a speech by the late Sir Denis Thatcher. He was asked from the floor how the Tory party was going to get out of that mess, to which he replied: “Well, it’s all very straightforward. All we have to do is stick to our values”. He then thought for a bit and said, “But don’t ask me what they are”.

In today’s debate, and particularly with respect to anti-terrorist legislation generally, it is the values not of a political party but of the country that are at stake. I have no particular expertise in that field, but it seems to me that legislation is certainly needed to respond to the digital age, so I shall not oppose the Bill and I welcome its intent. None the less, the noble Lord, Lord Marks, made a trenchant point with his four tests and I think the noble Lord, Lord King, acknowledged the same point. As both of them implied, the issue before us is to reconcile the requirements of a free society and the needs of those who work to protect us from terrorism. We should bear in mind that they do that work in an outstanding manner and in very difficult circumstances.

Rather than examine that issue in depth in relation to the Bill, I prefer to take advantage of the licence I am told is afforded to a maiden speech and the Long Title of the Bill, which is very broad, to raise one aspect of anti-terrorist policy where successive Governments have fallen short.

In the years following 9/11, Britain facilitated a US programme of extraordinary rendition. Just to be clear what we are talking about, in the 21st century Britain facilitated the kidnapping of people and having them taken to places where they could be maltreated and, in some cases, brutally tortured. I was shocked when I first heard those allegations, and I still am. That is why in 2005 I founded the All-Party Group on Extraordinary Rendition. My purpose was to find out the scope and limits of Britain’s complicity, to establish who authorised it and to do whatever was required to give us greater confidence that it would not happen again.

Since 2005, there have been three inquiries, all of them at least partly prompted by the group I founded. The first, by the ISC in 2007, completely erroneously concluded that Britain had not been involved at all. The second, a judge-led inquiry that I persuaded David Cameron to establish in the months before the 2010 election, was closed down before it had a chance to get very far. The third, another by the ISC, has just completed its work and has done its best but, by its own admission, has not been able to get to the bottom of the issue. That it failed to do so is scarcely surprising. The Prime Minister blocked the ISC’s access to almost all the relevant witnesses. It is clear from the report that in response to that the ISC closed down its inquiry. The ISC did not examine some of the toughest cases, such as Belhaj, who was rendered with UK assistance to Libya, nor detainee transfer in theatre.

How involved were Ministers in those decisions? We still do not know, and we still do not know what really happened. For much of the past 13 years, it has been an uphill struggle to elicit much information. Denials were frequent and often pretty comprehensive, if completely wrong. Here is Jack Straw’s in 2005, when he was Foreign Secretary, in response to a question I asked a colleague to ask at the Foreign Affairs Committee:

“Unless we all start to believe in conspiracy theories and that the officials are lying, that I am lying ... there simply is no truth in the claims that the United Kingdom has been involved in rendition full stop”.

Only a couple of years ago, I was assured by a very senior civil servant that there were only a handful of cases. Now the ISC has established that the UK was involved in more than 70. I do not think this issue can be left unaddressed. The question is how to address it. More than a decade ago I concluded that only a judge-led inquiry could hope to clear this up and enable us to move on. That inquiry is still needed, and I am very pleased that Ken Clarke, the former Justice Secretary who suspended the first judge-led inquiry, now agrees.

Freedom of information will not achieve much in the UK on rendition now that its effectiveness has been greatly curtailed by the Justice and Security Act, but in the US the group’s FOI requests are now eliciting significant further information which the group will put into the public domain. It could be that FOI in the US becomes the best remaining source on UK involvement, given that so many domestic avenues towards more information have been closed off. But best of all would be a judge-led inquiry, which would also be able independently to assess what can reasonably be put into the public domain and what must not be. Clearly, much of the information might carry operational risk for those in the security services today and should remain secret.

It is not just that kidnap and torture is deeply repugnant or even—which is the case—that it is probably ineffective as a means of gathering information. It is much worse than that. Complicity in kidnap and torture eats away at the moral authority of the perpetrators. To the extent that the UK has facilitated such practices, we have diminished ourselves and we have undermined the values that we seek to export. That is why getting to the truth about rendition is not some recondite backwater but goes to the heart of the kind of society that we aspire to be. In the age of Trump, Putin, fake news and the erosion of trust in the electorates of western democracies that is now taking place, it is all the more important that we stick to our values and on that issue, unlike Sir Denis perhaps, we know what those values are. That is why we now need to stick to those values and get to the truth on rendition.

