My Lords, this debate is clearly overshadowed by the horrific and terrible events in Tunisia, France and Kuwait last week. I, too, express my condolences to those who lost loved ones. I would certainly not wish to imply that anyone who raises the issues that we have been discussing is in any way soft on terrorists.
Rather than rehearse all the arguments about this clause, let me address directly the point about the so-called chilling effect that some have spoken of. I recognise fully that this is a concern for some charities operating in some of the most difficult parts of the world. I will come on to explain why I disagree with the need for carve-outs. My belief is that we need to develop a clear understanding of NGOs’ concerns and see examples of where difficulties occur. We also need to avoid seeing the Bill as a means to tamper with or revise counterterrorist legislation itself—not that any of your Lordships have suggested that, but it is worth bearing in mind.
The noble Lord, Lord Watson, asked what I have been doing about this since Second Reading. I assure him that I have not been totally idle. I have been turning over the stones and seeing what is going on, and it is clear that there is a considerable amount of activity within government. I will not bore the noble Lord with a long laundry list but several government departments and other bodies, including the Home Office, the Treasury, DfID, the Charity Commission and the Cabinet Office, have been engaging with NGOs to understand their concerns and to ensure wherever possible that their concerns are properly covered by and in guidance. In 2014-15, for example, the commission engaged with more than 100 charities that operate internationally, and it regularly meets the Disasters Emergency Committee.
In many cases, there is already detailed guidance dealing with the points that have been raised, although I fully accept it may well be the case that better signposting, better explanation and more discussion are needed. The Charity Commission has produced and published a range of specific guidance for charities on managing the risks of operating overseas and on the abuse of charities for terrorist purposes. This includes the risks of links to or association with terrorist activity or abuse. This guidance is published on the commission’s website and includes the requirements for charities under UK counterterrorism legislation and charity law.
What I am taking from this debate is that we need to have more communication with these charities in a more targeted way. The Government’s assessment is that neither existing terrorism legislation nor other legislation prevents organisations, including charities and NGOs, operating in the UK or overseas. The legislative framework is deliberately drawn widely to capture the ever-diversifying nature of the terrorist threat faced. The chances of prosecution of an individual for a terrorism-related offence as a result of their
involvement in legitimate humanitarian efforts are considered to be low, as was referred to a moment ago, although this can be determined only on a case-by-case basis and on the particular circumstances of each case.
It is not possible to provide assurances to the charitable sector or to those engaged in humanitarian efforts about possible prosecutions, as doing so might obviously fetter the discretion of the Crown Prosecution Service. Equally, doing so could create a loophole that could be exploited by the unscrupulous. In the interests of fairness, every case must be treated on an individual basis by the independent prosecution authorities, subject to the evidence available and their judgment on whether it is in the public interest to proceed with a case.
There has been one recent case involving a charity and connected individuals being investigated on suspicion of breaching UK counterterrorism legislation. The alleged offence related to the charity’s humanitarian efforts in Somalia. The normal police and prosecution decision-making processes were followed, and the Attorney-General accepted the CPS’s recommendation that prosecution in this instance was not in the public interest. Therefore it did not proceed. Furthermore, the Government do not consider it necessary for there to be a carve-out or exemption for charities because there is no evidence of a significant number of prosecutions against them, which suggests that the protections already in place are adequate. For example, the public interest test, as set out in the Code for Crown Prosecutors, sets out the factors considered when prosecution is appropriate.
Some have argued that the disqualification provision should not apply to people designated under terrorist-asset freezing legislation, as this is not a criminal offence and is not subject to the same standard of proof. I disagree. The Terrorist Asset-Freezing etc. Act provides the Treasury with powers to freeze the funds and economic resources of those suspected of, or believed to be involved in, terrorist activities and restricts the making available of funds, financial services and economic resources to or for the benefit of such persons. These are highly targeted measures. The latest consolidated list of those designated under the UK’s terrorist asset-freezing legislation contains 23 individuals. Furthermore, if the case is serious enough to designate an individual under this legislation, it is impossible to see how such a person could be considered fit to serve as a charity trustee or manager. It would be an absurd position for an individual to have their own funds frozen but to be in a position to fundraise for a charity or to control a charity’s funds or activities. Nevertheless, as a safeguard, a person who was disqualified by virtue of designation would be entitled to apply to the Charity Commission for a waiver from disqualification, and the commission’s decision would be appealable to the Charity Tribunal.