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With this it will be convenient to discuss the following amendments:
No. 44, in clause 69, page 49, line 34, at end insert ‘and
(c) intends that the information should be useful to a person committing or preparing an act of terrorism.’.
No. 198, in clause 69, page 50, line 12, at end add—
‘(4) In section 58 of the Terrorism Act 2000 (c.11) (collection of information) in subsection (1) for “of a kind likely to be” substitute “with the intention that it is”’.
No. 235, in clause 69, page 49, line 36, after ‘prove’, insert ‘—
No. 236, in clause 69, page 49, line 36, after ‘action’, insert—
‘(b) that at the time of the alleged offence he did not know and had no reason to know that the information or the disclosure of such information was of a kind that was likely to be helpful to a person committing or preparing an act of terrorism;
(c) that at the time of the alleged offence he believed that disclosure of such information was in the public interest.’.
The next of these miscellaneous clauses deals with the creation of a new terrorist offence in relation to eliciting, publishing or communicating information about members of the armed forces. If I may say so at the outset, I am perfectly aware of the nature of the Birmingham plot, and that there has been clear evidence that individuals have been attempting to obtain such information for the purpose of doing harm to members of the armed forces.
My concern is about the wording of this new offence:
“A person commits an offence who—
(a) elicits or attempts to elicit information about a person who is or has been a member of Her Majesty’s Forces which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or
(b) publishes or communicates information of that kind.”
A moment’s pause makes one realise that that is rather broadly drawn. On the face of it, because we are concentrating on information which is,
“of a kind likely to be useful”,
the truth is that almost any information is covered. A perfectly legitimate attempt by a law firm to write a biographical note giving details about a serving member of the armed forces might, quite innocently, reveal material which might be “likely to be useful”.
Indeed, I recollect, going back to the days of terrorist offences in Northern Ireland, a number of occasions when individuals were arrested in this country, with information on them that made the security services and the police think that a terrorist plot might be attempted. A map of the area where a Government Minister lived was found. There were details from telephone directories. There was information—all of which was publicly obtainable—that, when put together as a package, clearly indicated the possibility of a malevolent intent. Indeed, a prosecution was based on that.
On the face of it, the provision is now so widely drawn that anybody who attempted to elicit that sort of information might find themselves committing an offence. I cannot believe that that is an appropriate way in which to draft a criminal offence with a sanction of 10 years’ imprisonment. I appreciate that it could be argued that the wording in amendment No. 197 would cause another problem, as we would have to show the intention from all the surrounding circumstances—undoubtedly a more difficult hurdle for a prosecutor to get over than the current wording. However, just because something involves an extra hurdle, it does not justify our creating an offence as widely drawn as that set out in the Bill.
I know the usual answer given by Ministers in such circumstances, because I have heard it before: the Committee should not worry because no one will prosecute a 10 or 11-year-old boy who tries to elicit information about a hero figure who has come back from Afghanistan; the Director of Public Prosecutions and the Attorney-General, in their wisdom, would not prosecute such a person.
On the whole, the law must maintain an element of certainty so far as it is possible, and the clause creates an offence that is extraordinarily uncertain in its scope. Anyone, however innocently, eliciting information for a legitimate purpose about somebody who is, or has been, a member of the armed forces could be caught by it. It would be easy to show that that information might be useful to a person who was preparing an act of terrorism. If the Minister can come up with an alternative view of the drafting, I shall listen carefully. New Labour used to say that there was a third way, but at the moment I do not see it. The clause is much too widely drafted. It might also worry journalists who want to carry out legitimate journalism.
Amendments Nos. 44 and 197 are similar. A few moments ago, the Minister spoke about the need for clarity. The amendments would clarify in what circumstances the law would be applied. My hon. Friend the Member for Somerton and Frome whispered in my ear that someone preparing material for Jane’s Fighting Ships might fall foul of the clause. Did the plane spotters in Greece have a reasonable excuse for what they were doing? Was the fact that they were plane spotters a sufficient safeguard? I hope that the Minister will go away and look again at the matter. Under the amendments, it would be necessary to show clear intent that the information procured will be useful to someone committing or preparing an act of terrorism. We need that sort of clarity in the Bill, and I hope that he will take that on board.
