Formal Minutes
Monday 14th November 2005
Members present:
Mr Andrew Dismore MP, in the Chair
| Lord Bowness
Lord Judd
Lord Plant of Highfield
Baroness Stern
| Mr Douglas Carswell MP
Mary Creagh MP
Dr Evan Harris MP
Dan Norris MP
Mr Richard Shepherd MP
|
Draft Report [Counter-terrorism policy and human rights: Terrorism
Bill and related matters], proposed by the Chairman, brought up
and read.
Ordered, That the draft Report be read a second time, paragraph
by paragraph.
Paragraphs 1 to 8 read and agreed to.
Paragraphs 9 to 12 read, amended and agreed to.
Paragraph 13 read, as follows:
"In letters of 25 October to the Chairman of
the Commons Home Affairs Committee and the front-bench spokesmen
of the two main Opposition parties, the Home Secretary set out
the difficulties he saw with establishing an alternative and narrower
definition of terrorism which could, for example, concentrate
on attacks on civilians, concluding that it was necessary to stick
with the definition in the 2000 Act. It remains the case that
the breadth of this definition raises a number of problems in
relation to provisions of the Terrorism Bill and related matters,
particularly in relation to the proposed new offence of encouragement
and glorification of terrorism in clause 1, the new power to proscribe
organisations in clause 21, and the list of unacceptable behaviours
which the Home Secretary has adopted to guide the exercise of
his discretion to exclude or deport. The Home Secretary has
announced that he has invited Lord Carlile to undertake a review
of the definition of "terrorism", consulting parliamentary
committees as appropriate. We welcome this initiative."
Amendments made.
Another Amendment proposed, in line 10, after the
word "deport." to insert the words "We share
the concerns of those who believe that the 2000 Act definition
of terrorism is too wide, especially when it relates to speech
offences and prior restraint"—(Dr Evan Harris.)
Question proposed, That the Amendment be made:—Amendment,
by leave, withdrawn.
Another Amendment proposed, in line 12, to leave
out the word "this initiative" and insert the
words "strongly this initiative, and hope it will be seen
as a priority"—(Baroness Stern.)
Question proposed, That the Amendment be made:—Amendment,
by leave, withdrawn.
Another Amendment made.
Another Amendment proposed, in line 12, at the end,
to insert the words "However we believe that the definition
of terrorism—for the purposes of the provisions identified
in this paragraph—needs to be changed in order to avoid
a high risk of such provisions being found to be incompatible
with Article 10 of ECHR and related Articles"—(Dr
Evan Harris.)
Question put, That the Amendment be made.
The Committee divided.
|
Content, 7
Lord Bowness
Mr Douglas Carswell MP
Dr Evan Harris MP
Lord Judd
Lord Plant of Highfield
Mr Richard Shepherd MP
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph, as amended, agreed to.
Paragraph 14 read and agreed to.
Paragraph 15 read, amended and agreed to.
Paragraph 16 read and agreed to.
A paragraph — (The Chairman) —
brought up, read the first and second time, amended and added
(now paragraph 17).
Paragraphs 17 to 19 (now paragraphs 18 to 20) read,
amended and agreed to.
Paragraphs 20 to 26 (now paragraphs 21 to 27) read
and agreed to.
Paragraph 27 (now paragraph 28) read.
Amendments made.
Question put, that the paragraph, as amended, stand
part of the Report.
The Committee divided.
|
Content, 7
Lord Bowness
Mr Douglas Carswell MP
Dr Evan Harris MP
Lord Judd
Lord Plant of Highfield
Mr Richard Shepherd MP
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph 28 (now paragraph 29) read, as follows:
"Another source of legal uncertainty about the scope of the
new offence is the breadth of the definition of "terrorism"
for the purposes of the new offence. The Government accepts that
the effect of the clause as drafted is to criminalise expressions
of support for the use of violence as a means of political change
anywhere in the world, but defends the offence having this scope
on the basis that there is nowhere in the world today where resort
to violence, including violence against property, could be justified
as a means of bringing about change."
Amendment made.
Another Amendment proposed, in line 6, at the end,
to add the words "This argument is far from convincing and
there are plenty of historical examples and indeed some present
day resistance movements whose aims and acts—where they
are targeted at sabotage—which have been justified and indeed
supported by individuals who would not be considered to be encouraging
terrorism currently but yet would be potentially liable to prosecution
under the terms of this offence." —(Dr Evan Harris.)
Question put, that the Amendment be made.
The Committee divided.
|
Content, 7
Lord Bowness
Mr Douglas Carswell MP
Dr Evan Harris MP
Lord Judd
Lord Plant of Highfield
Mr Richard Shepherd MP
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph, as amended, agreed to.
