The Minister of State, Home Office (Lord Hanson of Flint) (Lab)

I am grateful to the noble Lord, Lord Alton, and the noble Baroness, Lady Hamwee, for tabling their amendments. They have stimulated a discussion on important points that the Committee needs to consider. I am also grateful to noble Lords for attending this debate when such powerful alternative options are available not 200 metres away—I will use metres instead of my normal yards—where the President of the Republic is addressing both Houses of Parliament. The noble Lord, Lord German, tempts me to discuss what the President of the Republic is currently saying. Our relationship is very strong. There are a number of issues on which we are expected to make positive statements in the next couple of days, and we are working very closely on re-intensifying our activities on the northern coast. I will allow further discussions to take place prior to any announcements from this Dispatch Box about the outcome of any discussions between the Prime Minister, the Government and the President of the Republic. I am sure that we will return to those points when the discussions have taken place in a positive framework—as they will. I start by saying to the noble Lord, Lord Alton, that I welcome the JCHR report that was published on 20 June and thank the JCHR for its work. As the noble Lord knows, I have given commitments that the Government will respond in due course. It is worth putting on the record that all measures in this Bill are considered to be compliant with the UK’s human rights obligations, including the European Convention on Human Rights, and that the Government are fully committed to human rights at home and abroad. As my right honourable friend the Prime Minister has made clear, the United Kingdom is unequivocally committed to the European Convention on Human Rights. We will respond to those issues in due course, but I wanted to set that out at the beginning, because it is important and part of the framework that the noble Lord has brought forward. I am grateful to the noble Lord for moving his amendment. He started by giving a couple of caveats. Like him, I am a product of a council estate and proud of it, and like him, Latin passed me by at my comprehensive school—I think some people did it, but it passed me by. That does not mean that we cannot address the substance of the points that the noble Lord and the noble Baroness have made. These important issues deserve full merit and consideration. Amendments 31 and 41, on changing the mens rea in Clauses 13 and 14 from “knows or suspects that” to “intends that, or is reckless as to whether”, follow the findings from the JCHR. Those findings have unanimous support, and we will return to them in due course. In bringing those amendments forward, the CT-style power is now more in line with the counterterror legislation, which is what the noble Lord is intending. Reasonable suspicion is the same threshold as for the offence in Sections 57 and 58 of the Terrorism Act 2000. In fact, Section 57 does not have a “reasonable excuse” defence; instead, a person must show that “his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism”. The Section 57 and 58 offences contain no more safeguards when compared with the offences in Clauses 13 and 14. The mens rea of the current drafting of the clause is designed to enable law enforcement to act earlier and faster to disrupt these criminal smuggling gangs—the very point that the noble Lord, Lord Harper, has alluded to. Day in, day out, these ruthless people smugglers put vulnerable people on boats in the channel or into the back of refrigerated lorries, not caring if they live or die. As the noble Lord, Lord Jackson of Peterborough, mentioned, people have died as a result. Changing the mens rea to require law enforcement to show intention or recklessness would place undue pressure on those on the front line of tackling organised immigration crime and would slow down the response to stopping these evil criminals undertaking their actions. It is right that we do whatever we can to support law enforcement in tackling these criminals at the earliest possible stages of criminality. For that reason, disappointing as I know it will be to the noble Lord, I cannot accept the amendments. Amendments 32, 42 and 53 seek to change the mens rea for these offences from suspicion to belief. For the supplying and handling of articles and collection of information offences, amending this threshold would significantly raise the bar for enforcement. That is a point made by His Majesty’s Opposition Front Bench, along with the noble Lords, Lord Jackson of Peterborough, Lord Harper and Lord Green of Deddington. I find myself on occasion in company that I am not normally in, but it is right that, if noble Lords are right and make a sensible case, that support is welcome—as it is on this occasion. A “suspicion” threshold allows for earlier, preventive action, which is a core feature of the legislation. It is designed to enable authorities to disrupt organised crime at the preparatory stage, while still requiring a proper investigation into an individual’s activity, and not in any way damaging a defence’s ability to put up a defence to the prosecution’s case in due course. The shift from suspicion to belief would narrow the scope of these clauses, undermine their preventive purpose, reduce the chance of successful prosecutions and place a greater strain on investigative resources in the first place. It is important to note that the “knows or suspects” threshold is not novel. It is well established in UK criminal law, especially in regimes aimed at early intervention. For example, under Section 330 of the Proceeds of Crime Act 2002, professionals commit an offence if they “know or suspect that another person is engaged in money laundering” and fail to make a disclosure. Similarly, Section 19 of the Terrorism Act 2000 criminalises failure to disclose information where someone “believes or suspects” it might be useful to prevent terrorism. In both the Proceeds of Crime Act and the anti-terror legislation, the mental thresholds are designed to trigger preventive action and have been consistently upheld in the courts as proportionate and compatible with Article 6 and Article 7 of the ECHR. I go back to the point that the noble Lord, Lord Harper, mentioned: namely, that the offences in the Bill serve a preventive purpose. They are not about punishing people after harm has occurred but are instead about stopping harm happening at all. I will also speak to the concerns that the current offences might criminalise those who are acting innocently or for humanitarian reasons. Each of the relevant clauses includes the reasonable excuse defence, which is non-exhaustive and allows courts to consider the full context of the person’s action. Any good defence would bring forward those defences if, again, the thresholds were passed by the police and the CPS for bringing prosecutions under any legislation that was ultimately passed by both Houses.