Having read the clause, we see that a person would have a defence if it were proved that he had a reasonable excuse for his action. However, proposed new section 58A will criminalise the collection, making or possession of a record of information that is likely to be useful to a person committing or preparing an act of terrorism. It goes further, using “eliciting”, which means that a person will commit an offence if they try to obtain information and make no record of it. Liberty, for example, argues that that might already be covered under section 1 of the Criminal Attempts Act 1981, which criminalises acts that are more than merely preparatory to the commission of another offence. I would be grateful if the Minister could respond to that point in due course.
I would like to raise one other point. Going back to reasonable excuse, which is important, proposed new section 58A(2) says that if a person charged can prove a reasonable excuse then section 118 of the Terrorism Act 2000 applies. The use of that defence means that, if the defendant produces evidence sufficient to raise an issue, the duty is on the prosecution to prove beyond doubt that the issue exists. That appears to strengthen the defence by placing the burden on the prosecution. However, there is also a restriction to the defence of reasonable excuse—that it will not provide protection to those who act thoughtlessly or carelessly. Would a person who was duped into eliciting information by others—others with terrorist intent—be unlikely to have reasonable excuse? My fear is that that person could thereby be convicted, even if that person carelessly or thoughtlessly had no idea that information was being used with that malicious intent. Will the Minister respond to that point in due course?
I, too, want to express my concern about the clause, and to speak briefly to my amendments Nos. 235 and 236.
There is already an offence under section 58 of the Terrorism Act 2000, which is drawn in pretty broad terms. It states:
“A person commits an offence if...he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or...he possesses a document or record containing information of that kind.”
Clause 69 is not an alternative; it adds to that. My first question is whether clause 69 adds anything to the law as presently stated in section 58 of the Terrorism Act.
Section 103 of the Terrorism Act 2000 explicitly refers to members of the armed forces, among others. That has since been repealed, because it was directed only at Northern Ireland. The clause simply puts the armed forces focus of section 103 into the broader section 58. That is the only reason for it.
When the right hon. Gentleman comes to reply more fully, I would be grateful if he will expand on that. Section 58 seems to cover the substance of what we would be seeking to cover under clause 69. The extent to which clause 69 adds to the substance covered by section 58 is still not clear. That is the first point on which I would be grateful for greater clarification from the Minister.
The second point develops that made by my hon. and learned Friend the Member for Beaconsfield. It is an anxiety that I had about section 58 itself. Section 58 seems to me to be drawn in sufficiently wide terms to cover journalists and whistleblowers. If they identify any defects in our security system—for example, at an airport—they would be liable to prosecution, subject to the statutory defence, under section 58. I agree that clause 69 is more narrowly drawn, but there is a genuine anxiety that whistleblowers and journalists might find themselves facing prosecution if they have identified faults relating to members of the armed forces and then sought to publish them. The point about Jane’s Fighting Ships is rather interesting, provided that it was specific to individuals, but I can well understand that, for example, one might identify errors in the procurement department that resulted in armed servicemen serving in Afghanistan and Iraq not being provided with adequate equipment, or defects in the warning systems. If that information were to be published and personalised, I would have thought that that would run the risk—a serious risk—of courting a prosecution under clause 69.
That takes me to my next point. I do not like reverse burdens of proof, and that is covered in part by amendment No. 236. Clause 69(2) states:
“It is a defence for a person charged with an offence under this section to prove that they had reasonable excuse for their action.”
Will that impose upon a possible defendant the persuasive and legal burden, or will it be merely an evidential burden? The Minister will keep in mind that the courts have applied a variety of approaches to this. Sometimes a clause of this kind does no more than impose an evidential burden so that the defendant has to produce some evidence of reasonable excuse, and it is then for the Crown to negate the reasonable excuse. That is the evidential case.
However, there is also a class of cases—section 91 of the Medicines Act 1968 is an example—in which the reverse burden of proof, which is actually couched in almost identical terms to this, constitutes a legal or persuasive burden. In other words, the defendant has to prove on the balance of probabilities that he or she comes within the defence afforded by the section. I do not know whether what is contemplated by clause 69 is what the courts call the evidential burden, or what they call a legal and persuasive burden. It is important that the Minister give us his opinion on that matter, if only for the guidance of the courts hereafter.
My next point is whether the persuasive burden is on the prospective defendant. I want to enlarge the category of the defences to include those set out in amendment No. 236—in effect, that the defendant had no actual or constructive knowledge that the information and/or disclosure of the same was likely to be of assistance to a terrorist, or alternatively, that at the time of the alleged offence he thought that the disclosure was in the public interest.