A paragraph — (Baroness Stern.) — brought up,
and read, as follows:
". We note that the Muslim Community Security
Working Group has expressed concern at the inclusion of "glorification
of terrorism" in the new offence. In particular, the Working
Group considers that its "breadth and vagueness" could
lead to a "significant chill factor" in the Muslim community
in expressing legitimate support for self-determination struggles
around the world and in using legitimate concepts and terminology
because of fear of being misunderstood and implicated for terrorism
by authorities ignorant of Arabic/Islamic vocabulary, e.g. a speech
on "jihad" could easily be misunderstood as "glorifying
terrorism". The Working Group believes that this would not
only result in an inappropriate restriction on the practice of
Islam but also on its development in the present context."
Question proposed, that the paragraph be read a second
time:—Paragraph, by leave, withdrawn.
Paragraph 29 (now paragraph 30) read, as follows:
"The final source of uncertainty about the scope
of the offence stems from the lack of any requirement in the definition
of the offence that there be an intention to incite the commission
of a terrorist offence, and that the statement must cause a danger
of a terrorist offence being committed. As presently drafted,
the state of mind which must be proved by the prosecution is knowledge
or belief that members of the public are likely to understand
the statement as a direct or indirect encouragement or other inducement
to acts of terrorism, or having reasonable grounds for such belief.
This arguably falls short of a requirement of a specific intention
to incite the commission of a terrorist offence. The only reason
given by the Home Secretary for not including a requirement of
intent in the definition of the offence is that this would make
it more difficult to secure convictions for the offence. That
is true, but is a reason for its inclusion as a necessary safeguard
against the offence being of too broad an application. The definition
of the offence could be improved by a requirement to prove either
specific intent to incite terrorist acts or subjective recklessness
about doing so (that is, knowing or being indifferent to the likelihood
that one's statement would be understood as an encouragement to
terrorism)."
Motion made, to leave out the paragraph and insert
the following new paragraph:
". In the Bill as introduced, the final source
of uncertainty about the scope of the offence stemmed from the
lack of any requirement in the definition of the offence that
there be an intention to incite the commission of a terrorist
offence, and that the statement must cause a danger of a terrorist
offence being committed. As originally drafted, the state of mind
which had to be proved by the prosecution was knowledge or belief
that members of the public were likely to understand the statement
as a direct or indirect encouragement or other inducement to acts
of terrorism, or having reasonable grounds for such belief. This
arguably fell short of a requirement of a specific intention to
incite the commission of a terrorist offence. The only reason
given by the Home Secretary for not including a requirement of
intent in the definition of the offence was that this would make
it more difficult to secure convictions for the offence. At report
stage in the Commons, an amendment to clause 1 was made to the
effect that the state of mind to be proved by the prosecution
is that the person publishing a statement or causing it to be
published by another "intends the statement to be understood"
by members of the public as a direct or indirect encouragement
or other inducement to acts of terrorism, or is "reckless
as to whether or not it is likely to be so understood". The
cases in which a person is taken to be reckless include "any
case in which he could not reasonably have failed to be aware
of that likelihood". This formulation is an improvement over
the original wording of the Bill and an additional safeguard against
the offence being of too broad an application. At Commons report
stage the Minister, Hazel Blears MP, said that "If we have
only a subjective test, people will be able to say that they did
not realise what the effect of their actions would be. We would
then find it incredibly difficult to prosecute people who genuinely
were encouraging other people, indirectly, to commit terrorist
acts". While we consider it would be preferable for the
Bill to contain a subjective test of recklessness (that is, knowing
or being indifferent to the likelihood that one's statement would
be understood as an encouragement to terrorism), rather than the
objective test currently contained in it, we consider that the
clause as it now stands is more legally certain as a result of
this amendment." —(The Chairman.)
Ordered, That the paragraph
be read a second time.
Amendment made.
Another Amendment proposed, in line 2, to leave out
the words from "from" to "an" and insert the
words "its failure to be restricted to occasions where there
is."—(Dr Evan Harris.)
Question proposed, That the Amendment be made:—
Amendment, by leave, withdrawn.
Other Amendments made.
Another Amendment proposed, in line 11, to leave
out from the word "offence." to the end of the proposed
new paragraph.—(Dr Evan Harris.)
Question put, that the Amendment be made.
The Committee divided.
Content, 6
Lord Bowness
Mr Douglas Carswell MP
Dr Evan Harris MP
Lord Judd
Mr Richard Shepherd MP
Baroness Stern
| Not Content, 4
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
Lord Plant of Highfield
|
Paragraph, as amended, inserted (now paragraph 30).
A paragraph — (Dr Evan Harris) —
brought up, and read, as follows:
". In other words the Home Secretary's own justification
for that wording is in itself a key reason for it to be amended."
Question proposed, That the paragraph be read a second
time:— Paragraph, by leave, withdrawn.
Another paragraph — (Dr Evan Harris)
— brought up, and read, as follows:
". We consider that the Bill should require
a subjective test of recklessness to be proved, as an alternative
to intent, if the Bill is to satisfy the need for legal certainty
in this respect. As a general rule, every crime requires a
mental element, the nature of which depends on the nature and
definition of the crime in question. The burden is upon the prosecution
to prove the necessary criminal intent. The mental element required
to constitute serious crimes is an intention to bring about the
elements of the crime in question or recklessness. Recklessness
arises in this context where the act in question involves an obvious
and serious risk of causing injury or damage and either (1) the
defendant fails to give any thought to the possibility of there
being such a risk, or (2) having recognised that there is some
risk involved, he nonetheless goes on to take it."
