Contribution
My Lords, despite having some hesitation about it, we are broadly support of Amendment 371A from the noble Lord, Lord Walney. The concept of the new category of extreme criminal protest groups that are not proscribed has real merit and is plainly an attempt to plug an uncomfortable gap. We agree with the noble Lord, Lord Walney, and the noble and learned Lord, Lord Goldsmith, that unlawfulness is at the heart of this amendment. The amendment states that the group must have
“as its purpose and practice the deliberate commission of”
one of a series of serious offences, and that
“such offences are carried out with the intention of influencing public policy, parliamentary debate, ministerial decision-making, or the exercise of democratic functions”,
and that,
“the activities … create a risk of serious harm to public safety, democratic institutions, or the rights of others”.
Those provisions make it clear that extreme criminal protest groups are well named. The provisions as a whole would also make it clear, however, that it is not appropriate for proscription of those groups whereby any support for the groups is made a criminal offence under the Terrorism Act.
If the amendment would avoid the prosecution of peaceful protesters for peaceable support of groups that could be branded terrorist under the Terrorist Act, we could support it unconditionally because there would then be a hierarchy of offences. At the top of the tree would be offences under the Terrorism Act, and then the treatment of groups which qualified as extreme criminal protest groups under the Walney amendment. But the Government have not committed and would not commit—and I do not suppose they will at this stage commit—to end prosecutions for peaceable protesters under the Terrorism Act. That may change after the Macdonald review, or it may change if the Government’s appeal against the High Court’s decision in relation to Palestine Action is unsuccessful. However, our position is that it would be helpful to have a middle course, as the noble Lord, Lord Hogan-Howe, pointed out in very sensible terms. The noble Baroness, Lady Fox, articulated the same point very well, but in a different way.
The problem we see with the amendment is that it does not affect the Terrorism Act, and there would remain the potential for prosecution of peaceful protesters under that Act as the law stands. So we have decided, with some hesitation, that it is probably sensible to await the Macdonald review. I accept that I am making that point in the face of the argument made by the noble Lord, Lord Pannick, that we should not be asking for any legislation along the lines of the Walney amendment to wait at all. Of course, there is the problem that not accepting this amendment would leave us with the limited choice of the Terrorism Act or nothing, and that is a very unfortunate position to be in.
We have some concerns about the drafting of the amendment, and they are not minimal. Under proposed subsection (3)(b),
“promotion of a designated ECPG, including public advocacy, recruitment, or dissemination of the group’s materials”
would be an offence. Would subsection (3)(b) cover handing out leaflets or carrying posters or flags in a peaceable way? In proposed subsection (3)(e),
“providing material support, training, funds or equipment to the group where the person knows or ought reasonably to know that the recipient is a designated ECPG”
suggests that the level of knowledge required is very low. What is material support? What would count as equipment? Would posters, flags or banners count as equipment? It would be considerably worrying if the answer to those questions was positive.
In sum, we are broadly supportive and believe that there should be a middle category, but we are concerned about the amendment as it stands. The Government should be seriously considering their position between now and Third Reading; they should listen to the very strong feeling in the House that something is needed in the way of a middle course that would prevent these prosecutions for peaceable protest and support under the Terrorism Act. They should then come back to the House at Third Reading with an amendment that could answer the criticisms and gain widespread support.
Finally, we have considerable sympathy with Amendment 419 in the name of the noble Lord, Lord Goodman, which calls for the publication of a counterextremism strategy.