The public interest defence that I have incorporated in the amendment is basically intended to assist whistleblowers and journalists. It is right that in certain cases, subject to the views of the jury, a defendant should be allowed to assert, “I thought that there was a public interest in disclosing this information,” and claim that he thought he was identifying serious shortcomings in the armed services, of which the public needed to be aware. That is the explicit purpose of amendment No. 236. Incidentally, I also agree with amendment No. 197, tabled by my hon. and learned Friend, which would make it absolutely plain that the Crown has to prove intent. He is absolutely right to say that that amendment would make it more difficult for the Crown. Too bad, I say. We are not in the business of making it easier for prosecution authorities.
You will remember, Mr. O’Hara, that I did not have the pleasure of attending the Committee’s first sitting when it addressed the Bill. That was because I was involved in a case relating to the Medicines Act 1968, in which it was clear that the Crown had misused its powers and there had been a gross abuse of Executive authority. I fear that precisely that sort of situation could arise in this case.
My hon. Friend is right, but if I have done so, it is the result of poor drafting on my part—I am not a very good draftsman—as that was certainly not my intention. These are separate, free-standing defences. There is the general, reasonable excuse defence, and then I have tried to spell out alternative, specific free-standing defences. If I have erred, I apologise, but it was not my intention.
Rather as when we last met, although I cannot remember which particular clause we were debating, we are collectively guilty of looking at the amendments to this clause, not simply in isolation from the rest of the Bill and from the Terrorism Act 2000 in its full context, but completely in isolation from due process and the rule of law in this country.
The hon. Member for Meirionnydd Nant Conwy came closest to what we should be doing by relating the clause to section 118 and all other matters. The discussion about whistleblowers and journalists is abject nonsense in any terms, unless the researcher for Jane’s then tootles off to a terrorist and gives him the elicited information. That is simply what the clause is about.
As worded, I do not think it is. Anybody who
“elicits or attempts to elicit information about a person who is or has been a member of Her Majesty’s Forces which is of a kind likely to be useful to a person committing or preparing an act of terrorism.”
The next paragraph follows “or”. On the face of it, there is no need to show that somebody has tootled off to talk to a proto-terrorist at all. The problem is that the offence is made out the moment that that information has been elicited or attempts have been made to elicit it.
In the context of terrorism; it will be part of clause 58 of the Terrorism Act, “Collection of information”. Case law is very clear on the matter too. Incidentally, the other small point, which I do not think was the import of any of the amendments, is that this particular offence, which people recognise the propriety of in terms of what we are trying to do for our armed forces, will be on a different footing from the broader issue of collecting information more generally in the Terrorism Act 2000. We will be saying that there is a higher bar, a higher test in terms of eliciting information about our armed forces than there is—as the hon. Member for Meirionnydd Nant Conwy pointed out—in section 58 of the 2000 Act more generally in the collection of information useful for terrorists. I am pretty sure that is not the intent behind the amendment, but that will be its consequence.
I must bring the Minister back to the point that somehow one has to offer or be engaged in some sort of discourse with a terrorist for this offence to bite, and that that is shown by its context after section 58 of the Terrorism Act 2000. Is the right hon. Gentleman saying that this new clause is qualified by other clauses within the Terrorism Act? If it is not, and if it is read as it stands, that is clearly not the case. That is why the amendments, tabled by the hon. and learned Member for Beaconsfield and my hon. Friend the Member for Carshalton and Wallington, are so important.
Go away and read the Bill. Section 117 says very clearly that it is for the DPP to sanction a prosecution in the context of the Terrorism Act 2000 and all of its import and contexts. Then we come to the context of section 118 that the hon. Gentleman referred to, which deals with the reverse burden of proof point and, as the hon. Gentleman implies, the evidential burden is on the prosecution. If the defence says, “I was doing it simply for this reason,” as in our law generally, it is for the prosecution to prove beyond reasonable doubt that that defence is not a reasonable excuse and therefore should be put aside. This is why I told the Committee to read this amendment in the context of both the parent Act and the law more generally.
