I am grateful to the Minister for setting out the issue of the designated area offence.
Before I turn to that, I join entirely with the Minister in his opening remarks marking the anniversary today of the terrible attacks on the twin towers on 9/11 in 2001, and indeed his remarks about the inquest on the Westminster bridge attack. We all join together in paying tribute to our emergency services, to the first responders in the United States, and to all the families who were affected by those terrible events. Of course, as we debate this legislation today we bear in mind that experience, and indeed the experience of other terror attacks.
I am pleased by and accept what the Minister said in apology for the late arrival of this new clause. I am sure he will appreciate that it was disappointing that we were not able to subject it to scrutiny in Committee, because it would obviously have been more useful had we been able to do so. Of course, that does not mean that we will not want to put it to scrutiny in the other place, and we certainly will do that, but I would have liked to have been a position to give it more scrutiny before today. None the less, I accept that, as legislators, we have to look to deal with the threat that foreign fighters pose to this country when they return, and I am not proposing that the Opposition oppose this measure. However imperfect legislation can be, the rule of law is paramount. If we ever sacrifice the rule of law—if we undermine our own values in dealing with those who seek to destroy them—then we lower ourselves to the level of their barbarism.
I am pleased that, in dealing with this, the Minister has rejected calls to update the law of treason, which, after all, reached our statute book in 1351, has not been
used since 1945, and was meant for a different age. We are also pleased that the Minister has rejected calls simply to dole out justice summarily and arbitrarily, which would undermine the rule of law. Unfortunately, other members of the Government—not least the Defence Secretary, I am afraid, last December—have previously suggested that. I am glad that those courses for dealing with this have clearly been rejected by the Minister.
As the Minister set out, new clause 2 designates in a statutory instrument laid before Parliament an area for the purpose of protecting members of the public from terrorism. In a letter to me, the Minister made it clear that such a statutory instrument would be introduced via the affirmative procedure, so that whenever an area was to be designated, it would be done on the Floor of the House. I hope he can confirm that that will be the case.
As the new clause sets out,
“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area.”
That reasonable excuse defence will be an extremely important safeguard. I also draw attention to what Max Hill QC, the current Independent Reviewer of Terrorism Legislation, said in October 2017:
“those who travelled out of a sense of naivety, possibly with some brainwashing along the way, possibly in their mid-teens and who return in a state of utter disillusionment…we have to leave space for those individuals to be diverted away from the criminal courts.”
Prosecutorial discretion and whether prosecution is in the public interest will, of course, be vital in this area.
While it is essential to deal with this matter by legislation, we will want to look at it in more detail, particularly in the other place. I welcome what the Minister said about being willing to work constructively on this, as he has on other parts of the Bill. We clearly cannot guarantee where future conflicts will take place, but we have to be prepared for those eventualities. We will want to look at the mechanism by which the Home Secretary designates these areas and ensure that we have appropriate safeguards. I am sure that nobody in this House would want to discourage aid workers and other people who we want to be in these areas from going to them. That clearly is not the intention of this law, and we will have to look at how we can ensure that that is the case.
I turn to the issue of seizing flags. In evidence to the Committee, Assistant Commissioner Basu mentioned the absence of this power from the Bill. I have looked carefully at amendment 1, and I am grateful to the Minister for his briefing on the context of how this power will be used. The issue of the sensitivity with regard to Northern Ireland was raised in interventions on the Minister. I am grateful to hear that he has been in contact with the Police Service of Northern Ireland, and I hope that that will continue.
At present, the issue is that police can only seize material with an arrest at the scene. Amendment 1 allows material to be seized where notice is given of a summons—in other words, the person does not have to be arrested at the scene, and a summons can follow within the prescribed six-month period. The person will still have to appear in court, but there will not have been an arrest at the scene. There is a suggestion of the power being used where there is not quite enough evidence to arrest someone at the scene, but I suspect that that would be extraordinarily rare in practice, because if a
flag is in support of a proscribed organisation, it is difficult to see how someone would not be committing a criminal offence in those circumstances.
I tend to see this amendment in terms of how large protests will be managed. This power provides police at the scene with an additional option. It may well be the case that trying to arrest someone at the scene can either cause a public order problem or exacerbate one, and the summons method might be easier. It is not, of course, for us to comment on an operational matter. That would have to be a judgment of the police officer at the scene, but we can set out the framework. I expect that we will have to review how the power works in practice, but it is not my intention to oppose the amendment in principle.
