Counter-Terrorism and Border Security Bill - Report (2nd Day)

Part of the debate – in the House of Lords at 6:29 pm on 17th December 2018.

Alert me about debates like this

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department, Minister for Equalities (Department for International Development) 6:29 pm, 17th December 2018

My Lords, these amendments return to an issue raised with some force by the noble Lord, Lord Anderson, in our earlier debates. I am conscious that I was unable to persuade him of my view that the well-intentioned amendment he tabled in Committee would not be in the public interest. I am grateful to him for the further amendment which he has tabled, which would operate in parallel to his original proposal for annual reviews, and which he has explained is intended to address some of the concerns the Government have with that proposal. On careful consideration, regretfully, I cannot agree that it does do so and the Government are not able to support it for reasons I will come to shortly.

Before I come to the detail of the amendments, I should be clear that the Government consider proscription to be a necessary power that plays an important role in protecting the public. Organisations are proscribed for a good reason: because they are terrorist in nature, and because it is in the public interest to prevent them being able to operate or to gain support in the UK. This plays an important role in protecting the public from potentially very dangerous organisations, as well as more generally in maintaining public confidence and, where relevant, supporting our international partners in the struggle against terrorism. The Government also consider that the power’s impact is proportionate to that purpose.

In forming this view I have in mind that, beyond restricting the ability of an individual to engage in the specific activities covered by the proscription offences relating to the particular organisation which has been proscribed, the power does not otherwise impact on their ability to conduct a normal day-to-day life. The impact of proscribing an organisation is not, therefore, overly intrusive or unavoidable from the individual’s perspective.

I do not say this to downplay the impact that proscription can none the less have on certain important rights, in particular those protected by Articles 10 and 11 of the European Convention on Human Rights—the rights to freedom of expression and freedom of association—and nor do I seek to dismiss the concerns raised in this House. There is no question that any such impact must be justified and proportionate in the context of the particular proscription. Rather, I simply and gently urge caution against the risk of overstating the degree of interference with individual rights that arises from an organisation being proscribed, or the inevitability of that interference.

However, I should make absolutely clear that the Government take seriously their responsibilities to ensure that the right organisations are proscribed. We continue to exercise the proscription power proportionately and have due regard to our responsibility to protect the public from terrorism. The Government’s long-standing approach to deproscription reflects this. We are clear that we will take a precautionary approach to lifting restrictions on a group that the Home Secretary or Northern Ireland Secretary has decided is concerned in terrorism on the basis of intelligence and advice from the police and intelligence services. To do otherwise would be irresponsible.

However, it is absolutely not the Government’s position that once a group has been proscribed that status is fixed for all time. Parliament has provided a clear statutory route for deproscription under Section 4 of the 2000 Act, which allows either a proscribed organisation or a person affected by its proscription to apply to the Secretary of State for it to be deproscribed. Where such an application is received, the Government will consider it carefully. Under this system, three groups have been deproscribed following applications.

The noble Lord, Lord Anderson, talked about the Red Hand Commando. I understand that an application for deproscription of this group has been received by the Secretary of State for Northern Ireland. The progress of that application is obviously a matter for the Secretary of State for Northern Ireland. The noble Lord will appreciate that I cannot discuss details of individual cases, but I am happy to provide a clear commitment that, if the Government become aware of fresh information that casts serious doubt on whether proscription remains appropriate for a given group, it will be given serious consideration irrespective of whether there has been an application for deproscription.

I firmly believe that this is the most appropriate and balanced way to deal with the question of deproscription. This approach avoids placing the public at risk, or causing alarm and distress to the public as a result of a premature decision to lift restrictions on organisations with a significant terrorist pedigree.

I have previously explained—but it is worth repeating—that experience has demonstrated that individuals and organisations with a terrorist mindset can disengage and then re-engage in terrorist activity, potentially without warning. Such individuals and groups will continue to pose a threat, and to be properly characterised as terrorist, during both their fallow and their active periods. It would not, therefore, be responsible for the Government to lift restrictions on the ability of such a group to operate in the UK unless we are confident that they have changed and no longer pose a threat.

Given this approach, I continue to have serious concerns about a requirement for annual reviews of all proscriptions, which Amendment 32B would introduce. While I appreciate the noble Lord’s intentions, I do not consider that his proposed solution in Amendment 32A in fact deals with these concerns.

If I may take the amendments out of turn, regarding Amendment 32B I simply do not agree that such a system of formal annual reviews is needed to prevent any injustice or any disproportionate interference with individual rights. I do not seek to argue against the noble Lord’s amendment primarily on the basis that it necessarily has an economic and operational cost attached to it, albeit that is quite properly a consideration.

The proposed system of reviews would be costly and burdensome to administrate, diverting investigative and intelligence resource away from current threats to public safety. The Government must continually take difficult decisions about how best to use the valuable resources of those tasked with keeping us safe from terrorism. It is far from clear that this would be of proportionate use when considered against the nature and comparatively limited extent of the interference with individual rights which I have set out.