Question put, that the paragraph be read a second
time.
The Committee divided.
|
Content, 7
Lord Bowness
Mr Douglas Carswell MP
Dr Evan Harris MP
Lord Judd
Lord Plant of Highfield
Mr Richard Shepherd MP
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph inserted (now paragraph 31).
Another paragraph — (Dr Evan Harris) — brought
up, and read, as follows:
". The above paragraph describes a test of subjective
recklessness. At report stage in the Commons, an amendment, proposed
by the Government, to clause 1 was made to the effect that the
state of mind to be proved by the prosecution is that the person
publishing a statement or causing it to be published by another
"intends the statement to be understood" by members
of the public as a direct or indirect encouragement or other inducement
to acts of terrorism, or is "reckless as to whether or not
it is likely to be so understood". The cases in which a person
is taken to be reckless include "any case in which he could
not reasonably have failed to be aware of that likelihood".
This formulation is claimed by the Government to be a significant
improvement over the original wording of the Bill and a safeguard
against the offence being of too broad an application. However
it does not represent a subjective test of recklessness, but an
objective test. It can be argued that such a test actually provides
little narrowing of the application of the offence compared to
the original wording. At Commons report stage the Minister, Hazel
Blears MP, said that "If we have only a subjective test,
people will be able to say that they did not realise what the
effect of their actions would be. We would then find it incredibly
difficult to prosecute people who genuinely were encouraging other
people, indirectly, to commit terrorist acts".
Question put, that the paragraph be read a second
time.
The Committee divided.
|
Content, 6
Lord Bowness
Dr Evan Harris MP
Lord Judd
Lord Plant of Highfield
Mr Richard Shepherd MP
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph inserted (now paragraph 32).
Another paragraph — (Dr Evan Harris) — brought
up, and read, as follows:
". We consider it necessary for this offence
either to be restricted to intention or—if it is to be extended
beyond intention—that it should be extended only to recklessness;
and if it is so extended it should contain a subjective test of
recklessness (that is, knowing or being aware of but indifferent
to the likelihood that one's statement would be understood as
an encouragement to terrorism), rather than the objective test
currently contained in it."
Question put, that the paragraph be read a second
time.
The Committee divided.
|
Content, 6
Lord Bowness
Dr Evan Harris MP
Lord Judd
Lord Plant of Highfield
Mr Richard Shepherd MP
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph inserted (now paragraph 33).
Ordered, That further consideration of the Chairman's draft
Report be now adjourned. — (The Chairman.)
*******
[Adjourned till Monday 21 November at 3pm.
______________________________________
Monday 28th November 2005
Members present:
Mr Andrew Dismore MP, in the Chair
|
Lord Bowness
Lord Campbell of Alloway
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
| Mr Douglas Carswell MP
Mary Creagh MP
Dr Evan Harris MP
Dan Norris MP
Mr Richard Shepherd MP
|
Consideration of the Chairman's Draft Report resumed.
Paragraph 30 (now paragraph 34) read, amended and agreed to.
A paragraph — (Lord Lester of Herne Hill)
— brought up, read the first and second time, amended and
added (now paragraph 35).
Paragraph 31 (now paragraph 36) read, as follows:
". As drafted, we consider that the offence
in clause 1 is not sufficiently legally certain to satisfy the
requirement in Article 10 that interferences with freedom of expression
be "prescribed by law" because of (i) the vagueness
of the glorification requirement, (ii) the breadth of the definition
of "terrorism" and (iii) the lack of any requirement
of intent to incite terrorism or likelihood of such offences being
caused as ingredients of the offence. To make the new offence
compatible, it would in our view be necessary to delete the references
to glorification, insert a more tightly drawn definition of terrorism,
and insert into the definition of the offence requirements of
intent and likelihood."
Amendment made.
Another Amendment proposed, in line 1, to leave out
the word "is" and insert the words "may
still not be".—(The Chairman.)
Question put, That the Amendment be made.
The Committee divided.
Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
| Not Content, 8
Lord Bowness
Lord Campbell of Alloway
Mr Douglas Carswell
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Mr Richard Shepherd MP
Baroness Stern
|
Another Amendment proposed, in line 4, to leave out the words
"the lack of any" and insert the words "its
failure to be restricted to".—(Dr Evan Harris.)
Question put, That the Amendment be made.
The Committee divided.
|
Content, 4
Lord Bowness
Dr Evan Harris MP
Lord Lester of Herne Hill
Baroness Stern
| Not Content, 5
Lord Campbell of Alloway
Mr Douglas Carswell MP
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Another Amendment proposed, in line 4, after the word "intent"
to insert the words ", including perhaps recklessness
with a subjective test only,".—(Dr Evan Harris.)
Question put, That the Amendment be made.
