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

Part of the debate – in the House of Lords at 4:30 pm on 3rd December 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 4:30 pm, 3rd December 2018

My Lords, we have had detailed and insightful debates on Clause 3, particularly on the operation of the “reasonable excuse” defence in Section 58 of the Terrorism Act 2000, which Clause 3 amends. Amendment 6 responds to arguments made in both Houses that we should provide greater certainty that particular categories of legitimate activity will constitute a reasonable excuse.

As I explained previously—and as my right honourable friend the Minister for Security and Economic Crime explained in the House of Commons—it is clear that those engaged in legitimate journalism and academic research have been able to rely on the “reasonable excuse” defence provided by the Section 58 offence in its present form since it was passed in 2000. The Government have been equally clear that this will continue to be the case under Section 58 as it will be amended by Clause 3.

We have also set out the longstanding legal position, codified by the Appellate Committee of this House in a 2008 judgment, that it is for the jury to determine whether a particular excuse in a particular case is reasonable on the basis of all the evidence in that case. Such a determination will always be highly fact-specific; it is not possible to prescribe particular exemptions or reasonable excuses in advance and in the abstract. The Government have therefore taken the approach until now that it has not been necessary to write these categories of reasonable excuse into the Bill.

However, we have heard the points made by your Lordships and reflected on the concerns raised. We recognise that the Government’s assurances have not satisfied noble Lords thus far as to the protection afforded to journalists and academics by Section 58, and which will apply following Section 58 as amended by the Bill. It is clear that the Government need to go further and provide greater assurance. In that spirit, we tabled Amendment 6.

The amendment will make it clear in the Bill that it will be a reasonable excuse for a person to access terrorist material falling under Section 58 for the purposes of academic research and carrying out work as a journalist. This will apply both to the existing limbs of Section 58—that is, the collection, possession or making a record of such material—and the new limb of viewing material online, which Clause 3 will insert. The amendment will underline and put beyond doubt the position already set out by the Government. I hope that it will be welcomed by your Lordships as providing the necessary assurance to those working in the fields of journalism and academia who have a legitimate reason to access terrorist material.

The amendment has been carefully drafted so as to complement, rather than overturn, the existing legal position relating to reasonable excuses. Clause 3(4) already provides one example of a case that may constitute a reasonable excuse, which is where the defendant did not know and had no reason to believe that the material in question contained information likely to be useful to a terrorist. The amendment expands on that to additionally provide the two examples I mentioned.

I stress that this is an indicative rather than exhaustive list of cases that may constitute a reasonable excuse, and it will remain open to defendants to advance other types of reasonable excuse. This will ensure that we retain the flexibility to cover other unforeseen circumstances that may arise, and that we do not inadvertently close off the reasonable excuse defence to those who may have an equally reasonable excuse of a different nature. I appreciate this construction is not self-evident from the Government’s amendment, so I understand why the noble Lord, Lord Paddick, tabled Amendment 7. But key here are the words,

“but are not limited to”,

in new subsection (3A) of Section 58 of the Terrorism Act 2000. That qualification will apply to the new paragraph (b) inserted by the Government’s amendment. All will become clear once the Bill is reprinted after Report.

Amendment 6 does not provide an absolute and automatic exemption for any person who states that they are a journalist or academic. That would not be appropriate, and it would move away from the position established in case law by this House. In Committee, a number of your Lordships highlighted the difficulties in legislating to differentiate legitimate journalism from that which may be carried out by a person with more nefarious intentions, whether as a cover for their true activities or as a platform to propagate their terrorist views. The approach we are taking will ensure that juries will be able to make such distinctions in individual cases, based on the particular facts.

I hope that Amendment 6 will be welcomed as addressing the concerns that have been raised, and as offering a meaningful compromise to those noble Lords who have raised them. I commend it to the House and I beg to move.