Photo of Lord Stunell Lord Stunell Liberal Democrat 5:57 pm, 9th October 2018

My Lords, it is a privilege to follow the speech by the noble Lord, Lord Tyrie. I congratulate him on it and welcome him to the House. I am sure the whole House will be looking forward to his future contributions. In the other place, he had a reputation for and record of original thinking, forensic inquiry, plain speaking and ruthless honesty, and we saw some of that in his maiden contribution in this House. Even his most severe critics would never describe him as a yes-man. Witnesses who sat in front of him in the Treasury Select Committee at the other end of this building would be ready to testify to that, even if they did not always wish to testify to his committee. His words today illustrate a thoughtful, analytical and fearless approach to the issues that come before your Lordships’ House, and I am sure his future contributions will continue that. It was also a pleasure to hear the maiden speech of the noble and learned Lord, Lord Garnier. His contribution was well up to the quality of this debate, which has, so far, been excellent and well informed.

Turning to the Bill, I associate myself with the words of my noble friends Lord Marks, Lady Hamwee and Lord Thomas and those of the noble Baroness, Lady Warsi. In coalition days, she and I had many a quiet chat to see whether we could restore some sanity to the situation, but we did not always succeed as we wished. The noble Baroness, Lady Howe, said wise words about how extremism without violence must not be tangled up in our thinking about offences.

I want to focus on Clause 19. It is a very minor provision in the Bill; indeed, it appears under the subheading “Miscellaneous”. It deals with the granting of enabling powers to local authorities to nominate people who should go to Channel panels. The noble Baroness, Lady Howe, commented on this to some extent. The Explanatory Notes to the Bill explain that, in 2016-17, 6,093 people were referred to Channel panels, and that 332 of those 6,093 were given support as a result of discussion in those Channel panels. Channel panels are established and run by local authorities, and up to now referrals to them have been exclusively in the hands of the police. The proposal in Clause 19 is to allow local authorities to have that right to refer people to the Channel panels that they themselves organise. It could be seen as just operational tidying up, but there is a little more to it than that. The Government’s impact assessment says of it that it is a magic provision; the word “magic” does not appear but it does say the provision will provide a saving to the police and no additional cost to anybody else. So what could possibly be wrong with it?

I suggest to your Lordships that there are some aspects that need to be looked at a bit more carefully than this entry under “Miscellaneous” currently grants it: first, the reputation and effectiveness of Prevent itself—the noble Baroness, Lady Warsi, has said some powerful things about that; secondly, the workloads and competences of those running Channel panels; and, thirdly, something about their success rate and performance.

First, on reputation and effectiveness—this case has already been strongly made by the noble Baroness, Lady Warsi, and apart from saying “Hear, hear” I cannot add much more—Prevent is counterproductive and its apparent impact is skewed. A careful reading of the report by the Joint Committee on Human Rights, especially page 24, sets out the case again.

Secondly, on workloads and competences, I make the point that those 6,093 referrals in a year mean 115 referrals a week to Channel panels. The outcome of those Channel panels is that six people a week receive support after referral. Let us just take those figures again: 115 cases come up each week, of which six are, on inspection, decided to be appropriate to receive Channel support. My first question is whether the Minister is satisfied that the 6,000 who are being referred in the first place are in fact an appropriate 6,000, and whether she is satisfied that only 6% of them subsequently being seen as requiring intervention by Channel panels suggests that the right people are coming forward and being selected.

My second question is: what analysis has the department done on which participating agencies are most likely to produce the false positives—the 109 people that week who are referred to a panel but for whom it is not thought to be appropriate that they need Channel support? Who are the people who are getting it wrong, and what can be done for them to get it right? What feedback and learning is there from the cases that do not get Channel support, and where evidently those nominations were inappropriate for one reason or another? What change is Clause 19 expected to produce to those outcomes? Is the clause’s intention that there will be more referrals as a consequence of local authorities having the right to refer, or is it supposed that in some way there will be more priorities for action by Channel panels as a consequence of those referrals? What is the driver for the change, something on which the Explanatory Notes are completely silent?

That brings me to the success and performance of Channel panels and the Prevent system as a whole. What happened to the 332 who received Channel support in 2016-17? Who was missed? The Explanatory Notes quite rightly point out that there were five terrorist incidents where deaths occurred, and seven terrorists were directly involved there. The noble Lord, Lord King, brought forward some other figures about the quite substantial number of attacks that were intercepted and where plots were foiled. Had any of those people come into the 6,093? Had any of them come into the 332 who were referred to Channel? In other words, is Prevent actually doing what the name suggests it should be doing, or is it simply a cosmetic overlay on a system that is widely seen as clumsy and counterproductive at best?

The Joint Committee on Human Rights wanted to see an independent inquiry. The Government’s rejection of that was really quite abrupt; they said such a claim was unfounded because there had been so many external and internal reviews that basically everything was fine and everything was known. I therefore hope that the questions that I have posed can be simply answered by the Minister today or, if not, that she is ready to answer them in Committee when we get there. It is necessary for the Government to justify the change that is proposed and the base from which that change is being made. What in fact is happening to the 94 out of every 100 people who are referred who have no further action taken regarding their case? I hope that when we get to Committee the Minister will be able to fill in some of those gaps. If not, I will certainly be returning to these matters at that time.