The Committee divided.
|
Content, 4
Lord Bowness
Dr Evan Harris MP
Lord Lester of Herne Hill
Baroness Stern
| Not Content, 5
Lord Campbell of Alloway
Mr Douglas Carswell MP
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph, as amended, agreed to.
Another paragraph — (Lord Judd) — brought up,
and read, as follows:
".In this context we consider that the doubts
of those witnesses who questioned the unqualified argument that
there is nowhere in the world today where resort to violence,
including violence against property, could be justified as a means
of bringing about change cannot be dismissed out of hand. While
the argument as stated refers to "today", the legislation
is not limited to such a time frame. We observe that the argument
could also have significant implications for foreign policy."
Question put, that the paragraph be read a second
time.
The Committee divided.
|
Content, 6
Lord Bowness
Mary Creagh MP
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
| Not Content, 3
Mr Andrew Dismore MP
Dan Norris MP
Mr Richard Shepherd MP
|
Paragraph inserted (now paragraph 37).
Paragraphs 32 to 34 (now paragraphs 38 to 40) read and agreed
to.
Paragraph 35 (now paragraph 41) read, amended and
agreed to.
Another paragraph — (Lord Judd) —
brought up, and read, as follows:
".Subject to our recommendations at paragraph
36 being incorporated into the Bill, it is unlikely that the Bill
would be incompatible with Article 5 of the Convention on the
Prevention of Terrorism."
Question put, that the paragraph be read a second
time.
The Committee divided.
|
Content, 2
Mr Andrew Dismore MP
Lord Judd
| Not Content, 8
Lord Bowness
Lord Campbell of Alloway
Mr Douglas Carswell MP
Mary Creagh MP
Dr Evan Harris MP
Lord Lester of Herne Hill
Dan Norris MP
Mr Richard Shepherd MP
|
Paragraphs 36 to 39 (now paragraphs 42 to 45) read and agreed
to.
Paragraph 40 (now paragraph 46) read, amended and agreed to.
Paragraph 41 (now paragraph 47) read and agreed to.
Another paragraph — (Dr Evan Harris)
— brought up, read the first and second time, and added
(now paragraph 48).
Paragraph 42 (now paragraph 49) read, amended and
agreed to.
Paragraphs 43 to 49 (now paragraphs 50 to 56) read
and agreed to.
Another paragraph — (Dr Evan Harris)
— brought up, read the first and second time, and added
(now paragraph 57).
Paragraph 50 (now paragraph 58) read and agreed to.
Paragraph 51 (now paragraph 59) read, as follows:
". Criminalising mere attendance at a place
used for terrorist training appears to us to be disproportionate,
and in order to be compatible with Article 10 ECHR we consider
it would be necessary to qualify the scope of the new offence,
for example by introducing a requirement of intent to receive
training."
Amendment proposed, in line 3, to leave out from
the word "example" to the end of line 4 and insert
the words "by requiring an intention to use the training
for terrorist purposes".—(Baroness Stern.)
Question put, That the Amendment be made.
The Committee divided.
|
Content, 8
Lord Bowness
Lord Campbell of Alloway
Mr Douglas Carswell MP
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Mr Richard Shepherd
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph, as amended, agreed to.
Paragraphs 52 and 53 (now paragraphs 60 and 61) read and agreed
to.
Another paragraph — (Lord Lester of Herne
Hill) — brought up, and read, as follows:
". The interference with freedom of expression
through a prior restraint demands a very high level of justification,
as has long been recognised in the common law of libel. The European
Court has emphasised that prior restraints upon expression require
the most careful scrutiny. The same applies to freedom of assembly.
The fundamental problem with prior restraint is that self-censorship
is required in order to avoid prosecution, and this particularly
applies to the proscription of organisations."
Question put, that the paragraph be read a second
time.
The Committee divided.
|
Content, 6
Lord Bowness
Mr Andrew Dismore MP
Dr Evan Harris MP
Lord Lester of Herne Hill
Mr Richard Shepherd MP
Baroness Stern
| Not Content, 2
Lord Campbell of Alloway
Mr Douglas Carswell MP
|
Paragraph inserted (now paragraph 62).
Paragraph 54 (now paragraph 63) read and agreed to.
Paragraph 55 (now paragraph 64) read, amended and
agreed to.
Paragraphs 56 to 63 (now paragraphs 65 to 72) read
and agreed to.
Paragraph 64 (now paragraph 73) read, amended and
agreed to.
Paragraph 65 (now paragraph 74) read and agreed to.
Paragraphs 66 to 69 (now paragraphs 75 to 78) read,
amended and agreed to.
Paragraphs 70 to 73 (now paragraphs 79 to 82) read
and agreed to.