May I give an example with reference to the earlier mention of the likelihood of a person being convicted when he was duped? Two or three years ago, a constituent of mine, an award-winning novelist in Wales asked me how many police officers and security people there are in the House of Commons. He was writing a novel about the House. Frankly, I ducked the issue. I know that he is not a terrorist, but let us say that, unbeknown to me, he had malicious intent and I had passed information on to him. Would I be caught by the measure?
No, not as I understand it, because there must be a reasonable suspicion that the information was intended to be used to assist terrorism.
With the greatest respect, we do not start from year zero. The law has been on the statute book since 2000, and section 58 has amassed a good deal of case law. Section 103 has been utilised rather sparingly in the context of Northern Ireland. In our business we do not present a clause and then have a paper trail the size of a telephone book just to find the propriety and the roots and the other bits that go around it. That is not how we do business. That is a simplistic approach to Committee, which ill becomes the hon. Gentleman. Our business is to look at a new clause and the amendments in the context of the wider body of law from which it comes.
To pursue the point made by the hon. Member for Meirionnydd Nant Conwy, as soon as he offers up “I had no idea what he was” as a defence, the burden of proof falls on the prosecution to challenge the excuse that is being offered with good reason. It is not a reverse burden of proof either, as the hon. Gentleman himself highlighted in relation to section 118 of the 2000 Act. Section 117 goes to the provenance of which prosecutions should be brought under that case, and it does not have the broad sweep that hon. Members suggest. In R v. K it was shown that there must be reasonable suspicion that the information was intended to be used to assist terrorism. Funnily enough, that is why that provision is in a terrorism Act. That would apply equally to new section 58A—the information must be likely to provide practical assistance to a person committing or preparing terrorism. Case law has been built up since the Act became law.
Regarding one of the other points made by the right hon. and learned Member for Sleaford and North Hykeham, “communicate” is not covered by section 58 nor is “attempt to elicit”, because the provenance of the amendment is specific to section 103 of the 2000 Act, which was subsequently repealed because of the dismantling of the security apparatus and legislation in Northern Ireland. New section 58A will cover a person trying to get information from MOD staff, not to write another little novel or to elicit where nuclear sites are—as Duncan Campbell did in the ’80s. Eliciting information useful to terrorists from MOD staff is not governed by section 58. MOD staff giving a terrorist information about the armed forces is covered by new section 58A. On the broader point, there is only an evidential burden. Crucially, if the defence raises an issue about the individual’s purpose, the prosecution must disprove that beyond reasonable doubt. It says here, in my little note, which is very kindly headed “Welsh guy”, with all due apology to—
I think it means you. It says, “If duped, that is a reasonable excuse”. Depending as always on the circumstances of the case, that can be proffered as a reasonable excuse. There is only an evidential burden on the defence to prove the defence. It is for the prosecution to prove that he did not have that appropriate defence. In that context, all the amendments would undermine what we seek to do with new section 58A in reinforcing section 58. I do not doubt that there might be a substantive argument about section 58 and how that is drawn, but that is not for our deliberations now. Nor do I doubt that there is an argument that section 103, which related to the armed forces in Northern Ireland only, should either not have been repealed or should have been broadened to the UK or left aside totally. In that context, amendments Nos. 197 and 44 would undermine the effectiveness, or efficacitÃ(c), of the offence provided for in clause 69. The insertion of paragraph (b) by amendment No. 236 would add nothing to the statutory defence already included in the clause in terms of legal effect or clarity and is therefore unnecessary.
A person who can show that he did not know and had no reason to know that information or the disclosure of such information was likely to be helpful to a person committing or preparing an act of terrorism would be able to prove that he had a reasonable excuse for his actions. We should remember that, as the hon. Member for Meirionnydd Nant Conwy very kindly pointed out, section 118 of the 2000 Act places the burden on the prosecution to disprove the defence beyond reasonable doubt once an issue has been raised by the defence.
The proposed insertion of paragraph (c) under amendment No. 236 is unacceptable. It would allow the person in question to assert that he believed that the information that he communicated or published was in the public interest, regardless of what it was, regardless of the damaging effects of publishing such information and regardless of how reasonable it was for him to hold that belief. The courts are best placed to assess whether the disclosure was in the overriding public interest and whether an excuse is reasonable in the circumstances of the case.