I turn to the Government amendments on the three clicks offence, which has been raised in interventions on the Minister. I raised a number of concerns about this in Committee and tabled a total of five amendments on it. First, let me say that I understand why the law needs to be updated in this area. It was designed for a different internet age, when people tended to download content and watch it. It does not cover those who stream it, and clearly it must cover those who do so. The difficulty in my view is that the three clicks approach simply creates more problems than it solves, and I am grateful to the Minister for listening in that regard.
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However—this point was raised in an intervention by the hon. and learned Member for Edinburgh South West (Joanna Cherry)—research into terrorism and its ideology is obviously hugely beneficial in understanding the reasons why people are drawn into terrorism, if nothing else. We should not be penalising those who conduct legitimate research or investigative journalism, nor should we be penalising legislators, including those on our own Home Affairs Committee who may well wish to look at some of this content over time for particular reports that they are considering.
On the reasonable excuse defence, such a defence was already in the original Act—the Terrorism Act 2000—and it has of course been interpreted by the courts since. In Committee, I asked the Minister to look at amplifying that, if possible. I clearly would not want the Minister to set out in statute every single version of the reasonable excuse defence, because there may well be additional new reasons that the courts will themselves want to interpret, and the courts should have the freedom to do so. However, I wanted the Minister to try to cover what I would describe as inadvertence, where somebody simply clicks on something without any intention of viewing terrorist material.
That is what the new provision being introduced to the Bill will actually do, rather than have the arbitrary three clicks, given that nobody could tell over what period the three clicks were to be made and all the rest of it. This method of taking out the three clicks and amplifying the reasonable excuse defence so that it covers cases where there is no intention to look at terror material, while at the same time keeping all the different aspects of the reasonable excuse defence—journalism, research and other reasons, such as for those conducting investigative journalism—is a better balance than was struck in the original version of clause 3. I am not suggesting for a moment that any piece of legislation is perfect, and the Bill will have its imperfections that the
courts will no doubt pick up when it goes on to our statute book. At the same time, however, we have to try to deal with the issue of streaming, and I think this is a better attempt at doing so than the original version of the clause.
I will turn to the issue of the maximum sentence. A single instance of an increase in the maximum sentence will now be added to the Bill for the offence of failing to disclose information about acts of terrorism. The evidence from the independent reviewer of terrorism legislation was important. On this, I just want to press the Minister on what he said in Committee. He said:
“we have kept the Sentencing Council apprised of the provisions in the Bill, and the chairman has indicated that the council plans to revisit the guidelines once the Bill has completed its parliamentary passage.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 3 July 2018; c. 105.]
It is absolutely vital that the Minister again goes back to the Sentencing Council both about the other increased sentences in the Bill that we have already discussed and, in addition, about this other increased sentence. I hope that the Minister will be able to give an undertaking on that.
Finally, I come to amendment 13, in my name, regarding an independent statutory review of the Prevent programme. Let me make it clear at the outset that I have visited the Prevent programme—I am very grateful to the Minister, who has always assisted me in facilitating such visits, and indeed to the Home Office civil servants, who accompanied me—and I have seen some of the excellent work that goes on. I do not for a moment denigrate the work that is being done to divert people from a life of terrorism to a far more constructive life—that is absolutely to be praised—but I suggest that it is part of good governance regularly to review whether policies are working as they should be, and if improvements can be made on the basis of those reviews, they should be made.
The Minister will of course be aware that concerns have been expressed about the Prevent programme, and these could be considered within the scope of the review. The first concern is with regard to its aims. I have seen the Prevent programme in action in schools, for example, and in dealing with particular individuals. I have heard the previous independent reviewer of the terrorism legislation, David Anderson, speak about it, and I have interviewed people who feel they have benefited from the programme. I would describe that sort of work as the welfarist aspect of Prevent. We have to be clear about its aims, because it is perceived by some communities as an intelligence gathering exercise. If we feel that certain communities have lost confidence in the programme, of course we have to deal with that.
Prevent also has the aim of community cohesion. I have seen some very good work on that within the narrow confines of the programme, but there is concern about whether there is scope for the kind of community cohesion activity that is required, given the swingeing cuts we see to local government services, and specifically to children’s services and youth clubs—something that local authorities have highlighted to me when I have been out looking at Prevent programmes.
I am not saying that there is not excellent work going on as well, but we have to accept that some communities find it difficult to be confident in the programme. In those circumstances, it is sensible and reasonable to want to review it, ensure that it has wide community support,
and make improvements if necessary. That does not undermine the counter-terrorism strategy—far from it; that is about improving it, and about good governance.
In Committee, the Minister spoke about internal reviews of Prevent. Fine, but let us have a full statutory review as well, and make the improvements that are needed to our efforts to tackle counter-terrorism.