Paragraph 74 (now paragraph 83) read, as follows:
". By contrast, none of the NGOs from which
we received or heard evidence considered the case to have been
made out for the proposed extension of pre-charge detention. Liberty
accepted that there may be circumstances where the police feel
they need to act sooner against suspects because of the nature
of the offences they are dealing with, but considered that more
appropriate and proportionate ways of meeting the police's concerns
are available, including by providing the police and security
services with additional resources, relaxing the ban on the admissibility
of intercept evidence, bringing lesser charges while continuing
to investigate more serious terrorist allegations, amending the
PACE Codes to allow interviews to take place after charge where
new forensic evidence becomes available and there are legitimate
questions to put to a suspect, and introducing conditional bail
to enable stringent conditions to be attached to police bail in
terrorism cases. They were also concerned that the justifications
relied on by the police apply equally to other types of criminal
investigation. The Law Society had similar concerns and was also
opposed to any extension of the period of pre-charge detention."
Amendment proposed, in line 14, at the end, to add
the words "We note that the Muslim Community Security Working
Group has expressed the view that, rather than extending the period
of pre-trial detention, the police should concentrate on improving
their intelligence "whose failures have led to huge resentment
on the part of the Muslim community"".—(Lord
Lester of Herne Hill.)
Question proposed, That the Amendment be made:—
Amendment, by leave, withdrawn.
Paragraph agreed to.
Paragraph 75 (now paragraph 84) read and agreed to.
Paragraphs 76 and 77 (now paragraphs 85 and 86) read,
amended and agreed to.
Paragraph 78 (now paragraph 87) read.
Amendments made.
Question put, That the paragraph, as amended, stand
part of the Report.
The Committee divided.
|
Content, 6
Lord Bowness
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Mr Richard Shepherd
Baroness Stern
| Not Content, 4
Lord Campbell of Alloway
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Another paragraph — (The Chairman) — brought
up, and read, as follows:
". In the event, the House of Commons concluded that a
maximum of 28 days would be an appropriate extension. Subject
to the recommendations we make below of additional guarantees
and safeguards, we regard the 28 day maximum period as less likely
to be incompatible with the UK's obligations under the Convention."
Question put, that the paragraph be read a second
time.
The Committee divided.
Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
| Not Content, 7
Lord Bowness
Lord Campbell of Alloway
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Mr Richard Shepherd MP
Baroness Stern
|
Paragraphs 79 and 80 (now paragraphs 88 and 89) read, amended
and agreed to.
Paragraph 81 (now paragraph 90) read.
Amendments made.
Question put, That the paragraph, as amended, stand
part of the Report.
The Committee divided.
|
Content, 7
Lord Bowness
Mary Creagh MP
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Mr Richard Shepherd
Baroness Stern
| Not Content, 2
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph 82 (now paragraph 91) read.
Question put, That the paragraph stand part of the Report.
The Committee divided.
|
Content, 6
Lord Bowness
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Mr Richard Shepherd
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph 83 (now paragraph 92) read.
Question put, That the paragraph stand part of the Report.
The Committee divided.
|
Content, 5
Lord Bowness
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraphs 84 to 86 (now paragraphs 93 to 95) read and agreed
to.
Paragraph 87 (now paragraph 96) read, amended and agreed to.
Paragraph 88 (now paragraph 97) read and agreed to.
Paragraph 89 (now paragraph 98) read, amended and
agreed to.
Paragraph 90 (now paragraph 99) read, as follows:
". In the meantime, bearing in mind that
what is at stake is individual liberty, in our view, any increase
beyond the current 14 day maximum would at the very least require
amendment of the relevant provisions of the Terrorism Act 2000
which currently enable detention to be extended in the absence
of the detainee or his or her legal representative and on the
basis of material not available to them. These two procedural
deficiencies should be remedied. Whether there should be nothing
less than a full adversarial hearing before a judge when deciding
whether further detention is necessary, subject to the usual approach
to public interest immunity at criminal trials, including when
necessary the use of a special advocate procedure when determining
whether a claim to public interest immunity is made out, is a
question which we think needs further consideration and to which
we plan to return in a later report."
Amendment proposed, in line 4, to leave out from
the word "of" to the word "Whether"
in line 6 and to insert the words "legal representation
on behalf of the detainee".—(The Chairman.)
Question put, That the Amendment be made.
The Committee divided.
|
Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
| Not Content, 6
Lord Bowness
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Mr Richard Shepherd MP
Baroness Stern
|
Another Amendment proposed, in line 6, to leave out the word "Whether"
and to insert the words "We consider that".—(Lord
Lester of Herne Hill.)
Question put, That the Amendment be made.
The Committee divided.
|
Content, 6
Lord Bowness
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Mr Richard Shepherd
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Another Amendment made.
Question put, That the paragraph stand part of the Report.
The Committee divided.
|
Content, 6
Lord Bowness
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Mr Richard Shepherd
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph 91 (now paragraph 100) read, amended and agreed to.
Another paragraph — (Lord Judd) — brought up,
and read, as follows:
".We consider that these issues surrounding
an extension of pre-charge detention are an illustration of avoiding
the damages of counter-productivity to which we refer in paragraph
9."
Question put, that the paragraph be read a second
time.
The Committee divided.
|
Content, 7
Lord Bowness
Mary Creagh MP
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Mr Richard Shepherd
Baroness Stern
| Not Content, 2
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph inserted (now paragraph 101).