I have a more fundamental concern. The approach proposed by the noble Lord would carry a high risk of leading to unintended and highly damaging outcomes which, if it resulted in groups being deproscribed prematurely, would not be in the public interest. As the noble Lord, Lord Carlile, pointed out, this could have particularly difficult implications in the unique and sensitive context of Northern Ireland, given the political and security challenges faced in that part of the United Kingdom, and the historical significance in the Troubles and the peace process of certain proscribed organisations.

Without wanting to dive too deeply into hypothetical scenarios, it is conceivable that a proactive review of the proscription of such an organisation, without the organisation itself or any other person even having sought the review, could have a significant and unsettling impact on the political situation and the peace process, whether its outcome is a decision to reaffirm or to lift the proscription, and indeed, whatever legal test is applied to that decision. I say this without any particular organisation in mind, and without prejudicing the outcome of any review that might occur. I simply wish to express the risks we would be running if we were to go down this road. I hope noble Lords will agree we must be very careful when considering changes to the proscription regime in that context.

In considering Amendment 32B, we must be alive to the fact that paramilitary activity has a greater impact in Northern Ireland than in any other part of the UK. In this complex environment, proscription remains an essential tool in the wider strategic approach to tackling the continued and widespread existence and impact of paramilitary groups. Any change to that proscription regime would have a significant impact on wider efforts to tackle paramilitary activity currently being undertaken in Northern Ireland and supported by the UK Government through the Tackling Para- militarism programme. A decision to change the proscription regime in Northern Ireland could not and should not be taken in isolation from this initiative or without detailed prior consultation with the devolved Administration and security partners. As noble Lords will know, the Northern Ireland Assembly is not currently sitting, and there is currently no Northern Ireland Executive, so at present it is not possible to take views from devolved Ministers who have lead policy responsibility for tackling paramilitary activity.

I recognise that in general it is not a satisfactory proposition to say that we should sit on our hands until this situation resolves itself. But I would argue that, in this particular context, we cannot ignore the wider political ramifications of this amendment. Many of the concerning implications which I have described also arise in relation to proscription of international terrorist organisations, but they are particularly acute in relation to Northern Ireland-related terrorist organisations.

Amendment 32B would change the legal test for proscription in three substantive ways. First, it would expand the existing test that the organisation is currently concerned with terrorism to include where it has previously been concerned with terrorism. Secondly, it would raise the statutory threshold from requiring the Secretary of State to reasonably believe this to requiring that he be satisfied on the balance of probabilities. Thirdly, it would introduce a necessity limb to the test, so that proscription would have to be necessary for purposes connected with protecting members of the public, whether in the UK or elsewhere, from a risk of terrorism.

The noble Lord, Lord Anderson, has suggested that this will provide an answer to the concerns I have set out, because the new backward-looking aspect of the legal test would provide a clearer basis for the proscription of terrorist organisations which have historically been active but which are currently less so. I am grateful to him for his suggestion, and I appreciate the constructive spirit in which he has brought forward this amendment. But I have to say that, on careful consideration, I cannot agree that it addresses these risks and the impacts. I will explain why.

As I have said, the issue is not simply one of how best to deal with historically significant terrorist organisations which are currently in a fallow period, although that is part of it. Even if it were just that, then I fear that this amendment would not address the issue that the noble Lord intends it to. This is because the backward-looking aspect of the first stage of the test proposed by the noble Lord—the requirement that the organisation has been concerned in terrorism—would in effect be cancelled out to a large extent by the second limb of the test, which would require that it be necessary to proscribe the organisation for purposes connected with protecting the public from a risk of terrorism. Although the amendment does not spell this out, our analysis is that proscription could only be necessary if there is a risk to the public arising from present activity.

This puts us back to square one in relation to the category of organisations the noble Lord has indicated that his amendment is aimed at. That is, where there is extensive evidence that the organisation is terrorist in nature and is properly characterised in that way, and where it is clearly in the public interest for it to remain proscribed, but where there may not be extensive evidence of current terrorist activity.

A further concern is that the amendment would raise the statutory threshold, from requiring the Secretary of State to reasonably believe to being satisfied on the balance of probabilities. I am not persuaded of the need to raise the bar for making new proscriptions or that this would be in the public interest.

Setting this aside, the fundamental issue remains that we would still be making a significant change to the proscription regime, out of step with the relevant devolved authorities in Northern Ireland. And we would still be unnecessarily reviewing organisations in the Northern Ireland context, where to either affirm or revoke their proscription could potentially have significant political implications. Against the very real risk of unintended consequences in Northern Ireland, I would respectfully suggest that your Lordships should proceed with the utmost caution. The arguments advanced by the noble Lord, Lord Anderson, do need to be balanced against the fact that these are very serious and unpleasant terrorist groups, which have been proscribed with good reason and which the Government are anxious to ensure are not able to pose a resurgent threat to the public.

I have set out the Government’s position at length on these issues. I have given a clear commitment today that the Government do not regard proscriptions as fixed, and that if the Government become aware of fresh information which casts serious doubt on whether proscription remains appropriate for a given group, this information will be given serious consideration. On that note, I hope that the noble Lord feels able to withdraw his amendment.