Counter-Terrorism and Border Security Bill — House of Lords, 2018-10-09
Topic: Law and Crime
David Anderson (Crossbench, Unknown): My Lords, I congratulate the twin maidens on their enviably assured and elegant speeches. I thank the Minister, noble Lords and the noble Baroness, Lady Barran, for the overly kind comments they addressed to this near-maiden The noble Lord, Lord King, referred ruefully to the number of anti-terrorism laws that have come before this House in recent years. He can perhaps take comfort from the fact that he has not been sitting in the Australian federal Parliament, which last time I checked —on Thursday last week—had passed 74 counterterrorism statutes since 9/11. It was my privilege to assist MI5 and counterterrorism policing last year in drawing the necessary lessons from the atrocities perpetrated in London and Manchester. The most important of those lessons relate to the gathering and processing of intelligence, but it is right to ensure also that our laws are in the best possible shape In support of the Bill on the whole, I will make two comments. First, whatever its faults, it is based on the criminal justice approach to counterterrorism that has served this country so well. Our freedoms are better protected by the common sense of a jury than they are by an expansion in the range or volume of Executive commands such as control orders, and now TPIMs, which are imposed by Ministers and reviewed in court only months after the event and on the basis of evidence that cannot be shown to the subject Secondly, I welcome the conclusion, to which I was reluctantly driven when I was the Independent Reviewer of Terrorism Legislation, that the existing law may not deal sufficiently with radicalisers. Anjem Choudary has been mentioned, with good reason. As many as 25% of British jihadis convicted between 2001 and 2015 were associated with his organisations, outnumbering the 10% linked to al-Qaeda and the 5% linked to ISIS, or Daesh. His organisations also had great influence in northern Europe, yet although the police reported his activities to the Crown Prosecution Service 10 times between 2002 and 2015, no prosecution could be brought, whether for incitement to religious hatred, indirect encouragement to terrorism, inciting terrorism overseas, incitement to murder or proscription offences. In my mind, his eventual conviction in 2016 does not excuse us from seeking to improve the law in this area The Bill has some troubling features. I will refer to three of them which have so far been touched on only lightly or not at all. The first relates to proscription offences, which are supplemented or strengthened in Clauses 1, 2, 6 and 9 to 11. Whatever the merit in extending these offences, we should do so only if we can be sure that proscribed organisations are proscribed lawfully because they are, in the words of the Terrorism Act 2000, "concerned in terrorism". Unfortunately, we have no such certainty; rather, the reverse. In 2013, the Home Office admitted to me that up to 14 proscribed international terrorist groups did not appear to be lawfully proscribed. It allowed me to publish the fact and commenced a programme of deproscription, but as I recorded in my report of December 2016, that initial honourable resolve on the part of the then Home Secretary soon foundered, I suspect under the influence of another great department of state. So it is likely that at least 14 international groups remain proscribed despite not meeting the statutory requirements for proscription We do not know how many of the 14 Northern Irish groups, every one of which has been proscribed continuously throughout this century, are in the same position. There, as the Committee on the Administration of Justice pointed out, the flags of proscribed organisations fly everywhere and their symbols cover memorials, appear on gable walls and decorate banners hanging from lamp posts. The law is applied to them only partially and occasionally, inadvertently injecting an unwanted political element into the exercise of police and prosecutorial discretions. It is true that proscribed organisations are eligible to seek deproscription, but this is a rarely invoked and extremely costly process, as was shown by the PMOI case—the only one in which such an application has ever gone to trial Then, to make it worse, the Government abandoned the regular reviews that they used to conduct until 2013, despite those reviews having been described by a High Court judge in the PMOI case as, "certainly a practice that the Secretary of State should continue to adopt" As I wrote at the time, they seem to have discontinued these reviews out of embarrassment at their own inability to act on their conclusions It is surely unjust to expose a person to prosecution for a proscription-related offence when the organisation that he or she is said to support does not meet the statutory conditions for proscription. There are solutions to this, but would the Minister accept in the meantime that we are confronted with a tricky problem that is exacerbated rather than relieved by the Bill My second point, much more briefly, is on Clause 4, which would create the so-called designated area offence. I was quoted on Report in another place as a vigorous opponent of this idea, but, to set the record straight, the comments in question came from my former special adviser Professor Clive Walker and, despite their distinguished source, were never adopted by me. But some of his words at least ring true. I have spoken, as I know others have, to organisations and individuals engaged in humanitarian and peacebuilding activity in conflict zones who are not at all reassured by the discretions that Clause 4 would confer on the Secretary of State and prosecutors. The Government have cited Australian and Danish precedents for this law, so I hope that the Minister will consider adopting either some more precise conditions for designation and defences, as in Australia, or a pre-authorisation regime, as in Denmark, or both My third point is on the new Schedule 3 port power. When I was independent reviewer I noted that, over a five-year period, between 13% and 25% of all intelligence reports resulting from stops under the existing Schedule 7 were concerned not with terrorism, which is the object of Schedule 7, but with nuclear proliferation or espionage. Ports officers sometimes expressed to me their unease at being invited to stop people who could be described as possible terrorists only on the most elastic interpretation of that already broad definition. The case of David Miranda is a well publicised example I am glad that the object of the Schedule 7 power is being extended to counterproliferation and counter- espionage, but the Schedule 3 powers do not stop there. It is proposed that they might be used to determine whether a person appears to have engaged in "hostile activity", including acts that threaten the economic well-being of the country in the interests of a foreign state, whether or not those acts constitute criminal offences. That is far too broad a basis on which to allow these extremely extensive no-suspicion powers to be exercised. Then there are the additional powers exercisable at the Irish border under paragraph 2 of Schedule 3, which will also need to be elucidated. Each of my three points echoes concerns expressed by the Supreme Court in the 2013 case of R v Gül about the very broad discretions already given in this area to prosecutors and to police. In particular, the court warned against Parliament delegating to the DPP or to the Attorney-General the power to decide whether an activity should be treated as criminal for the purpose of prosecution. That, as the Supreme Court puts it, leaves citizens unclear whether their actions or projected actions will be judged to be criminal and risks undermining the rule of law. I do not wish to embarrass the noble and learned Lord, Lord Hope, but he put his name to that judgment I will keep those comments in mind throughout our scrutiny of this important Bill. Flexibility is useful, but when behaviour is criminalised we all need to know where the line is drawn.