Another paragraph — (Mary Creagh) — brought
up, read the first and second time, and added (now paragraph 102).
Paragraph 92 (now paragraph 103) read and agreed
to.
Paragraph 93 (now paragraph 104) read, amended and
agreed to.
Paragraph 94 (now paragraph 105) read and agreed
to.
Another paragraph — (Dr Evan Harris)
— brought up, and read, as follows:
". Second, the Government has indicated this
new list of unacceptable behaviours will be a basis for the use
of powers it is taking in the Immigration, Asylum and Nationality
Bill, to deprive individuals of British citizenship, to deprive
individuals of the Right to Abode, to deny individuals previously
able—in fact entitled—to claim British citizenship
by registration of such citizenship. The test for the use of such
powers will be (and in some cases the test has been reduced to)
a low one of conduct not conducive to the public good. While we
cover these aspects in more detail in chapter 4, it is important
to note the read across from the list of unacceptable behaviours.
Individuals subject to these powers will in most cases subsequently
be liable for deportation for conduct covered by the list of unacceptable
behaviours. Indeed a British citizen with dual nationality may
be stripped of citizenship (or a settled Commonwealth citizen
be deprived of the right of abode) and then deported for the same
act falling within the list of unacceptable behaviours."
Question put, That the paragraph be read a second
time.
The Committee divided.
|
Content, 6
Lord Bowness
Mary Creagh MP
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
| Not Content, 1
Dan Norris MP
|
Paragraph inserted (now paragraph 106).
Paragraphs 95 and 96 (now paragraphs 107 and 108) read, amended
and agreed to.
Paragraphs 97 to 99 (now paragraphs 109 to 111) read
and agreed to.
Paragraph 100 (now paragraph 112) read, as follows:
". The Home Secretary's power to exclude or
deport from the UK on the ground that a person's presence in the
UK is not conducive to the public good is an extremely broad power.
Particularising behaviours which will be regarded as being "not
conducive to the public good" is in principle to be welcomed
from a human rights perspective as capable of enhancing legal
certainty about the exercise of a very broadly worded power capable
of interfering with a number of different human rights."
Amendment proposed, in line 6, at the end, to add
the words "However the list is described as indicative and
not limited, and this was confirmed by the Home Secretary in his
oral evidence and in practice therefore the advantages in respect
of certainty of such a list may be limited."—(Dr
Evan Harris.)
Question proposed, That the Amendment be made:—
Amendment, by leave, withdrawn.
Paragraph agreed to.
Paragraph 101 (now paragraph 113) read, amended and
agreed to.
Paragraphs 102 and 103 (now paragraphs 114 and 115)
read and agreed to.
Paragraph 104 (now paragraph 116) read, as follows:
". The first concern is whether the phrase "fomenting,
justifying or glorifying terrorist violence in furtherance of
particular beliefs" is sufficiently precisely defined, bearing
in mind the likely impact on legitimate public debate about the
causes of terrorism, and therefore on freedom of expression. As
we reported above in relation to the proposed new offence of encouragement
of terrorism, it is clear from the Strasbourg case-law that restrictions
on indirect incitement to commit terrorist acts is not in principle
incompatible with the right to freedom of expression in Article
10 ECHR. Compatibility with Article 10, however, will depend on
the precise wording of the restriction in question, and in particular
whether it is sufficiently precisely defined to ensure that it
does not disproportionately stifle legitimate debate."
Amendment proposed, in line 9, after the word "defined"
to insert the words "and narrow in its scope."—(Dr
Evan Harris.)
Question proposed, That the Amendment be made:—
Amendment, by leave, withdrawn.
Paragraph agreed to.
Paragraph 105 (now paragraph 117) read, as follows:
". The phrase "fomenting, justifying or
glorifying terrorist violence" on the list of unacceptable
behaviours justifying deportation in our view suffers from the
same legal uncertainty as afflicts the criminal offence of encouragement
and glorification in clause 1 of the Bill. Fomenting is probably
sufficiently certain in its own right, carrying with it as it
does connotations of deliberate incitement or stirring up. "Justifying"
or "glorifying", however, have no such clear meaning.
The reasons why the term "glorify" does not satisfy
the requirements of legal certainty are set out above in the context
of clause 1 of the Bill and in our view apply equally here. "Justifying"
terrorist violence, however, is not part of the offence of encouragement
of terrorism, but it is part of the list of unacceptable behaviours.
On the face of it, it appears to be much broader in scope than
any of the terms used in clause 1. Indeed, the Home Secretary's
distinction, in the context of clause 1, between encouraging and
glorifying on the one hand and explaining or understanding on
the other, cannot apply to the term "justify", since
explaining or understanding can be seen as a form of justifying.
In addition to the vagueness of the notions of justifying and
glorifying, the list of unacceptable behaviours uses the definition
of "terrorism" which has been criticised above for being
too broad."
Amendment proposed, in line 5, to leave out the words
""Justifying" or "glorifying", however,
have no such" and insert the words ""Glorifying"
has less".—(The Chairman.)
Question put, That the Amendment be made.
The Committee divided.