Amendment No. 198 would undermine section 58 of the 2000 Act for the same reasons. That section has been in force since 2001. Section 5 of the 2000 Act already caters for preparatory acts that are carried out with the intention of assisting another to commit terrorist acts. Section 58 of the 2000 Act and clause 69 provide for wider offences aimed at combating the activities of those whose conduct is likely to assist terrorists. They do not require the prosecution to prove an intention to assist those involved in preparing or committing an act of terrorism. I am advised that the information itself must raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism and to be of a kind that is likely to provide practical assistance to terrorist organisations. As we have discussed, section 58 of the 2000 Act and the clause include statutory defences to protect those who have a reasonable excuse for their actions.
As the hon. and learned Member for Beaconsfield said at the outset, there is good reason for clause 69, and we could go through recent cases where, sadly, members of the armed forces have been targeted. Other hon. Members will know that recent history is littered with such actions. On the basis of the operation of section 103 of the 2000 Act in Northern Ireland, it is perfectly reasonable that this provision is established as a UK-wide power because of the nature of the threat that we face. As we have already firmly established in this Committee, Northern Ireland is part of the UK and it would apply to Northern Ireland as well. Recent activities have shown that the power is still required in that context.
I resist the amendments and urge the Committee to support the clause.
The Minister has been remarkably emollient during the Bill’s passage, which is uncharacteristic, but it was noticeable this morning that he has rather ceased to be so. I do not know whether that is because he has not had his breakfast. When the emollience goes, one is always left wondering whether it is because he feels justifiably outraged at the slurs against the Government in relation to the drafting of the clause, or whether it is because attack is the only form of defence open to him.
However, the Minister has made some important points, the most important of which was the clarification of the requirement of the prosecution to disprove the defence once raised beyond reasonable doubt. I will go away and reflect on whether there is any better way of approaching the wording for this offence. As I said in my opening remarks, I entirely accept that such an offence is almost certainly required. It may well be, as my right hon. and learned Friend the Member for Sleaford and North Hykeham mentioned to me, that any necessary corrections should be made not to the Bill, but to the original section of the Terrorism Act 2000. For those reasons, I beg to ask leave to withdraw the amendment.
I agree with what my hon. and learned Friend has just said. The Minister is quite right when he draws attention to section 118 of the 2000 Act, which makes it plain that the burden is evidential and not persuasive or legal, and that is very helpful. I accept that his criticism of paragraph (c) of my amendment No. 236 is well founded; belief by itself should not constitute a reasonable excuse. On the other hand, publication in the public interest should constitute a reasonable excuse. I am referring here to whistleblowers. The proper way forward, which was outlined by my hon. and learned Friend, is to consider amending section 58 of the 2000 Act. As the Bill amends that Act in many respects, it would be within the scope of a long title to make such an amendment. The best way for people such as myself to proceed is to consider whether we wish to amend section 58 of the 2000 Act on Report. At present, I am minded to seek to do so.
I beg to move amendment No. 164, in page 50, line 6, at end insert—
‘( ) Schedule 8A to this Act contains supplementary provisions relating to the offence under this section.’.
I apologise if I have lost my emollience. It is absolutely to do with not having had breakfast, not enough cigarettes and the fact that I had a bloody awful journey getting here. I did not think that I would get here by 9 o’clock at all because of the traffic. If there is a remote bit of rain in this country, the whole world stands still. However, I should not take that out on the Committee, so I apologise to everyone, including the Welsh guy. [Interruption.] It is not about—
With respect, even I would not be so churlish as to blame the hon. Member for Henley (Mr. Johnson) who has been in post for about 11 days—not yet, anyway.
Another couple of weeks. I agree that although the Committee has dealt with a range of contentious matters, it has done so in very good spirits. I apologise most sincerely and I hope to have my breakfast soon.
Proposed new schedule 8A ensures that the proposed provisions in clause 69, which would insert the additional offence that we have been talking about, are consistent—this is not offered as a red rag to a bull to any Member—with the UK’s commitment under the e-commerce directive 2000/31/EC with regard to services provided by the internet industry. It is a legal requirement and not a change of policy. The schedule ensures that the providers’ information society services that are established in the UK are covered by the offence, even when they are operating in other European economic areas.
Paragraphs 4 to 6 of the new schedule provide limitations of liability for internet intermediaries, and amendments Nos. 164 and 165 and new schedule 3 simply reflect that as a matter of legal provision given our agreement with the directive. It is no more suspicious than that and I commend it to the Committee.