Counter-Terrorism and Border Security Bill - Committee (1st Day)

Part of the debate – in the House of Lords at 6:15 pm on 29th October 2018.

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Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords 6:15 pm, 29th October 2018

My Lords, there have been calls both in your Lordships’ House and in the House of Commons to place on the face of the Bill a definition of legitimate activity that would not be caught by the Section 58 offence as amended or to specify categories of reasonable excuse. The Government’s position on this issue is well rehearsed, including in our response to the Joint Committee on Human Rights. Noble Lords opposite have clearly been following this debate closely, because Amendment 15 proposes a slightly different approach, and Amendment 16, in the name of the noble Lord, Lord Rosser, follows a similar path.

Rather than seek to write exemptions or examples of reasonable excuses into the Bill, as Amendment 14 seeks to do, Amendments 15 and 16 instead seek to place a requirement on the Government to publish guidance on the same matters. I commend noble Lords for their constructive approach in seeking alternative solutions, and I hope that they will find my response to their suggestions similarly constructive, even if I am not able to support these amendments.

The Government’s starting point on this issue is that Section 58 of the Terrorism Act 2000 already contains a well-established safeguard, in the form of a reasonable excuse defence, for those with a legitimate reason to access terrorist material. As a result of Section 118 of the 2000 Act, if a person raises this defence, the court must assume that it is satisfied unless the prosecution can disprove it beyond reasonable doubt. We will debate the operation of Section 118 when we come to Amendment 18 in a later group.

Where a person has a reasonable excuse, a prosecution should not in fact commence, because the case would not pass the Crown Prosecution Service threshold tests of being in the public interest and of there being a realistic prospect of conviction. This safeguard has operated successfully in relation to Section 58 since that offence was first created in 2000, and it reflects the approach taken across the criminal law, where many other offences with a similar defence also do not list specific categories of reasonable excuse. As such, it is well understood by the police, the CPS and the courts. It will continue to apply equally to the offence as amended by Clause 3, and it will not be narrowed or reduced in any way.

This is an important safeguard, and I understand the intention of the noble Lord and the noble Baroness in seeking to put its effect even further beyond doubt, whether through the amendment of Clause 3 or through guidance to be published under it. However, it is my view that, whichever route is taken, it is simply not necessary. Furthermore, such an approach could in fact have the unintended and unhelpful consequence of unsettling the current position, and of reducing rather than increasing clarity. I hope the Committee will indulge me while I explain why this could be the case.

Section 58 has been in force for 18 years, during which time it has been unlawful to collect, possess or make a record of terrorist information without a reasonable excuse. Of course, for much of this period, these have been the normal means by which an academic or journalist would have accessed such information online—downloading or otherwise making a record of it, rather than streaming it. It is only more recently that technology has outpaced the law. This would suggest that, if the safeguard is indeed inadequate, we would have seen ongoing prosecutions of academics, journalists and others who have legitimately accessed such material, but I am not aware of any such cases. Rather, the offence has been used sparingly and in a targeted way, with just 61 convictions since 2001. Similarly, despite the fears that have been raised, there have in fact been no bona fide reports of a chilling effect in relation to the offence as it currently stands, and no credible evidence that professionals in those fields have been hampered in or deterred from going about their legitimate business, which to all appearances has continued entirely uninhibited.

My challenge to those who assert that this updating of the existing Section 58 offence will suddenly bring to a halt the legitimate activities of journalists reporting on terrorism, or result in academics researching radicalisation being thrown in jail, is: where is the evidence for this? Can we point to journalists who were arrested for researching and reporting on the terrorist threat in the post-9/11 era, or to academics who were too scared of legal consequences to research and publish books on terrorism in the same period? It is undoubtedly the case that the research methods employed would, in some cases, have been clearly caught by the existing offence, yet we have seen no prosecutions.