Content, 2
Mr Andrew Dismore MP
Dan Norris MP
| Not Content, 5
Lord Bowness
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
|
Other Amendments made.
Question put, that the paragraph, as amended, stand part of the
Report.
The Committee divided.
|
Content, 6
Lord Bowness
Mary Creagh MP
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
| Not Content, 2
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraphs 106 and 107 (now paragraphs 118 and 119) read, amended
and agreed to.
Paragraphs 108 and 109 (now paragraphs 120 and 121) read and agreed
to.
Paragraph 110 (now paragraph 122) read, as follows:
". This issue is therefore one of the most pressing
as action is already being taken to implement the new approach
in respect of a number of individuals who are currently being
detained and who face deportation to countries where there is
a risk of torture. It is also an issue on which public debate
has become polarised. JUSTICE, Amnesty, the Law Society, Human
Rights Watch, Redress and the Medical Foundation for the Care
of Victims of Torture all express their "serious concerns"
over deportations on the basis of diplomatic assurances, primarily
on the ground that they circumvent the absolute obligation of
non-refoulement, that is, not to return people to countries
where there is a substantial risk that they will be tortured.
JUSTICE criticise the Memorandum of Understanding with Jordan
as providing no effective protection for the rights of the returned
person, and doubt that a British court would accept as a sufficient
guarantee assurances from countries where there is evidence of
the repeated use of torture by the authorities. Amnesty says that
such assurances are not worth the paper they are written on because
the Governments concerned have demonstrated that they do not take
their obligations under multilateral treaties seriously. The Home
Secretary, on the other hand, argues that those concerned about
human rights "ought to welcome our conclusion of memoranda
of understanding with these countries because what will happen
as a result of this is a much stronger relationship on precisely
the human rights agenda which is concerned.""
Amendment proposed, in line 8, to leave out the word
"substantial" and insert the word "real".—(Dr
Evan Harris.)
Question proposed, That the Amendment be made:—
Amendment, by leave, withdrawn.
Paragraph agreed to.
Paragraphs 111 to 139 (now paragraphs 123 to 151)
read and agreed to.
Paragraph 140 (now paragraph 152) read, amended and
agreed to.
Paragraphs 141 to 150 (now paragraphs 153 to 162)
read and agreed to.
Paragraph 151 (now paragraph 163) read.
Question put, that the paragraph stand part of the
Report.
The Committee divided.
|
Content, 5
Lord Bowness
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraph 152 (now paragraph 164) read.
Question put, that the paragraph stand part of the Report.
The Committee divided.
|
Content, 5
Lord Bowness
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
| Not Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraphs 153 to 157 (now paragraphs 165 to 169) read and agreed
to.
Paragraph 158 (now paragraph 170) read, as follows:
". This leaves as the main issue whether the
power to deprive of a right of abode contains sufficient guarantees
against arbitrariness in light of, first, the sheer breadth of
the concept of "conducive to the public good" and, second,
the relatively low threshold which it sets for the exercise of
a power of deprivation which has very serious consequences for
the individual concerned. We consider that the legal
uncertainty caused by the width of the current definition of unacceptable
behaviours means that there are not at present sufficient guarantees
against arbitrariness in the exercise of the power to deprive
of a right of abode, but if the list were cured of legal uncertainty
by more precise definition of the behaviours concerned, the availability
of a full right of appeal in relation to this power would provide
a sufficient guarantee."
Amendment proposed, in line 5, after the word "that"
to insert the words "(i) the same problems with the significant
reduction in the threshold referred to in relation to clause 52
powers (set out in paragraphs 161 and 164) apply to the use of
this power and that (ii)" —(Dr Evan Harris.)
Question put, That the Amendment be made.
The Committee divided.
|
Content, 6
Lord Bowness
Mary Creagh MP
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
| Not Content, 2
Mr Andrew Dismore MP
Dan Norris MP
|
Other Amendments made.
Question put, That the paragraph, as amended, stand part of the
Report.
The Committee divided.
|
Content, 6
Lord Bowness
Mary Creagh MP
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
| Not Content, 2
Mr Andrew Dismore MP
Dan Norris MP
|
Paragraphs 159 to 164 (now paragraphs 171 to 176) read and agreed
to.
Paragraph 165 (now paragraph 177) read, as follows:
". The second way in which the new clause would
significantly widen the scope of the exclusion from protection
in Article 1F(c) is by its inclusion of the phrase "whether
or not the acts amount to an actual or inchoate offence."
The effect of these words is to make the applicability of the
exclusion from asylum wider than the actual commission of terrorist
offences. Again this is the Government's explicit intention. The
scope of the exclusion from asylum is intended to be wider than
the new encouragement offence in clause 1 of the Terrorism Bill,
and to include the "unacceptable behaviours" in the
Home Secretary's published list which include behaviours which
are not criminal offences. That this is he Government's intention
was made clear in the letter from the Home Secretary dated 15
September 2005 and it was confirmed by the Minister in Committee.
The new clause would therefore operate to exclude from asylum
individuals who have not committed any terrorist crime under UK
law."
Amendment made.
Another Amendment proposed, in line 10, to leave
out from the word "Committee." to the end of line 12.—(The
Chairman.)
Question put, That the Amendment be made.
The Committee divided.
Content, 2
Mr Andrew Dismore MP
Dan Norris MP
| Not Content, 6
Lord Bowness
Mary Creagh MP
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
|
Paragraph, as amended, agreed to.
Paragraph 166 (now paragraph 178) read, as follows:
". Guidance on the proper interpretation of
Article 1F(c) is available from the United Nations High Commission
for Refugees, which is responsible for supervising the application
of the provisions of the Refugee Convention. The most up to date
guidance on from the UNHCR in relation to Article 1F is to be
found in its Guidelines on International Protection: Application
of the Exclusion Clauses: Article 1F of the 1951 Convention relating
to the Status of Refugees. Those Guidelines state that, given
the possible serious consequences of exclusion from refugee status,
the exclusion clauses in Article 1F should always be interpreted
restrictively and used with great caution, and only after a full
assessment of all the individual circumstances of the case. In
relation to Article 1F( c), the Guidelines say that it should
be read narrowly: it is "only triggered in extreme circumstances
by activity which attacks the very basis of the international
community's coexistence. Such activity must have an international
dimension. Crimes capable of affecting international peace, security
and peaceful relations between States, as well as serious and
sustained violations of human rights, would fall under this category."
To redefine the scope of the Article 1F(c) exclusion so as to
catch anyone who has threatened damage to property as a means
to political change anywhere in the world, and anyone who in the
Secretary of State's view has engaged in one of the unacceptable
behaviours such as "justifying" terrorism, is in our
view to broaden the scope of the exclusion in Article 1F( c) in
a way which is not itself compatible with the Refugee Convention."
Amendment proposed, in line 18, to leave out from
"1F(c)" to the end of line 19.—(The Chairman.)
Question put, That the Amendment be made.
The Committee divided.
|
Content, 2
Mr Andrew Dismore MP
Dan Norris MP
| Not Content, 6
Lord Bowness
Mary Creagh MP
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
|
Paragraph, as amended, agreed to.
Paragraph 167 (now paragraph 179) read, as follows:
". In order to be compatible with the Refugee
Convention, and to give effect to the Government's stated purpose
of merely making explicit what Article 1F( c) implicitly requires,
the clause would need to be amended to decouple it from both the
broad definition of "terrorism" in s.1 of the Terrorism
Act 2000 and the published list of unacceptable behaviours in
its present form. The Minister has helpfully indicated the Government's
preparedness to keep the drafting of the clause under review in
light of debates on the Terrorism Bill. Compatibility could in
our view be achieved by a combination of a narrower definition
of terrorism and confining the scope of the exclusion to existing
terrorist offences including, if it is satisfactorily defined
in its enacted form, the proposed new offence of encouragement."
Amendment made.
Another Amendment proposed, in line 9, to leave out
from the word "to" to the end of line 10 and
insert the words "terrorist offences under UK law".
—(The Chairman.)
Question put, That the Amendment be made.
The Committee divided.
|
Content, 3
Mary Creagh MP
Mr Andrew Dismore MP
Dan Norris MP
| Not Content, 5
Lord Bowness
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
|
Another Amendment made.
Paragraph, as amended, agreed to.
Paragraphs 168 and 169 (now paragraphs 180 and 181)
read and agreed to.
Paragraph 170 (now paragraph 182) read, amended,
and agreed to.
Paragraphs 171 and 172 (now paragraphs 183 and 184)
read and agreed to.
Paragraph 173 (now paragraph 185) read, as follows:
". We consider that the failure of the new
clause to preserve an in-country appeal on asylum grounds, as
well as on human rights grounds, gives rise to a risk of incompatibility
with the Refugee Convention. The problem with the Minister's argument
that an in-country asylum appeal would certainly fail because
national security risks are excluded from protection is that it
presupposes the correctness of the Secretary of State's certificate
that the person is a national security threat. The effect of the
new clause is that there is no mechanism for independent review
of that assertion by an asylum seeker before his or her removal.
In order to be compatible with the Refugee Convention, we consider
that the new clause ought to preserve in-country appeals on asylum
grounds as well as human rights grounds."
Amendment proposed, in line 2, after the word "a"
to insert the word "significant". —(Dr
Evan Harris.)
Question proposed, That the Amendment be made:—
Amendment, by leave, withdrawn.
Paragraph agreed to.
Motion made, and Question put, That the Report, as
amended, be the Third Report of the Committee to each House. —(The
Chairman.)
The Committee divided.
|
Content, 6
Lord Bowness
Mary Creagh MP
Dr Evan Harris MP
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
| Not Content, 2
Mr Andrew Dismore MP
Dan Norris MP
|
Several Papers were ordered to be appended to the Report.
Ordered, That the Chairman
do make the Report to the House of Commons and Baroness Stern
do make the Report to the House of Lords.
[Adjourned till Wednesday 7 December at 2pm.
| 
